II 112th CONGRESS 2d Session S. 3647 IN THE SENATE OF THE UNITED STATES November 29, 2012 Ms. Klobuchar (for herself and Ms. Snowe) 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 improve and enhance the capabilities of the Armed Forces to prevent and respond to sexual assault and sexual harassment in the Armed Forces, and for other purposes.

1.

Short title

This Act may be cited as the Military Sexual Assault Prevention Act of 2012.

2.

Prohibition on service in the Armed Forces by individuals who have been convicted of a sexual offense

(a)

Prohibition

Chapter 37 of title 10, United States Code, is amended adding at the end the following new section:

656.

Prohibition on service in the armed forces by individuals convicted of a sexual offense

(a)

Prohibition on commissioning or enlistment

(1)A person who has been convicted of an offense specified in paragraph (2) under Federal or State law may not be processed for commissioning or permitted to enlist in the armed forces. (2)An offense specified in this paragraph is any felony offense as follows: (A)Rape. (B)Sexual assault. (C)Forcible sodomy. (D)Incest. (b)

Administrative separation for certain offenses not resulting in punitive discharge

(1)Any member of the armed forces on active duty, and any member of a reserve component of the armed forces not on active duty but in active status, who is convicted of an offense specified in paragraph (2) and not punitively discharged from the armed forces in connection with such conviction shall be separated administratively from the armed forces for such offense. (2)An offense specified in this paragraph is any offense as follows: (A)Rape or sexual assault under subsection (a) or (b) of section 920 of this title (article 120 of the Uniform Code of Military Justice). (B)Forcible sodomy under section 925 of this title (article 125 of the Uniform Code of Military Justice). (C)An attempt to commit an offense specified in subparagraph (A) or (B), as punishable under section 880 of this title (article 80 of the Uniform Code of Military Justice). (3)Under regulations prescribed by the Secretary of Defense, the Secretary of the military department concerned may waive the requirement in paragraph (1) with respect to a member if the waiver is determined appropriate in the interests of the national security of the United States. Waivers under this paragraph shall be made on a case-by-case basis.

. (b)

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: 656. Prohibition on service in the armed forces by individuals convicted of a sexual offense. .

3.

Persons who may exercise disposition authority regarding charges involving certain sexual misconduct offenses under the Uniform Code of Military Justice

(a)

Persons who may exercise disposition authority

(1)

Disposition authority

With respect to any charge under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), that alleges an offense specified in paragraph (2), the Secretary of Defense shall require the Secretaries of the military departments to restrict disposition authority under section 830 of such chapter (article 30 of the Uniform Code of Military Justice) to officers of the Armed Forces who have the authority to convene special courts-martial under section 823 of such chapter (article 23 of the Uniform Code of Military Justice), but not lower than the following: (A)In the case of a training command, the first brigadier general, or, in the case of the Navy, the first rear admiral (lower half), with a legal advisor (or access to a legal advisor) in the chain of command of the person accused of committing the offense. (B)In the case of any other command, the first colonel, or in the case of the Navy, the first captain, with a legal advisor (or access to a legal advisor) in the chain of command of the person accused of committing the offense. (2)

Covered offenses

Paragraph (1) applies with respect to a charge that alleges any of the following offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice): (A)Rape or sexual assault under subsection (a) or (b) of section 920 of such chapter (article 120 of the Uniform Code of Military Justice). (B)Forcible sodomy under section 925 of such chapter (article 125 of the Uniform Code of Military Justice). (C)An attempt to commit an offense specified in subparagraph (A) or (B), as punishable under section 880 of such chapter (article 80 of the Uniform Code of Military Justice). (b)

Implementation

(1)

Secretaries of military departments

The Secretaries of the military departments shall revise policies and procedures as necessary to comply with subsection (a). (2)

Secretary of Defense

Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall recommend such changes to the Manual for Courts-Martial as are necessary to ensure compliance with subsection (a).

4.

Policy of the United States on disposition of charges involving certain sexual misconduct offenses under the Uniform Code of Military Justice through courts-martial

(a)

Statement of policy

It shall be the policy of the United States 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. (b)

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): (1)Rape or sexual assault under subsection (a) or (b) of section 920 of such chapter (article 120 of the Uniform Code of Military Justice). (2)Forcible sodomy under section 925 of such chapter (article 125 of the Uniform Code of Military Justice). (3)An attempt to commit an offense specified in paragraph (1) or (2), as punishable under section 880 of such chapter (article 80 of the Uniform Code of Military Justice). (c)

Justification for disposition other than by court-Martial

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 provided for in section 3 shall 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.

5.

Inclusion and command review of information on sexual-related offenses in personnel service records of members of the Armed Forces

(a)

Information on substantiated reports on sexual-Related offenses

(1)

In general

If a complaint of a sexual-related offense is made against a member of the Armed Forces and the complaint is substantiated, a notation to that effect shall be placed in the personnel service record of the member, regardless of the member's grade. (2)

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. (b)

Limitation on placement

A notation under subsection (a) may not be placed in the restricted section of the personnel service record of a member. (c)

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. (d)

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). (e)

Command review of history of sexual-Related offenses of members upon assignment or transfer to new unit

(1)

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. (2)

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).

6.

Collection and retention of records on disposition of reports of sexual assault

(a)

Collection

The Secretary of Defense shall require that the Secretary of each military department establish a record on the disposition of any report of sexual assault, whether such disposition is court-martial, non-judicial punishment, or other administrative action. The record of any such disposition shall include the following, as appropriate: (1)Documentary information collected about the incident reported. (2)Punishment imposed, including the sentencing by judicial or non-judicial means including incarceration, fines, restriction, and extra duty as a result of military court-martial, Federal and local court and other sentencing, or any other punishment imposed. (3)Reasons for the selection of the disposition and punishments selected. (4)Administrative actions taken, if any. (5)Any pertinent referrals offered as a result of the incident (such as drug and alcohol counseling and other types of counseling or intervention). (b)

Retention

The Secretary of Defense shall require that— (1)the records established pursuant to subsection (a) be retained by the Department of Defense for a period of not less than 50 years; and (2)a copy of such records be maintained at a centralized location for the same period as applies to retention of the records under paragraph (1).

7.

Retention of certain forms in connection with Restricted Reports on sexual assault involving members of the Armed Forces

(a)

Period of retention

The Secretary of Defense shall ensure that all copies of Department of Defense Form 2910 and Department of Defense Form 2911 filed in connection with a Restricted Report on an incident of sexual assault involving a member of the Armed Forces shall be retained for the longer of— (1)50 years commencing on the date of signature of the member on Department of Defense Form 2910; or (2)the time provided for the retention of such forms in connection with Unrestricted Reports on incidents of sexual assault involving members of the Armed Forces under Department of Defense Directive-Type Memorandum (DTM) 11–062, entitled Document Retention in Cases of Restricted and Unrestricted Reports of Sexual Assault, or any successor directive or policy. (b)

Protection of confidentiality

Any Department of Defense form retained under subsection (a) shall be retained in a manner that protects the confidentiality of the member of the Armed Forces concerned in accordance with procedures for the protection of confidentiality of information in Restricted Reports under Department of Defense memorandum JTF–SAPR–009, relating to the Department of Defense policy on confidentiality for victims of sexual assault, or any successor policy or directive.

8.

Enhancement of annual reports regarding sexual assaults involving members of the Armed Forces

(a)

In general

Section 1631(b) of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (10 U.S.C. 1561 note) is amended— (1)by striking paragraph (3) and inserting the following new paragraph (3): (3)A synopsis of each such substantiated case, organized by offense, and, for each such case, the action taken in such case, including the following information: (A)The type of disciplinary or administrative sanction imposed, if any, including courts-martial sentences, non-judicial punishments administered by commanding officers pursuant to section 815 of title 10, United States Code (article 15 of the Uniform Code of Military Justice), and administrative separations. (B)A description of and rationale for the final disposition and punishment, regardless of type of disciplinary or administrative sanction imposed, including, in a case in which an Article 32 investigating officer recommended dismissal of the charges, an explicit statement of the reasons for such recommendation. (C)The unit and location of service at which the incident occurred. (D)Whether the accused was previously accused of a substantiated sexual assault or sexual harassment. (E)Whether the accused was admitted to the Armed Forces under a moral waiver granted with respect to prior sexual misconduct. (F)Whether alcohol was involved in the incident. (G)If the member was administratively separated or, in the case of an officer, allowed to resign in lieu of facing a court-martial, the characterization given the service of the member upon separation. ; and (2)by adding at the end the following new paragraphs (7)The number of applications submitted under section 673 of title 10, United States Code, during the year covered by the report for a permanent change of station or unit transfer for members of the Armed Forces on active duty who are the victim of a sexual assault or related offense, the number of applications denied, and, for each application denied, a description of the reasons why such application was denied. (8)An analysis and assessment of trends in the incidence, disposition, and prosecution of sexual assaults by commands and installations during the year covered by the report, including trends relating to prevalence of incidents, prosecution of incidents, and avoidance of incidents. (9)An assessment of the adequacy of sexual assault prevention and response activities carried out by training commands during the year covered by the report. (10)An analysis of the specific factors that may have contributed to sexual assault during the year covered by the report, including sexual harassment and substance abuse, an assessment of the role of such factors in contributing to sexual assaults during that year, and recommendations for mechanisms to eliminate or reduce the incidence of such factors or their contributions to sexual assaults. . (b)

Effective date

The amendments made by this section shall take effect on the date of the enactment of this Act, and shall apply beginning with the report required to be submitted by March 1, 2014, under section 1631 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (as amended by subsection (a)).

9.

Independent review and assessment of Uniform Code of Military Justice and judicial proceedings of sexual assault cases

(a)

Independent review and assessment

There is hereby established an independent panel to conduct an independent review and assessment of judicial proceedings under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), involving sexual assault and related offenses for the purpose of developing potential improvements to such proceedings. (b)

Independent panel for review

(1)

Composition

The panel required by subsection (a) shall be composed of seven members, appointed as provided in paragraph (2) from among private United States citizens who have expertise in military law, civilian law, prosecution of sexual assaults in Federal criminal court, military justice policies, the missions of the Armed Forces, or offenses relating to rape, sexual assault, and other sexual misconduct under the Uniform Code of Military Justice. (2)

Appointments

Of the members of the panel— (A)three shall be appointed by the Secretary of Defense; (B)one shall be appointed by the Speaker of the House of Representatives; (C)one shall be appointed by the minority leader of the House of Representatives; (D)one shall be appointed by the majority leader of Senate; and (E)one shall be appointed by the minority leader of the Senate. (3)

Chair

The chair of the panel shall be appointed by the Secretary from among the members of the panel appointed under paragraph (1). (4)

Period of appointment; vacancies

Members shall be appointed for the life of the panel. Any vacancy in the panel shall be filled in the same manner as the original appointment. (5)

Deadline for appointments

All original appointments to the panel shall be made not later than 120 days after the date of the enactment of this Act. (6)

Meetings

The panel shall meet at the call of the chair. (7)

First meeting

The chair shall call the first meeting of the panel not later than 60 days after the date of the appointment of all the members of the panel. (8)

Duration

The panel shall expire on September 30, 2017. (c)

Duties

(1)

Annual review report on UCMJ and recent reforms

The panel required by subsection (a) shall— (A)review and assess on an annual basis judicial proceedings under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), involving sexual assault and related offenses; and (B)prepare on an annual basis a report summarizing the results of the review and assessment under subparagraph (A). (2)

Considerations

In conducting reviews and assessments and preparing annual reports under paragraph (1), the panel shall review, evaluate, and assess the following: (A)The advisory sentencing guidelines given by judges in Federal courts and how those guidelines compare to advisory sentencing guidance provided to panels rendering punishments in court-martial proceedings, including whether it would be more beneficial for advisory sentencing guidelines to be provided to panels or for discretion to be given to judges regarding whether to issue advisory sentencing guidelines. (B)The punishments or administrative actions taken in response to sexual assault court-martial proceedings, including the number of punishments or administrative actions taken as rendered by a panel and the number of punishments or administrative actions rendered by a judge and the consistency and proportionality of the decisions, punishments, and administrative actions to the facts of each case compared with Federal and State criminal courts. (C)The court-martial convictions of sexual assaults in the year covered by the report and the number and description of instances when punishments were reduced upon appeal and the instances in which the defendant appealed following a plea agreement, if such information is available. (D)The training level of defense and prosecution trial counsel, including an inventory of the experience of judge advocate general lead trial counsel in each instance and any existing standards or requirements for lead counsel, including their experience in defending or prosecuting sexual assault and related offenses. (E)The extent and nature, if any, of illicit pressure on prosecutors either to bring cases to trial or not bring cases to trial, and any influence of commanders on and over judicial proceedings. (F)The training provided criminal investigators, and the procedures followed to investigate cases before trial. (G)The implementation of recent reforms to offenses relating to sexual assault and related offenses, including the reforms enacted by section 544 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81; 125 Stat. 1404) and any other recent reforms. (H)Such other matters and materials as the panel considers appropriate for purposes of the reports. (3)

Use of other studies

In preparing the reports, the panel may review, and incorporate as appropriate, the findings of applicable ongoing and completed studies. (4)

First report

Not later than 180 days after its first meeting, the panel shall submit to the Secretary of Defense and the Committees on Armed Services of the Senate and the House of Representatives its first report under this subsection. The panel shall include in the report such proposals for legislative or administrative action as the panel considers appropriate in light of its review. (d)

Powers of panel

(1)

Hearing

The panel may hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence as the panel considers appropriate to carry out its duties under this section. (2)

Information from Federal agencies

Upon request by the chair of the panel, any department or agency of the Federal Government may provide information that the panel considers necessary to carry out its duties under this section. (e)

Personnel matters

(1)

Pay of members

Members of the panel shall serve without pay by reason of their work on the panel. (2)

Travel expenses

The members of the panel shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code, while away from their homes or regular places of business in the performance or services for the panel.

10.

Prevention and response to sexual harassment in the Armed Forces

(a)

Comprehensive policy required

(1)

In general

The Secretary of Defense shall, in consultation with the Secretaries of the military departments and the Equal Opportunity Office of the Department of Defense, develop a comprehensive policy to prevent and respond to sexual harassment in the Armed Forces. The policy shall provide for the following: (A)Training for members of the Armed Forces on the prevention of sexual harassment. (B)Mechanisms for reporting incidents of sexual harassment in the Armed Forces, including procedures for reporting anonymously. (C)Mechanisms for responding to and resolving incidents of alleged sexual harassment incidences involving members of the Armed Forces, including through the prosecution of offenders. (2)

Report

Not later than one year 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 policy required by paragraph (1). (b)

Collection and retention of records on disposition of reports of sexual harassment

(1)

Collection

The Secretary of Defense shall require that the Secretary of each military department establish a record on the disposition of any report of sexual harassment, whether such disposition is court-martial, non-judicial punishment, or other administrative action. The record of any such disposition shall include the following, as appropriate: (A)Documentary information collected about the incident reported. (B)Punishment imposed, including the sentencing by judicial or non-judicial means including incarceration, fines, restriction, and extra duty as a result of military court-martial, Federal and local court and other sentencing, or any other punishment imposed. (C)Reasons for the selection of the disposition and punishments selected. (D)Administrative actions taken, if any. (E)Any pertinent referrals offered as a result of the incident (such as drug and alcohol counseling and other types of counseling or intervention). (2)

Retention

The Secretary of Defense shall require that— (A)the records established pursuant to paragraph (1) be retained by the Department of Defense for a period of not less than 50 years; and (B)a copy of such records be maintained at a centralized location for the same period as applies to retention of the records under subparagraph (A). (c)

Annual report on sexual harassment involving members of the Armed Forces

(1)

Annual report on sexual harassment

Not later than March 1, 2015, and each March 1 thereafter through March 1, 2018, the Secretary of each military department shall submit to the Secretary of Defense a report on the sexual harassments involving members of the Armed Forces under the jurisdiction of such Secretary during the preceding year. Each Secretary of a military department shall submit the report on a year under this section at the same time as the submittal of the annual report on sexual assaults during that year under section 1631 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (10 U.S.C. 1561 note). In the case of the Secretary of the Navy, separate reports shall be prepared under this section for the Navy and the Marine Corps. (2)

Contents

The report of a Secretary of a military department for an Armed Force under paragraph (1) shall contain the following: (A)The number of sexual harassments committed against members of the Armed Force that were reported to military officials during the year covered by the report, and the number of the cases so reported that were substantiated. (B)The number of sexual harassments committed by members of the Armed Force that were reported to military officials during the year covered by the report, and the number of the cases so reported that were substantiated. The information required by this subparagraph may not be combined with the information required by subparagraph (A). (C)A synopsis of each such substantiated case and, for each such case, the action taken in such case, including the type of disciplinary or administrative sanction imposed, section 815 of title 10, United States Code (article 15 of the Uniform Code of Military Justice). (D)The policies, procedures, and processes implemented by the Secretary during the year covered by the report in response to incidents of sexual harassment involving members of that Armed Force. (E)Any other matters relating to sexual harassment involving members of the Armed Forces that the Secretary considers appropriate.