Congress created Article 6b in the National Defense Authorization Act for Fiscal Year 2014. As originally enacted, the statute had four sections (paragraphs (a-d)), the first of which outlined eight rights of a victim. The next year, in the National Defense Authorization Act for Fiscal Year 2015, Congress made some technical changes and added a fifth section – paragraph (e) – providing an enforcement mechanism. The following year, in the National Defense Authorization Act for Fiscal Year 2016, Congress expanded that enforcement mechanism, so that it now reads:
(e) Enforcement by Court of Criminal Appeals.
(1) If the victim of an offense under this chapter believes that a preliminary hearing ruling under section 832 of this title (article 32) [10 USCS § 832] or a court-martial ruling violates the rights of the victim afforded by a section (article) or rule specified in paragraph (4), the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the preliminary hearing officer or the court-martial to comply with the section (article) or rule.
(2) If the victim of an offense under this chapter is subject to an order to submit to a deposition, notwithstanding the availability of the victim to testify at the court-martial trying the accused for the offense, the victim may petition the Court of Criminal Appeals for a writ of mandamus to quash such order.
(3) A petition for a writ of mandamus described in this subsection shall be forwarded directly to the Court of Criminal Appeals, by such means as may be prescribed by the President, and, to the extent practicable, shall have priority over all other proceedings before the court.
(4) Paragraph (1) applies with respect to the protections afforded by the following:
(A) This section (article).
(B) Section 832 (article 32) of this title [10 USCS § 832].
(C) Military Rule of Evidence 412, relating to the admission of evidence regarding a victim’s sexual background.
(D) Military Rule of Evidence 513, relating to the psychotherapist-patient privilege.
(E) Military Rule of Evidence 514, relating to the victim advocate-victim privilege.
(F) Military Rule of Evidence 615, relating to the exclusion of witnesses.
10 U.S.C. 806b(e).
This is a limited grant of authority that gives only a CCA – and not CAAF – jurisdiction over victim petitions. See Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. Feb. 2, 2017) (CAAFlog case page).
A three-judge panel of the Army CCA recently rejected a petition that went way beyond the limits of Article 6b(e).
In AG v. Hargis, Military Judge, __ M.J. __, No. 20170417 (A. Ct. Crim. App. Aug. 16, 2017) (link to slip op.), Judge Fleming writes for the panel and holds that:
petitioner, an alleged sexual assault victim, fails to establish that a referred court-martial, or even preferred charges, existed at the time of the military judge’s decision to take no action on a special victim counsel’s [hereinafter SVC] discovery and production request. We further hold the military judge did not err by advising the military magistrate to deny the SVC’s discovery request or by not acting on the SVC request, which created a de facto ruling denying the SVC’s discovery and production request. We, therefore, dismiss the petition for lack of jurisdiction.
Slip op. at 1 (marks in original).
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