S.Amdt. 2170

SA 2170. Mrs. McCASKILL (for herself, Ms. Ayotte, Mrs. Fischer, Ms. Collins, and Mr. Crapo) submitted an amendment intended to be proposed by her to the bill S. 1197, to authorize appropriations for fiscal year 2014 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes; which was ordered to lie on the table; as follows:

On page 167, line 9, insert “or Senior Trial Counsel” after “Staff Judge Advocate”.

On page 167, line 13, insert “or the senior trial counsel detailed to the case” after “Military Justice),”.

On page 167, line 21, insert “or Senior Trial Counsel” after “Staff Judge Advocate”.

On page 167, line 25, insert “or the senior trial counsel detailed to the case” after “Military Justice),”.

At the end of part I subtitle E of title V, add the following:

SEC. 547. 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 539(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.

SEC. 548. 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 subtitle, and the amendments made by this subtitle, 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 subtitle, and the amendments made by this subtitle, apply to the Coast Guard Academy.

SEC. 549. 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.

SEC. 550. 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 subtitle and the amendments made by this subtitle; 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.

On page 176, line 23, strike “120 days” and insert “60 days”.