By David Vergun
Army News Service
WASHINGTON, Jan. 8, 2014 - The National Defense Authorization Act passed last
month requires sweeping changes to the Uniform Code of Military Justice,
particularly in cases of rape and sexual assault.
"These are the most changes to the Manual for Courts-Martial that we've seen since a full committee studied it decades ago," said Lt. Col. John L. Kiel Jr., the policy branch chief at the Army's Criminal Law Division in the Office of the Judge Advocate General.
Key provisions of the UCMJ that were rewritten under the NDAA for Fiscal Year 2014 -- signed Dec. 26, 2013, by President Barack Obama -- are Articles 32, 60, 120 and 125.
The law now requires the services to have judge advocates serve as Article 32 investigating officers. Previously, the Army was the only service in which judge advocates routinely did not serve as Article 32 investigating officers.
Article 32 hearings -- roughly equivalent to grand jury proceedings in the civilian judicial system -- are held to determine if there's enough evidence to warrant a general court-martial -- the most serious type of court-martial used for felony-level offenses such as rape and murder.
Congress decided that the services needed to have trained lawyers -- judge advocates -- consider the evidence, since in their view, trained lawyers often are in the best position to make determinations to go forward with general courts-martial, Kiel said. Judge advocates didn't always serve as Article 32 investigating officers in the Army "largely because we try four times the number of cases of any of the other services," he explained -- an issue of not having enough judge advocates for the high volume of cases.
Army officials asked Congress to consider its resourcing issue, he said, so the legislators wrote an exception, stating that "where practicable, you will have a judge advocate conduct the Article 32 investigation."
Kiel explained what "where practicable" means, citing a number of circumstances where it could apply.
Many courts-martial were conducted over the years in Iraq and Afghanistan where soldiers were deployed and some of those involved war crimes, he said. In these cases, the Army found it sometimes was best to have line officers be the Article 32 investigating officers, because they could best put themselves in the shoes of the accused.
Those line officers "understood what it's like to make decisions in the heat of battle better than a lawyer without those experiences," Kiel said. "They added a level of judgment that sometimes judge advocates could not."
Another example, he said, might be travel fraud.
"In the case of complex [temporary duty] fraud, for instance, you might want to have a finance officer as the IO," Kiel said.
Besides subject-matter experts being in the best position to be Article 32 investigating officers, he said, there simply might not be enough judge advocates in the area of the installation. For example, U.S. Army Forces Command would have enough judge advocates to do Article 32 hearings, Kiel said, but if a number of hearings came up at once at U.S. Army Training and Doctrine Command installations -- a smaller major command -- they might come up short.
That might jeopardize the right of an accused to a speedy trial if the clock runs out, he noted. And, if a judge advocate is flown in from another installation, travel costs would be incurred.
"Those are very real situations that could impact the ability to get it done expeditiously and cost effectively," Kiel said.
Other attorneys on an installation cannot always be tapped for Article 32 investigating officer work, he said. On larger installations, "we have operational law attorneys that potentially could cover down on some of these areas, but we don't have a lot of those," he added.
On other installations, Kiel said, administrative law attorneys might have conflicts of interest if they've previously rendered some kind of legal review on a case.
"And, our administrative law attorneys are always busy reviewing various sorts of investigations and helping the command deal with such things as ethics and family readiness issues," he continued.
"Then we have our criminal law advocates, trial counsels and defense counsels," Kiel added. "They're all conflicted out from being IOs, because they're actually tasked with presenting evidence during the [Article 32 hearing] as they're acting as counsel to the government or to the accused."
The fiscal 2014 National Defense Authorization Act gives the services one year to phase in this change to Article 32, stipulating that where practicable, judge advocates conduct the investigations. This one-year time period provides needed time for the staff judge advocates to figure out if they have enough judge advocates to fill the requirement to cover down on all the Article 32 hearings and determine which installations are struggling to meet the requirements, Kiel said.
Another impact to courts-martial practice is the new requirement for a special victims counsel to provide support and advice to the alleged victim, Kiel said. For example, the special victims counsel must inform the victim of any upcoming hearings -- pretrial confinement, parole board, clemency and so on -- and inform the victim that he or she can choose to attend any of those. The victim also will be notified in advance of trial dates and be informed of any delays.
Furthermore, Kiel said, the special victims counsels may represent the alleged victims during trial, ensuring their rights are not violated, as under the Rape Shield Rule, for example. The Rape Shield Rule, or Military Rule of Evidence 412, prevents admission of evidence concerning sexual predisposition and behavior of an alleged victim of sexual assault.
Kiel provided an aside regarding the Rape Shield Law and how a high-visibility case a few months ago involving football players at the U.S. Naval Academy influenced changes to Article 32 by Congress.
In that case, the defense counsel had the victim on the stand for three days of questioning about the alleged victim's motivations, medical history, apparel, and so on during the Article 32 hearing, he related. The cross-examination was perceived by the public and Congress to be disgraceful and degrading, and potentially violating the federal Rape Shield Rule. With passage of the fiscal 2014 National Defense Authorization Act, alleged rape and sexual assault victims are no longer subject to that kind of interrogation at the Article 32 hearing, he said.
Before the new law, alleged victims of sexual assault were ordered to show up at Article 32 hearings and frequently were asked to testify during those hearings as well.
"Congress thought that wasn't fair, since civilian victims of sexual assault didn't have to show up or testify," Kiel said.
"Now, any victim of a crime who suffers pecuniary, emotional or physical harm and is named in one of the charges as a victim does not have to testify at the hearing," he added.
Like Article 32 changes, modifications to Article 60 are to be phased in over the course of 12 months. Article 60 involves pretrial agreements and actions by the convening authority in modifying or setting aside findings of a case or reducing sentencing. A convening authority could do that in the past, and some did, though rarely.
Changes to Article 60 were influenced last year by a case involving Air Force Lt. Col. James Wilkerson, a former inspector general convicted of aggravated sexual assault, Kiel said. The convening authority, Air Force Lt. Gen. Craig Franklin, overturned the findings of guilt.
"That got Congress stirred up," Kiel said.
In the new law, legislators said the convening authority can no longer adjust any findings of guilt for felony offenses where the sentence is longer than six months or contains a discharge. They cannot change findings for any sex crime, irrespective of sentencing time.
One way a commander still can modify a sentence is, "if the trial counsel comes forward and says, 'This particular accused was very helpful in securing evidence or cooperating with the government in prosecuting someone who was accused of committing an offense under the UCMJ.' That is a trigger for the convening authority to be able to modify a sentence," Kiel said.
The other way a convening authority can modify a sentence, even involving rape and sexual assault, is if a pretrial agreement is in place, he said, meaning that the case could close, but the pretrial agreement would still take effect.
Congress realized that Article 60 was still needed to continue the option for pretrial agreements, Kiel said. Had Article 60 been done away with altogether, he added, that "would have likely meant all courts-martial would have gone to full contest, and that would have bottlenecked the entire process."
Voiding Article 60 also would have meant that all alleged victims of sexual assault likely would have to testify.
"Sometimes, victims supported the pretrial agreement, supported the potential sentence and supported the fact that they didn't have to testify -- when it was in their best individual interest," Kiel said.
Other changes to courts-martial practice were made.
Prior to the new law, the convening authority could consider the military character of the accused in considering how to dispose of a case, Kiel said. Congress decided that should have no bearing on whether or not the accused has committed a sexual assault or other type of felony.
Also, he said, previous to new law, "sometimes the [staff judge advocate] would say, 'Take the case to a general court-martial,' and the convening authority would disagree and say, 'I'm not going forward.'" Now, he said, "if the convening authority disagrees, the case has to go to the secretary of the service concerned, [who] would have to decide whether to go forward or not."
In the case of an alleged rape or sexual assault in which the staff judge advocate and the convening authority decide not to go forward because of a lack of evidence or for any other reason, that case has to go up to the next-highest general court-martial convening authority for an independent review, Kiel said.
So if the case occurred at the division level in the Army, for example, and a decision were made at that level not to go forward, then the division would need to take the victim's statements, its own statements for declining the case, and forward them and the entire investigative file to the next level up -- in this case, the corps.
At the corps level, the staff judge advocate and the corps commander would then review the file, look at the evidence and make a determination whether or not to go forward, Kiel explained.
If it's decided to move forward the case would be referred at the corps level instead of sending it back down to the division, he added. This, he explained, avoids unlawful command influence on the case's outcome.
Articles 120 and 125
The UCMJ's Articles 120 and 125 now have mandatory minimum punishments: dishonorable discharge for enlisted service members and dismissal for officers, Kiel said. Article 120 deals with rape and sexual assault upon adults or children and other sex crimes, and Article 125 deals with forcible sodomy. In addition, the accused now must appear before a general court-martial with no opportunity to be tried at a summary or special court-martial, Kiel said.
A summary court-martial is for relatively minor misconduct, and a special court-martial is for an intermediate-level offense.
Furthermore, Congress highly encouraged the services not to dispose of sexual assault cases with adverse administrative action or an Article 15, which involves nonjudicial punishment usually reserved for minor disciplinary offenses, Kiel said.
Rather, Kiel said, Congress desires those cases to be tried at a general court-martial and has mandated that all sexual assault and rape cases be tried only by general court-martial.
Prior to the fiscal 2014 National Defense Authorization Act, there was a five-year statute of limitations on rape and sexual assault on adults and children under Article 120 cases. Now, there's no statute of limitations, he said.
Congress repealed the offense of consensual sodomy under Article 125 in keeping with previous Supreme Court precedent, Kiel said, and also barred anyone who has been convicted of rape, sexual assault, incest or forcible sodomy under state or federal law from enlisting or being commissioned into military service.
Congress could make even more changes that address sexual assaults in the military as early as this month, Kiel said. And later this year, changes to the Manual for Courts-Martial should be signed by the president after review by the services, the national security staff, the Defense Department and other agencies, he added. The updated manual would codify all the changes, although some already are in effect, he said.