S. 548 — Introduced in Senate

II 113th CONGRESS 1st Session S. 548 IN THE SENATE OF THE UNITED STATES March 13, 2013 Ms. Klobuchar (for herself and Ms. Murkowski) introduced the following bill; which was read twice and referred to the Committee on Armed Services A BILL To amend title 10, United States Code, to improve and enhance the capabilities of the Armed Forces to prevent and respond to sexual assault and sexual harassment in the Armed Forces, and for other purposes. 1. Short title This Act may be cited as the Military Sexual Assault Prevention Act of 2013. 2. Prohibition on service in the Armed Forces by individuals who have been convicted of a sexual offense (a) Prohibition Chapter 37 of title 10, United States Code, is amended adding at the end the following new section: 656. Prohibition on service in the armed forces by individuals convicted of a sexual offense (a) Prohibition on commissioning or enlistment (1) A person who has been convicted of an offense specified in paragraph (2) under Federal or State law may not be processed for commissioning or permitted to enlist in the armed forces. (2) An offense specified in this paragraph is any felony offense as follows: (A) Rape. (B) Sexual assault. (C) Forcible sodomy. (D) Incest. (b) Administrative separation for certain offenses not resulting in punitive discharge (1) Any member of the armed forces on active duty, and any member of a reserve component of the armed forces not on active duty but in active status, who is convicted of an offense specified in paragraph (2) and not punitively discharged from the armed forces in connection with such conviction shall be separated administratively from the armed forces for such offense. (2) An offense specified in this paragraph is any offense as follows: (A) Rape or sexual assault under subsection (a) or (b) of section 920 of this title (article 120 of the Uniform Code of Military Justice). (B) Forcible sodomy under section 925 of this title (article 125 of the Uniform Code of Military Justice). (C) An attempt to commit an offense specified in subparagraph (A) or (B), as punishable under section 880 of this title (article 80 of the Uniform Code of Military Justice). (3) Under regulations prescribed by the Secretary of Defense, the Secretary of the military department concerned may waive the requirement in paragraph (1) with respect to a member if the waiver is determined appropriate in the interests of the national security of the United States. Waivers under this paragraph shall be made on a case-by-case basis. . (b) 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: 656. Prohibition on service in the armed forces by individuals convicted of a sexual offense. . 3. Persons who may exercise disposition authority regarding charges involving certain sexual misconduct offenses under the Uniform Code of Military Justice (a) Persons who may exercise disposition authority (1) Disposition authority With respect to any charge under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), that alleges an offense specified in paragraph (2), the Secretary of Defense shall require the Secretaries of the military departments to restrict disposition authority under section 830 of such chapter (article 30 of the Uniform Code of Military Justice) to officers of the Armed Forces who have the authority to convene special courts-martial under section 823 of such chapter (article 23 of the Uniform Code of Military Justice), but not lower than the following: (A) In the case of a training command, the first brigadier general, or, in the case of the Navy, the first rear admiral (lower half), with a legal advisor (or access to a legal advisor) in the chain of command of the person accused of committing the offense. (B) In the case of any other command, the first colonel, or in the case of the Navy, the first captain, with a legal advisor (or access to a legal advisor) in the chain of command of the person accused of committing the offense. (2) Covered offenses Paragraph (1) applies with respect to a charge that alleges any of the following offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice): (A) Rape or sexual assault under subsection (a) or (b) of section 920 of such chapter (article 120 of the Uniform Code of Military Justice). (B) Forcible sodomy under section 925 of such chapter (article 125 of the Uniform Code of Military Justice). (C) An attempt to commit an offense specified in subparagraph (A) or (B), as punishable under section 880 of such chapter (article 80 of the Uniform Code of Military Justice). (b) Implementation (1) Secretaries of military departments The Secretaries of the military departments shall revise policies and procedures as necessary to comply with subsection (a). (2) Secretary of Defense Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall recommend such changes to the Manual for Courts-Martial as are necessary to ensure compliance with subsection (a). 4. Policy of the United States on disposition of charges involving certain sexual misconduct offenses under the Uniform Code of Military Justice through courts-martial (a) Statement of policy It shall be the policy of the United States that 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. (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). (c) Justification for disposition other than by court-Martial 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 provided for in section 3 shall 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. 5. Command action on reports by members of the Armed Forces of sexual offenses involving members (a) Maximum period for action 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) by not later than 24 hours after receipt of the report by the commanding officer. (b) Required action The action required by this subsection with respect to a report described in subsection (a) is, at the election of the commanding officer concerned, one of the following: (1) The submittal of the report to the next higher officer in the chain of command of the commanding officer concerned. (2) The referral of the report to the office of the special investigation 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. 6. 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, 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). 7. Collection and retention of records on disposition of reports of sexual assault (a) Collection The Secretary of Defense shall require that the Secretary of each military department establish a record on the disposition of any report of sexual assault, whether such disposition is court-martial, non-judicial punishment, or other administrative action. The record of any such disposition shall include the following, as appropriate: (1) Documentary information collected about the incident reported. (2) Punishment imposed, including the sentencing by judicial or non-judicial means including incarceration, fines, restriction, and extra duty as a result of military court-martial, Federal and local court and other sentencing, or any other punishment imposed. (3) Reasons for the selection of the disposition and punishments selected. (4) Administrative actions taken, if any. (5) Any pertinent referrals offered as a result of the incident (such as drug and alcohol counseling and other types of counseling or intervention). (b) Retention The Secretary of Defense shall require that— (1) the records established pursuant to subsection (a) be retained by the Department of Defense for a period of not less than 50 years; and (2) a copy of such records be maintained at a centralized location for the same period as applies to retention of the records under paragraph (1). 8. Retention of certain forms in connection with Restricted 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) is amended 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. (b) Conforming amendment The heading of such section is amended by striking at request of the member of the Armed Forces making the report.