CAAFlog » Military Justice Reform

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.

Read more »

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: https://rules.house.gov/conference-report/s-2943

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.

Read more »

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.

[Update:  this event has been postponed due to weather issues.  We will update the post and provide a link to the new flyer when it is available]  On January 28, 2016, from 6:00 to 8:00 pm, there will be a panel discussion of DoD’s proposed military justice legislation resulting, in part, from the work of the Military Justice Review Group (MJRG).  The panel is co-sponsored by the American Bar Association’s Standing Committee on Armed Forces Law, in cooperation with the ABA’s Standing Committee on Law and National Security, and the Judge Advocates Association.  See details here.

I have not heard any postponement due to weather. [Update:  Well that’s not true now.]

Location:  Founders Room, Offices of Dentons US LLP, 1900 K Street, Washington DC, 20006

Moderator: The Honorable James Baker, former Chief Judge, U.S. Court of Appeals for the Armed Forces

Panelists:

  • The Honorable Andrew Effron, former Director of the MJRG
  • Col. William N. Pigott, Chair, DoD Joint Service Committee on Military Justice
  • LtCol Julie Huygen, U.S. Air Force representative, Joint Service Committee on Military Justice
  • COL Walt Hudson, U.S. Army representative, Joint Service Committee on Military Justice
  • CAPT Warren A. Record, U.S. Navy representative, Joint Service Committee on Military Justice

There is no charge for this event, but the Committee asks that you please email Susan.Koz@americanbar.org to RSVP.

The Military Justice Review Group (MJRG) is an internal DoD working group created by the Secretary of Defense to conduct a comprehensive review of the UCMJ. I discussed the creation of the MJRG in this post. As an internal working group, the MJRG’s meetings and deliberations were closed to the public. However, the MJRG just released its first report, proposing major legislative changes to the UCMJ.

The report is 1,302 pages long, and is available here (pdf). A press release summarizing the major proposals is available here (word).

Additional materials are available on the MJRG’s website, here.

The Judicial Proceedings Panel was established in 2014 to conduct an independent review and assessment of judicial proceedings under the UCMJ involving adult sexual assault and related offenses since enactment of the 2012 version of Article 120. The panel released its initial report in February, and then it formed a subcommittee to review seventeen specific issues regarding Article 120.

That subcommittee released its report on Friday. The report is available here.

The subcommittee recommends some significant changes to Article 120, including removing penetration of the mouth by other than a sex organ as a possible sexual act, rewriting the definition of consent, and adding a statutory definition of the term incapable of consenting.

The report’s executive summary is reproduced after the jump.

Disclaimer: I testified before the subcommittee in May and am cited a number of times in the report. 

Read more »

Last month the Associated Press produced a report titled: Opaque military justice system shields child sex abuse cases.

Focusing on child exploitation prosecutions (a particularly heart-wrenching kind of case), the report broadly condemns the military justice system and the Department of Defense for failing to make court-martial records easily accessible to the public, with the authors asserting that “while child sex crimes may not be swept under the rug, the Defense Department does not make it easy for the public to learn about them.” Of course, blaming the system or the DoD is nonsensical, as it is Congress and the President that make the rules.

In part, the report notes that “records from most federal court cases are available online through the Public Access to Court Electronic Records system, known as PACER. The military does not have a comparable repository.” This is certainly true. But implementing PACER (or an equivalent) is hardly simple, as it would require standardized rules for the handling, marking, and redaction of trial-stage documents in order to permit public release. Even the Associated Press admits that not everything should be public knowledge, as it does not provide the names of the child victims whose stories it uses to add emotion to its report. The military justice system currently relies on the Freedom of Information Act (FOIA) to address redaction and release, protecting the privacy rights of victims, witnesses, and even the accused. That process isn’t fast, but it’s what the law requires.

Notably, the report makes an early issue (in the third paragraph) of a Naval Criminal Investigative Service investigation that the Associated Press sought under FOIA but NCIS refused to release on privacy grounds. “The report was released only after AP appealed,” the report explains. However, a whopping nineteen paragraphs later it is revealed that:

The Naval Criminal Investigative Service initially said releasing its 198-page investigative report on DeSmit would constitute “an unwarranted invasion of personal privacy.” The AP appealed the denial, and the Navy judge advocate general’s office overruled NCIS, declaring the agency’s decision overly broad and instructing it to release all material within the report not exempted from disclosure. NCIS investigations, which include evidence from the crime scene and witness interviews, are not court documents but are used by military leaders to decide what action to take against a service member.

(emphasis added). How a PACER-like system will provide better access to things that are not court documents is anybody’s guess.

The House version of this year’s National Defense Authorization Act included a provision relating to “public availability of records of certain proceedings under the uniform code of military justice” that would have required publication of materials including “any motions and documents filed in connection with the proceeding.” I noted that provision in this post and you can read it in this document (it’s at section 556). However, the provision did not make it into the final bill. The AP report makes no mention of this provision, and sheds no light on why it wasn’t included in the final bill.

Yet the report does highlight one odd fact: court-martial results published by the services lack information on pretrial agreements:

After DeSmit’s conviction in January, the Marine Corps summed up the case in two sentences.

“At a General Court-Martial at Okinawa, Japan, Chief Warrant Officer 4 D. E. DeSmit was convicted by a military judge alone of conspiracy to commit sexual assault and rape of children, aggravated sexual abuse of a child, sexual abuse of a child and possession of child pornography. The military judge sentenced the accused to 144 years of confinement, a reprimand and dismissal,” a summary of the court-martial released by the Marine Corps read.

And that’s all the service would have said publicly, had the AP not pressed for more.

The pretrial agreement in the DeSmit case capped confinement at 20 years. While this fact likely would have been disclosed eventually (in the CCA’s opinion during mandatory appellate review), the published results present an incomplete picture of the sentence.

The publication of court-martial results is a relatively recent phenomenon. It’s unclear why those results don’t include information on pretrial agreements; seemingly crucial information. Sadly, the Associated Press seemingly made no effort to discover the reason.

There are good reasons to want greater public access to military justice records. Like any system, there’s still room to improve military justice. But the AP’s claim that the system is “opaque” and “shields child sex abuse cases” is overblown.

A pair of articles published by the War on the Rocks blog debate whether the military justice system can handle serious cases.

Professor James Joyner and retired Marine LtCol James Weirick write Sexual Assault in the Military and the Unlawful Command Influence Catch-22:

For minor offenses — many of which aren’t crimes in the civilian world — the uniqueness of the military occupation, exigencies of location, and considerations as to whether an individual is otherwise a “good soldier” make the longstanding practice of commanders having a heavy influence vital for “good order and discipline.”

But felonies are a different matter. There, the aim is punishing transgression and separation of a bad egg from not only the military ranks but society at large. The civilian courts, lacking the conflict of interest inherent in military command, are simply the better venue for dealing with that.

The shared experiences of our allies — the United Kingdom, Canada, and Australia — have demonstrated that removing felonies from their systems of military justice has increased the fairness and transparency of criminal trials, while maintaining the commander’s ability to ensure good order and discipline.

Retired Air Force Major General Charles Dunlap responds with: Civilianizing Military Justice? Sorry, it Can’t – and Shouldn’t – Work:

Consider that the Supreme Court has observed (albeit in a different context) that the “complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments” adding a key reflection: “it is difficult to conceive of an area of governmental activity in which the courts have less competence.” Yet these are the very areas in which military discipline is so important.

Separate out “military” offenses from “civilian” offenses? Been there, done that. The Supreme Court finally gave up in 1987, finding that the military justice system had jurisdiction over all offenses committed by those in uniform. This could be an implicit recognition that in the extraordinarily complex task of preparing people to kill other human beings in the name of the state, the disposition of “civilian” misconduct cannot be separated from overall troop development and combat readiness. Savvy military leaders keenly understand the holistic nature of their leadership responsibilities, along with the imprudence of outsourcing discipline to civilians not equipped to deal with it appropriately and who do not bear the responsibility for battlefield success that is so intrinsically linked to a well-disciplined force.

 

The Joint Travel Regulations (JTR) (formerly the JFTR) (available here) authorize reimbursement for travel performed on behalf of the Government, including travel to testify at a court-martial. See JTR, Appendix E1. Such reimbursement may include travel by an escort or attendant who accompanies the primary traveler when the traveler is, generally, “incapable of traveling alone.” JTR ¶ 7170 A.1.

But the Department of Defense recently expanded the circumstances where an escort or attendant is authorized to include any travel performed by:

a sexual assault victim who must travel to testify or participate (e.g., as a witness at a court martial or Article 32 hearing, pre-trial interviews, other hearing or panel (including Congressional)) in connection with the sexual assault.

The policy memorandum is available here.

I think the necessity and wisdom of this policy is dubious. My read of the pre-existing policy is that it allowed an authorizing official to determine that the traveler (including an alleged victim) cannot travel alone, and then authorize an escort or attendant. But the new policy singles out a sexual assault victim (without defining the term) for special treatment, and it does so in an incredibly broad range of circumstances.

So, for example, a person who alleges that a service member slapped their buttocks with the intent to humiliate them (a sexual contact as defined by Article 120(g)(2)(A)) “is authorized an escort or attendant” under the new policy without a showing of need. In contrast, a person who is the victim of an attempted murder by a service member, or the surviving family members of a murder victim’s family, must demonstrate need to justify not traveling alone.

There is a growing chorus of voices describing the military sexual assault response system as a victim-producing industry. I think this new policy lends support to those claims. For that reason, I think the new policy unwise.