CAAFlog » Military Justice Reform » Judicial Proceedings Panel

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.

Read more »

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]

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.

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.

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 »

Yesterday the Judicial Proceedings Panel released it’s initial report. The 160 page PDF version is available here.

The initial report makes eleven recommendations:

  1. The Secretary of Defense examine the DoD and interagency review process for establishing guidance for implementing statutory provisions of the UCMJ and explore options to streamline the procedures.
  2. The Secretary of Defense direct the Services to implement additional selection criteria requiring that judge advocates have adequate criminal justice experience before they are assigned as special victims’ counsel.
  3. The Department of Defense develop a policy to standardize both the time frame within which to receive SVC training and the substantive requirements of SVC training.
  4. The Secretary of Defense direct the Services to perform regular evaluations to ensure SVCs’ assignment to locations that maximize the opportunity for face-to-face interactions between SVCs and clients, and to develop effective means for SVCs to communicate with clients when face-to-face communication is not possible.
  5. The Secretary of Defense establish appropriate SVC program performance measures and standards, including evaluating, monitoring, and reporting on the SVC programs; establishing guiding principles for the Services; and ensuring centralized, standardized assessment of SVC program effectiveness and client satisfaction.
  6. The Secretary of Defense direct the Services to ensure SVCs and victims have appropriate access to docketing information and case filings. In part, this could be accomplished by adopting an electronic system akin to the civilian PACER (Public Access to Court Electronic Records) service.
  7. The Secretary of Defense direct the Services to establish uniform practices and procedures concerning SVCs’ participation for all military judicial proceedings.
  8. The Secretary of Defense consider establishing expedited procedures for victims to seek mandatory interlocutory review in the Service Courts of Criminal Appeals of any alleged violation of victims’ rights.
  9. The Secretary of Defense propose timely revisions to statutes, the MCM, and/or regulations to extend eligibility for SVC representation so long as a right of the victim exists and is at issue.
  10. The President sign an executive order eliminating the “constitutionally required” exception within M.R.E. 412 at Article 32 hearings.
  11. The Secretary of Defense issue specific, uniform guidance to ensure that mental health records are neither sought from a medical treatment facility by investigators or military justice practitioners nor acknowledged or released by medical treatment facility personnel until a military judge or Article 32 hearing officer has ordered their production.

The report also recommends additional study of two areas related to Article 120: “Issues Related to Definitions and Elements” and “Issues Related to Coercive Sexual Relationships and Abuse of Authority.”

Today’s edition of the Federal Register includes this notice from the Department of Defense establishing a Judicial Proceedings Panel to review the UCMJ:

The Judicial Proceedings Panel is a non-discretionary Federal advisory committee that will conduct an independent review and assessment of judicial proceedings conducted under the Uniform Code of Military Justice (UCMJ) involving adult sexual assault and related offenses since the amendments made to the UCMJ by section 541 of the National Defense Authorization Act of Fiscal Year 2012 (“the FY 2012 NDAA”) (Pub. L. 112-81) for the purpose of developing recommendations for improvements to such proceedings. 

The announcement then lists numerous tasks for the panel.

This will be the third concurrent review of the UCMJ within the DoD, the others being the Response Systems to Adult Sexual Assault Crimes Panel and the Military Justice Review Group. The Response Systems Panel operates under the Federal Advisory Committee Act (FACA), while the Military Justice Review Group does not (a topic discussed at this year’s Code Committee meeting). FACA provides for an enormous amount of transparency (open meetings, etc.).