CAAFlog » Military Justice Reform

A notice (available here) scheduled for publication in the Federal Register today announces a public meeting of the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) (CAAFlog page) on Friday, July 21, 2017, from 8:30 a.m. to 4:45 p.m., at One Liberty Center, 875 N. Randolph Street, Suite 1432, Arlington, Virginia.

This will be the third public meeting held by the DAC-IPAD. At this meeting, the Committee will receive a presentation on the mechanics of a sexual assault investigation from a representative of each Service’s military criminal investigation organization followed by a Committee strategic planning session.

As recently discussed on this blog, the Judicial Proceedings Panel (JPP) is one of three entities chartered under the Federal Advisory Committee Act to conduct an independent assessment of the military justice system. In May of this year, a JPP subcommittee published its Report on Barriers to the Fair Administration of Military Justice in Sexual Assault Cases. The report offers a stark assessment regarding the perceived failure of the military justice system to treat service members accused of sexual offenses fairly:

Congress, the Department of Defense, and the White House have all worked to change the military system so that victims of sexual assault are treated with respect and are not further victimized by the criminal justice process. Other changes have been put in place to counter the perception that sexual assault predators were being protected from prosecution by military commanders.

Many of these changes have been valuable. One possible sign that they are having an effect is the increase in the past few years of the number of sexual assault cases being reported. While its cause cannot be identified with certainty, many believe that it indicates greater confidence that the criminal justice system will help the victim and vigorously prosecute the accused.

As constructive and important as these changes have been, they have also produced an unintended negative consequence: they have, as the Subcommittee was repeatedly told on its site visits, raised serious questions about the fundamental fairness of the military justice process when it comes to the treatment of the accused.

Report at 4.

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On May 1, 2017, The Department of Defense Sexual Assault Prevention and Response Office released its Fiscal Year 2016 Annual Report on Sexual Assault in the Military (available here). The report provides lots of data ripe for misinterpretation. Two things caught my attention.

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The Marine Corps Times reports here about North Carolina charges filed against a career Marine accused of:

posting one nude photo of the woman and six pictures of her wearing underwear on April 14, according to an arrest warrant, which does not identify the website where the pictures appeared.

According to the report, the accused is charged with “felony disclosure of private images,” which appears to be a violation of N.C. Gen. Stat. § 14-190.5A.(available here), which states:

(b) Offense. – A person is guilty of disclosure of private images if all of the following apply:

(1) The person knowingly discloses an image of another person with the intent to do either of the following:

a. Coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

b. Cause others to coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

(2) The depicted person is identifiable from the disclosed image itself or information offered in connection with the image.

(3) The depicted person’s intimate parts are exposed or the depicted person is engaged in sexual conduct in the disclosed image.

(4) The person discloses the image without the affirmative consent of the depicted person.

(5) The person discloses the image under circumstances such that the person knew or should have known that the depicted person had a reasonable expectation of privacy.

The statute defines a reasonable expectation of privacy as:

When a depicted person has consented to the disclosure of an image within the context of a personal relationship and the depicted person reasonably believes that the disclosure will not go beyond that relationship.

§ 14-190.5A(a)(5).

The North Carolina statute seems to be perfectly adequate to criminalize the kind of bad acts at issue in the Marines United scandal, and the statute appears free of the flaws I identified in my analysis of the recently-promulgated Article 1168, U.S. Navy Regulations.

If Congress thinks there should be a similar statute of national applicability, perhaps it should enact one.

The Federal Advisory Committee Act (FACA) provides a template for federal advisory committees, which are groups that provide advice and input to the federal government. Two such committees are the Response Systems to Adult Sexual Assault Crimes Panel (RSP) (CAAFlog page) and the Judicial Proceedings Panel (JPP) (CAAFlog page), both of which were mandated by the FY13 NDAA (discussed here).

The Military Justice Review Group (MJRG) (CAAFlog page), in contrast, is an internal DoD working group. Unlike FACA committees, the MJRG’s meetings and recommendations are not open to the public.

There is now a third FACA committee in this group: the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) (CAAFlog page).

The DAC-IPAD released its initial report on March 30th (available here). The report is largely a blueprint for how the committee will work, beginning with its purpose:

The authorizing legislation charges the Committee to execute three tasks over its five-year term:

1. To advise the Secretary of Defense on the investigation, prosecution, and defense of allegations of rape, forcible sodomy, sexual assault, and other sexual misconduct involving members of the Armed Forces;

2. To review, on an ongoing basis, cases involving allegations of sexual misconduct for purposes of providing advice to the Secretary of Defense; and

3. To submit an annual report to the Secretary of Defense and to the Committees on Armed Services of the Senate and the House of Representatives no later than March 30 of each year.

Report at 1. At the end of the report is the following paragraph outlining the anticipated scope of its review:

The members discussed the scope of the Committee’s mission, but the Committee has not yet determined what aspects of sexual misconduct and what types of cases it will examine. Some on the Committee did express interest in looking at cases involving children, but they recognized the substantial privacy concerns that must be considered. The Committee agreed it initially would concentrate exclusively on adult cases. The Committee chair expressed a primary interest in focusing on “how we can keep people in the Service without being sexually assaulted.”

Report at 18.

While not shocking in light of prior studies of the MilJus system, if the Judicial Proceedings Panel‘s April 2017 report recommendations are followed, the services will need to make an investment of money and training in the MilJus system. The report is essentially an update/supplement to prior recommendations in the JPP Subcommittee Report on Military Defense Counsel Resources and Experience in Sexual Assault Cases  (Dec. 9, 2016).  The JPP’s April 2017 report is based in part on the JPP Subcommittee’s site visits to service prosecution and defense offices.  The Executive Summary states:

The JPP deliberated on the Subcommittee’s report and had the opportunity to question the JPP  Subcommittee members who attended the installation site visits. As a result of this deliberation, the JPP’s report summarizes and adopts the information presented by the Subcommittee, provides additional information from Service responses to a JPP request for information, and adopts the Subcommittee’s recommendations, with modifications.

The JPP makes four recommendations in the area of defense counsel resources and experience, several of which had—in some form—been recommended by its predecessor panel, the Response Systems to Adult Sexual Assault Crimes Panel (RSP) in its June 2014 report to Congress. The JPP recommends that the Services provide independent defense investigators, ensure sufficient staffing and resourcing of Service defense offices, place expert witness approval and funding authority in the Service defense organizations, and ensure that lead defense counsel in sexual assault cases have sufficient litigation experience, setting a minimum tour length for defense counsel of two years.

The report is available here. [Updated link to the JPP’s Report on Military Defense Counsel Resources and Experience in Sexual Assault Cases and updated post to reflect some of the JPP’s statements]

We haven’t covered it much, but the Marines United scandal involves a Facebook group by that name where personal information and explicit photographs of current and former female service members were posted (generally for the purpose of bullying and harassment). An early news report about the scandal is here. A SASC website on the scandal is here, and video of a March 14, 2017, SASC hearing is available here. The story continues to develop.

The latest development came Tuesday, with the promulgation of a new Navy Regulation intended to target photo sharing like that in the Marines United group. In ALNAV 021/17 the acting SECNAV creates Article 1168, U.S. Navy Regulations, violation of which is punishable under Article 92:

1. Pending formal amendment to reference (a), this interim change adds a new article, Article 1168 to reference (a). This interim change is effective upon the release of this ALNAV.

2. Article 1168 of reference (a) is added to read as follows:

a. 1168. Nonconsensual distribution or broadcasting of an image

(1) The wrongful distribution or broadcasting of an intimate image is prohibited.

(2) The distribution or broadcasting is wrongful if the person making the distribution or broadcast does so without legal justification or excuse, knows or reasonably should know that the depicted person did not consent to the disclosure, and the intimate image is distributed or broadcast:

(a) With the intent to realize personal gain;

(b) With the intent to humiliate, harm, harass, intimidate, threaten, or coerce the depicted person; or

(c) With reckless disregard as to whether the depicted person would be humiliated, harmed, intimidated, threatened, or coerced.

3. Distribution means the act of delivering to the actual or constructive possession of another, including transmission by electronic means.

4. “Broadcasting” means the act of electronically transmitting a visual image with the intent that it be viewed by a person or persons.

5. An intimate image is any visual depiction, including by electronic means, that:

a. Includes another person who is identifiable from the depiction itself or from information conveyed in connection with the depiction;

b. Depicts that person engaging in sexually explicit conduct or depicts the private area of that person; and

c. Taken under circumstances in which the person depicted had a reasonable expectation of privacy.

6. “Sexually explicit conduct” is defined in Part IV, paragraph 68b, Manual for Courts-Martial (2016 Edition).

7. “Private area” is defined in Part IV, paragraph 45c, Manual for Courts-Martial (2016 Edition).

8. In lieu of entering this interim change in reference (a), make a bold letter notation after Article 1167 of reference (a), SEE ALNAV 021/17 and file this ALNAV in front of reference (a).

9. This interim change will be incorporated into the next printed revision of reference (a).

10. Released by Sean J. Stackley, Acting Secretary of the Navy.

The new Navy Regulation 1168 suffers from three obvious flaws.

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The long awaited report of the conference committee considering the National Defense Authorization Act for Fiscal Year 2017 was just released. It is available here:

The conference version of the NDAA includes a great many significant changes to the Uniform Code of Military Justice. In particular, the legislation adopts many – but not all – of the changes proposed by the Military Justice Review Group.

Some significant notes:

• The conference version does not eliminate members sentencing in non-capital cases. Instead, § 5182 amends Article 25 to give the accused the option to elect sentencing by members (when trial was before members) after the findings are announced.

• § 5164 of the conference version amends Article 20 to state that “a summary court-martial is a non-criminal forum. A finding of guilty at a summary court-martial does not constitute a criminal conviction.”

• § 5205 modifies a staff judge advocate’s pretrial advice to require only a probable cause determination rather than the current conclusion that “the specification is warranted by the evidence.”

• § 5330 modifies Article 66 to require automatic review by the courts of criminal appeals only in cases that include death, dismissal, a dishonorable or bad-conduct discharge, or confinement for two years or more. In cases involving confinement for more than six months or more (but less than two years) an accused may petition for review.

Edited to add: • § 5330 also preserves the requirement that a CCA “may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved.”

• § 5301 modifies Article 56 to allow the prosecution to appeal a sentence on the grounds that “(A) the sentence violates the law; or (B) the sentence is plainly unreasonable.”

• § 5301 modifies Article 56 requires a sentence adjudged by a military judge alone to be segmented (confinement and fine only) by offense. Where sentencing is by members, the court-martial will continue to adjudge a single sentence for all offenses.

The next meeting of the Judicial Proceedings Panel will occur on Friday, September 23, 2016, in Arlington, VA. A full announcement of the meeting is available here.

The agenda for this meeting is primarily presentations from former appellate judges in the military justice system (including former Chief Judge Baker of CAAF), and from the military appellate organizations (Government and defense), all providing “perspectives on victims’ appellate rights.”

Since the establishment of Article 6b, enacted in the wake of CAAF’s narrow decision in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page), we’ve had a few occasions to wonder about the scope of an alleged victim’s ability to intrude upon the automatic appellate review of a court-martial conviction. This term, for instance, CAAF determined that it lacks jurisdiction to entertain a writ-appeal under Article 6b, in EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page). CAAF also declined to intervene to prevent the disclosure of sealed materials (mental health records of alleged victims that were attached to the record of trial) to appellate defense counsel in a handful of Air Force cases (discussed here and here).

Alleged victims are not parties to a court-martial, they’re (at most) witnesses. While Article 6b(e) gives an alleged victim (or their representative) certain extra rights, and allows such a person to seek enforcement of those rights by a writ of mandamus from a court of criminal appeals, there is no clear basis to treat alleged victims differently from any other witness during appellate review of a court-martial. Perhaps, however, the JPP will find one.

Note: Post edited to provide a link to POD’s reply.

Back in April, in this post, we noted the publication of a report by the advocacy group Protect Our Defenders (POD) that accused the Department of Defense of misleading Congress regarding sexual assault prosecutions under the UCMJ.

The Secretary of Defense responded at the end of May and his response is available here.

The response included some harsh language about POD’s report:

[T]he central issues raised in the report and article are based on certain misunderstandings of how the military justice system works, lack of access to information contained in the full case files, or a disagreement on what “counts” as a sexual assault case.

Response at 1.

The response and its enclosure is a persuasive rebuttal of POD’s report in five ways.

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That’s the idea behind a bill introduced in the House on Monday – H.R.5257,  the Justice for Victims of Military Sexual Assault Act:

IN GENERAL.—The Secretary of each military department shall establish a career military justice litigation track for judge advocates in the Armed Forces under the jurisdiction of the Secretary.

The Navy already has such a program. See JAGINST 1150.2C (available here).

Cully Stimson of the Heritage Foundation has commentary in favor of this proposal, available here.

As the Military Justice Act of 2015 works its way through Congress, a Legal Memorandum from the Heritage Foundation considers the proposed changes in the context of history, contemporary practice, and the press to modernize:

Paul Larkin and Charles “Cully” Stimson, The 2015 Report of the Military Justice Review Group: Reasonable Next Steps in the Ongoing Professionalization of the Military Justice System

So here is the headline and first paragraph of Military Times’ coverage of the latest DoD report on sexual assault in the military:

Military sex assault: Just 4 percent of complaints result in convictions

The military received more than 6,000 reports of sexual assaults last year, but only a small fraction, about 250, led to a court-martial and conviction for a related crime, according to a new Pentagon report.

Here is the article and here is the report (FY2015 report here).  And here is what those stats actually mean, 13 paragraphs later:

Of the 6,083 initial complaints filed last year, about 1,500 were “restricted,” meaning the victim was a service member who reported the assault but refused to participate in any criminal investigation and only sought healthcare and victims’ support services.

In 2015, military criminal investigators reviewed 4,584 “unrestricted” reports from victims who were willing to participate in a potential prosecution. . . .

After completing investigations, 2,783 cases were sent to military commanders.

. . . .
Commanders launched court-martial proceedings against the alleged perpetrator in 926 cases. Among those, 159 were closed because the alleged perpetrator resigned from the military, and 111 were closed because the case was dismissed in pretrial proceedings.
Of the 543 cases that ultimately went to court-martial, 130 resulted in not-guilty verdicts.
Of the 413 troops convicted at court-martial, 161 resulted in charges unrelated to sex assault.
In 254 cases, a service member as convicted of a sexual assault-related offense.

And here is what a senior DoD official in the SAPRO said about those numbers:

“Yeah, it doesn’t make us feel very comfortable that we can’t, when an allegation is made, that we can’t take every single allegation to court. But that is our justice system,” said Nate Galbreath, a senior executive adviser for the Pentagon’s sexual assault prevention and response program.

Nice.  For more fun with statistics, see this opinion piece from Senator Kirsten Gillibrand.

The Judicial Proceedings Panel has released two more reports (in addition to its report from earlier this month, discussed here).

The first report is on Article 120 and is available here. The report makes six recommendations (drawn primarily from the subcommittee’s report that is discussed here). The recommendations are:

Recommendation 18: Congress should amend the definition of “consent” in Article 120(g)(8) of the Uniform Code of Military Justice.

Recommendation 19: The President should amend the Manual for Courts-Martial to specifically state that consent (as an attack on proof) and mistake of fact as to consent (as a clearly delineated defense) may be raised in any case in which they are relevant.

Recommendation 20: Congress should amend Article 120 of the Uniform Code of Military Justice to provide a definition of the term “incapable of consenting” for cases under Article 120(b) and (d), and the President should provide further executive guidance about the circumstances to consider when considering whether a victim was incapable of consenting.

Recommendation 21: Congress should amend and replace the reference in Article 120(b)(1)(B) of the Uniform Code of Military Justice to “causing bodily harm” and should remove the definition of “bodily harm” from Article 120(g)(3).

Recommendation 22: Congress should amend the definitions of “sexual act” and “sexual contact” in Article 120(g)(1)–(2) of the Uniform Code of Military Justice.

Recommendation 23: Congress should adopt a new theory of liability in Article 120(b)(1)(E) of the Uniform Code of Military Justice for coercive sexual acts or contact in which a perpetrator has used position, rank, or authority to obtain compliance by the other person.

The second report is on retaliation related to sexual assault offenses and is available here. The report makes 13 recommendations:

Recommendation 24: In the Department of Defense’s strategy addressing retaliation related to sexual assault, the Secretary of Defense specify (1) processes for reporting and investigating retaliation, (2) responsibility for the collection and monitoring of reports, and (3) mechanisms for tracking retaliation complaints and outcomes.

Recommendation 25: The Secretary of Defense and Service Secretaries develop a standardized form for reporting retaliation. The standardized form should be linked to DD Form 2910 in the Defense Sexual Assault Incident Database to properly track retaliation allegations related to sexual assault offenses, should provide victims of retaliation with the option to file an informal or formal retaliation report, and should be updated throughout the investigative and judicial process to ensure that the retaliation allegation is monitored and resolved.

Recommendation 26: The Secretary of Defense and Service Secretaries continue to provide multiple channels for Service members to report retaliation. In addition, the Secretary of Defense and Service Secretaries formally task installation sexual assault response coordinators (SARCs) with consolidating information from reports on retaliation, recording information on retaliation reports in the Defense Sexual Assault Incident Database, and ensuring that information about the investigation and resolution of retaliation claims is properly and fully monitored.

Recommendation 27: Congress require the Secretary of Defense and Service Secretaries to track retaliation allegations related to sexual assault offenses and publish information regarding retaliation complaints, investigations, and final dispositions in the Department’s annual report to Congress on sexual assault prevention and response.

Recommendation 28: The Secretary of Defense establish a policy that requires the DoD Office of Inspector General to investigate all complaints of professional retaliation related to sexual assault. The Secretary of Defense ensure that these investigations are prioritized and conducted by personnel with specialized training. The Secretary of Defense require the inspectors general to report the status of the investigations to the installation sexual assault response coordinators (SARCs) prior to each monthly case management group meeting.

Recommendation 29: The Service Secretaries establish policies to ensure that personnel assigned by commanders to investigate retaliation complaints are properly trained on issues regarding retaliation relating to sexual assault.

Recommendation 30: The Secretary of Defense and Service Secretaries expand the expedited transfer program to include job retraining for Service members who belong to small specialty branches and to be made available, on a case-by-case basis, to bystanders and witnesses of sexual assault who experience retaliation.

Recommendation 31: The Secretary of Defense establish specific guidelines clarifying what information can be released to a person who files a retaliation complaint related to a sexual assault.

Recommendation 32: The Secretary of Defense begin tracking the Services’ implementation of the statutory requirement that general or flag officers review proposed involuntary separations of Service members who made unrestricted reports of sexual assault within the preceding year.

Recommendation 33: The Service Secretaries revise their regulatory definitions of maltreatment, which currently contain an overly narrow intent requirement.

Recommendation 34: Congress refrain from creating an enumerated offense prohibiting social retaliation in the Uniform Code of Military Justice.

Recommendation 35: The Secretary of Defense and Service Secretaries develop innovative and effective training on retaliation for commanders and all other Service members, including targeted training that may be used in response to problems of retaliation within an organization.

Recommendation 36: The Secretary of Defense revise the elements and burdens of proof for reprisal claims made under the Military Whistleblower Protection Act so that they parallel the elements and burdens of proof outlined in the Whistleblower Protection Act for DoD civilians.

I’ve assembled all of our coverage of the Judicial Proceedings Panel into a new category available at this link.

The Judicial Proceedings Panel has published a report on Restitution and Compensation for Military Adult Sexual Assault Crimes. The report is available here.

The report makes six recommendations (numbered recommendations 12-17 because they add to the eleven recommendations made in the JPP’s initial report published a year ago):

Recommendation 12: The Department of Defense establish a new, uniform program that provides compensation for unreimbursed out-of-pocket expenses of victims of sexual assault crimes committed by Service members.

Recommendation 13: Congress not amend the Uniform Code of Military Justice to add restitution as an authorized punishment that may be adjudged at courts-martial.

Recommendation 14: The military Services provide recurring training to trial practitioners and victim assistance personnel on the availability and use of restitution in pretrial agreements between the government and the accused.

Recommendation 15: The President enact the Department of Defense’s recently proposed executive order to modify Rule for Courts-Martial 705(d)(3) to provide victims the right to be heard before a convening authority enters into a pretrial agreement.

Recommendation 16: Congress not amend the Uniform Code of Military Justice to direct that the forfeited wages of incarcerated members of the Armed Forces be used to pay compensation to victims of sexual assault crimes committed by Service members.

Recommendation 17: Congress not amend Article 139 of the Uniform Code of Military Justice to include bodily harm among the injuries meriting compensation for redress.