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.