[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 816 Introduced in Senate (IS)]

103d CONGRESS
  1st Session
                                 S. 816

 To amend title 10, United States Code, to establish within the Office 
    of the Secretary of Defense the position of Director of Special 
                Investigations; and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

               April 22 (legislative day, April 19), 1993

 Mr. DeConcini 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 establish within the Office 
    of the Secretary of Defense the position of Director of Special 
                Investigations; and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. DIRECTOR OF CRIMINAL INVESTIGATIONS.

    (a) Establishment.--Chapter 4 of title 10, United States Code, is 
amended by adding at the end the following new section:
``Sec. 142. Director of Criminal Investigations
    ``(a) Appointment.--There is a Director of Criminal Investigations 
who is appointed by the Secretary of Defense from among civilians who 
have a significant level of experience in criminal investigations. The 
Director reports directly to the Secretary of Defense.
    ``(b) Senior Executive Service Position.--The position of Director 
of Criminal Investigations is a Senior Executive Service position. The 
Secretary shall designate the position as a career reserved position 
under section 3132(b) of title 5.
    ``(c) Duties.--Subject to the authority, direction, and control of 
the Secretary of Defense, the Director of Criminal Investigations shall 
perform the duties set forth in this section and such other related 
duties as the Secretary may prescribe.
    ``(d) Data Compilation and Reporting.--(1) The Director shall 
obtain, compile, store, monitor, and (in accordance with this section) 
report information on each allegation of sexual misconduct of a member 
of the armed forces or of a dependent of a member of the armed forces 
against a member of the armed forces or against a dependent of a member 
of the armed forces that is received by a member of the armed forces or 
an officer or employee of the Department of Defense in the official 
capacity of that member, officer, or employee.
    ``(2) The information compiled pursuant to paragraph (1) shall 
include the following:
            ``(A) The number of complaints containing an allegation 
        referred to in paragraph (1) that are received as described in 
        that paragraph.
            ``(B) The number of such complaints that are investigated.
            ``(C) In the case of each complaint--
                    ``(i) the organization that investigated the 
                complaint (if investigated);
                    ``(ii) the disposition of the complaint upon 
                completion or other termination of the investigation; 
                and
                    ``(iii) the status or results of any judicial 
                action, nonjudicial disciplinary action, or other 
                adverse action taken.
            ``(D) The number of complaints that were disposed of by 
        formal adjudication in a judicial proceeding, including--
                    ``(i) the number disposed of in a court-martial;
                    ``(ii) the number disposed of in a court of the 
                United States;
                    ``(iii) the number disposed of in a court of a 
                State or territory of the United States or in a court 
                of a political subdivision of a State or territory of 
                the United States;
                    ``(iv) the number disposed of by a plea of guilty;
                    ``(v) the number disposed of by trial on a 
                contested basis; and
                    ``(vi) the number disposed of on any other basis.
            ``(E) The number of complaints that were disposed of by 
        formal adjudication in an administrative proceeding.
    ``(3) The Director shall make the information obtained and compiled 
under this subsection available to the Secretary of Defense, the 
Secretaries of the military departments, Congress, any law enforcement 
agency concerned, and any court concerned.
    ``(e) Direct Investigations.--The Director shall investigate each 
allegation of sexual misconduct referred to in subsection (d) that--
            ``(1) is made directly, or referred, to the Director, 
        including such an allegation that is made or referred to the 
        Director by--
                    ``(A) a commander of a member of the armed forces 
                alleged to have engaged in the sexual misconduct or to 
                have been the victim of the sexual misconduct;
                    ``(B) an investigative organization of the 
                Department of Defense; or
                    ``(C) a victim of the alleged misconduct who is a 
                member of the armed forces or a dependent of a member 
                of the armed forces; or
            ``(2) the Secretary directs the Director to investigate.
    ``(f) Oversight and Quality Control of Other Investigations.--(1) 
The Director shall monitor the conduct of investigations by units, 
offices, agencies, and other organizations within the Department of 
Defense regarding allegations of sexual misconduct.
    ``(2) In carrying out paragraph (1), the Director may inspect any 
investigation conducted or being conducted by any other organization 
within the Department of Defense, review the records of an 
investigation, and observe the conduct of an ongoing investigation.
    ``(3) The Director may report to the Secretary on any investigation 
monitored pursuant to in paragraph (1). The report may include the 
status of the investigation, an evaluation of the conduct of the 
investigation, and an evaluation of each investigator and the 
investigative organization involved in the investigation.
    ``(g) Powers.--In the performance of the duties set forth or 
authorized in this section, the Director shall have the following 
powers:
            ``(1) To have access to all records, reports, audits, 
        reviews, documents, papers, recommendations, or other material 
        available in the Department of Defense which relate to the 
        duties of the Director.
            ``(2) To request such information or assistance as may be 
        necessary for carrying out the Director's duties from any 
        Federal, State, or local governmental agency or unit thereof.
            ``(3) To require by subpoena the production of all 
        information, documents, reports, answers, records, accounts, 
        papers, and other data and documentary evidence necessary in 
        the performance of the Director's duties, which subpoena, in 
        the case of contumacy or refusal to obey, shall be enforceable 
        by order of any appropriate United States district court.
            ``(4) To serve subpoenas, summons, and any judicial process 
        related to the performance of any of the Director's duties.
            ``(5) To administer to or take from any person an oath, 
        affirmation, or affidavit whenever necessary in the performance 
        of the Director's duties, which oath, affirmation, or affidavit 
        when administered or taken by or before an employee designated 
        by the Director shall have the same force and effect as if 
        administered or taken by or before an officer having a seal.
            ``(6) To have direct and prompt access to the Secretary of 
        Defense, the Secretary of a military department, and any 
        commander when necessary for any purpose pertaining to the 
        performance of the Director's duties.
            ``(7) To obtain for any victim of sexual misconduct 
        referred to in subsection (d)(1), from any facility of the 
        uniformed services or any other health care facility of the 
        Federal Government or, by contract, from any other source, 
        medical services and counseling and other mental health 
        services appropriate for treating or investigating--
                    ``(A) injuries resulting from the sexual 
                misconduct; and
                    ``(B) other mental and physiological results of the 
                sexual misconduct.
    ``(h) Referrals for Prosecution.--(1) The Director may refer any 
case of sexual misconduct described in subsection (d)(1) to--
            ``(A) a United States Attorney, or another appropriate 
        official in the Department of Justice, for prosecution; or
            ``(B) to an appropriate commander within the armed forces 
        for action under chapter 47 of this title (the Uniform Code of 
        Military Justice) or other appropriate action.
    ``(2) The Director shall report each such referral to the Secretary 
of Defense.
    ``(i) Staff.--(1) The Director shall have--
            ``(A) a staff of investigators who have extensive 
        experience in criminal investigations;
            ``(B) a staff of attorneys sufficient to provide the 
        Director, the criminal investigators, and the Director's other 
        staff personnel with legal counsel necessary for the 
        performance of the duties of the Director;
            ``(C) a staff of counseling referral specialists; and
            ``(D) such other staff as is necessary for the performance 
        of the Director's duties.
    ``(2) To the maximum extent practicable, the staff of the Director 
shall be generally representative of the population of the United 
States with regard to race, gender, and cultural diversity.
    ``(j) Reports to Director.--Each Member of the Armed Forces and 
each officer or employee of the Department of Defense who, in the 
official capacity of that member, officer, or employee, receives an 
allegation of sexual misconduct shall submit to the Director a 
notification of that allegation together with such information as the 
Director may require for the purpose of carrying out the Director's 
duties.
    ``(k) Annual Report on Sexual Misconduct.--The Secretary of Defense 
shall submit to Congress an annual report on the number and disposition 
of cases of sexual misconduct by members of the Armed Forces and 
officers and employees of the Department of Defense.
    ``(l) Definitions.--In this section:
            ``(1) The term `sexual misconduct' includes the following:
                    ``(A) Sexual harassment, including any conduct 
                involving sexual harassment that--
                            ``(i) in the case of conduct of a person 
                        who is subject to the provisions of chapter 47 
                        of this title (the Uniform Code of Military 
                        Justice), comprises a violation of a provision 
                        of subchapter X of such chapter (relating to 
                        the punitive articles of such Code) or an 
                        applicable regulation, directive, or guideline 
                        regarding sexual harassment that is prescribed 
                        by the Secretary of Defense or the Secretary of 
                        a military department; and
                            ``(ii) in the case of an employee of the 
                        Department of Defense or a dependent subject to 
                        the jurisdiction of the Secretary of Defense or 
                        of the Secretary of a military department, 
                        comprises a violation of a regulation, 
                        directive, or guideline referred to in clause 
                        (i) that is applicable to such employee or 
                        dependent.
                    ``(B) Rape.
                    ``(C) Sexual assault.
                    ``(D) Sexual battery.
            ``(2) The term `complaint', with respect to an allegation 
        of sexual misconduct, includes a report of such allegation.''.
    (b) Table of Sections.--The table of sections at the beginning of 
chapter 4 of such title is amended by adding at the end the following:

``142. Director of Special Investigations.''.

SEC. 2. CRIMINAL FAILURE TO REPORT SEXUAL MISCONDUCT.

    (a) Offenses.--Chapter 109A of title 18, United States Code, is 
amended--
            (1) by redesignating section 2245 as section 2246;
            (2) by inserting after section 2244 the following new 
        section:
``Sec.  2245. Failure to report sexual misconduct
    ``(a) Failure To Act on Allegation of Criminal Sexual Misconduct.--
An officer or employee of the Department of Defense or a member of the 
Armed Forces of the United States who, in the official capacity of the 
officer, employee, or member--
            ``(1) receives an allegation of criminal sexual misconduct 
        of a member of the Armed Forces of the United States or of a 
        dependent of a member of the Armed Forces of the United States 
        against a member of the Armed Forces of the United States or 
        against a dependent of a member of the Armed Forces of the 
        United States;
            ``(2) is required by law to initiate an investigation of, 
        or to determine whether to take disciplinary action in the case 
        of, the allegation; and
            ``(3) fails to submit a notification of the allegation to 
        the Director of Criminal Investigations of the Department of 
        Defense and to the immediate employment supervisor or immediate 
        commander, as the case may be, of the alleged offender,
shall be imprisoned not more than 10 years, fined under this title, or 
both.
    ``(b) Failure To Act on Allegation of Civil Sexual Misconduct.--An 
officer or employee of the Department of Defense or a member of the 
Armed Forces of the United States who, in the official capacity of the 
officer, employee, or member--
            ``(1) receives an allegation of civil sexual misconduct of 
        a member of the Armed Forces of the United States or of a 
        dependent of a member of the Armed Forces of the United States 
        against a member of the Armed Forces of the United States or 
        against a dependent of a member of the Armed Forces of the 
        United States;
            ``(2) is required by law to initiate an investigation of, 
        or to determine whether to take disciplinary action in the case 
        of, the allegation; and
            ``(3) fails to submit a notification of the allegation to 
        the Director of Criminal Investigations of the Department of 
        Defense and to the immediate employment supervisor or immediate 
        commander, as the case may be, of the alleged offender,
shall be imprisoned not more than 1 year, fined under this title, or 
both.''; and
            (3) in section 2246, as redesignated by paragraph (1)--
                    (A) by striking ``and'' at the end of paragraph 
                (2);
                    (B) by striking the period at the end of paragraph 
                (5) and inserting a semicolon; and
                    (C) by adding at the end the following new 
                paragraphs:
            ``(6) the term `criminal sexual misconduct' means engaging 
        in a sexual act or sexual contact in circumstances such that 
        the act or conduct constitutes a criminal offense under this 
        chapter, other Federal law, or State law; and
            ``(7) the term `civil sexual misconduct' means engaging in 
        a sexual act, sexual conduct, or other activity of a sexual 
        nature in violation of a statute, rule, order, or other lawful 
        authority that prohibits the activity but does not authorize 
        imposition of a sentence of imprisonment for a violation.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
such chapter is amended by striking the item relating to section 2245 
and inserting the following:

``2245. Failure to report sexual misconduct.
``2246. Definitions for chapter.''.

SEC. 3. PERSONNEL ADMINISTRATION MATTERS.

    (a) Performance Evaluations and Benefits.--(1) The Secretary of 
Defense shall prescribe in regulations a requirement that the 
commitment of an officer or employee of the Department of Defense and a 
member of the Armed Forces of the United States to the elimination of 
sexual harassment in the officer's, employee's, or member's place of 
work or duty and at installations and other facilities of the 
Department of Defense be one of the factors considered in--
            (A) the preparation of the evaluations of the officer's, 
        employee's, or member's performance of work or duties;
            (B) the determination of the appropriateness of a promotion 
        of the officer, employee, or member; and
            (C) the determination of the appropriateness of selecting 
        the officer, employee, or member to receive a financial award 
        for performance of work or duties.
    (2) The Secretary shall submit to Congress an annual report on the 
implementation of the regulations required by paragraph (1). The report 
shall contain an assessment of the effects of the implementation of 
such regulations on the number, extent, and seriousness of the cases of 
sexual harassment in the Department of Defense. The annual report under 
this paragraph shall be separate from the annual report required by 
section 142(k) of title 10, United States Code, as added by section 1.
    (b) Eligibility for Promotions and Awards.--The Secretary of 
Defense and the Secretary of the military department concerned may not 
approve for presentation of a financial award for performance of work 
or duties or for promotion any officer or employee of the Department of 
Defense or any member of the Armed Forces of the United States who--
            (1) has been convicted of a criminal offense involving 
        sexual misconduct; or
            (2) has received any other disciplinary action or adverse 
        personnel action on the basis of having engaged in sexual 
        misconduct.

SEC. 4. PROTECTION OF PERSONS REPORTING SEXUAL HARASSMENT.

    (a) Regulations of the Secretary of Defense.--The Secretary of 
Defense shall prescribe regulations that prohibit officers and 
employees of the Department of Defense from retaliating or taking any 
adverse personnel action against any other officer or employee of the 
Department of Defense or any member of the Armed Forces of the United 
States for reporting sexual misconduct by an officer or employee of the 
Department of Defense or a member of the Armed Forces or for providing 
information in an investigation, disciplinary action, or adverse 
personnel action in the case of an allegation of sexual misconduct by 
any other such officer, employee, or member. The regulations shall 
include sanctions for violation of the regulations.
    (b) Regulations of a Secretary of a Military Department.--(1) The 
Secretary of each military department shall prescribe regulations that 
prohibit members of the Armed Forces of the United States under the 
jurisdiction of that Secretary from retaliating or taking any adverse 
personnel action against any officer or employee of the Department of 
Defense or any member of the Armed Forces of the United States for 
reporting sexual misconduct by any other officer or employee of the 
Department of Defense or any other member of the Armed Forces or for 
providing information in an investigation, disciplinary action, or 
adverse personnel action in the case of an allegation of sexual 
misconduct by any other such officer, employee, or member.
    (2) A violation of the regulations prescribed pursuant to paragraph 
(1) shall be punishable under section 892 of title 10, United States 
Code (article 92 of the Uniform Code of Military Justice).

SEC. 5. SEXUAL MISCONDUCT DEFINED.

    In this Act, the term ``sexual misconduct'' has the meaning given 
that term in section 142(l) of title 10, United States Code, as added 
by section 1.

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S 816 IS----2