Turner Includes Mandatory Minimum Sentences for Sexual Assault in NDAA
NDAA Includes Various Provisions to Combat Sexual Assault in the Military
Congressman Mike Turner, Co-Chair of the Military Sexual Assault Prevention Caucus, has included an amendment to the House passed National Defense Authorization Act (NDAA) that would impose a mandatory minimum sentence of 2 years confinement and a dishonorable discharge for those convicted of rape and sexual assault.
“Imposing a mandatory minimum sentence, which includes confinement and a discharge, sends a strong message to servicemembers that this is a serious crime. It also guarantees that those who are convicted will receive serious and more appropriate sentences. Servicemembers should know that if you’re convicted of this crime, you won’t have the privilege of serving our great nation, and you will go to jail,” said Turner.
Approximately 22 states currently have mandatory minimum sentences for those convicted of rape and sexual assault. The only mandatory minimum punishments currently provided within the Uniform Code of Military Justice (UCMJ) are for premeditated and felony murder, and spying.
Turner had included a number of provisions in the House Armed Services Committee approved National Defense Authorization Act (NDAA). Those provisions remain as part of the now House passed legislation. The provisions in the FY 2014 NDAA enhances the rights of victims, establishes minimum sentences for those convicted of sexual assault, and looks at how commanders handle these cases. For several years, Turner has included provisions to put a stop to this crime which recent statistics show have impacted 26,000 of our men and women in uniform over the past year.
Victims Counsel Amendment
An amendment to Article 27, Uniform Code of Military Justice (10 USC 827) creating a detailing requirement for a special victim counsel to the alleged victim in a general court-martial or special court-martial where charges and specifications of a sex-related crime have been preferred. Adds clarifying language to 10 USC 1044 to ensure that all services within the Armed Forces have authority to provide a victim legal counsel to victims in sex-related cases.
Section 536—Victims' Counsel for Victims of Sex-Related Offenses and Related Provisions
This section would require Victims' Counsels, who would be qualified and specially trained lawyers in each of the Armed Forces, to be made available to provide legal assistance to victims of sex-related offenses, which include rape and sexual assault, stalking, and rape and sexual assault of a child. The legal assistance authorized by this section would include accompanying the victim at any proceedings related to the reporting, military investigation, and military prosecution of the sex-related offense, as well as legal consultation on the military justice system, the potential criminal liability of the victim stemming from the sex related offense, the Victim Witness Assistance Program, potential civil litigation by the victim, medical support, and mental health counseling. This section would allow the victim the option of declining the assistance without prejudicing a later decision to seek such assistance.
This section would require Victim's Counsels to be available within 180 days after the date of the enactment of this Act. This section would also require the Secretary of Defense, in coordination with the Secretary of Homeland Security, to provide the Committees on Armed Services of the Senate and the House of Representatives with a report on how the Armed Forces will implement this section. The report would be due within 90 days after the date of the enactment of this Act. Furthermore, this section would require the independent Response Systems Panel, established by section 576(a)(1) of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239) to assess whether the legal assistance authorized by this section should be expanded to include legal standing to represent the victim during investigative and military justice proceedings. Finally, this section would task the independent Judicial Proceedings Panel established by section 576(a)(2) of the cited public law to assess the implementation and effect of the Victims' Counsel program established by this section.
Sexual Assault Mandatory Minimum Sentences
Establishes mandatory minimum sentences for specific sex-related crimes within the Uniform Code of Military Justice.
Section 533—Discharge or Dismissal for Certain Sex-Related Offenses and Trial of Offenses by General Courts-Martial
This section would establish dismissal (for officers, commissioned warrant officers, cadets, and midshipmen) or dishonorable discharge (for enlisted personnel and warrant officers who are not commissioned) as the mandatory minimum sentence for a person subject to the Uniform Code of Military Justice who is convicted by court-martial of rape, sexual assault, forcible sodomy, or an attempt to commit those offenses. Given such mandatory minimum sentences, this section would also limit jurisdiction for trial of the cited offenses to only a general court-martial.
The changes to the Uniform Code of Military Justice made by this section would be effective 180 days after the date of the enactment of this Act and apply to offenses committed after that date. This section would also require the Independent Response Systems Panel established by section 576(a)(1) of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239) to assess the appropriateness of establishing additional mandatory minimum sentences for other offenses under the Uniform Code of Military Justice. Furthermore, this section would require the independent Judicial Proceedings Panel established by section 576(a)(2) of Public Law 112-239 to assess the implementation and effect of mandatory minimum sentences established by this section.
Reform Convening Authority Post-trial Review
Amends Article 60, Uniform Code of Military Justice (10 USC 860) to:
i. (1) repeal convening authority’s ability to (a) to dismiss any charge or specification by setting aside a finding of guilty thereto; or (b) to change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification except in cases of qualified offenses; and
ii. (2)Require convening authority or other person acting on the case under section 860 of this title to provide written justification for any modifications or setting aside of any portion of the adjudged sentence; and
iii. (3) Repeal the Convening Authority’s ability to modify an adjudged sentence beyond the minimum mandatory sentence for any charge or specification for which a minimum mandatory sentence exists.
iv. B. Amend Article 71(d) to require convening authority or other person acting on the case under section 860 of this title to provide written justification for any decision to suspend the execution of any sentence or part thereof.
Section 531—Limitations on Convening Authority Discretion Regarding Court-Martial Findings and Sentence
This section would amend section 860 of title 10 of the United States Code, to remove the command prerogative and sole discretion of the court-martial convening authority with regard to the findings and sentence of a court-martial. Specifically, with regard to the findings of a court-martial, the section would prohibit the convening authority from dismissing a finding, or from reducing a guilty finding to guilty of a lesser included offense, except for minor offenses. This section would define a minor offense as any in which the adjudged court-martial sentence was not more than 30 days' confinement, or forfeiture of two-thirds pay per month for one month, or reduction to the lowest grade, or a combination of those.
Regardless of the adjudged sentence, this section would exclude the offenses of murder, rape, sexual assault, rape or sexual assault of a child, or any other offense punishable by death from being considered a minor offense. With regard to sentences, this section would continue to authorize the convening authority to approve, disapprove, commute, or suspend a sentence in whole or in part, except where the offense had a mandatory minimum sentence. In such cases, this section would prohibit the convening authority from reducing, disapproving, commuting, or suspending an adjudged mandatory minimum sentence, except when, upon the recommendation of the trial counsel, the accused provided substantial cooperation in the investigation or the prosecution of another person who had committed an offense. Under such circumstances, the convening authority could impose a sentence below that of the mandatory minimum sentence, or disapprove, commute, or suspend the adjudged sentence in whole or in part.
Furthermore, when an adjudged sentence includes punishments in addition to the mandatory minimum sentence, this section would permit the convening authority to modify, disapprove, commute, or suspend those additional punishments. Finally, this section would require that if the convening authority acted to change a finding or sentence, then the convening authority's written rationale for the action would be provided at the same time and made part of the record of trial.
Coast Guard STRONG
Amend 10 USC Chapter 39, §673 (put in place by section 582 of the FY12 of the NDAA) so that all services within the Armed Forces have a policy for the expedited consideration of a transfer request by a victim of sexual assault.
Section 534—Regulations Regarding Consideration of Application for Permanent Change of Station or
Unit Transfer by Victims of Sexual Assault
This section would require the Secretary concerned to issue regulations to provide for timely determination and action on an application for consideration of a change of station or unit transfer submitted by a member of the Armed Forces serving on Active Duty who is a victim of sexual assault.
Elimination of Five-Year Statute of Limitations on Trial by Court-Martial for Additional Offenses Involving Sex-Related Crimes
Eliminates five-year statute of limitations on Trial by Courts-Martial for sexual assault and sexual assault of a child, pursuant to 10 U.S.C. 920 (b) and 920b (b) (Articles 120 (b) and 120b (b) of the Uniform Code of Military Justice.
Section 532—Elimination of Five-Year Statute of Limitations on Trial by Court-Martial for Additional Offenses Involving Sex-Related Crimes
This section would add sexual assault and sexual assault of a child, offenses covered respectively by section 920(b) and section 920b(b) of title 10, United States Code, to the list of offenses in the Uniform Code of Military Justice that may be tried and punished at any time without limitation. This section would apply to offenses committed on or after the date of the enactment of this Act.
Temporary Administrative Reassignment or Removal of Military Personnel Accused of Committing Sexual Assault or Related Offense
Affirms commanders ‘authority to consider the need for and provide for the temporary administrative reassignment or removal of a member on active duty who is accused of committing a sexual assault or other sex-related offense from a position of authority or assignment.
Section 535—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
This section would authorize the Secretary concerned to provide guidance for commanders regarding authority for temporary reassignment or removal of an individual from a position of authority who is alleged to have committed a sexual assault or other sex-related offense under section 920, 920a, 920b or 920c of title 10 United States Code. Further, this section would require the Secretary of Defense to include information on the use of such authority as part of training for new and prospective commanders.
SECDEF Report on Role of Commanders in Military Justice Process
Requires the Secretary of Defense to submit a report to Congress 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 the commander as convening authority under 10 U.S.C. 860, and include a recommendation regarding whether this authority should be further modified or repealed.
Section 538—Secretary Defense Report on Role of Commanders in Military Justice Process
This section would require the Secretary of Defense to assess the current role and authorities of commanders in the administration of military justice and the investigation, prosecution, and adjudication of offenses under the Uniform Code of Military Justice. This section would also require the Secretary to report the assessment, together with his recommendation whether the role and authorities of commanders should be further modified or repealed, to the Committees on Armed Services of the Senate and the House of Representatives within 90 days after the date of the enactment of this Act.
SECDEF Report on Role of Commanders in Military Justice Process
Allow the victim an opportunity to provide additional matters to the convening authority for consideration prior to the convening authority taking action on the accused’s conviction or sentence. Prohibits Convening Authority from considering any character evidence about the victim which was not admitted for consideration at trial.
Participation by the Victim in Clemency Phase of Courts-Martial Process
Allow the victim an opportunity to provide additional matters to the convening authority for consideration prior to the convening authority taking action on the accused’s conviction or sentence. Prohibits the Convening Authority from considering any character evidence about the victim which was not admitted for consideration at trial.
Defense Counsel Interview of Complaining Witnesses in Presence of Victim’s Counsel or Victim’s Advocate
Upon notice of the trial counsel to the defense counsel, of the name and address of the victim(s) that trial counsel intends to call to testify at any portion of the investigation or a court-martial, defense counsel may not interview any such complaining witness without requesting such interview from trial counsel. This section does not limit the defense counsel’s access to the victim in any way, but simply requires the defense counsel to give notice to the prosecutor as they would with other witnesses. Upon the request of the victim, any interview of the witness by defense counsel shall take place only in the presence of counsel for the witness, or victim’s advocate.
8-Day Incident Reports Following Unrestricted Reports of Sexual Assault on Members of the Armed Forces
Requires the Secretary of Defense to create a reporting requirement to ensure that the first 0-6 officer and first general of flag officer in the chain of command of the member filing the sexual assault report are notified of the incident and response measures taken to investigate and provide care to victim within 8 days of report.
Enhanced Protections for Prospective Members of the Armed Forces During Entry-Level Processing and Training
Requires the Armed Forces to establish and maintain a policy to uniformly define and prescribe what constitutes an inappropriate and prohibited relationship, communication, conduct, or contact, including when such an action is consensual, between a member of the Armed Forces and a prospective member or new member of the Armed Forces. This policy will be punitive in nature and those in violation will be subject to the Uniform Code of Military Justice.
Mandatory Processing for Administrative Separation for those in Violation of this Inappropriate Relationship Policy
This provision will ensure that at a minimum, those servicemembers found to be involved in an inappropriate relationships with either a new member or prospective member of the Armed Forces will be processed for administrative separation from the Armed Forces.
Proposed Uniform Code of Military Justice Punitive Article
Requires the Secretary of Defense to submit to Congress a proposed punitive article for addition to the Uniform Code of Military Justice under which this type of inappropriate relationship with a new member or prospective member of the Armed Forces will be prosecuted.