II
Calendar No. 253
113th CONGRESS
1st Session
S. 1775
IN THE SENATE OF THE UNITED STATES
November 21, 2013
Mrs. McCaskill (for herself, Ms. Ayotte, and Mrs. Fischer) introduced the following bill; which was read the first time
December 9, 2013
Read 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.
Short title; table of contents
Short title
This Act may be cited as the Victims Protection Act of 2013
.
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 Response
Sec. 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 Matters
Sec. 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 Matters
Sec. 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.
Sexual Assault Prevention and Response
Prohibition on service in the Armed Forces by individuals who have been convicted of certain sexual offenses
Prohibition
In general
Chapter 37 of title 10, United States Code, is amended adding at the end the following new section:
Prohibition on service in the armed forces by individuals convicted of certain sexual offenses
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.
Covered offenses
An offense specified in this subsection is any felony offense as follows:
Rape or sexual assault.
Forcible sodomy.
Incest.
An attempt to commit an offense specified in paragraph (1) through (3), as punishable under applicable Federal or State law.
.
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.
.
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.
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
In general
Chapter 39 of title 10, United States Code, is amended by inserting after section 673 the following new section:
Temporary administrative reassignment or removal of a member on active duty accused of committing a sexual assault or related offense
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.
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.
.
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:
.
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).
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
.
Inclusion and command review of information on sexual-related offenses in personnel service records of members of the Armed Forces
Information on substantiated reports on sexual-Related offenses
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.
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.
Limitation on placement
A notation under subsection (a) may not be placed in the restricted section of the personnel service record of a member.
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.
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).
Command review of history of sexual-Related offenses of members upon assignment or transfer to new unit
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.
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).
Enhanced responsibilities of Sexual Assault Prevention and Response Office for Department of Defense sexual assault prevention and response program
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:
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.
Serve as the single point of authority, accountability, and oversight for the sexual assault prevention and response program.
Undertake responsibility for the oversight of the implementation of the sexual assault prevention and response program by the Armed Forces.
Collect and maintain data of the military departments on sexual assault in accordance with section 1615.
Provide oversight to ensure that the military departments maintain documents relating to the following:
Allegations and complaints of sexual assault involving members of the Armed Forces.
Courts-martial or trials of members of the Armed Forces for offenses relating to sexual assault.
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.
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.
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.
.
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:
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:
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.
Maintain data collected from the military departments under paragraph (1).
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.
Develop metrics to measure the effectiveness of, and compliance with, training and awareness objectives of the military departments on sexual assault prevention and response.
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.
.
Element on unit of accused and victim in case synopses in annual report on sexual assaults
In general
Section 1631(f) of such Act (10 U.S.C. 1561 note) is amended—
by redesignating paragraphs (5) and (6) as paragraphs (6) and (7), respectively; and
by inserting after paragraph (4) the following new paragraph (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.
.
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.
Comprehensive review of adequacy of training for members of the Armed Forces on sexual assault prevention and response
Comprehensive review required
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.
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.
Review of personnel responsible for sexual assault prevention and response activities
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.
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).
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—
re-training or re-certification of such member or civilian employee; or
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.
Responsive actions regarding program elements
Upon completion of the review under paragraph (1), the Secretary shall prescribe in regulations the following:
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.
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.
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.
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:
The findings and responsive action taken based on review under paragraph (1).
Recommendations of the Secretary for such legislative action as the Secretary considers appropriate—
to improve training provided members of the Armed Forces on sexual assault and prevention; and
to ensure that sexual assault prevention and response positions are considered career enhancing assignments.
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—
by redesignating paragraph (2) as paragraph (3); and
by inserting after paragraph (1) the following new paragraph (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—
is the victim of a sexual assault during the performance of duties as a member of the National Guard or Reserve; or
is the victim of a sexual assault committed by a member of the National Guard or Reserves,
.
Retention of certain forms in connection with Restricted Reports and Unrestricted Reports on sexual assault involving members of the Armed Forces
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—
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
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
.
Conforming amendment
The heading of such section is amended to read as follows:
Retention of certain forms in connection with Restricted Reports and Unrestricted Reports on sexual assault involving members of the Armed Forces
.
Special Victims' Counsel for victims of sexual assault committed by members of the Armed Forces
Special Victims' Counsel for certain victims of sexual assault committed by members of the Armed Forces
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.
Qualification
An individual may not be designated as a Special Victims' Counsel under this subsection unless the individual is—
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
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.
Duties
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:
Legal advice and assistance regarding any potential criminal liability of the victim.
Legal advice and assistance regarding the victim’s responsibility to testify, and other duties to the court.
Legal advice regarding the potential for civil litigation against other parties (other than the Department of Defense).
Legal advice regarding any proceedings of the military justice process which the victim may observe.
Legal advice and assistance regarding any proceeding of the military justice process in which the victim may participate as a witness or other party.
Legal advice and assistance regarding available military or civilian restraining or protective orders.
Legal advice and assistance regarding available military and veteran benefits.
Legal assistance in personal civil legal matters in connection with the sexual assault in accordance with section 1044 of title 10, United States Code.
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.
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.
Assistance and reporting
Assistance
Section 1565b of title 10, United States Code, is amended—
by redesignating subsection (b) as subsection (c); and
by inserting after subsection (a) the following new subsection (b):
Availability of Special Victims' Counsel for victims of sexual assault committed by members of the Armed Forces
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.
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:
Rape or sexual assault under section 920 of this title (article 120 of the Uniform Code of Military Justice).
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).
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.
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.
.
Reporting
Subsection (c) of such section, as redesignated by paragraph (1)(A) of this subsection, is further amended in paragraph (2)—
by redesignating subparagraph (C) as subparagraph (D); and
by inserting after subparagraph (B) the following new subparagraph (C):
A Special Victims' Counsel.
.
Conforming amendments to authority on SARC, SAVA, and related assistance
Subsection (a) of such section is amended—
in
paragraph (1), by striking may
and inserting shall, upon
request,
; and
in paragraph (2)—
by inserting
a Special Victims' Counsel,
after a Sexual Assault Victim
Advocate,
; and
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
.
Conforming and clerical amendments
Heading amendment
The heading of such section is amended to read as follows:
Victims of sexual assault: access to legal assistance and services of Sexual Assault Coordinators, Sexual Assault Victim Advocates, and Special Victims' Counsels
.
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:
.
Sense of Congress on commanding officer responsibility for command climate free of retaliation
It is the sense of Congress that—
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;
the failure of commanding officers to maintain such a command climate is an appropriate basis for relief from their command positions; and
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.
Commanding officer action on reports on sexual offenses involving members of the Armed Forces
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.
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.
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
.
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
.
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—
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.
;
by redesignating subparagraph (I) as subparagraph (J); and
by inserting after subparagraph (H) the following new subparagraph (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.
.
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
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—
by redesignating subparagraph (J) as subparagraph (L); and
by inserting after subparagraph (I) the following new subparagraphs:
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.
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.
.
Assessment as additional duties of panel on judicial proceedings
Paragraph (2) of such section is amended—
by redesignating subparagraph (J) as subparagraph (L); and
by inserting after subparagraph (I) the following new subparagraphs:
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.
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.
.
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).
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—
by redesignating subparagraph (L) as subparagraph (M); and
by inserting after subparagraph (K) the following new subparagraph (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:
Providing the forfeited wages of incarcerated members of the Armed Forces to victims of offenses as compensation.
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).
Requiring restitution by members of the Armed Forces to victims of their offenses upon the direction of a court-martial.
.
Additional enhancements of military department actions on sexual assault prevention and response
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).
Consultation with victims regarding preference in prosecution of certain sexual offenses
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.
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.
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.
Performance appraisals of members of the Armed Forces
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.
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—
allegations of sexual assault 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.
Command climate assessments following incidents of certain sexual offenses
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).
Provision to military criminal investigation organizations and commanders
A command climate assessment performed pursuant to paragraph (1) shall be provided to the following:
The military criminal investigation organization conducting the investigation of the offense concerned.
The commander next higher in the chain of command of the command covered by the climate assessment.
Confidential review of characterization of terms of discharge of victims of sexual offenses
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.
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.
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.
Covered sexual offense defined
In subsections (a) through (e), the term covered sexual offense means any of the following:
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).
Forcible sodomy under section 925 of title 10, United States Code (article 125 of the Uniform Code of Military Justice).
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).
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.
Applicability of sexual assault prevention and response and related military justice enhancements to military service academies
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.
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.
Collaboration between the Department of Defense and the Department of Justice in efforts to prevent and respond to sexual assault
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:
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.
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.
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.
A strategy to leverage efforts by the Department of Defense and the Department of Justice—
to improve the quality of investigations, prosecutions, specialized training, services to victims, awareness, and prevention regarding sexual assault; and
to address social conditions that relate to sexual assault.
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.
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—
describe the manner in which the Department of Defense and Department of Justice will collaborate on an ongoing basis under the framework;
explain obstacles to implementing the framework; and
identify changes in laws necessary to achieve the purpose of this section.
Appropriate committees of Congress defined
In this section, the term appropriate committees of Congress means—
the Committee on Armed Services and the Committee on the Judiciary of the Senate; and
the Committee on Armed Services and the Committee on the Judiciary of the House of Representatives.
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—
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;
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;
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
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.
Related Military Justice Matters
Elimination of five-year statute of limitations on trial by court-martial for additional offenses involving sex-related crimes
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
.
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)
.
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.
Review of decisions not to refer charges of certain sexual offenses to trial by court-martial
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.
Specified sexual offenses
For purposes of this section, a specified sexual offense is any of the following:
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).
Forcible sodomy under section 925 of title 10, United States Code (article 125 of the Uniform Code of Military Justice).
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).
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.
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.
Elements of case file
A case file forwarded to higher authority pursuant to subsection (c) or (d) shall include the following:
All charges and specifications preferred under section 830 of title 10, United States Code (article 30 of the Uniform Code of Military Justice).
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).
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.
A written statement explaining the reasons for the convening authority’s decision not to refer the charges to trial by court-martial.
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).
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.
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.
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—
by
inserting (a) Opportunity
To obtain witnesses and other evidence.—
before
The trial counsel
;
by
striking Process issued
and inserting the following:
Process
Process issued
; and
by inserting after subsection (a), as designated by paragraph (1), the following new subsection (b):
Interview of complaining witnesses by defense counsel
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.
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.
.
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
Mandatory discharge or dismissal required
In general
Section 856 of title 10, United States Code (article 56 of the Uniform Code of Military Justice), is amended—
by inserting
(a)
before The punishment
; and
by adding at the end the following new subsection:
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.
.
Clerical amendments
Section heading
The heading of such section is amended to read as follows:
Art. 56. Maximum and minimum limits
.
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:
.
Jurisdiction limited to general courts-martial
Section 818 of such title (article 18 of the Uniform Code of Military Justice) is amended—
by
inserting (a)
before the first sentence;
in
the third sentence, by striking However, a general court-martial
and inserting the following:
A general court-martial
; and
by adding at the end the following new subsection:
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)).
.
Effective date
The amendments made by this section shall take effect 180 days after the date of the enactment of this Act.
Limitation on authority of convening authority to modify findings of a court-martial
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—
in paragraph (3)—
by inserting
may be taken
after findings of a
court-martial
;
by striking
is not required. However,
and inserting only with respect
to a qualified offense. With respect to such an offense,
;
by striking
may—
and all that follows through (A) dismiss
and
inserting may dismiss
;
by striking
; or
and inserting a period; and
by striking subparagraph (B); and
by adding at the end the following new paragraph:
In paragraph (3), the term qualified offense means, except as provided in subparagraph (B), an offense under this chapter for which—
the maximum sentence of confinement that may be adjudged does not exceed one year; and
the sentence adjudged does not include dismissal, a dishonorable or bad-conduct discharge, or confinement for more than six months.
Such term does not include the following:
An offense under section 920 of this title (article 120).
An offense under section 920a of this title (article 120a).
An offense under section 920b of this title (article 120b).
An offense under section 920c of this title (article 120c).
Such other offenses as the Secretary of Defense may prescribe by regulation.
.
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:
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.
.
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
.
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.
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:
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.
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.
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.
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.
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.
.
Secretary of Defense report on modifications to the Uniform Code of Military Justice to prohibit sexual acts and contacts between military instructors and trainees
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.
Covered military instructors
For purposes the report required by this section, military instructors shall include the following:
Drill Sergeants in the Army.
Drill Instructors in the Marine Corps.
Recruit Division Commanders in the Navy.
Military Training instructors in the Air Force.
Company Commanders in the Coast Guard.
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).
Sense of Senate on disposition of charges involving certain sexual misconduct offenses under the Uniform Code of Military Justice through courts-martial
Sense of Senate
It is the sense of the Senate 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; and
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.
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):
Rape or sexual assault under subsection (a) or (b) of section 920 of such chapter (article 120 of the Uniform Code of Military Justice).
Forcible sodomy under section 925 of such chapter (article 125 of the Uniform Code of Military Justice).
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).
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—
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;
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;
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
the discharge of any member who is discharged as described in paragraph (1) should be characterized as Other Than Honorable.
Other Military Justice and Legal Matters
Prohibition of retaliation against members of the Armed Forces for reporting a criminal offense
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).
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.
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.
Extension of crime victims' rights to victims of offenses under the Uniform Code of Military Justice
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.
Rights
The rights of victims of military crimes specified in this subsection are the following rights:
The right to be reasonably protected from the accused.
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.
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.
The right to be reasonably heard at any public proceeding referred to in paragraph (2).
The reasonable right to confer with the trial counsel in the case.
The right to full and timely restitution as provided in law.
The right to proceedings free from unreasonable delay.
The right to be treated with fairness and with respect for the victim's dignity and privacy.
Victims
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—
an offense under chapter 47 of the Uniform Code of Military Justice; or
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.
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.
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.
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.
Mechanisms for affording rights
The recommendations and regulations required by subsection (a) shall include the following:
Mechanisms for ensuring that victims of military crimes are afforded the rights specified in subsection (b) in all applicable proceedings.
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.
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.
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.
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.
Such other mechanisms as the Secretary of Defense considers appropriate.
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.
Preliminary hearings on alleged offenses under the Uniform Code of Military Justice
Preliminary hearings
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:
Preliminary hearing
No charge or specification may be referred to a general court-martial for trial until a judge advocate conducts a preliminary hearing.
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.
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.
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.
After conducting the preliminary hearing, the judge advocate or officer conducting the preliminary hearing shall prepare a report that includes the following:
A determination as to court-martial jurisdiction over the offense and the accused.
A determination as to probable cause.
A consideration of the form of charges.
A recommendation as to the disposition which should be made of the case.
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.
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.
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.
The presentation of evidence and examination of witnesses at a preliminary hearing shall be limited to the question of probable cause.
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.
The requirements of this section are binding on all persons administering this chapter but failure to follow them does not constitute jurisdictional error.
.
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:
.
Conforming amendments
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
.
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
.
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, 2013
Read the second time and placed on the calendar