While it looks like we are moving toward an interesting showdown over Sen. Gillibrand’s Military Justice Improvement Act, we should not lose sight of the fact that her main opponent, Sen. McCaskill has a competing bill floating out there. S. 1917 provides some additional tweaks to the military justice reforms that were passed in the FY14 NDAA. There are several interesting proposals not the least of which is this one:

(a) Additional duty of Special Victims’ Counsel

In addition to any duties authorized by section 1044e of title 10, United States Code (as added by section 1716 of the National Defense Authorization Act for Fiscal Year 2014), a Special Victims’ Counsel designated under subsection (a) of such section 1044e shall provide advice to victims of sexual assault on the advantages and disadvantages of prosecution of the offense concerned by court-martial or by a civilian court with jurisdiction over the offense before such victims express their preference as to the prosecution of the offense under subsection (b).

(b) Consultation with victims regarding preference in prosecution of certain sexual offenses

(1) In general

The Secretaries of the military departments shall each establish a process to ensure consultation with the victim of a covered sexual offense that occurs in the United States with respect to the victim’s preference as to whether the offense should be prosecuted by court-martial or by a civilian court with jurisdiction over the offense.
(2) Weight afforded preference

The preference expressed by a victim under paragraph (1) with respect to the prosecution of an offense, while not binding, should be afforded great weight in the determination whether to prosecute the offense by court-martial or by a civilian court.

(3) Notice to victim of lack of civilian criminal prosecution after preference for such prosecution

In the event a victim expresses a preference under paragraph (1) in favor of prosecution of an offence by civilian court and the civilian authorities determine to decline prosecution, or defer to prosecution by court-martial, the victim shall be promptly notified of that determination.

This is interesting for several reasons. First, it made me go back and check the text of the new Article 6b, UCMJ. In doing so, I found an omission I had overlooked when compared with 18 U.S.C. 3771, the Crime Victim’s Rights Act (CVRA). As Zach observed, the new Article 6b seems based in large part on the CVRA. While the CVRA and Article 6b afford crime victims the same rights, the CVRA provides that:

Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.

That phrase, or its military approximate, appears nowhere in Article 6b. Judging from the proposal in S.1917, it seems that the intent of some in the Senate is to subject prosecutorial discretion in the military to the wishes of the victim, even if his or her wishes are not binding.

This brings me to my second point. While it seems clear “who” is a victim under the text of Article 6b and 18 U.S.C. 3771, it’s less clear “when” a person becomes a victim for the purpose of the statutes. The DOJ’s Office of Legal Counsel addressed this issue in an opinion, and determined that the rights under the CVRA attached only after a complaint, information, or indictment was filed.

Nevertheless, the definition’s requirement that a crime victim be harmed as a result of the commission of a Federal “offense” naturally suggests that a person’s status as a “crime victim” can only be determined after there has been a formal decision to charge a defendant with a particular Federal offense. Under this reading, the earliest that a “crime victim” under the Act could be identified would be upon the filing of a criminal complaint—that is, at the earliest point at which there is a sworn written statement of probable cause to believe that a particular defendant committed an identified Federal offense, see Fed. R. Crim. P. 4, and hence the first point at which it is possible with any certainty to identify a “crime victim” directly and proximately harmed by the commission of that offense.

In other words, if there is no criminal proceeding ongoing (i.e. something more than an investigation) then there is no “victim” of a crime. In the military context, I think we would set the initiation of criminal proceedings at the preferral of charges. Prior to that, there is no criminal case against the accused. Against this backdrop, the proposal in S. 1917 seems quite strange. How could a “victim” express his or her desires concerning the venue in which a case is prosecuted if there is no existing prosecution giving him or her status as a “victim?” Good luck wrapping your head around that one.

As a side note, this interpretation of when a “victim” becomes a victim has implications for his or her ability to consult with the prosecutor. From the OLC opinion:

Similarly, the wording of the CVRA’s “reasonable right to confer with the attorney for the Government in the case,” 18 U.S.C. § 3771(a)(5), suggests that the right is intended to apply only once the Government has initiated criminal proceedings. The phrase “in the case” implies the pendency of a judicial proceeding.
Thus, to the extent any rights (discovery, etc.) derive from a “consultation” right with the Government, none of that should apply under the OLC interpretation until after initiation of a criminal action. Going forward, it will be interesting to see whether the CAAF and service courts of  appeal go a different direction from the Federal courts of appeal in construing the statutory scheme. There’s certainly reason to believe that they could.

6 Responses to “MILJUS Legislation Watch: An Interesting Provision in S. 1917”

  1. RKincaid3 says:

    Good grief…

  2. John O'Connor says:

    I don’t get subsection (b)(3).  If the civilians decline to prosecute,  “the victim shall be promptly notified of that determination.”  By whom?  Generally, the civilian authority will be the state, and we all know from Con Law that Congress doesn;t have the power to commandeer state officials.  I guess the idea is that the SVC might find out and then has a duty to tell the victim? 

  3. k fischer says:

    J O’C, 
     
    Good point.  What happens when the military states it will not prosecute, then the civilians take over and then they decide they will not prosecute?  Does the SVP have a duty to continue monitoring the case once charges are dismissed or not ever brought by the military, so they can communicate on behalf of the civilian DA that charges will not be brought?  Seems like an SVP could do that since they should have a working relationship with the civilians, but it seems like a lot of hand holding, unless you sent a simple letter to the victim and didn’t speak to them. 

  4. phil cave says:

    A bit of nonsense that sounds like Congress is doing something.
    So, SJA to CA/DA.
    We have this case, and the “victim” would like you to prosecute.
    Time passes.
    CA/DA to SJA, thanks for letting us look at this piece of dog do do, there’s no way there’s probable cause, I ain’t touching it with a barge pole.
    SJA to “victim” the CA/DA would prefer we handle the case, now what?
    “Victim” to SJA, no you don’t get it, I don’t trust you Guys.  I want the civilians to handle it.
    More Alphonse and Gaston?

  5. RKincaid3 says:

    Ridiculous.  All of you are on point.  And why isn’t Congress reading CAAFlog?  Oh, yeah, they don’t want first hand info on the obvious absurdities in their legislation.
     
    Congress is the problem because Congress won’t make the necessary changes to the UCMJ. 
     
    Instead, they do nothing in the form of a lot of grandstanding and tweaking, making the system worse, and then expecting changes to take place while asking for re-election.

  6. Zachary D Spilman says:

    Good stuff Sam, and the OLC memo is a good find. I wonder how, or where, this will get litigated.

    Before preferral there is no accused and there is no case. There may be a suspect, but so what (nowadays it seems like we’re all suspects). Even if an alleged victim were to have some sort of standing to bring a suit, identifying the respondent and the forum is problematic. 

    After preferral there’s an accused but there is no court-martial. So, no military appellate jurisdiction. And the same standing, party, and forum issues remain. But looking past those for a moment and assuming a federal court doesn’t summarily dismiss a complaint, such a collateral challenge to a command decision will face immediate hurdles in the requirement to exhaust administrative alternatives (Article 138 complaints, request mast (in the Navy), etc.), nevermind the deference given to military leaders.

    After referral and arraignment, we’re past the point of analysis.

    You write:

    Judging from the proposal in S.1917, it seems that the intent of some in the Senate is to subject prosecutorial discretion in the military to the wishes of the victim, even if his or her wishes are not binding.

    I don’t agree. The legislation could be read to create broad new legal rights for alleged victims, but (as you note) there is no enforcement mechanism (other than the political process and the press, of course). Under the circumstances, I think the only fair reading of this proposal is that it’s a statement of principles, not a grant of substantive rights. 

    Considering factors such as the VWAP program, the fact that consideration of the alleged victim’s preference is nothing new in American law, and the impression (badly mistaken, I think, but facts often take a back seat in politics) that military leadership isn’t receptive to the needs of alleged victims, this proposal doesn’t phase me in the slightest. 

    But if I’m a military prosecutor – perhaps a senior leader who is supervisory counsel for trial counsel worldwide – I’m very concerned. Congress has pushed deep into an area that is generally subsumed entirely within the notion of “prosecutorial discretion,” and it’s creating a thick layer of bureaucracy that is largely redundant with the VWAP program and with things that military prosecutors are – or at least better be – doing already. Consider paragraph (b)(1) of the proposal:

    The Secretaries of the military departments shall each establish a process to ensure consultation with the victim of a covered sexual offense that occurs in the United States with respect to the victim’s preference as to whether the offense should be prosecuted by court-martial or by a civilian court with jurisdiction over the offense.

    The notion that this consultation doesn’t already occur is… disturbing. I was a prosecutor, and the venue discussion was a recurring theme with alleged victims and with commanders. Heck, I’ve had the exact same discussions as a defense counsel. Talking to people about the law and then using the results of those conversations to a client’s benefit is the definition of litigation. 

    But the practical reality is that Congress has the power to withhold promotions, assignments, and money, and it has demonstrated that it is not afraid to do so (in the case of Lieutenant General Helms, for example, discussed in our #5 story of 2013). So far, many have complained that this power is being used to punish decisions that were defense-friendly, raising legitimate fears that this will create unfairness in future cases. I think it’s obvious that I share those fears.

    But it’s worth mentioning that there are no defense counsel, or accused service members, in this uncomfortable image: