113 S1032 IS: Better Enforcement for Sexual Assault Free Environments Act of 2013 U.S. Senate 2013-05-23 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

II 113th CONGRESS 1st Session S. 1032 IN THE SENATE OF THE UNITED STATES May 23, 2013 Mrs. McCaskill (for herself, Ms. Collins, Mrs. Shaheen, Mr. Blunt, and Ms. Klobuchar) introduced the following bill; which was read twice and referred to the Committee on Armed Services A BILL To amend title 10, United States Code, to make certain improvements in the Uniform Code of Military Justice related to sex-related offenses committed by members of the Armed Forces, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Better Enforcement for Sexual Assault Free Environments Act of 2013. (b)

Table of contents

The table of contents of this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Limitations on convening authority discretion regarding court-martial findings and sentence. Sec. 3. Participation by complaining witnesses in clemency phase of courts-martial process. Sec. 4. 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. 5. Defense counsel interview of complaining witnesses in presence of trial counsel or outside counsel. Sec. 6. Elimination of five-year statute of limitations on trial by court-martial for additional offenses involving sex-related crimes. Sec. 7. Consideration of need for, and authority to provide for, temporary administrative reassignment or removal of a member on active duty who is accused of committing a sexual assault or related offense. Sec. 8. Briefings of commanding officers following unrestricted reports of sexual assault on members of the Armed Forces. Sec. 9. Victims’ Counsel for victims of sex-related offenses committed by members of the Armed Forces and related provisions. Sec. 10. Secretary of Defense report on sentencing reform. Sec. 11. Secretary of Defense report on role of commanders in military justice process.

2.

Limitations on convening authority discretion regarding court-martial findings and sentence

(a)

Elimination of unlimited command prerogative and discretion

Paragraph (1) of section 860(c) of title 10, United States Code (article 60(c) of the Uniform Code of Military Justice) is amended by striking the first sentence. (b)

Limitations on discretion regarding court-Martial findings

Paragraph (3) of section 860(c) of title 10, United States Code (article 60(c) of the Uniform Code of Military Justice) is amended to read as follows: (3)(A)Action on the findings of a court-martial by the convening authority or by another person authorized to act under this section is not required. (B)If a convening authority or other person acts on the findings of a court-martial, the convening authority or other person may not— (i)dismiss any charge or specification, other than a charge or specification for a qualifying offense, by setting aside a finding of guilty thereto; or (ii)change a finding of guilty to a charge or specification, other than a charge or specification for a qualifying offense, to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification. (C)If a convening authority or other person acts on the findings to dismiss or change any charge or specification for a qualifying offense, the convening authority or other person shall prepare a written explanation of such action. Such written explanation shall be immediately provided and made a part of the record of the court-martial at the time the action is taken and becomes effective. (D)(i)In this paragraph, the term qualifying offense means, except as provided in clause (ii), an offense under this chapter for which— (I)the maximum sentence of confinement that may be adjudged does not exceed two years; and (II)the sentence adjudged does not include dismissal, a dishonorable or bad-conduct discharge, or confinement for more than six months. (ii)Such term does not include the following: (I)An offense under section 920 of this title (article 120). (II)An offense under section 928 of this title (article 128), if such offense consisted of assault consummated by battery upon child under 16 years of age. (III)An offense under section 934 of this title (article 134), if such offense consisted of indecent language communicated to child under the age of 16 years. (IV)Such other offenses as the Secretary of Defense may prescribe by regulation. . (c)

Limitations of discretion To modify an adjudged sentence to less than mandatory minimum sentence

Section 860(c) of title 10, United States Code (article 60(c) of the Uniform Code of Military Justice) is amended— (1)in paragraph (2), by striking The convening authority and inserting the following: (B)Except as provided in paragraph (4), the convening authority ; and (2)by adding at the end the following new paragraph: (4)If a mandatory minimum sentence exists for a charge, the convening authority or another person authorized to act under this section may not modify an adjudged sentence to reduce the sentence to less than the mandatory minimum sentence, except that, upon the recommendation of the trial counsel, the convening authority or other person shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect the substantial assistance by the accused in the investigation or prosecution of another person who has committed an offense. . (d)

Explanation for any decision disapproving, commuting, or suspending court-Martial sentence

Section 860(c)(2) of title 10, United States Code (article 60(c)(2) of the Uniform Code of Military Justice), as amended by subsection (c)(1), is further amended— (1)by inserting (A) after (2); and (2)by adding at the end the following new subparagraph: (C)If the convening authority or other person makes a decision to disapprove, commute, or suspend the sentence in whole or in part, the convening authority or such person shall prepare a detailed written explanation of such action. Such written explanation shall be immediately provided and made a part of the record of the court-martial at the time the action is taken and becomes effective. . (e)

Conforming amendment to other authority for convening authority To suspend sentence

Section 871(d) of such title (article 71(d) of the Uniform Code of Military Justice) is amended by adding at the end the following new sentence: Paragraphs (2) and (4) of subsection (c) of section 860 of this title (article 60) shall apply to any decision by the convening authority or such person to suspend the execution of any sentence or part thereof under this subsection.. (f)

Effective date

The amendments made by this section shall take effect 180 days after the date of the enactment of this Act and shall apply with respect to findings and sentences of courts-martial reported to convening authorities under section 860 of title 10, United States Code (article 60 of the Uniform Code of Military Justice), as amended by this section, on or after that effective date.

3.

Participation by complaining witnesses in clemency phase of courts-martial process

Section 860(b) of title 10, United States Code (article 60(b) of the Uniform Code of Military Justice), is amended by adding at the end the following new paragraphs: (5)(A)If an accused elects to submit matters for consideration by the convening authority under this subsection, a copy of any portion of such matters that refers to a complaining witness shall be provided to the complaining witness before the convening authority takes any action on the findings or sentence under this section. (B)(i)Upon receipt of matters under this paragraph, a complaining witness shall have 10 days to submit materials in response to such matters to the convening authority. (ii)If a complaining witness shows that additional time is required for submission of materials under this subparagraph, the convening authority or other person taking action under this section, for good cause, may extend the applicable period for submission of such materials for not more than an additional 20 days. (6)In any case in which findings and sentence have been adjudged for an offense involving a complaining witness, the complaining witness shall be provided an opportunity to submit matters to the convening authority for consideration prior to taking action under this section. (7)The convening authority shall not consider under this section any submitted matters that go to the character of a complaining witness unless such matters were presented at the court-martial. .

4.

Mandatory discharge or dismissal for certain sex-related offenses under the Uniform Code of Military Justice and trial of such offenses by general courts-martial

(a)

Mandatory discharge or dismissal required

(1)

Imposition

Section 856 of title 10, United States Code (article 56 of the Uniform Code of Military Justice) is amended— (A)by inserting (a) before The punishment; and (B)by adding at the end the following new subsection: (b)(1)While a person subject to this chapter who is found guilty of an offense specified in paragraph (2) shall be punished as a general court-martial may direct, such punishment must include, at a minimum, dismissal or dishonorable discharge. (2)Paragraph (1) applies to the following offenses: (A)An offense in violation of subsection (a) or (b) of section 920 (article 120(a) or (b)). (B)Forcible sodomy under section 925 of this title (article 125). (C)An attempt to commit an offense specified in subparagraph (A) or (B) that is punishable under section 880 of this title (article 80). . (2)

Clerical amendments

(A)

Section heading

The heading of such section is amended to read as follows:

856. Art. 56.

Maximum and minimum limits

. (B)

Table of sections

The table of sections at the beginning of subchapter VIII of chapter 47 of such title is amended by striking the item relating to section 856 and inserting the following new item: 856. Art 56. Maximum and minimum limits. . (b)

Jurisdiction limited to general courts-Martial

Section 818 of such title (article 18 of the Uniform Code of Military Justice) is amended— (1)by inserting (a) before the first sentence; (2)in the third sentence, by striking However, a general court-martial and inserting the following: (b)A general court-martial ; and (3)by adding at the end the following new subsection: (c)Consistent with sections 819, 820, and 856(b) of this title (articles 19, 20, and 56(b)), only general courts-martial have jurisdiction over an offense specified in section 856(b)(2) of this title (article 56(b)(2)). . (c)

Effective date

The amendments made by this section shall take effect 180 days after the date of the enactment of this Act.

5.

Defense counsel interview of complaining witnesses in presence of trial counsel or outside counsel

Section 846 of title 10, United States Code (article 46 of the Uniform Code of Military Justice), is amended— (1)by inserting (a) Opportunity To obtain witnesses and other evidence.— before The trial counsel; (2)by striking Process issued and inserting the following: (c)

Process

Process issued ; and (3)by inserting after subsection (a), as designated by paragraph (1), the following new subsection (b): (b)

Interview of complaining witnesses by defense counsel

(1)Upon notice by trial counsel to defense counsel of the name and address of the complaining witness or witnesses trial counsel intends to call to testify in any portion of an investigation under section 832 of this title (article 32) or a court-martial under this chapter, defense counsel shall make all requests to interview any such complaining witness through trial counsel. (2)If requested by a complaining witness subject to a request for interview under paragraph (1), any interview of the witness by defense counsel shall take place only in the presence of trial counsel, counsel for the witness, or outside counsel. .

6.

Elimination of five-year statute of limitations on trial by court-martial for additional offenses involving sex-related crimes

(a)

Inclusion of additional offenses

Section 843(a) of title 10, United States Code (article 43(a) of the Uniform Code of Military Justice) is amended by striking rape, or rape of a child and inserting rape or sexual assault, or rape or sexual assault of a child. (b)

Conforming amendment

Section 843(b)(2)(B)(i) of title 10, United States Code (article 43(b)(2)(B)(i) of the Uniform Code of Military Justice) is amended by inserting before the period at the end the following: , unless the offense is covered by subsection (a). (c)

Effective date

The amendments made by this section shall take effect on the date of the enactment of this Act, and shall apply with respect to an offense covered by section 920(b) or 920b(b) of title 10, United States Code (article 120(b) or 120b(b) of the Uniform Code of Military Justice) that is committed on or after that date.

7.

Consideration of need for, and authority to provide for, temporary administrative reassignment or removal of a member on active duty who is accused of committing a sexual assault or related offense

(a)

In general

Chapter 39 of title 10, United States Code, is amended by inserting after section 673 the following new section:

674.

Temporary administrative reassignment or removal of a member on active duty accused of committing a sexual assault or related offense

(a)

Guidance for timely consideration and action

The Secretary concerned may provide guidance, within guidelines provided by the Secretary of Defense, for commanders regarding their authority to make a timely determination, and to take action, regarding whether a member of the armed forces serving on active duty who is alleged to have committed a sexual assault or other sex-related offense covered by section 920, 920a, 920b, or 920c of this title (article 120, 120a, 120b, or 120c of the Uniform Code of Military Justice) should be temporarily reassigned or removed from a position of authority or assignment, not as a punitive measure, but solely for the purpose of maintaining good order and discipline within the member’s unit. (b)

Time for determinations

A determination described in subsection (a) may be made at any time after receipt of notification of an unrestricted report of a sexual assault or other sex-related offense that identifies the member as an alleged perpetrator.

. (b)

Clerical amendment

The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 673 the following new item: 674. Temporary administrative reassignment or removal of a member on active duty accused of committing a sexual assault or related offense. . (c)

Additional training requirement for commanders

The Secretary of Defense shall provide for inclusion of information and discussion regarding the availability and use of the authority provided 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).

8.

Briefings of commanding officers following unrestricted reports of sexual assault on members of the Armed Forces

(a)

Briefings required

Not later than eight days after a member of the Armed Forces files an unrestricted report on a sexual assault of such member, the commanding officer of the member filing such report shall provide a briefing on such incident to the following: (1)The first colonel, or captain in the case of the Navy, in the chain of command of such member. (2)The first general or flag officer in the chain of command of such member. (b)

Elements

(1)

In general

A briefing on an incident under subsection (a) shall include the following: (A)Information on the victim (other than the name of the victim). (B)Information on the alleged offender (other than the name of the alleged offender). (C)The details of the incident. (D)Any actions taken in connection with the incident, including the following: (i)Referral of the victim to any services available for members of the Armed Forces who are victims of sexual assault, including the date of each such referral. (ii)Any investigation of the incident, including the date of any significant action in connection any such investigation. (2)

Modification

The Secretary of Defense may modify the elements required in a briefing under this section if the Secretary determines that such modification will facilitate compliance of briefings under this section with best practices for such briefing as identified by the Sexual Assault Prevention and Response Office of the Department of Defense. (c)

Preparation

The collection and assembly of any information required for a briefing under this section shall be conducted by a Sexual Assault Response Coordinator. Information required for a briefing may not be collected or assembled through an investigation or interview of the victim by any commanding officer of the victim. (d)

Regulations

The Secretary of Defense shall prescribe regulations to carry out this section.

9.

Victims’ Counsel for victims of sex-related offenses committed by members of the Armed Forces and related provisions

(a)

Designation and duties

(1)

In general

Chapter 53 of title 10, United States Code, is amended by inserting after section 1044d the following new section:

1044e.

Victims' Counsel for victims of sex-related offenses committed by members of the armed forces

(a)

Designation; purposes

Under regulations prescribed by the Secretary of Defense, the Secretary concerned shall designate legal counsel (to be known as Victims’ Counsel) for the purpose of providing legal assistance to any member of the armed forces, any dependent of a member, or any other individual eligible for military legal assistance under section 1044 of this title, who is the victim of a sex-related offense, regardless of whether the allegation is restricted or unrestricted. (b)

Types of legal assistance

The types of legal assistance contemplated by this subsection may include the following: (1)Legal consultation regarding potential criminal liability of the victim stemming from or in relation to the circumstances surrounding the alleged sex-related offense and the victim’s right to seek military defense services. (2)Legal consultation regarding the Victim Witness Assistance Program (VWAP), including— (A)the rights and benefits afforded the victim; (B)the role of the Victim/Witness Advocate or Liaison and what privileges do or do not exist between the victim and the Advocate or Liaison; and (C)the nature of communication made to the Victim/Witness Advocate or Liaison as opposed to communication made to the Legal Assistance Attorney. (3)Legal consultation regarding the potential for civil litigation against other parties (other than the Department of Defense). (4)Legal consultation regarding any proceedings of the military justice process that the victim may observe. (5)Legal consultation regarding the military justice system, including— (A)the roles and responsibilities of the trial counsel, the defense counsel, and investigators; (B)any proceedings of the military justice process in which the victim may observe or participate as a witness or other party; (C)the Government’s authority to compel cooperation and testimony; and (D)the victim’s responsibility to testify, and other duties to the court. (6)Accompanying the victim at any proceedings in connection with the reporting, military investigation, and military prosecution of the alleged sex-related offense. (7)Legal consultation regarding— (A)services available from appropriate agencies or offices for emotional and mental health counseling and other medical services; (B)eligibility for and requirements for obtaining any available military and veteran benefits, such as transitional compensation benefits found in section 1059 of this title and other State and Federal victims’ compensation programs; and (C)the availability of, and any protections offered by, civilian and military restraining orders. (8)Legal consultation and assistance in personal civil legal matters in accordance with section 1044 of this title. (9)Such other legal assistance as the Secretary concerned may specify under this subsection. (c)

Qualifications

An individual may not be designated as a Victims’ Counsel under this section unless the individual is— (1)a judge advocate or a civilian attorney serving as a legal assistance attorney who is a graduate of an accredited law school and is a member of the bar of a Federal court or of the highest court of a State; and (2)is certified as competent to be designated as a Victims’ Counsel by the Judge Advocate General of the Armed Force of which the individual is a member. (d)

Administrative responsibility

Under such regulations as may be prescribed by the Secretary concerned, the Judge Advocate General (as defined in section 801(1) of this title) under the jurisdiction of the Secretary, and within the Marine Corps the Staff Judge Advocate to the Commandant of the Marine Corps, is responsible for the establishment and supervision of individuals designated as Victims’ Counsel. (e)

Sex-Related offense defined

In this subsection, a sex-related offense includes— (1)any offense covered by section 920, 920a, 920b, 920c, or 925 (article 120, 120a, 120b, 120c, or 125 of the Uniform Code of Military Justice); or (2)an attempt to commit an offense specified in a paragraph (1) as punishable under section 880 of this title (article 80 of the Uniform Code of Military Justice). (f)

Availability of victims’ counsel

A member of the armed forces, or a dependent of a member, or any other individual eligible for military legal assistance under section 1044 of this title, who is the victim of an alleged sex-related offense shall be provided assistance by a Victims’ Counsel upon report of an allegation of a sex-related offense or at the time the victim seeks assistance from a Sexual Assault Response Coordinator, a Sexual Assault Victim Advocate, a military criminal investigator, a victim/witness liaison, a trial counsel, a healthcare provider, or any other personnel designated by the Secretary concerned for purposes of this subsection. The assistance of a Victims’ Counsel under this subsection shall be available to a member or a dependent regardless of whether the member or dependent elects unrestricted or restricted reporting of the sex-related offense. The member or dependent shall also be informed that the assistance of the Victims’ Counsel is an option and may be declined, in whole or in part, at any time.

. (2)

Clerical amendment

The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 1044d the following new item: 1044e. Victims' Counsel for victims of sexual assault-related offenses committed by members of the armed forces. . (3)

Conforming amendment

Section 1044(d)(2)(B) of this title is amended by striking and 1044d and inserting 1044d, and 1044e. (b)

Enhanced Training Requirement

The Secretary of each military department, and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Department of the Navy, shall implement, within the guidelines provided by the Secretary of Defense, in-depth and advanced training for all military and civilian attorneys assigned under section 1044 or 1044e of title 10, United States Code, to provide legal assistance to victims of sex-related offenses. (c)

Secretary of Defense reporting requirement

(1)

Report required

Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense, in coordination with the Secretary of Homeland Security with respect to the Coast Guard, shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report outlining how the Armed Forces have implemented the requirements of section 1044e of title 10, United States Code, as added by subsection (a). (2)

Additional submission requirement

The report required by paragraph (1) shall also be submitted to the Independent Review Panels established by section 576 of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112–239; 126 Stat. 1758), and the Joint Services Committee on Military Justice. (d)

Additional duties for independent review panel

The Independent Review Panel established by section 576(a)(1) of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112–239; 126 Stat. 1758) shall include as part of its duties the following: (1)An assessment of the roles, responsibilities, and authorities of the Victims’ Counsel to provide legal assistance to victims of sex-related offenses under section 1044e of title 10, United States Code, as added by subsection (a). (2)An assessment of whether the roles, responsibilities, and authorities of the Victims’ Counsel to provide legal assistance to victims of sex-related offenses under such section should be expanded to include legal standing to represent the alleged victim during investigative and military justice proceedings in connection with the prosecution of a sex-related offense.

10.

Secretary of Defense report on sentencing reform

(a)

Reports required

Not later than 180 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 on sentencing guidelines and mandatory minimum sentencing provisions under the Uniform Code of Military Justice. (b)

Contents of report

The report required by subsection (a) shall include the following: (1)An assessment of the effects of mandatory minimum sentencing provisions under the Uniform Code of Military Justice on the goal of eliminating unwarranted sentencing disparity and other goals of sentencing. (2)An assessment of the penalties imposed by the current mandatory minimum sentences in relation to the offenses for which imposed under the Uniform Code of Military Justice. (3)A description of the interaction between mandatory minimum sentencing provisions under the Uniform Code of Military Justice and plea agreements. (4)An assessment of the appropriateness of statutorily mandated minimum sentencing provisions for additional serious offenses under the Uniform Code of Military Justice. (5)An assessment of the advisory sentencing guidelines used in civilian courts and whether it would be advisable to promulgate sentencing guidelines for use in courts-martial. (6)Any other information that the Secretary of Defense determines would contribute to a thorough assessment of sentencing guidelines and mandatory minimum sentencing provisions under the Uniform Code of Military Law.

11.

Secretary of Defense report on role of commanders in military justice process

Not later than 180 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 containing an assessment of the current role of commanders in the administration of military justice and the investigation, prosecution, and adjudication of offenses under the Uniform Code of Military Justice. Specifically, the Secretary of Defense shall assess the post-trial authority of a commander under section 860 of title 10, United States Code (article 60 of the Uniform Code of Military Justice), as amended by section 2, and include in the report a recommendation regarding whether this authority should be further modified or repealed.