Library / Laws / 113th / s / S. 1775 / Placed on Calendar (Senate)
II
Calendar No. 253
113th CONGRESS
1st Session
S. 1775
IN THE SENATE OF THE UNITED STATES
November 21, 2013Mrs. McCaskill (for herself, Ms. Ayotte, and Mrs. Fischer) introduced the following bill; which was read the first time
December 9, 2013Read the second time and placed on the calendar
A BILL
To improve the sexual assault prevention and response programs and activities of the Department of Defense, and for other purposes.
1.
Short title; table of contents
(a)
Short title
This Act may be cited as the Victims Protection Act of 2013.
(b)
Table of contents
The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.TITLE I—Sexual Assault Prevention and ResponseSec. 101. Prohibition on service in the Armed Forces by individuals who have been convicted of certain sexual offenses.Sec. 102. Temporary administrative reassignment or removal of a member of the Armed Forces on active duty who is accused of committing a sexual assault or related offense.Sec. 103. Issuance of regulations applicable to the Coast Guard regarding consideration of request for permanent change of station or unit transfer by victim of sexual assault.Sec. 104. Inclusion and command review of information on sexual-related offenses in personnel service records of members of the Armed Forces.Sec. 105. Enhanced responsibilities of Sexual Assault Prevention and Response Office for Department of Defense sexual assault prevention and response program.Sec. 106. Comprehensive review of adequacy of training for members of the Armed Forces on sexual assault prevention and response.Sec. 107. Availability of Sexual Assault Response Coordinators for members of the National Guard and the Reserves.Sec. 108. Retention of certain forms in connection with Restricted Reports and Unrestricted Reports on sexual assault involving members of the Armed Forces.Sec. 109. Special Victims' Counsel for victims of sexual assault committed by members of the Armed Forces.Sec. 110. Sense of Congress on commanding officer responsibility for command climate free of retaliation.Sec. 111. Commanding officer action on reports on sexual offenses involving members of the Armed Forces.Sec. 112. Department of Defense Inspector General investigation of allegations of retaliatory personnel actions taken in response to making protected communications regarding sexual assault.Sec. 113. Advancement of submittal deadline for report of independent panel on assessment of military response systems to sexual assault.Sec. 114. Assessment of clemency in the military justice system and of database of alleged offenders of sexual assault as additional duties of independent panel on review and assessment of systems to respond to sexual assault cases.Sec. 115. Assessment of provisions and proposed provisions of law on sexual assault prevention and response as additional duties of independent panels for review and assessment of Uniform Code of Military Justice and judicial proceedings of sexual assault cases.Sec. 116. Assessment of compensation and restitution of victims of offenses under the Uniform Code of Military Justice as additional duty of independent panel on review and assessment of judicial proceedings of sexual assault cases.Sec. 117. Additional enhancements of military department actions on sexual assault prevention and response.Sec. 118. Applicability of sexual assault prevention and response and related military justice enhancements to military service academies.Sec. 119. Collaboration between the Department of Defense and the Department of Justice in efforts to prevent and respond to sexual assault.Sec. 120. Sense of Senate on independent panel on review and assessment on response systems to sexual assault crimes.TITLE II—Related Military Justice MattersSec. 201. Elimination of five-year statute of limitations on trial by court-martial for additional offenses involving sex-related crimes.Sec. 202. Review of decisions not to refer charges of certain sexual offenses to trial by court-martial.Sec. 203. Defense counsel interview of complaining witnesses in presence of trial counsel or outside counsel.Sec. 204. Mandatory discharge or dismissal for certain sex-related offenses under the Uniform Code of Military Justice and trial of such offenses by general courts-martial.Sec. 205. Limitation on authority of convening authority to modify findings of a court-martial.Sec. 206. Participation by complaining witnesses in clemency phase of courts-martial process.Sec. 207. Secretary of Defense report on modifications to the Uniform Code of Military Justice to prohibit sexual acts and contacts between military instructors and trainees.Sec. 208. Sense of Senate on disposition of charges involving certain sexual misconduct offenses under the Uniform Code of Military Justice through courts-martial.Sec. 209. Sense of Senate on the discharge in lieu of court-martial of members of the Armed Forces who commit sexual-related offenses.TITLE III—Other Military Justice and Legal MattersSec. 301. Prohibition of retaliation against members of the Armed Forces for reporting a criminal offense.Sec. 302. Extension of crime victims' rights to victims of offenses under the Uniform Code of Military Justice.Sec. 303. Modification of Manual for Courts-Martial to eliminate factor relating to character and military service of the accused in rule on initial disposition of offenses.Sec. 304. Preliminary hearings on alleged offenses under the Uniform Code of Military Justice.
I
Sexual
Assault Prevention and Response
101.
Prohibition on
service in the Armed Forces by individuals who have been convicted of certain
sexual offenses
(a)
Prohibition
(1)
In
general
Chapter 37 of title 10, United States Code, is amended
adding at the end the following new section:
657.
Prohibition on
service in the armed forces by individuals convicted of certain sexual
offenses
(a)
Prohibition on
commissioning or enlistment
A person who has been convicted of an
offense specified in subsection (b) under Federal or State law may not be
processed for commissioning or permitted to enlist in the armed forces.
(b)
Covered
offenses
An offense specified in this subsection is any felony
offense as follows:
(1) Rape or sexual
assault.
(2) Forcible
sodomy.
(3) Incest.
(4) An
attempt to commit an offense specified in paragraph (1) through (3), as
punishable under applicable Federal or State
law.
.
(2)
Clerical
amendment
The table of sections at the beginning of chapter 37 of
such title is amended by adding at the end the following new item:
657. Prohibition on service in the armed forces by individuals
convicted of certain sexual
offenses.
.
(b)
Repeal of
superseded prohibition
Section 523 of the National Defense
Authorization Act for Fiscal Year 2013 (Public Law 112–239; 126 Stat. 1723; 10
U.S.C. 504 note) is repealed.
102.
Temporary
administrative reassignment or removal of a member of the Armed Forces on
active duty who is accused of committing a sexual assault or related
offense
(a)
In
general
Chapter 39 of title 10, United States Code, is amended by
inserting after section 673 the following new section:
674.
Temporary
administrative reassignment or removal of a member on active duty accused of
committing a sexual assault or related offense
(a)
Guidance for
timely consideration and action
The Secretary concerned may
provide guidance, within guidelines provided by the Secretary of Defense, for
commanders regarding their authority to make a timely determination, and to
take action, regarding whether a member of the armed forces serving on active
duty who is alleged to have committed an offense under section 920, 920a, 920b,
920c, or 925 of this title (article 120, 120a, 120b, 120c, or 125 of the
Uniform Code of Military Justice) or an attempt to commit such an offense as
punishable under section 880 of this title (article 80 of the Uniform Code of
Military Justice) should be temporarily reassigned or removed from a position
of authority or from an assignment, not as a punitive measure, but solely for
the purpose of maintaining good order and discipline within the member's
unit.
(b)
Time for
determination
A determination described in subsection (a) may be
made at any time afer receipt of notification of an unrestricted report of a
sexual assault or other sex-related offense that identifies the member as an
alleged
perpetrator.
.
(b)
Clerical
amendment
The table of sections at the beginning of chapter 39 of
such title is amended by inserting after the item relating to section 673 the
following new item:
674. Temporary administrative reassignment or removal of a
member on active duty accused of committing a sexual assault or related
offense.
.
(c)
Additional
training requirement for commanders
The Secretary of Defense
shall provide for inclusion of information and discussion regarding the
availability and use of the authority described by section 674 of title 10,
United States Code, as added by subsection (a), as part of the training for new
and prospective commanders at all levels of command required by section 585(b)
of the National Defense Authorization Act for Fiscal Year 2012 (Public Law
112–81; 10 U.S.C. 1561 note).
103.
Issuance of
regulations applicable to the Coast Guard regarding consideration of request
for permanent change of station or unit transfer by victim of sexual
assault
Section 673(b) of
title 10, United States Code, is amended by striking The Secretaries of
the military departments and inserting The Secretary
concerned.
104.
Inclusion and
command review of information on sexual-related offenses in personnel service
records of members of the Armed Forces
(a)
Information on
substantiated reports on sexual-Related offenses
(1)
In
general
If a complaint of a sexual-related offense is made
against a member of the Armed Forces and the complaint is substantiated and the
member is convicted by court-martial or receives non-judicial punishment or
administrative action for such sexual-related offense, a notation to that
effect shall be placed in the personnel service record of the member,
regardless of the member's grade.
(2)
Purpose
The
purpose of the inclusion of information in personnel service records under
paragraph (1) is to alert commanders to the members of their command who have
received courts-martial conviction, non-judicial punishment, or administrative
action for sexual-related offenses in order to reduce the likelihood that
repeat offenses will escape the notice of commanders.
(b)
Limitation on
placement
A notation under subsection (a) may not be placed in
the restricted section of the personnel service record of a member.
(c)
Construction
Nothing
in subsection (a) or (b) may be construed to prohibit or limit the capacity of
a member of the Armed Forces to challenge or appeal the placement of a
notation, or location of placement of a notation, in the member's personnel
service record in accordance with procedures otherwise applicable to such
challenges or appeals.
(d)
Substantiated
complaints
For purposes of implementing this section, the
Secretary of Defense shall use the definition of substantiated developed for
purposes of the annual report on sexual assaults involving members of the Armed
Forces prepared under section 1631 of the Ike Skelton National Defense
Authorization Act for Fiscal Year 2011 (10 U.S.C. 1561 note).
(e)
Command review
of history of sexual-Related offenses of members upon assignment or transfer to
new unit
(1)
Review
required
Under uniform
regulations prescribed by the Secretary of Defense, the commanding officer of a
facility, installation, or unit to which a member of the Armed Forces described
in paragraph (2) is permanently assigned or transferred shall review the
history of substantiated sexual offenses of the member in order to familiarize
such officer with such history of the member.
(2)
Covered
members
A member of the Armed Forces described in this paragraph
is a member of the Armed Forces who, at the time of assignment or transfer as
described in paragraph (1), has a history of one or more substantiated sexual
offenses as documented in the personnel service record of such member or such
other records or files as the Secretary shall specify in the regulations
prescribed under paragraph (1).
105.
Enhanced
responsibilities of Sexual Assault Prevention and Response Office for
Department of Defense sexual assault prevention and response program
(a)
In
general
Section 1611(b) of the Ike Skelton National Defense
Authorization Act for Fiscal Year 2011 (10 U.S.C. 1561 note) is amended by
striking shall— and all that follows and inserting “shall do the
following:
(1) Oversee
development and implementation of the comprehensive policy for the Department
of Defense sexual assault prevention and response program, including guidance
and assistance for the military departments in addressing matters relating to
sexual assault prevention and response.
(2) Serve as the
single point of authority, accountability, and oversight for the sexual assault
prevention and response program.
(3) Undertake
responsibility for the oversight of the implementation of the sexual assault
prevention and response program by the Armed Forces.
(4) Collect and
maintain data of the military departments on sexual assault in accordance with
section 1615.
(5) Provide oversight
to ensure that the military departments maintain documents relating to the
following:
(A) Allegations and
complaints of sexual assault involving members of the Armed Forces.
(B) Courts-martial or
trials of members of the Armed Forces for offenses relating to sexual
assault.
(6) Act as liaison
between the Department of Defense and other Federal and State agencies on
programs and efforts relating to sexual assault prevention and response.
(7) Oversee
development of strategic program guidance and joint planning objectives for
resources in support of the sexual assault prevention and response program, and
make recommendations on modifications to policy, law, and regulations needed to
ensure the continuing availability of such resources.
(8) Provide to the
Secretary of Veterans Affairs any records or documents on sexual assault in the
Armed Forces, including restricted reports with the approval of the individuals
who filed such reports, that are required by the Secretary for purposes of the
administration of the laws administered by the
Secretary.
.
(b)
Collection and
maintenance of data
Subtitle A of title XVI of such Act (10
U.S.C. 1561 note) is amended by adding at the end the following new
section:
1615.
Collection
and maintenance of data of military departments on sexual assault prevention
and response
In carrying out
the requirements of section 1611(b)(4), the Director of the Sexual Assault
Prevention and Response Office shall do the following:
(1) Collect from each
military department on a quarterly and annual basis data of such military
department on sexual assaults involving members of the Armed Forces in a manner
consistent with the policy and procedures developed pursuant to section 586 of
the National Defense Authorization Act for Fiscal Year 2012 (10 U.S.C. 1561
note) that protect the privacy of individuals named in records and the status
of records.
(2) Maintain data
collected from the military departments under paragraph (1).
(3) Assemble from the
data collected and maintained under this section quarterly and annual reports
on the involvement of members of the Armed Forces in incidents of sexual
assault.
(4) Develop metrics
to measure the effectiveness of, and compliance with, training and awareness
objectives of the military departments on sexual assault prevention and
response.
(5) Establish
categories of information to be provided by the military departments in
connection with reports on sexual assault prevention and response, including,
but not limited to, the annual reports required by section 1631, and ensure
that the submittals of the military departments for purposes of such reports
include data within such
categories.
.
(c)
Element on unit
of accused and victim in case synopses in annual report on sexual
assaults
(1)
In
general
Section 1631(f) of such Act (10 U.S.C. 1561 note) is
amended—
(A) by redesignating
paragraphs (5) and (6) as paragraphs (6) and (7), respectively; and
(B) by inserting
after paragraph (4) the following new paragraph (5):
(5) The case synopsis
shall indicate the unit of each member of the Armed Forces accused of
committing a sexual assault and the unit of each member of the Armed Forces who
is a victim of sexual
assault.
.
(2)
Application of
amendments
The amendments made by paragraph (1) shall apply
beginning with the report regarding sexual assaults involving members of the
Armed Forces required to be submitted by March 1, 2014, under section 1631 of
the Ike Skelton National Defense Authorization Act for Fiscal Year 2011.
106.
Comprehensive
review of adequacy of training for members of the Armed Forces on sexual
assault prevention and response
(a)
Comprehensive
review required
(1)
In
general
The Secretary of Defense shall carry out a review of the
adequacy of the training provided members of the Armed Forces on sexual assault
prevention and response.
(2)
Responsive
action
Upon completion of the review under paragraph (1), the
Secretary shall prescribe in regulations such modifications of the training
provided members of the Armed Forces on sexual assault prevention and response
as the Secretary considers appropriate to address any inadequacies in such
training identified during the review.
(b)
Review of
personnel responsible for sexual assault prevention and response
activities
(1)
Review of
personnel
The Secretary shall carry out a review of the adequacy
of the training, qualifications, and experience of each member of the Armed
Forces and civilian employee of the Department of Defense who is assigned to a
position that includes responsibility for sexual assault prevention and
response within the Armed Forces for the discharge of such
responsibility.
(2)
Assessment of
certain elements of prevention and response program
In carrying
out the review under paragraph (1), the Secretary shall also conduct an
assessment of the adequacy of the training and certifications required for
certain such personnel by section 584 of the National Defense Authorization Act
for Fiscal Year 2012 (Public Law 112–81; 125 Stat. 1433; 10 U.S.C. 1561
note).
(3)
Responsive
personnel actions
If as a result of the review under paragraph
(1) the Secretary determines that any member or civilian employee described in
that paragraph does not have the training, qualifications, or experience
required to discharge the responsibility referred to in that paragraph, the
Secretary shall take appropriate responsive actions, including—
(A) re-training or
re-certification of such member or civilian employee; or
(B) reassigning such
member or civilian employee to duties other than sexual assault prevention and
response and replacing such member or civilian with a member or civilian
employee qualified to discharge such responsibility.
(4)
Responsive
actions regarding program elements
Upon completion of the review
under paragraph (1), the Secretary shall prescribe in regulations the
following:
(A) Appropriate
minimum levels of training, qualifications, and experience for members of the
Armed Forces and civilian personnel of the Department for the discharge of
responsibilities for sexual assault prevention and response within the Armed
Forces.
(B) Such requirements
for improvements in the training provided to members and civilian employees
referred to in subparagraph (A) as the Secretary considers appropriate,
including improvements to the training and certifications referred to in
paragraph (2), in order to ensure that such members and civilian employees are
properly trained and certified to discharge responsibilities for sexual assault
prevention and response within the Armed Forces.
(C) Such requirements
for improvements in the processes used to select and assign personnel to sexual
assault prevention and response billets as the Secretary considers appropriate
to ensure that the highest caliber candidates are selected and assigned to such
billets.
(5)
Report
required
Not later than 120 days after the date of the enactment
of this Act, the Secretary shall submit to the Committees on Armed Services of
the Senate and the House of Representatives a report setting forth the
following:
(A) The findings and
responsive action taken based on review under paragraph (1).
(B) Recommendations
of the Secretary for such legislative action as the Secretary considers
appropriate—
(i) to improve
training provided members of the Armed Forces on sexual assault and prevention;
and
(ii) to ensure that
sexual assault prevention and response positions are considered career
enhancing assignments.
107.
Availability
of Sexual Assault Response Coordinators for members of the National Guard and
the Reserves
Section 584(a) of
the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81;
125 Stat. 1433; 10 U.S.C. 1561 note) is amended—
(1) by
redesignating paragraph (2) as paragraph (3); and
(2) by
inserting after paragraph (1) the following new paragraph (2):
(2)
Availability
for members of the National Guard and Reserves
The Secretary of
the military department concerned shall ensure that each member of the National
Guard or Reserve who—
(A) is the victim of
a sexual assault during the performance of duties as a member of the National
Guard or Reserve; or
(B) is the victim of
a sexual assault committed by a member of the National Guard or
Reserves,
has access to
a Sexual Assault Response Coordinator not later than two business days
following the date of such member's request for assistance from a Sexual
Assault Response
Coordinator.
.
108.
Retention of certain
forms in connection with Restricted Reports and Unrestricted Reports on sexual
assault involving members of the Armed Forces
(a)
Requirement for
retention
Subsection (a) of section 577 of the National Defense
Authorization Act for Fiscal Year 2013 (Public Law 112–239; 126 Stat. 1762; 10
U.S.C. 1561 note) is amended—
(1) by
striking At the request of a member of the Armed Forces who files a
Restricted Report on an incident of sexual assault involving the member, the
Secretary of Defense shall and inserting The Secretary of
Defense shall; and
(2) by
striking the Restricted Report and inserting a Restricted
Report or Unrestricted Report on an incident of sexual assault involving a
member of the Armed Forces.
(b)
Conforming
amendment
The heading of such section is amended to read as
follows:
577.
Retention of
certain forms in connection with Restricted Reports and Unrestricted Reports on
sexual assault involving members of the Armed
Forces
.
109.
Special
Victims' Counsel for victims of sexual assault committed by members of the
Armed Forces
(a)
Special
Victims' Counsel for certain victims of sexual assault committed by members of
the Armed Forces
(1)
In
general
Not later than 180 days after the date of the enactment
of this Act, the Secretaries of the military departments shall each implement a
program on the provision of a Special Victims' Counsel to members of the Armed
Forces, and dependents of members, who are victims of a sexual assault
committed by a member of the Armed Forces.
(2)
Qualification
An
individual may not be designated as a Special Victims' Counsel under this
subsection unless the individual is—
(A) a
judge advocate who is a graduate of an accredited law school or is a member of
the bar of a Federal court or the highest court of a State; and
(B) certified as
competent to be designated as a Special Victims' Counsel by the Judge Advocate
General of the Armed Force of which the individual is a member.
(3)
Duties
(A)
In
general
Subject to subparagraph (C), the duties of a Special
Victims' Counsel shall include the provision of legal advice and assistance to
a victim described in paragraph (1) in connection with criminal and civil legal
matters related to the sexual assault committed against the victim, including
the following:
(i) Legal
advice and assistance regarding any potential criminal liability of the
victim.
(ii) Legal
advice and assistance regarding the victim’s responsibility to testify, and
other duties to the court.
(iii) Legal
advice regarding the potential for civil litigation against other parties
(other than the Department of Defense).
(iv) Legal
advice regarding any proceedings of the military justice process which the
victim may observe.
(v) Legal
advice and assistance regarding any proceeding of the military justice process
in which the victim may participate as a witness or other party.
(vi) Legal
advice and assistance regarding available military or civilian restraining or
protective orders.
(vii) Legal
advice and assistance regarding available military and veteran benefits.
(viii) Legal
assistance in personal civil legal matters in connection with the sexual
assault in accordance with section 1044 of title 10, United States Code.
(ix) Such
other legal advice and assistance as the Secretary of the military department
concerned shall specify for purposes of the program implemented under this
subsection.
(B)
Nature of
relationship
The relationship between a Special Victims' Counsel
and a victim in the provision of legal advice and assistance shall be the
relationship between an attorney and client.
(b)
Assistance and
reporting
(1)
Assistance
Section
1565b of title 10, United States Code, is amended—
(A) by redesignating
subsection (b) as subsection (c); and
(B) by inserting
after subsection (a) the following new subsection (b):
(b)
Availability of
Special Victims' Counsel for victims of sexual assault committed by members of
the Armed Forces
(1) A member of the armed
forces, or a dependent of a member, who is the victim of a sexual assault
described in paragraph (2) may be provided assistance by a Special Victims'
Counsel.
(2) A sexual assault described in this
paragraph is any offense if alleged to have been committed by a member of the
armed forces as follows:
(A) Rape or sexual assault under section
920 of this title (article 120 of the Uniform Code of Military Justice).
(B) An attempt to commit an offense
specified in subparagraph (A) as punishable under section 880 of this title
(article 80 of the Uniform Code of Military Justice).
(3) A member of the armed forces or
dependent who is the victim of sexual assault described in paragraph (2) shall
be informed of the availability of assistance under paragraph (1) as soon as
the member or dependent seeks assistance from a Sexual Assault Response
Coordinator, a Sexual Assault Victim Advocate, a military criminal
investigator, a victim/witness liaison, a trial counsel, health care providers,
or any other personnel designated by the Secretary of the military department
concerned for purposes of this paragraph. The member or dependent shall also be
informed that the assistance of a Special Victims' Counsel under paragraph (1)
is optional and may be declined, in whole or in part, at any time.
(4) Assistance of a Special Victims'
Counsel under paragraph (1) shall be available to a member or dependent
regardless of whether the member or dependent elects unrestricted or restricted
(confidential) reporting of the sexual
assault.
.
(2)
Reporting
Subsection
(c) of such section, as redesignated by paragraph (1)(A) of this subsection, is
further amended in paragraph (2)—
(A) by redesignating
subparagraph (C) as subparagraph (D); and
(B) by inserting
after subparagraph (B) the following new subparagraph (C):
(C) A Special Victims'
Counsel.
.
(c)
Conforming
amendments to authority on SARC, SAVA, and related
assistance
Subsection (a) of such section is amended—
(1) in
paragraph (1), by striking may and inserting shall, upon
request,; and
(2) in
paragraph (2)—
(A) by inserting
a Special Victims' Counsel, after a Sexual Assault Victim
Advocate,; and
(B) by striking
or a trial counsel and inserting a trial counsel, health
care providers, or any other personnel designated by the Secretary of the
military department concerned for purposes of this paragraph.
(d)
Conforming and
clerical amendments
(1)
Heading
amendment
The heading of such section is amended to read as
follows:
1565b.
Victims of
sexual assault: access to legal assistance and services of Sexual Assault
Coordinators, Sexual Assault Victim Advocates, and Special Victims'
Counsels
.
(2)
Table of
sections
The table of sections at the beginning of chapter 80 of
such title is amended by striking the item relating to section 1565b and
inserting the following new item:
1565b. Victims of sexual assault: access to legal assistance
and services of Sexual Assault Coordinators, Sexual Assault Victim Advocates,
and Special Victims'
Counsels.
.
110.
Sense of
Congress on commanding officer responsibility for command climate free of
retaliation
It is the sense of
Congress that—
(1) commanding
officers are responsible for establishing a command climate in which sexual
assault allegations are properly managed and fairly evaluated and a victim can
report criminal activity, including sexual assault, without fear of
retaliation, including ostracism and group pressure from other members of the
command;
(2) the
failure of commanding officers to maintain such a command climate is an
appropriate basis for relief from their command positions; and
(3) senior officers
should evaluate subordinate commanding officers on their performance in
establishing a command climate as described in paragraph (1) during the regular
periodic counseling and performance appraisal process prescribed by the Armed
Force concerned for inclusion in the systems of records maintained and used for
assignment and promotion selection boards.
111.
Commanding
officer action on reports on sexual offenses involving members of the Armed
Forces
(a)
Immediate
action required
A commanding officer who receives a report of a
sexual-related offense involving a member of the Armed Forces in the chain of
command of such officer shall act upon the report in accordance with subsection
(b) immediately after receipt of the report by the commanding officer.
(b)
Action
required
The action required by this subsection with respect to a
report described in subsection (a) is the referral of the report to the
military criminal investigation organization with responsibility for
investigating that offense of the military department concerned or such other
investigation service of the military department concerned as the Secretary of
the military department concerned may specify for purposes of this
section.
112.
Department of
Defense Inspector General investigation of allegations of retaliatory personnel
actions taken in response to making protected communications regarding sexual
assault
Section 1034(c)(2)(A)
of title 10, United States Code, is amended by striking sexual
harassment or and inserting rape, sexual assault, or other
sexual misconduct in violation of sections 920 through 920c of this title
(articles 120 through 120c of the Uniform Code of Military Justice), sexual
harassment, or.
113.
Advancement of
submittal deadline for report of independent panel on assessment of military
response systems to sexual assault
Section 576(c)(1)(B) of the National Defense
Authorization Act for Fiscal Year 2013 (Public Law 112–239; 126 Stat. 1759) is
amended by striking Eighteen months and inserting Twelve
months.
114.
Assessment of
clemency in the military justice system and of database of alleged offenders of
sexual assault as additional duties of independent panel on review and
assessment of systems to respond to sexual assault cases
Paragraph (1) of Section 576(d) of the
National Defense Authorization Act for Fiscal Year 2013 (Public Law 112–239;
126 Stat. 1760) is amended—
(1) in
subparagraph (B), by adding at the end the following new sentence: The
comparison shall also include an assessment of the opportunities for clemency
provided in the military and civilian systems, the appropriateness of clemency
proceedings in the military system, the manner in which clemency is used in the
military system, and whether clemency in the military justice system could be
reserved until the end of the military appeals process.;
(2) by
redesignating subparagraph (I) as subparagraph (J); and
(3) by
inserting after subparagraph (H) the following new subparagraph (I):
(I) An assessment of
the means by which the name, if known, and other necessary identifying
information of an alleged offender that is collected as part of a restricted
report of a sexual assault could be compiled into a protected, searchable
database accessible only to military criminal investigators, Sexual Assault
Response Coordinators, or other appropriate personnel only for the purposes of
identifying individuals who are subjects of multiple accusations of sexual
assault and encouraging victims to make an unrestricted report of sexual
assault in those cases in order to facilitate increased prosecutions,
particularly of serial offenders. The assessment should include an evaluation
of the appropriate content to be included in the database, as well as the best
means to maintain the privacy of those making a restricted
report.
.
115.
Assessment of
provisions and proposed provisions of law on sexual assault prevention and
response as additional duties of independent panels for review and assessment
of Uniform Code of Military Justice and judicial proceedings of sexual assault
cases
(a)
Assessment as
additional duties of panel on response systems to sexual assault
crimes
Paragraph (1) of section 576(d) of the National Defense
Authorization Act for Fiscal Year 2013 (Public Law 112–239; 126 Stat. 1760), as
amended by section 114 of this Act, is further amended—
(1) by
redesignating subparagraph (J) as subparagraph (L); and
(2) by
inserting after subparagraph (I) the following new subparagraphs:
(J) An assessment of
the effectiveness of the provisions of law on sexual assault prevention and
response in the Victims Protection Act of 2013,
including the provisions establishing or amending requirements and authorities
relating to sexual assault prevention and response.
(K) An assessment of
the potential effectiveness of the provisions of law on sexual assault
prevention and response offered by Senators who are members of the Committee on
Armed of the Senate in the markup by the Committee of the Bill to enact the
National Defense Authorization Act for Fiscal Year 2014, and not adopted by the
Committee during that markup for that Bill, including the provisions seeking to
establish or amend requirements and authorities relating to sexual assault
prevention and
response.
.
(b)
Assessment as
additional duties of panel on judicial proceedings
Paragraph (2)
of such section is amended—
(1) by
redesignating subparagraph (J) as subparagraph (L); and
(2) by
inserting after subparagraph (I) the following new subparagraphs:
(J) Monitor and
assess the implementation of the provisions of law on judicial proceedings in
connection with sexual assault in the Victims Protection Act of 2013, including provisions amending chapter 47 of title 10, United
States Code (the Uniform Code of Military Justice), and provisions establishing
or amending other requirements and authorities relating to such judicial
proceedings.
(K) Assess the potential effectiveness of the
provisions of law on judicial proceedings on sexual assault offered by Senators
who are members of the Committee on Armed of the Senate in the markup by the
Committee of the Bill to enact the National Defense Authorization Act for
Fiscal Year 2014, and not adopted by the Committee during that markup for that
Bill, including provisions seeking to amend chapter 47 of title 10, United
States Code (the Uniform Code of Military Justice), and provisions seeking to
establish or amend other requirements and authorities relating to such judicial
proceedings.
.
(c)
Transmittal of
provisions offered but not adopted
The Chairman and Ranking
Member of the Committee on Armed Services of the Senate shall jointly transmit
to the independent panels established pursuant to paragraphs (1) and (2) of
section 576(a) of the National Defense Authorization Act for Fiscal Year 2013
(126 Stat. 1758) the applicable provisions of law offered by Senators who are
members of the Committee on Armed of the Senate in the markup by the Committee
of the Bill to enact the National Defense Authorization Act for Fiscal Year 2014, and not adopted by the Committee during that
markup for that Bill, for purposes of the discharge by such panels of the
additional duties arising under the amendments made by subsections (a) and
(b).
116.
Assessment of
compensation and restitution of victims of offenses under the Uniform Code of
Military Justice as additional duty of independent panel on review and
assessment of judicial proceedings of sexual assault cases
Paragraph (2) of section 576(d) of the
National Defense Authorization Act for Fiscal Year 2013 (Public Law 112–239;
126 Stat. 1761), as amended by section 115(b) of this Act, is further
amended—
(1) by
redesignating subparagraph (L) as subparagraph (M); and
(2) by
inserting after subparagraph (K) the following new subparagraph (L):
(L) Assess the
adequacy of the provision of compensation and restitution for victims of
offenses under chapter 47, of title 10, United States Code (the Uniform Code of
Military Justice), and develop recommendations on expanding such compensation
and restitution, including consideration of the options as follows:
(i) Providing the
forfeited wages of incarcerated members of the Armed Forces to victims of
offenses as compensation.
(ii) Including bodily
harm among the injuries meriting compensation for redress under section 939 of
title 10, United States Code (article 139 of the Uniform Code of Military
Justice).
(iii) Requiring
restitution by members of the Armed Forces to victims of their offenses upon
the direction of a
court-martial.
.
117.
Additional
enhancements of military department actions on sexual assault prevention and
response
(a)
Additional duty
of Special Victims' Counsel
In addition to the duties specified
in section 109(a)(3), a Special Victims’ Counsel designated under section 539
shall provide advice to victims of sexual assault on the advantages and
disadvantages of prosecution of the offense concerned by court-martial or by a
civilian court with jurisdiction over the offense before such victims express
their preference as to the prosecution of the offense under subsection
(b).
(b)
Consultation
with victims regarding preference in prosecution of certain sexual
offenses
(1)
In
general
The Secretaries of the military departments shall each
establish a process to ensure consultation with the victim of a covered sexual
offense that occurs in the United States with respect to the victim's
preference as to whether the offense should be prosecuted by court-martial or
by a civilian court with jurisdiction over the offense.
(2)
Weight afforded
preference
The preference expressed by a victim under paragraph
(1) with respect to the prosecution of an offense, while not binding, should be
afforded great weight in the determination whether to prosecute the offense by
court-martial or by a civilian court.
(3)
Notice to
victim of lack of civilian criminal prosecution after preference for such
prosecution
In the event a victim expresses a preference under
paragraph (1) in favor of prosecution of an offence by civilian court and the
civilian authorities determine to decline prosecution, or defer to prosecution
by court-martial, the victim shall be promptly notified of that
determination.
(c)
Performance
appraisals of members of the Armed Forces
(1)
Appraisals of
all members on compliance with sexual assault prevention and response
programs
The Secretaries of the military departments shall each
ensure that the written performance appraisals of members of the Armed Forces
(whether officers or enlisted members) under the jurisdiction of such Secretary
include an assessment of the extent to which each such member supports the sexual assault
prevention and response program of the Armed Force concerned.
(2)
Performance
appraisals of commanding officers
The Secretaries of the military
departments shall each ensure that the performance appraisals of commanding
officers under the jurisdiction of such Secretary indicate the extent to which each such
commanding officer has or has not established a command climate in which—
(A) allegations of
sexual assault are properly managed and fairly evaluated; and
(B) a
victim can report criminal activity, including sexual assault, without fear of
retaliation, including ostracism and group pressure from other members of the
command.
(d)
Command climate
assessments following incidents of certain sexual offenses
(1)
Assessments
required
The Secretaries of the military departments shall each
establish a process whereby a command climate assessment is performed following
an incident involving a covered sexual offense for each of the command of the
accused and the command of the victim. If the accused and the victim are within
the same command, only a single climate assessment is required. The process
shall ensure the timely completion of command climate assessments for provision
to military criminal investigation organizations and commanders pursuant to
paragraph (2).
(2)
Provision to
military criminal investigation organizations and commanders
A
command climate assessment performed pursuant to paragraph (1) shall be
provided to the following:
(A) The military
criminal investigation organization conducting the investigation of the offense
concerned.
(B) The commander
next higher in the chain of command of the command covered by the climate
assessment.
(e)
Confidential
review of characterization of terms of discharge of victims of sexual
offenses
(1)
In
general
The Secretaries of the military departments shall each
establish a confidential process, through boards for the correction of military
records of the military department concerned, by which an individual who was
the victim of a covered sexual offense during service in the Armed Forces may
challenge, on the basis of being the victim of such an offense, the terms or
characterization of the individual's discharge or separation from the Armed
Forces.
(2)
Consideration
of individual experiences in connection with offenses
In deciding
whether to modify the terms or characterization of an individual's discharge or
separation pursuant to the process required by paragraph (1), the Secretary of
the military department concerned shall instruct boards to give due
consideration to the psychological and physical aspects of the individual’s
experience in connection with the offense concerned, and to what bearing such
experience may have had on the circumstances surrounding the individual's
discharge or separation from the Armed Forces.
(3)
Preservation of
confidentiality
Documents considered and decisions rendered
pursuant to the process required by paragraph (1) shall not be made available
to the public, except with the consent of the individual concerned.
(f)
Covered sexual
offense defined
In subsections (a) through (e), the term
covered sexual offense means any of the following:
(1) Rape
or sexual assault under subsection (a) or (b) of section 920 of title 10,
United States Code (article 120 of the Uniform Code of Military
Justice).
(2) Forcible sodomy
under section 925 of title 10, United States Code (article 125 of the Uniform
Code of Military Justice).
(3) An
attempt to commit an offense specified in paragraph (1) or (2) as punishable
under section 880 of title 10, United States Code (article 80 of the Uniform
Code of Military Justice).
(g)
Modification of
Military Rules of Evidence relating to admissibility of general military
character toward probability of innocence
Not later than 180 days
after the date of the enactment of this Act, Rule 404(a) of the Military Rules
of Evidence shall be modified to clarify that the general military character of
an accused is not admissible for the purpose of showing the probability of
innocence of the accused, except that evidence of a trait of the military
character of an accused may be offered in evidence by the accused when that
trait is relevant to an element of an offense for which the accused has been
charged.
118.
Applicability
of sexual assault prevention and response and related military justice
enhancements to military service academies
(a)
Military
service academies
The
Secretary of the military department concerned shall ensure that the provisions
of this title, and the amendments made by this title, apply to the United
States Military Academy, the Naval Academy, and the Air Force Academy, as
applicable.
(b)
Coast Guard
Academy
The Secretary of Homeland Security shall ensure that the
provisions of this Act, and the amendments made by this Act, apply to
the Coast Guard Academy.
119.
Collaboration between the Department of Defense and the Department of Justice in efforts to prevent and respond to sexual assault
(a)
Strategic framework on collaboration required
Not later than 270 days after the date of the enactment of this Act, the Secretary of Defense and the Attorney General shall jointly develop a strategic framework for ongoing collaboration between the Department of Defense and the Department of Justice in their efforts to prevent and respond to sexual assault. The framework shall be based on and include the following:
(1) An assessment of the role of the Department of Justice in investigations and prosecutions of sexual assault cases in which the Department of Defense and the Department of Justice have concurrent jurisdiction, with the assessment to include a review of and list of recommended revisions to relevant Memoranda of Understanding and related documents between the Department of Justice and the Department of Defense.
(2) An assessment of the feasibility of establishing the position of advisor on military sexual assaults within the Department of Justice (using existing Department resources and personnel) to assist in the activities required under paragraph (1)and provide to the Department of Defense investigative and other assistance in sexual assault cases occurring on domestic and overseas military installations over which the Department of Defense has primary jurisdiction, with the assessment to address the feasibility of maintaining representatives or designees of the advisor at military installations for the purpose of reviewing cases of sexual assault and providing assistance with the investigation and prosecution of sexual assaults.
(3) An assessment of the number of unsolved sexual assault cases that have occurred on military installations, and a plan, with appropriate benchmarks, to review those cases using currently available civilian and military law enforcement resources, such as new technology and forensics information.
(4) A strategy to leverage efforts by the Department of Defense and the Department of Justice—
(A) to improve the quality of investigations, prosecutions, specialized training, services to victims, awareness, and prevention regarding sexual assault; and
(B) to address social conditions that relate to sexual assault.
(5) Mechanisms to promote information sharing and best practices between the Department of Defense and the Department of Justice on prevention and response to sexual assault, including victim assistance through the Violence against Women Act and Office for Victims of Crime programs of the Department of Justice.
(b)
Report
The Secretary of Defense and the Attorney General shall jointly submit to the appropriate committees of Congress a report on the framework required by subsection (a). The report shall—
(1) describe the manner in which the Department of Defense and Department of Justice will collaborate on an ongoing basis under the framework;
(2) explain obstacles to implementing the framework; and
(3) identify changes in laws necessary to achieve the purpose of this section.
(c)
Appropriate committees of Congress defined
In this section, the term appropriate committees of Congress means—
(1) the Committee on Armed Services and the Committee on the Judiciary of the Senate; and
(2) the Committee on Armed Services and the Committee on the Judiciary of the House of Representatives.
120.
Sense of Senate on independent panel on review and assessment on response systems to sexual assault crimes
It is the sense of the Senate that—
(1) the panel to review and assess the systems used to respond to sexual assault established by section 576 of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112–239; 126 Stat. 1758) is conducting an independent assessment of the systems used to investigate, prosecute, and adjudicate crimes involving adult sexual assault and related offenses;
(2) the work of the panel will be critical in informing the efforts of Congress to combat rape, sexual assault, and other sex-related crimes in the Armed Forces;
(3) the panel should include in its assessment under subsection (d)(1) of section 576 of the National Defense Authorization Act for Fiscal Year 2013 a review of the reforms that will be enacted pursuant to this title and the amendments made by this title; and
(4) the views of the victim advocate community should continue to be well-represented on the panel, and input from victims should continue to play a central role in informing the work of the panel.
II
Related
Military Justice Matters
201.
Elimination of
five-year statute of limitations on trial by court-martial for additional
offenses involving sex-related crimes
(a)
In
general
Subsection (a) of
section 843 of title 10, United States Code (article 43 of the Uniform Code of
Military Justice), is amended by striking rape, or rape of a
child and inserting rape or sexual assault, or rape or sexual
assault of a child.
(b)
Conforming
amendment
Subsection (b)(2)(B)(i) of such section (article) is
amended by inserting before the period at the end the following: ,
unless the offense is covered by subsection (a).
(c)
Effective
date
The amendments made by this section shall apply with respect
to offenses committed on or after the date of the enactment of this Act.
202.
Review of decisions
not to refer charges of certain sexual offenses to trial by
court-martial
(a)
In
general
The Secretary of Defense shall require the Secretaries of
the military departments to provide for review of decisions not to refer
charges to trial by court-martial in cases where a specified sexual offense has
been alleged by a victim of the alleged offense.
(b)
Specified
sexual offenses
For purposes of this section, a specified sexual
offense is any of the following:
(1) Rape
or sexual assault under subsection (a) or (b) of section 920 of title 10,
United States Code (article 120 of the Uniform Code of Military
Justice).
(2) Forcible sodomy
under section 925 of title 10, United States Code (article 125 of the Uniform
Code of Military Justice).
(3) An
attempt to commit an offense specified in paragraph (1) or (2) as punishable
under section 880 of title 10, United States Code (article 80 of the Uniform
Code of Military Justice).
(c)
Review of cases
not referred to court-martial following staff judge advocate or senior trial counsel recommendation of
referral for trial
In any case where a staff judge advocate,
pursuant to section 834 of title 10, United States Code (article 34 of the
Uniform Code of Military Justice), or the senior trial counsel detailed to the case recommends that charges of a specified
sexual offense be referred to trial by court-martial and the convening
authority decides not to refer the charges to a court-martial, the convening
authority shall forward the case file to the Secretary of the military
department concerned for review as a superior authorized to exercise general
court-martial convening authority.
(d)
Review of cases
not referred to court-martial following staff judge advocate or senior trial counsel recommendation not
to refer for trial
In any case where a staff judge advocate,
pursuant to section 834 of title 10, United States Code (article 34 of the
Uniform Code of Military Justice), or the senior trial counsel detailed to the case recommends that charges of a specified
sexual offense should not be referred to trial by court-martial and the
convening authority decides not to refer the charges to a court-martial, the
convening authority shall forward the case file for review by a superior
commander authorized to exercise general court-martial convening
authority.
(e)
Elements of
case file
A case file forwarded to higher authority pursuant to
subsection (c) or (d) shall include the following:
(1) All
charges and specifications preferred under section 830 of title 10, United
States Code (article 30 of the Uniform Code of Military Justice).
(2) All
reports of investigations of such charges, including the military criminal
investigative organization investigation report and the investigating officer’s
report under section 832 of title 10, United States Code (article 32 of the
Uniform Code of Military Justice).
(3) The
written advice of the staff judge advocate to the convening authority pursuant
to section 834 of title 10, United States Code (article 34 of the Uniform Code
of Military Justice), together with a certification by the staff judge advocate
as to whether the facts as reported by the victim of the alleged offense or
complaining witness, if true, would or would not constitute a specified sexual
offense.
(4) A
written statement explaining the reasons for the convening authority’s decision
not to refer the charges to trial by court-martial.
(5) A
certification that the victim of the alleged offense or complaining witness was
informed of the convening authority’s decision to forward the case as provided
in subsection (c) or (d).
(f)
Notice on
results or review
The victim of the alleged offense shall be
notified of the results of the review conducted under subsection (c) or (d) in
the manner prescribed by the victims and witness assistance program of the
Armed Force concerned.
(g)
Allegation of
specified sexual offense
The Secretary of Defense shall require
the Secretaries of the military departments to develop a system to ensure that
a victim of an alleged offense has an opportunity to specify that the offense
alleged is a specified sexual offense either at the time of making an
unrestricted report of the allegation or during the criminal investigation of
the allegation.
203.
Defense counsel
interview of complaining witnesses in presence of trial counsel or outside
counsel
Section 846 of title
10, United States Code (article 46 of the Uniform Code of Military Justice), is
amended—
(1) by
inserting (a) Opportunity
To obtain witnesses and other evidence.— before
The trial counsel;
(2) by
striking Process issued and inserting the following:
(c)
Process
Process
issued
;
and
(3) by
inserting after subsection (a), as designated by paragraph (1), the following
new subsection (b):
(b)
Interview of
complaining witnesses by defense counsel
(1) Upon notice by trial
counsel to defense counsel of the name and address of the complaining witness
or witnesses trial counsel intends to call to testify in any portion of an
investigation under section 832 of this title (article 32) or a court-martial
under this chapter, defense counsel shall make all requests to interview any
such complaining witness through trial counsel.
(2) If requested by a complaining witness
subject to a request for interview under paragraph (1), any interview of the
witness by defense counsel shall take place only in the presence of trial
counsel, counsel for the witness, or outside
counsel.
.
204.
Mandatory
discharge or dismissal for certain sex-related offenses under the Uniform Code
of Military Justice and trial of such offenses by general
courts-martial
(a)
Mandatory
discharge or dismissal required
(1)
In
general
Section 856 of title 10, United States Code (article 56
of the Uniform Code of Military Justice), is amended—
(A) by inserting
(a) before The punishment; and
(B) by adding at the
end the following new subsection:
(b) While a person
subject to this chapter who is found guilty of an offense under section 920,
920b, or 925 of this title (article 120, 120b, or 125) or an attempt to commit
such an offense as punishable under section 880 of this title (article 80)
shall be punished as a general court-martial may direct, such punishment must
include, at a minimum, dismissal or dishonorable
discharge.
.
(2)
Clerical
amendments
(A)
Section
heading
The heading of such section is amended to read as
follows:
856.
Art. 56.
Maximum and minimum
limits
.
(B)
Table of
sections
The table of sections at the beginning of subchapter
VIII of chapter 47 of such title is amended by striking the item relating to
section 856 and inserting the following new item:
856. Art. 56. Maximum and minimum
limits.
.
(b)
Jurisdiction
limited to general courts-martial
Section 818 of such title
(article 18 of the Uniform Code of Military Justice) is amended—
(1) by
inserting (a) before the first sentence;
(2) in
the third sentence, by striking However, a general court-martial
and inserting the following:
(b) A
general court-martial
;
and
(3) by
adding at the end the following new subsection:
(c) Consistent with
section 810, 820, and 856(b) of this title (articles 19, 20, and 56(b)), only
general courts-martial have jurisdiction over an offense specified in section
856(b)(2) of this title (article
56(b)(2)).
.
(c)
Effective
date
The amendments made by this section shall take effect 180
days after the date of the enactment of this Act.
205.
Limitation on
authority of convening authority to modify findings of a court-martial
(a)
Limitation of
authority to offenses that would not normally warrant trial by
court-martial
Subsection (c) of section 860 of title 10, United
States Code (article 60 of the Uniform Code of Military Justice), is
amended—
(1) in
paragraph (3)—
(A) by inserting
may be taken after findings of a
court-martial;
(B) by striking
is not required. However, and inserting only with respect
to a qualified offense. With respect to such an offense,;
(C) by striking
may— and all that follows through (A) dismiss and
inserting may dismiss;
(D) by striking
; or and inserting a period; and
(E) by striking
subparagraph (B); and
(2) by
adding at the end the following new paragraph:
(4)
(A) In paragraph (3), the
term qualified offense means, except as provided in subparagraph
(B), an offense under this chapter for which—
(i) the maximum sentence of confinement
that may be adjudged does not exceed one year; and
(ii) the sentence adjudged does not
include dismissal, a dishonorable or bad-conduct discharge, or confinement for
more than six months.
(B) Such term does not include the
following:
(i) An offense under section 920 of this
title (article 120).
(ii) An offense under section 920a of this
title (article 120a).
(iii) An offense under section 920b of
this title (article 120b).
(iv) An offense under section 920c of this
title (article 120c).
(v) Such other offenses as the Secretary
of Defense may prescribe by
regulation.
.
(b)
Requirement for
explanation in writing
Such subsection is further amended by
adding after paragraph (4), as added by subsection (a)(2), the following new
paragraph:
(5) If the convening authority or other
person authorized to act under this section modifies the findings or sentence
of a court-martial, such person shall prepare a written explanation for such
modification. Such explanation shall be made a part of the record of trial and
action
thereon.
.
(c)
Conforming
amendment
Subsection (e)(3) of such section (article) is amended
in the first sentence by inserting (if authorized to do so under
subsection (c)) after findings and sentence.
(d)
Effective
date
The amendments made by subsections (a) and (c) shall apply
with respect to offenses committed on or after the date of the enactment of
this Act.
206.
Participation by
complaining witnesses in clemency phase of courts-martial process
Section 860(b) of title 10, United States
Code (article 60(b) of the Uniform Code of Military Justice), is amended by
adding at the end the following new paragraphs:
(5)
(A) If an accused elects to
submit matters for consideration by the convening authority under this
subsection, a copy of any portion of such matters that refers to a complaining
witness shall be provided to the complaining witness before the convening
authority takes any action on the findings or sentence under this
section.
(B)
(i) Upon receipt of matters
under this paragraph, a complaining witness shall have 10 days to submit
materials in response to such matters to the convening authority.
(ii) If a complaining witness shows that
additional time is required for submission of materials under this
subparagraph, the convening authority or other person taking action under this
section, for good cause, may extend the applicable period for submission of
such materials for not more than an additional 20 days.
(6) In any case in which findings and
sentence have been adjudged for an offense involving a complaining witness, the
complaining witness shall be provided an opportunity to submit matters to the
convening authority for consideration prior to taking action under this
section.
(7) The convening authority shall not
consider under this section any submitted matters that go to the character of a
complaining witness unless such matters were presented at the
court-martial.
.
207.
Secretary of
Defense report on modifications to the Uniform Code of Military Justice to
prohibit sexual acts and contacts between military instructors and
trainees
(a)
Report
required
Not later than 60
days after the date of the enactment of this Act, the Secretary of Defense
shall submit to the Committees on Armed Services of the Senate and the House of
Representatives a report setting forth the recommendations of the Secretary for
such legislative action as the Secretary considers appropriate to modify
chapter 47 of title 10, United States Code (the Uniform Code of Military
Justice), to prohibit sexual acts and contacts between military instructors and
their trainees.
(b)
Covered
military instructors
For purposes the report required by this
section, military instructors shall include the following:
(1) Drill Sergeants
in the Army.
(2) Drill Instructors
in the Marine Corps.
(3) Recruit Division
Commanders in the Navy.
(4) Military Training
instructors in the Air Force.
(5) Company
Commanders in the Coast Guard.
(6) Such
other members of the Armed Forces as the Secretary considers appropriate for
purposes of the report as having supervisory authority over new recruits in the
Armed Forces undergoing basic training (or its equivalent).
208.
Sense of
Senate on disposition of charges involving certain sexual misconduct offenses
under the Uniform Code of Military Justice through courts-martial
(a)
Sense of
Senate
It is the sense of the Senate that—
(1) any
charge regarding an offense specified in subsection (b) should be disposed of
by court-martial, rather than by non-judicial punishment or administrative
action; and
(2) in
the case of any charge regarding an offense specified in subsection (b) that is
disposed of by non-judicial punishment or administrative action, rather than by
court-martial, the disposition authority should include in the case file a
justification for the disposition of the charge by non-judicial punishment or
administrative action, rather than by court-martial.
(b)
Covered
offenses
An offense specified in this subsection is any of the
following offenses under chapter 47 of title 10, United States Code (the
Uniform Code of Military Justice):
(1) Rape
or sexual assault under subsection (a) or (b) of section 920 of such chapter
(article 120 of the Uniform Code of Military Justice).
(2) Forcible sodomy
under section 925 of such chapter (article 125 of the Uniform Code of Military
Justice).
(3) An attempt to
commit an offense specified in paragraph (1) or (2), as punishable under
section 880 of such chapter (article 80 of the Uniform Code of Military
Justice).
209.
Sense of Senate on
the discharge in lieu of court-martial of members of the Armed Forces who
commit sexual-related offenses
It is the sense of the Senate that—
(1) the
Armed Forces should be sparing in discharging in lieu of court-martial members
of the Armed Forces who have committed rape, sexual assault, forcible sodomy,
or attempts to commit such offenses, and should do so only when the facts of
the case clearly warrant such discharge;
(2) whenever
possible, the victims of offenses referred to in paragraph (1) should be
consulted prior to the determination regarding whether to discharge the members
who committed such offenses;
(3) commanding
officers should consider the views of victims of offenses referred to in
paragraph (1) when determining whether to discharge the members who committed
such offenses in lieu of trying such members by court-martial; and
(4) the
discharge of any member who is discharged as described in paragraph (1) should
be characterized as Other Than Honorable.
III
Other
Military Justice and Legal Matters
301.
Prohibition of
retaliation against members of the Armed Forces for reporting a criminal
offense
(a)
Regulations on
prohibition of retaliation required
The Secretary of Defense
shall, not later than 120 days after the date of the enactment of this Act,
prescribe regulations, or require the Secretaries of the military departments
to prescribe regulations, that prohibit retaliation against an alleged victim
or other member of the Armed Forces who reports a criminal offense. The
regulations shall prescribe that a violation of the regulations is an offense
punishable under section 892 of title 10, United States Code (article 92 of the
Uniform Code of Military Justice).
(b)
Report
Not
later than 180 days after the date of the enactment of this Act, the Secretary
of Defense shall submit to Congress a report setting forth the recommendations
of the Secretary as to whether chapter 47 of title 10, United States Code (the
Uniform Code of Military Justice), should be amended to prohibit retaliation
against an alleged victim or other member of the Armed Forces who reports a
criminal offense.
(c)
Retaliation
For
purposes of this section, retaliation shall include, as a minimum, taking or
threatening to take any adverse personnel action, or failing to take or
threatening not to take a favorable personnel action, with respect to a member
of the Armed Forces because the member reported a criminal offense.
302.
Extension of
crime victims' rights to victims of offenses under the Uniform Code of Military
Justice
(a)
In
general
Not later than one year after the date of the enactment
of this Act, the Secretary of Defense shall recommend to the President
modifications to the Manual for Courts-Martial, and prescribe such other
regulations as the Secretary considers appropriate, to enforce the rights of
victims of military crimes as specified in subsection (b) and to ensure
compliance by responsible members of the Armed Forces and personnel of the
Department of Defense with the obligations to enforce such rights.
(b)
Rights
The
rights of victims of military crimes specified in this subsection are the
following rights:
(1) The
right to be reasonably protected from the accused.
(2) The
right to reasonable, accurate, and timely notice of any public proceeding in an
investigation under section 832 of title 10, United States Code (article 32 of
the Uniform Code of Military Justice), court-martial, involuntary plea hearing,
pre-sentencing hearing, or parole hearing involving the offense or of any
release or escape of the accused.
(3) The
right not to be excluded from any public proceeding referred to in paragraph
(2) unless the military judge or investigating officer, as applicable, after
receiving clear and convincing evidence, determines that testimony by the
victim would be materially altered if the victim heard other testimony at that
proceeding.
(4) The
right to be reasonably heard at any public proceeding referred to in paragraph
(2).
(5) The
reasonable right to confer with the trial counsel in the case.
(6) The
right to full and timely restitution as provided in law.
(7) The
right to proceedings free from unreasonable delay.
(8) The
right to be treated with fairness and with respect for the victim's dignity and
privacy.
(c)
Victims
(1)
In
general
For purposes of the recommendations and regulations
required by subsection (a), a victim of a military crime shall be any person
who has suffered direct physical, emotional, or pecuniary harm as a result of
the commission of—
(A) an offense under
chapter 47 of the Uniform Code of Military Justice; or
(B) a
violation of any other law if any portion of the investigation of such
violation is conducted primarily by an element of the Department of
Defense.
(2)
Underage,
incompetent, and other individual victims
For such purposes, in
the case of a victim who is under 18 years of age, incompetent, incapacitated,
or deceased, a victim of a military crime includes one of the following (in
order of precedence): a spouse, legal guardian, parent, child, sibling, another
family member, or another person designated by the military judge or other
appropriate authority.
(3)
Institutional
entity victims
For such purposes, if a victim is an institutional
entity, the victim of a military crime is an authorized representative of the
entity.
(4)
Governmental
entities excluded
For such purposes, departments and agencies of
the Federal Government, and agencies of State and local governments, are not
victims of military crimes.
(d)
Mechanisms for
affording rights
The recommendations and regulations required by
subsection (a) shall include the following:
(1) Mechanisms for
ensuring that victims of military crimes are afforded the rights specified in
subsection (b) in all applicable proceedings.
(2) Mechanisms for
ensuring that members of the Armed Forces and civilian personnel of the
Department of Defense (including military judges, trial counsel, military
criminal investigation organizations, services, and personnel, and other
members and personnel of the Department of Defense engaged in the detection,
investigation, or prosecution of offenses under chapter 47 of title 10, United
States Code (the Uniform Code of Military Justice)) make their best efforts to
see that victims of military crimes are notified of, and accorded, the rights
specified in subsection (b) in all applicable proceedings.
(3) Mechanisms for
the enforcement of such rights, including such mechanisms for application for
such rights and for consideration and disposition of applications for such
rights as the Secretary of Defense considers appropriate.
(4) The
designation of an authority within the Department of Defense to receive and
investigate complaints relating to the provision or violation of the rights of
victims of military crimes.
(5) Disciplinary
sanctions for members of the Armed Forces and other personnel of the Department
of Defense who willfully or wantonly fail to comply with requirements relating
to the rights of victims of military crimes.
(6) Such
other mechanisms as the Secretary of Defense considers appropriate.
303.
Modification
of Manual for Courts-Martial to eliminate factor relating to character and
military service of the accused in rule on initial disposition of
offenses
Not later than 180
days after the date of the enactment of this Act, the discussion pertaining to
Rule 306 of the Manual for Courts-Martial (relating to policy on initial
disposition of offenses) shall be amended to strike the character and military
service of the accused from the matters a commander should consider in deciding
how to dispose of an offense.
304.
Preliminary hearings on alleged offenses under the Uniform Code of Military Justice
(a)
Preliminary hearings
(1)
In general
Section 832 of title 10, United States Code (article 32 of the Uniform Code of Military Justice), is amended to read as follows:
832. Art. 32.
Preliminary hearing
(a)
(1) No charge or specification may be referred to a general court-martial for trial until a judge advocate conducts a preliminary hearing.
(2) In exceptional circumstances, an officer other than a judge advocate may conduct a preliminary hearing if it is determined that detailing a judge advocate to conduct the preliminary hearing is not supportable.
(3) Wherever supportable, the judge advocate or officer conducting a preliminary hearing shall have a grade equal to or higher than the grade of any military counsel who, at the time the judge advocate or officer is detailed, has been assigned to represent a party at the preliminary hearing.
(4) The preliminary hearing shall be limited to the purpose of determining whether there is probable cause to believe an offense has been committed and whether the accused committed it.
(5) After conducting the preliminary hearing, the judge advocate or officer conducting the preliminary hearing shall prepare a report that includes the following:
(A) A determination as to court-martial jurisdiction over the offense and the accused.
(B) A determination as to probable cause.
(C) A consideration of the form of charges.
(D) A recommendation as to the disposition which should be made of the case.
(b)
(1) The accused shall be advised of the charges against the accused and of the accused's right to be represented by counsel at the preliminary hearing. The accused has the right to be represented at the preliminary hearing as provided in section 838 of this title (article 38) and in regulations prescribed under that section.
(2) At the preliminary hearing, the accused may cross-examine adverse witnesses if they are available. The accused may offer evidence and call witnesses relevant to the probable cause determination.
(3) A victim may not be required to testify at the preliminary hearing. A victim who declines to testify shall be deemed to be not available for purposes of the preliminary hearing.
(4) The presentation of evidence and examination of witnesses at a preliminary hearing shall be limited to the question of probable cause.
(c) A preliminary hearing under this section shall be recorded by a suitable recording device, and a copy of the recording shall be provided to any party upon request. The victim shall have access to the recording, upon request, in accordance with regulations prescribed by the Secretary concerned for purposes of this section.
(d) The requirements of this section are binding on all persons administering this chapter but failure to follow them does not constitute jurisdictional error.
.
(2)
Clerical amendment
The table of sections at the beginning of subchapter VI of chapter 47 of such title (the Uniform Code of Military Justice) is amended by striking the item relating to section 832 (article 32) and inserting the following new item:
832. Art. 32. Preliminary hearing.
.
(b)
Conforming amendments
(1) Section 834(a)(2) of such title (article 34(a)(2) of the Uniform Code of Military Justice) is amended by striking the report of investigation and inserting the report of the preliminary hearing.
(2) Section 838(b)(1) of such title (article 38(b)(1) of the Uniform Code of Military Justice) is amended by striking an investigation and inserting a preliminary hearing.
(c)
Effective date
The amendments made by this section shall take effect on the date that is one year after the date of the enactment of this Act, and shall apply with respect to offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), that occur on or after such effective date.
December 9, 2013Read the second time and placed on the calendar