CAAFlog » Article 6b

In J.M. v. Payton-O’Brien and Ravenscraft, __ M.J. __, No. 201700133 (N-M. Ct. Crim. App. Jun 28, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA grants an alleged victim’s Article 6b petition for a writ of mandamus and reverses the military judge’s ruling that ordered disclosure of portions of her mental health records to the defense.

The military judge’s ruling was based on “the now-excised, constitutional[ly-required] exception to the psychotherapist-patient privilege,” Mil. R. Evid. 513. Slip op. at 2. The CCA rejects application of this former exception, concluding that an order for production or release of privileged records must be based on an actual, enumerated exception to the rule. However, the CCA finds that the military judge may take other actions to protect an accused’s constitutional rights.

Writing for the panel, Judge Jones explains that:

a military judge may not order production or release of MIL. R. EVID. 513 privileged communications when the privilege is asserted by the holder of the privilege unless the requested information falls under one of the enumerated exceptions to the privilege listed in MIL. R. EVID. 513(d). However, when the failure to produce said information for review or release would violate the Constitution, military judges may craft such remedies as are required to guarantee a meaningful opportunity to present a complete defense.

Slip op. at 2. Such other remedies could include an order to:

(1) strike or preclude all or part of the witness’s testimony;

(2) dismiss any charge or charges, with or without prejudice;

(3) abate the proceedings permanently, or for a time certain to give the witness an opportunity to reconsider; or

(4) declare a mistrial.

Slip op. at 15 (paragraphing added).

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CAAF decided the Coast Guard case of Randolph v. HV and United States, 76 M.J. 27, No. 16-0678/CG (CAAFlog case page) (link to slip op.), involving a writ-appeal filed by an accused, on Wednesday, February 2, 2017. Sharply divided, the court narrowly concludes that it does not have jurisdiction to review an interlocutory decision by a Court of Criminal Appeals rendered under the victim-focused Article 6b when the accused seeks such review and regardless of how the accused seeks such review. Accordingly, a three-judge majority dismisses the writ-appeal petition.

Judge Stucky writes for the court, joined by Judges Ryan and Ohlson. Judge Ryan also writes a separate concurring opinion. Chief Judge Erdmann dissents, joined by Judge Sparks who also files a separate dissenting opinion.

The writ-appeal challenged the decision of the Coast Guard CCA that significantly expanded the scope of Mil. R. Evid. 513 (the psychotherapist-patient privilege). The CCA’s decision (discussed here) was made on an Article 6b petition for mandamus filed by HV, who is the alleged victim in a case against the petitioner, Coast Guard Damage Controlman Second Class (E-5) Randolph. Article 6b – our #6 Military Justice Story of 2016 – is known as the Military Crime Victims’ Rights Act, because its provisions generally mirror those of the federal Crime Victims’ Rights Act, 18 U.S.C. § 3771. Among those provisions is one allowing an alleged victim to appeal a trial-stage ruling that affects the victim’s rights, and HV used that provision to win additional protections from the CCA for her mental health records.

Randolph appealed the CCA’s decision to CAAF (discussed here). CAAF agreed to hear the appeal and replaced the military judge as a party with the United States (discussed here). However, the court also specified an issue that questions whether it has jurisdiction to consider the appeal in its current form:

I. Whether the United States Court Of Appeals for the Armed Forces has jurisdiction over a writ-appeal petition filed by an accused who is seeking review of a court of criminal appeals’ decision rendered pursuant to Article 6b(e), UCMJ.

II. Whether the “confidential communications” protected by MRE 513 includes records of diagnosis.

Implicit in the specified issue was the fact that last year, in EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page), a unanimous CAAF found that it has no jurisdiction under Article 6b to entertain a writ-appeal by an alleged victim. In Randolph, CAAF wondered if an accused is similarly deprived of the opportunity for review.

Judge Stucky answer this question in the affirmative, concluding that:

the same analysis applies to Appellant’s petition. Article 6b expressly provides that enumerated victims’ rights can be enforced through a writ of mandamus obtained at a Court of Criminal Appeals. There is no mention of additional appellate rights for the accused, or of a grant of jurisdiction to this Court. Accordingly, we lack jurisdiction to consider Appellant’s petition.

Slip op. at 4 (citations omitted). A footnote adds this bit of rhetoric:

it makes no sense to allow the accused to utilize Article 6b, a victim’s statute, to go where the victim may not.

Slip op. at 6 n.2.

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Many call Article 6b of the UCMJ the Military Crime Victims’ Rights Act, because its provisions generally mirror those of the federal Crime Victims’ Rights Act, 18 U.S.C. § 3771.

Enacted as part of the 2013 changes to the UCMJ, and then modified the following year, the scope and reach of Article 6b is still somewhat unsettled. While not limited to alleged victims of sex crimes, Article 6b is most often invoked in such cases because Congress mandated creation of Special Victims’ Counsel programs in 10 U.S.C. § 1044e and the statute only makes those services available to “the victim of an alleged sex related offense.” Those counsel are authorized to assist alleged victims in a far-reaching set of circumstances, and they have brought a measure of chaos to courts-martial by demanding discovery, filing motions, and occasionally even sitting at a third table during proceedings while avoiding the requirements placed on actual parties to the case.

But 2016 brought some clarity to Article 6b.

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Today CAAF will hear oral argument on the writ-appeal petition filed by an accused, in Randolph v. HV. and United States, No. 16-0678/CG (CAAFlog case page).

The case challenges the decision of the Coast Guard CCA that significantly expanded the scope of Mil. R. Evid. 513 (the psychotherapist-patient privilege). The CCA’s decision (discussed here) was made on a petition for mandamus filed by HV, who is the alleged victim in a case against Coast Guard Damage Controlman Second Class (E-5) Randolph. The accused appealed the CCA’s decision to CAAF (discussed here). CAAF agreed to hear the appeal and replaced the military judge as a party with the United States (discussed here). However, the court also specified an issue that questions whether it has jurisdiction to consider the appeal in its current form:

I. Whether the United States Court Of Appeals for the Armed Forces has jurisdiction over a writ-appeal petition filed by an accused who is seeking review of a court of criminal appeals’ decision rendered pursuant to Article 6b(e), UCMJ.

II. Whether the “confidential commuincations” protected by MRE 513 includes records of diagnosis.

Notably, CAAF refused to consider Randolph’s contention that Article 6b only allows a CCA to review application of an alleged victim’s procedural rights and not substantive rulings. See Pet. Br. at 6-9.

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Earlier this year, in the Marine Corps case of EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page), CAAF determined that it lacks jurisdiction to entertain a writ-appeal by an alleged victim who sought to reverse a military judge’s order for disclosure of portions of her mental health records. Article 6b(e) gives an alleged victim the right to petition a court of criminal appeals for mandamus to enforce various protections, but CAAF determined that the review ends at the CCA.

Subsequently, in  H.V. v. Commander Kitchen, Military Judge, and Randolph, Real Party in Interest, 75 M.J. 717, Misc. Docket No. 001-16 (C.G. Ct. Crim. App. Jul. 8, 2016) (discussed here), the Coast Guard CCA expanded Mil. R. Evid. 513 (the psychotherapist-patient privilege) to also include the psychotherapist’s conclusions (diagnoses) and resulting treatments. The Coast Guard court’s decision was issued under Article 6b(e), and I noted CAAF’s limited jurisdiction at the time, writing:

Another interesting twist is CAAF’s limited jurisdiction to review this decision. CAAF just recently determined that it does not have jurisdiction over Article 6b petitions. See EV v. United States & Martinez, __ M.J. __ (C.A.A.F. Jun. 21, 2016) (CAAFlog case page). However, the accused could seek a writ himself challenging the military judge’s application of the CCA’s decision, and that writ could even be sought directly from CAAF. See CAAF R. 4(b). Alternatively, the military judge could apply the CCA’s decision, the accused could be convicted, and CAAF could review the decision in the ordinary course of appeal. Cf. United States v. Cote, 72 M.J. 41 (C.A.A.F. 2013) (CAAFlog case page) (CAAF declined an interlocutory challenge to the AFCCA’s reversal of a military judge’s suppression ruling, but then reinstated the suppression ruling on appeal after conviction).

The accused, however, didn’t file an original writ. Rather, he filed a writ-appeal with CAAF (petition discussed here).

Last Friday, CAAF ordered briefs on the question of whether it has jurisdiction to review the accused’s appeal:

No. 16-0678/CG. Thomas J. Randolph, Appellant v. HV., Appellee and United States, Respondent. CCA 001-16. On further consideration of the writ-appeal petition from the decision of the United States Coast Guard Court of Criminal Appeals rendered pursuant to Article 6b, Uniform Code of Military Justice, it is ordered that the Appellant and Appellee submit briefs on the following specified issue:

WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION OVER A WRIT-APPEAL PETITION FILED BY AN ACCUSED WHO IS SEEKING REVIEW OF A COURT OF CRIMINAL APPEALS’ DECISION RENDERED PURSUANT TO ARTICLE 6b(e), UCMJ.

It is further ordered that the United States be substituted for the military judge as a party respondent, that the United States submit a brief on Issue II in the writ-appeal petition and on the issue specified in this Order, that the Appellate Government and Appellate Defense Divisions of the Army, Navy-Marine Corps and Air Force are invited to submit amicus curiae briefs on the issue specified in this Order, that all briefs mentioned in this Order be filed on or before September 30, 2016, and that oral argument will be heard on October 11, 2016, as previously scheduled. Appellant, Appellee, and the United States will each be allotted 20 minutes to present oral argument.

Yesterday CAAF was asked to review the Coast Guard CCA’s decision in H.V. v. Commander Kitchen, Military Judge, and Randolph, Real Party in Interest, 75 M.J. 717, Misc. Docket No. 001-16 (C.G. Ct. Crim. App. Jul. 8, 2016) (discussed here):

No. 16-0678/CG. Thomas J. Randolph, Appellant v. H.V., Appellee v. Cassie A. Kitchen, Commander, U.S. Coast Guard Military Judge, Respondent Below. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Coast Guard Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

The CCA’s decision in H.V. expanded the scope of Mil. R. Evid. 513 (the psychotherapist-patient privilege) to include “the psychotherapist’s conclusions (diagnoses) and resulting treatments.” Slip op. at 3.

The CCA’s involvement in the case, however, was upon a petition for a writ of mandamus made by the alleged victim. Such a writ petition is allowed by Article 6b(e) as amended by the FY15 National Defense Authorization Act (discussed here). Yet CAAF lacks jurisdiction for further appeal because Congress narrowly tailored the statute. See EV v. United States & Martinez, __ M.J. __, No. 16-0398/MC (C.A.A.F. Jun. 21, 2016) (CAAFlog case page).

The caption of the writ-appeal filed yesterday at CAAF (identifying the accused as the appellant and the alleged victim as the appellee) suggests to me that the appeal is of the CCA’s decision on the 6b(e) petition and not on a separate writ petition made by the accused himself. If that’s correct, then I suspect the writ-appeal will be dismissed for lack of jurisdiction.

That’s not to say that the accused is without options; he could seek his own writ from the CCA and then appeal that to CAAF. However, that does not seem to be what’s happening now.

In a published order in H.V. v. Commander Kitchen, Military Judge, and Randolph, Real Party in Interest, 75 M.J. 717, Misc. Docket No. 001-16 (C.G. Ct. Crim. App. Jul. 8, 2016) (link to order), a three-judge panel of the Coast Guard Court of Criminal Appeals holds that Mil. R. Evid. 513 (the psychotherapist-patient privilege) extends “to the psychotherapist’s conclusions (diagnoses) and resulting treatments.” Order at 3.

The privilege states that:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.

Mil. R. Evid. 513(a).

H.V. is a member of the Coast Guard and an alleged victim in a court-martial. The defense moved to compel production of her mental health records. Considering the motion the military judge, Commander Kitchen, determined that Mil. R. Evid. 513 does not apply to “the disclosure of dates on which a patient was treated, the identity of the provider, the diagnostic code, or the therapies used,” and accordingly ordered production of H.V.’s mental health records:

limited to ONLY those portions indicating a psychiatric diagnosis (as this phrase is used in the DSM-5), the date of such diagnosis, any medications prescribed, the duration prescribed medications were to be taken, type of therapies used, and the resolution of the diagnosed psychiatric condition, if applicable.

Order at 2 (quoting military judge’s ruling). H.V., however, does not want even these records disclosed, and so she sought a writ of mandamus under Article 6b from the CCA to compel the military judge to apply the privilege to these records.

In what I believe is a case of first impression, the panel of the Coast Guard CCA splits 2-1 to grant the writ and expand the privilege, with Chief Judge McClelland writing for the majority and Judge Bruce dissenting.

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CAAF decided the Marine Corps case of EV v. United States & Martinez, 75 M.J. 331, No. 16-0398/MC (CAAFlog case page) (link to slip op.), on Monday, June 21, 2016. In a short opinion the court finds no jurisdiction to entertain a writ-appeal by an alleged victim who sought to reverse a military judge’s order for disclosure of portions of her mental health records. As a result, CAAF dismisses the petition.

Judge Stucky writes for a unanimous court.

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CAAF will hear oral argument in the Marine Corps case of EV v. United States & Martinez, No. 16/0398/MC (CAAFlog case page), on Wednesday, May 11, 2016 (after the oral argument in Howell).

The case is a writ-appeal by an alleged victim (EV) who sought extraordinary relief from the Navy-Marine Corps CCA to reverse a military judge’s order for disclosure of portions of her mental health records. Such records are normally privileged from disclosure under Mil. R. Evid 513 (the psychotherapist-patient privilege), however the military judge found that disclosure was required to protect the constitutional rights of the accused (Sergeant Martinez) and also that the crime/fraud exception in Mil. R. Evid. 513(d)(5) applies to the facts of this case. That exception removes the privilege against disclosure for any communications that “clearly contemplate[] the future commission of a fraud or crime.”

EV filed her petition pursuant to the recently-enacted provision in Article 6b(e), which states that an alleged victim “may petition the Court of Criminal Appeals for a writ of mandamus to require the court-martial to comply with the Military Rule of Evidence.” The NMCCA denied the petition, concluding that EV did not have a clear and indisputable right to reversal of the judge’s order. EV appealed that denial to CAAF, raising three issues that challenge the military judge’s ruling and the NMCCA’s denial of relief. CAAF then specified a fourth issue questioning whether the court has jurisdiction to consider this case:

I. Whether the NMCCA erred by erroneously denying EV’s petition for a writ of mandamus despite EV’s clear and indisputable right to the issuance of a writ.

II. Whether the military judge abused his discretion by erroneously ruling the defense satisfied each prong of Mil. R. Evid. 513(e)(3) and by ruling that Mil. R. Evid. 513(d)(5) applied.

III. Whether the military judge violated EV’s Article 6b rights by erroneously applying impermissible exceptions and denying EV a right to receive notice and to be heard.

IV. (specified by CAAF). Whether the United States Court of Appeals for the Armed Forces has statutory authority to exercise jurisdiction over decisions of the courts of criminal appeals rendered pursuant to Article 6b, UCMJ.

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It’s been a long time coming, but the President has finally signed an Executive Order (number 13696) amending the Manual for Courts-Martial to incorporate the 2013 legislative changes to the UCMJ (series of posts discussing the changes available here). The EO is scheduled for publication in the Federal Register on Monday, but you can read an advance copy here.

Edit: The final version is available here.

The changes include a new R.C.M. 405 (see this discussion of the stopgap measures), various changes to implement the new Article 6b (statute discussed here and here), and a new R.C.M. 1001A that allows a victim to make an unsworn statement during sentencing that is not subject to cross-examination (proposed rule discussed here).

Astonishingly, the EO does not provide the still-missing Part IV materials for the current version of Article 120 (enacted in the FY12 NDAA, and effective on 28 June 2012) (discussed here). Such materials would include model specifications (like the ones available here), definitions, explanations, and other valuable commentary. These materials are – presumably – included in the residuum EO (discussed here) that – we can only hope – will one day get signed, but President Obama’s failure to implement Article 120 is deeply troubling. That failure was also a topic of discussion during the recent meeting of the Article 120 subcommittee of the Judicial Proceedings Panel (at which I testified) (meeting details available here).

A summary of the new EO is after the jump. The summary is taken verbatim from an excellent write-up by the Marine Corps Judge Advocate Division (it will eventually be posted here as part of Practice Advisory 9-15).

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CAAF’s daily journal shows the following entry for May 29, 2015:

No. 15-0606/MC. CB, Appellant v. Moira Modzelewski, Captain, U.S. Navy, In her official capacity as Military Judge, and Donald Foster, Lance Corporal U.S. Marine Corps, Real Party in Interest, Appellees.CCA 201500058.  Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b), together with Appellant’s motion for a stay proceedings, on this date. The Judge Advocate General is directed to appoint counsel to represent the Appellee military judge. The answer is due no later than June 8, 2015.

Captain Modzelewski is a military judge who previously served as Chief Judge of the Navy-Marine Corps Court of Criminal Appeals.

After noting this entry early last week, I submitted a FOIA request to the Navy seeking copies of the pleadings in the case. I have not received a response to that FOIA request. However, I have received a copy of the writ-appeal petition filed at CAAF (without the sealed appendix). The petition is available here.

CB is an alleged victim of sexual assault. Her alleged assailant is a junior enlisted Marine. The petition challenges the military judge’s ruling on M.R.E. 412 issues. Specifically:

Ms. CB respectfully requests that this Court set aside the Trial Court’s rulings made under M.R.E. 412 and M.R.E. 608(c), and direct the Trial Court to exclude any evidence of previous or subsequent sexual assault incidents unrelated to the present case from being introduced at trial. When the Military Judge ordered Ms. CB to reveal her private Restricted Reports and other reports of sexual assault and allowed these to be utilized as extrinsic impeachment evidence at trial, this violated the M.R.E., constitutional due process, and the right to be treated with fairness and respect for the dignity and privacy of the victim, thus requiring the Trial Court’s ruling be overruled.

Pet. at 4. The petition also notes the following significant finding of fact by the military judge:

At this Motion Session, the Military Judge stated that there was “significant indicia” of falsity regarding Ms. CB’s prior sexual assault incidents.

Pet. at 13.

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The Hill reports here on the Senate’s final passage of the National Defense Authorization Act for Fiscal Year 2015. The complete text of the bill is available here.

The bill contains numerous provisions of interest to military justice practitioners (see Division A, Title V, Subtitle D). Here are the highlights:

  • Section 531 makes numerous “technical revisions and clarifications” to last year’s changes to the UCMJ, including:
    • Correcting technical language regarding a convening authority’s action on a “qualifying offense” (original text analyzed here);
    • Correcting the definition of a victim in the new Article 60(d) (original text analyzed here);
    • Adding language explicitly authorizing an accused’s waiver of an Article 32 preliminary inquiry (original text analyzed here);
    • Expanding the prohibition on defense counsel interviews of an alleged victim of a sex offense to include any “counsel for the accused” and to involve notification to any counsel for the alleged victim (original text analyzed here);
    • Adding the word “unlawful” into the new forcible sodomy/bestiality statute (Article 125) (original text analyzed here);
    • Clarification of the definition of prospective members of the armed forces for purposes of inappropriate and prohibited relationships;
    • Technical changes to the new Article 6b (original text analyzed here and here);
    • Making the new Article 32 effective on December 26, regardless of the date of the alleged offense (original text analyzed here);
    • Restoring a convening authority’s total discretion to act on the findings or sentence (except for offenses with a mandatory minimum) when a conviction involves offenses that occurred both before and after the effective date of the new Article 60(c) (original text analyzed here).
  • Section 532 enacts a new Article 49, permitting depositions only “if the party [seeking the deposition] demonstrates that, due to exceptional circumstances, it is in the interest of justice that the testimony of the prospective witness be taken and preserved…” This is likely a reaction to the McDowell case (last discussed here).
  • Section 535 enacts a new paragraph (e) in Article 6b that gives an alleged victim an explicit right to petition a CCA for a writ of mandamus to force compliance with M.R.E. 412 (the rape shield) and M.R.E. 513 (the psychotherapist-patient privilege). This is likely a reaction to the dissenting opinions in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page).
  • Section 536 limits the admissibility of good military character evidence, as follows:

SEC. 536. MODIFICATION OF MILITARY RULES OF EVIDENCE RELATING TO ADMISSIBILITY OF GENERAL MILITARY CHARACTER TOWARD PROBABILITY OF INNOCENCE.

(a) Modification Required- Not later than 180 days after the date of the enactment of this Act, Rule 404(a) of the Military Rules of Evidence shall be amended to provide that the general military character of an accused is not admissible for the purpose of showing the probability of innocence of the accused for an offense specified in subsection (b).

(b) Covered Offenses- Subsection (a) applies to the following offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice):

(1) An offense under sections 920 through 923a of such title (articles 120 through 123a).

(2) An offense under sections 925 through 927 of such title (articles 125 through 127).

(3) An offense under sections 929 through 932 of such title (articles 129 through 132).

(4) Any other offense under such chapter (the Uniform Code of Military Justice) in which evidence of the general military character of the accused is not relevant to an element of an offense for which the accused has been charged.

(5) An attempt to commit an offense or a conspiracy to commit an offense specified in a preceding paragraph as punishable under section 880 or 881 of such title (article 80 or 81).

I’ve written about this before and I will write about it again in the coming weeks.

  • Section 537 requires modification to M.R.E. 513 to eliminate the “constitutionally required” exception to the privilege (paragraph (d)(8)) and to increase the burden on a party seeking production or admission of privileged matters.
  • Section 541 gives the “chief prosecutor” of each Armed Force the power to force secretarial review of a convening authority’s decision to not refer a charged sex-related offense to trial.

Congress created Article 6b in the National Defense Authorization Act for Fiscal Year 2014. My ongoing analysis of the military justice provisions in that legislation is available at this link.

Article 6b is a military version of the federal Crime Victims’ Rights Act (18 U.S.C. § 3771) (the CVRA), and many people (including myself) call it the Military Crime Victims’ Rights Act (the MCVRA) (I think the Joint Service Committee coined the term).

Article 6b(b) provides the following definition:

(b) Victim of an Offense Under This Chapter Defined- In this section, the term ‘victim of an offense under this chapter’ means a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under this chapter (the Uniform Code of Military Justice).

The problem with the definition is that it doesn’t provide a clear point in time when the protections of Article 6b apply (i.e., at the time of commission of the alleged offense? At the time the report is made? Once a formal investigation begins? After charges are preferred? Etc., etc…).

The analogous CVRA may be a source of some guidance, except that it is also somewhat unclear. In this post at The Volokh Conspiracy, Paul Cassell discusses a paper he co-authored (available here) that argues that the CVRA applies before charges are filed, while the Justice Department took the position (in this memo) that the CVRA generally applies only after charges are filed.

Notably, the special victims counsel (SVC) component of the military’s legal assistance program (established in 10 U.S.C. § 1044e) states that SVC services (for sex-related offense victims) begins:

[U]pon report of an alleged sex-related offense or at the time the victim seeks assistance from a Sexual Assault Response Coordinator, a Sexual Assault Victim Advocate, a military criminal investigator, a victim/witness liaison, a trial counsel, a healthcare provider, or any other personnel designated by the Secretary concerned for purposes of this subsection.

10 U.S.C. § 1044e(f)(1).

This is part two of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.

Of the 15 NDAA provisions identified in the first part of this series, seven of them affect the earliest stages of a court-martial prosecution. They are:

  • § 1701, creating “Article 6b. Rights of the victim of an offense under this chapter.”
  • § 1716, codifying the special victims counsel program in 10 U.S.C. § 1044e, “Special Victims’ Counsel for victims of sex-related offenses.”
  • § 1703, amending Article 43 to eliminate the 5-year statute of limitations on sexual assault (Art. 120(b)) and sexual assault of a child (Art. 120b(b)). This section applies only to offenses committed on or after December 26, 2013.
  • § 1705(a), amending Article 56 to create a mandatory minimum of dismissal or dishonorable discharge for the offenses of rape (120(a)) or sexual assault (120(b)), rape of a child (120b(a)) or sexual assault of a child (120b(b)), forcible sodomy (125), or attempts to commit these offenses. This takes effect and applies only to offenses committed on and after June 24, 2014 (180 days from enactment).
  • § 1705(b), amending Article 18 to confer jurisdiction over the 1705(a) offenses to only general courts-martial. This also takes effect and applies only to offenses committed on and after June 24, 2014 (180 days from enactment).
  • § 1708, requiring the President to amend the non-binding discussion to R.C.M. 306.
  • § 1707, repealing the offense of consensual sodomy.

Discussion of each of these provisions follows.

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