[Congressional Record Volume 167, Number 177 (Thursday, October 7, 2021)]
[Senate]
[Pages S7008-S7010]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 3855. Mrs. GILLIBRAND submitted an amendment intended to be
proposed by her to the bill S. 2792, to authorize appropriations for
fiscal year 2022 for military activities of the Department of Defense,
for military construction, and for defense activities of the Department
of Energy, to prescribe military personnel strengths for such fiscal
year, and for other purposes; which was ordered to lie on the table; as
follows:
At the appropriate place in title V, insert the following:
SEC. __. AUTHORITY OF MILITARY JUDGES AND MILITARY
MAGISTRATES TO ISSUE MILITARY COURT PROTECTIVE
ORDERS.
(a) Judge-issued Military Court Protective Orders.--Chapter
80 of title 10, United Stated Code, is amended by adding at
the end the following new section:
``Sec. 1567b. Authority of military judges and military
magistrates to issue military court protective orders
``(a) Authority to Issue Military Court Protective
Orders.--The President shall prescribe regulations
authorizing military judges and military magistrates to issue
protective orders in accordance with this section. A
protective order issued in accordance with this section shall
be known as a `military court protective order'. Under the
regulations prescribed by the President, military judges and
military magistrates shall have exclusive jurisdiction over
the issuance, appeal, renewal, and termination of military
court protective orders and such orders may not be issued,
appealed, renewed, or terminated by State, local,
territorial, or tribal courts.
``(b) Enforcement by Civilian Authorities.--
``(1) In general.--In prescribing regulations for military
court protective orders, the President shall seek to ensure
that the protective orders are issued in a form and manner
that is enforceable by State, local, territorial, and tribal
civilian law enforcement authorities.
``(2) Full faith and credit.--Any military court protective
order shall be accorded full faith and credit by the court of
a State, local, territorial, or tribal jurisdiction (the
enforcing jurisdiction) and enforced by the court and law
enforcement personnel of that jurisdiction as if it were the
order of the enforcing jurisdiction.
``(3) Reciprocity agreements.--Consistent with paragraphs
(1) and (2), the Secretary of Defense shall seek to enter
into reciprocity agreements with State, local, territorial,
and tribal civilian law enforcement authorities under which--
``(A) such authorities agree to enforce military court
protective orders; and
``(B) the Secretary agrees to enforce protective orders
issued by such authorities that are consistent with section
2265(b) of title 18.
``(c) Purpose and Form of Issuance.--A military court
protective order--
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``(1) may be issued for the purpose of protecting a victim
of an alleged covered offense, or a family member or
associate of the victim, from a person subject to chapter 47
of this title (the Uniform Code of Military Justice) who is
alleged to have committed such an offense; and
``(2) shall include--
``(A) a finding regarding whether such person represents a
credible threat to the physical safety of such alleged
victim;
``(B) a finding regarding whether the alleged victim is an
intimate partner or child of such person; and
``(C) if applicable, terms explicitly prohibiting the use,
attempted use, or threatened use of physical force that would
reasonably be expected to cause bodily injury against such
intimate partner or child.
``(d) Burden of Proof.--In determining whether to issue a
military court protective order, a military judge or military
magistrate shall make all relevant findings by a
preponderance of the evidence. The burden shall be on the
party requesting the order to produce sufficient information
to satisfy the preponderance of the evidence standard
referred to in the preceding sentence.
``(e) Timing and Manner of Issuance.--A military court
protective order may be issued--
``(1) by a military magistrate, before referral of charges
and specifications to court-martial for trial, at the request
of--
``(A) a victim of an alleged covered offense; or
``(B) a Special Victims' Counsel or other qualified counsel
acting on behalf of the victim; or
``(2) by a military judge, after referral of charges and
specifications to court-martial for trial, at the request of
qualified counsel, which may include a Special Victims'
Counsel acting on behalf of the victim or trial counsel
acting on behalf of the prosecution.
``(f) Duration and Renewal of Protective Order.--
``(1) Duration.--A military court protective order shall be
issued for an initial period of up to 180 days and may be
reissued for one or more additional periods, each of which
may be up to 180 days, in accordance with paragraph (2).
``(2) Expiration and renewal.--Before the expiration of any
period during which a military court protective order is in
effect, a military judge or military magistrate shall review
the order to determine whether the order will terminate at
the expiration of such period or be reissued for an
additional period of up to 180 days.
``(3) Notice to protected persons.--If a military judge or
military magistrate determines under paragraph (2) that a
military court protective order will terminate, the judge or
magistrate concerned shall direct that each person protected
by the order be provided with reasonable, timely, and
accurate notification of the termination.
``(g) Review of Magistrate-issued Orders.--
``(1) Review.--A military judge, at the request of the
person subject to a military court protective order that was
issued by a military magistrate, may review the order to
determine if the order was properly issued by the magistrate.
``(2) Standards of review.--A military judge who reviews an
order under paragraph (1) shall terminate the order if the
judge determines that--
``(A) the military magistrate's decision to issue the order
was an abuse of discretion, and there is not sufficient
information presented to the military judge to justify the
order; or
``(B) information not presented to the military magistrate
establishes that the military court protective order should
be terminated.
``(h) Due Process.--
``(1) Protection of due process.--Except as provided in
paragraph (2), a protective order authorized under subsection
(a) may be issued only after reasonable notice and
opportunity to be heard and to present evidence, directly or
through counsel, is given to the person against whom the
order is sought sufficient to protect that person's right to
due process.
``(2) Emergency orders.--A protective order on an emergency
basis may be issued on an ex parte basis under such rules and
limitations as the President shall prescribe. In the case of
ex parte orders, notice and opportunity to be heard and to
present evidence must be provided within a reasonable time
not to exceed 30 calendar days after the date on which the
order is issued, sufficient to protect the respondent's due
process rights.
``(i) Rights of Victim.--The victim of an alleged covered
offense who seeks a military court protective order has, in
addition to any rights provided under section 806b (article
6b), the following rights with respect to any proceeding
involving the protective order:
``(1) The right to reasonable, accurate, and timely notice
of the proceeding and of any change in the status of the
protective order resulting from the proceeding.
``(2) The right to be reasonably heard at the proceeding.
``(3) The right to appear in person, with or without
counsel, at the proceeding.
``(4) The right be represented by qualified counsel in
connection with the proceeding, which may include a Special
Victims' Counsel.
``(5) The reasonable right to confer with a representative
of the command of the accused and counsel representing the
government at the proceeding, as applicable.
``(6) The right to submit a written statement, directly or
through counsel, for consideration by the military judge or
military magistrate presiding over the proceeding.
``(j) Restrictions on Access to Firearms.--
``(1) In general.--Notwithstanding any other provision of
law--
``(A) a military court protective order issued on an ex
parte basis shall restrain a person from possessing,
receiving, or otherwise accessing a firearm; and
``(B) a military court protective order issued after the
person to be subject to the order has received notice and
opportunity to be heard on the order, shall restrain such
person from possessing, receiving, or otherwise accessing a
firearm in accordance with section 922 of title 18.
``(2) Notice to attorneys general.--
``(A) Notice of issuance.--Not later than 72 hours after
the issuance of an order described in paragraph (1), the
Secretary concerned shall submit a record of the order--
``(i) to the Attorney General of the United States; and
``(ii) to the Attorney General of the State or Territory in
which the order is issued
``(B) Notice of recission or expiration.--Not later than 72
hours after the recission or expiration of an order described
in paragraph (1), the Secretary concerned shall submit notice
of such recission or expiration to the Attorneys General
specified in subparagraph (A).
``(k) Treatment as Lawful Order.--A military court
protective order shall be treated as a lawful order for
purposes of the application of section 892 (article 92) and a
violation of such an order shall be punishable under such
section (article).
``(l) Command Matters.--
``(1) Inclusion in personnel file.--Any military court
protective order against a member shall be placed and
retained in the military personnel file of the member, except
that such protective order shall be removed from the military
personnel file of the member if the member is acquitted of
the offense to which the order pertains, it is determined
that the member did not commit the act giving rise to the
protective order, or it is determined that the protective
order was issued in error.
``(2) Notice to civilian law enforcement of issuance.--Any
military court protective order against a member shall be
treated as a military protective order for purposes of
section 1567a including for purposes of mandatory
notification of issuance to Federal and State civilian law
enforcement agencies as required by that section.
``(m) Relationship to Other Authorities.--Nothing in this
section may be construed as prohibiting--
``(1) a commanding officer from issuing or enforcing any
otherwise lawful order in the nature of a protective order to
or against members of the officer's command;
``(2) pretrial restraint in accordance with Rule for
Courts-Martial 304 (as set forth in the Manual for Courts-
Martial, 2019 edition, or any successor rule); or
``(3) pretrial confinement in accordance with Rule for
Courts-Martial 305 (as set forth in the Manual for Courts-
Martial, 2019 edition, or any successor rule).
``(n) Delivery to Certain Persons.--A physical and
electronic copy of any military court protective order shall
be provided, as soon as practicable after issuance, to the
following:
``(1) The person or persons protected by the protective
order or to the guardian of such a person if such person is
under the age of 18 years.
``(2) The person subject to the protective order.
``(3) To such commanding officer in the chain of command of
the person subject to the protective order as the President
shall prescribe for purposes of this section.
``(o) Definitions.--In this section:
``(1) Contact.--The term `contact' includes contact in
person or through a third party, or through gifts,
``(2) Communication.--The term `communication' includes
communication in person or through a third party, and by
telephone or in writing by letter, data fax, or other
electronic means.
``(3) Covered offense.--The term `covered offense' means
the following:
``(A) An alleged offense under section 920, 920a, 920b,
920c, or 920d of this title (article 120, 120a, 120b, 120c,
or 120d of the Uniform Code of Military Justice).
``(B) An alleged offense of stalking under section 930 of
this title (article 130 of the Uniform Code of Military
Justice).
``(C) An alleged offense of domestic violence under section
928b of this title (article 128b of the Uniform Code of
Military Justice).
``(D) A conspiracy to commit an offense specified in
subparagraphs (A) through (C) as punishable under section 881
of this title (article 81 of the Uniform Code of Military
Justice).
``(E) A solicitation to commit an offense specified in
subparagraphs (A) through (C) as punishable under section 882
of this title (article 82 of the Uniform Code of Military
Justice).
``(F) An attempt to commit an offense specified in
subparagraphs (A) through (C) as punishable under section 880
of this title (article 80 of the Uniform Code of Military
Justice).
[[Page S7010]]
``(4) Military judge and military magistrate.--The terms
`military judge' and `military magistrate' mean a
commissioned officer of the armed forces who is a member of
the bar of a Federal court or a member of the bar of the
highest court of a State and who is certified to be
qualified, by reason of education, training, experience, and
judicial temperament, for duty as a military judge or
magistrate by the Judge Advocate General of the armed force
of which the officer is a member.
``(5) Protective order.--The term `protective order' means
an order that--
``(A) restrains a person from harassing, stalking,
threatening, or otherwise contacting or communicating with a
victim of an alleged covered offense, or a family member or
associate of the victim, or engaging in other conduct that
would place such other person in reasonable fear of bodily
injury to any such other person;
``(B) by its terms, explicitly prohibits--
``(i) the use, attempted use, or threatened use of physical
force by the person against a victim of an alleged covered
offense, or a family member or associate of the victim, that
would reasonably be expected to cause bodily injury;
``(ii) the initiation by the person restrained of any
contact or communication with such other person;
``(iii) any other behavior by the person restrained that
the court deems necessary to provide for the safety and
welfare of the victim of an alleged covered offense, or a
family member or associate of the victim; or
``(iv) actions described by any of clauses (i) through
(iii).
``(6) Special victims' counsel.--The term `Special Victims
Counsel' means a Special Victims' Counsel described in
section 1044e and includes a Victims' Legal Counsel of the
Navy.''.
(b) Clerical Amendment.--The table of sections at the
beginning of such chapter is amended by adding at the end the
following new item:
``1567b. Authority of military judges and military magistrates to issue
military court protective orders.''.
(c) Implementation.--The President shall prescribe
regulations implementing section 1567b of title 10, United
States Code (as added by subsection (a)), by not later than
one year after the date of the enactment of this Act.
______