Dec 13 2013
As promised, I am taking this opportunity to offer my thoughts on some provisions of the 2014 Defense Bill that should make anyone with any military experience at all, just a little bit nervous. ( If not downright upset.)
First the good parts ( I guess). The bill revamps the Sodomy section of the UCMJ. Repeal of DADT made this pretty much mandatory for obvious reasons. Consensual Sodomy is now just fine and is not punishable under the UCMJ. Non consensual sodomy however is still a violation. So be careful out there, if you go "knocking at the back door" and your GF does not like it, you could be heading to mast. ;-(
In my opinion they should have just done away the Sodomy article all together, along with the one on adultery. When you have created the convoluted mess that we have, where you have Sailors dating Sailors and all other craziness-its just unreasonable to have a UCMJ that has a completely unworkable and unenforceable morals provision. These were normally "pile on charges anyway"-and so they should be done away with. So should the one about prostitution IMHO, but I know the do-gooders will never allow that to happen.
Now here is the list of bad things, and it is long ( the ones I vehemently disagree with are highlighted in yellow).:
Sexual Assault and Prevention
- Extends specified crime victims’ rights to victims of UCMJ offenses.
- Amends Article 60, UCMJ, to limit the authority of court-martial convening authorities to modify the findings and sentence of courts-martial.
- Requires that victims be afforded an opportunity to submit matters for consideration by a convening authority before the convening authority takes action on the findings and sentence of a court-martial and limits convening authority consideration to matters considered at trial.
- Amends Article 32, UCMJ, to change Article 32 proceedings from an investigation to a preliminary hearing normally conducted by a judge advocate to determine whether there is probable cause to prosecute a case.
- Eliminates the five-year statute of limitations on prosecutions for certain sex-related offenses under the UCMJ.
- Requires interviews of victims of sex-related offenses to be conducted in the presence of trial counsel, victim’s counsel, or a Sexual Assault Victim Advocate if requested by the victim.
- Limits jurisdiction over specified sex-related offenses to trial by general court-martial and requires a minimum sentence of Dishonorable Discharge or Dismissal for conviction of these offenses.
- Repeals the offense of consensual sodomy under the UCMJ.
- Removes the character and military service of an accused from factors a commander should consider in deciding how to dispose of any offense.
- Prohibits retaliation against service members for reporting a criminal offense.
- Prohibits enlisting or commissioning in the military of individuals convicted of certain felony sex-related offenses.
- Requires the Coast Guard to issue regulations requiring timely action on requests for transfer or reassignment by sexual assault victims.
- Provides for temporary administrative reassignment or removal of service members accused of committing specified sex offenses.
- Enhances protections for military whistleblowers.
- Requires DOD IG investigation of allegations of retaliatory personnel actions for reporting certain sexual offenses.
- Requires a Special Victims’ Counsel program in each service to provide legal counsel to victims of sexual assault.
- Requires service secretaries to track compliance of commanding officers in conducting command climate assessments.
- Requires DOD to retain for 50 years certain forms filed in connection with reports of sexual assault involving service members.
- Requires timely access to Sexual Assault Response Coordinators by members of the National Guard and Reserves who are victims of sexual assault.
- Requires the Secretary of Defense to report on the adequacy of training, qualifications, and experience of individuals with sexual assault prevention and response duties.
- Requires assignment of at least one full-time sexual assault nurse examiner to military medical treatment facilities that have a 24-hour emergency room.
- Assigns additional responsibilities to the DOD Sexual Assault Prevention and Response Office.
- Assigns additional tasks to the Response Systems Panel and to the Judicial Review Panel established to review matters involving sexual assaults in the military.
- Requires the Response Systems Panel to submit its report no later one year after its first meeting on its review of systems used to investigate, prosecute, and adjudicate sexual assault crimes.
- Requires review of practices of military criminal investigative organizations, including the determination of whether an offense is founded.
- Requires Secretary of Defense to identify common core elements that must be included in sexual assault prevention and response training.
- Requires Secretary of Defense to report to Congress on the progress made in developing and implementing a comprehensive policy on the retention of and access to evidence and records relating to sexual assaults involving service members.
- Requires Secretary of Defense to review the role of the Office of Diversity Management and Equal Opportunity in sexual harassment cases.
- Requires enhanced protections for prospective service members and new service members during entry level processing and training.
- Requires commanding officers to immediately refer reports of sexual offenses involving service members in their command to the appropriate military criminal investigation organization for investigation.
- Requires a written report be provided to senior officers within eight days of an unrestricted report of sexual assault to ensure necessary care and support for the victim and timely investigation of the offense.
- Requires review by the service secretary of a convening authority’s decision not to prosecute certain charges of sexual offenses when the staff judge advocate recommends prosecution, and review by a superior general court-martial convening authority when the staff judge advocate recommends against prosecution.
- Requires that court-martial convictions, non-judicial punishment, or administrative action for sex-related offenses be noted in the service member’s personnel records and requires that commanders review the history of substantiated sexual offenses of service members assigned to their commands.
- Requires military service academies to provide training and education on prevention of sexual assault within 14 days of arrival of new cadets and midshipmen and annually thereafter.
- Requires that service members be notified that they can answer no to the question about consulting with a mental health professional on the Questionnaire for National Security Positions (Standard Form 86) if the consultation relates to the service member being a victim of a sexual assault.
- Expresses the sense of Congress that commanders are responsible for establishing a healthy command climate where victims can report criminal activity, including sexual assault, without fear of retaliation, and that failure to maintain such a climate is an appropriate basis for relief from command.
- Expresses the sense of Congress that charges of rape, sexual assault, forcible sodomy, or attempts to commit these offenses, should be prosecuted by court-martial rather than non-judicial punishment or administrative action.
- Expresses the sense of Congress that discharges in lieu of court-martial should be used very sparingly for service members who are charged with rape, sexual assault, forcible sodomy, or attempts to commit these offenses, and that victims should be consulted about the discharge of the service member whenever possible
Just about all of this is bad-really bad. By undermining the Convening Authoritiy's ability to exercise his responsibility under the UCMJ, you are going to make sure a lot of innocent folks get railroaded.
Most military sexual assault cases are not clear cut. Its not some guy just grabbing a girl, throwing her down and raping her in the closet. Rather they are primarily "buyer's remorse" types of cases where both parties have probably made some bad decisions, under the influence of love, lust, and / or alcohol-and the issue of consent is most often times not clear cut.
What these changes do is make sure that every case, EVERY case of alleged sexual harassment, will be tried at the highest possible level. Even when the facts of the case don't warrant it. Furthermore, it also raises the possibility that someone who does something clearly wrong will get away with it scot free. Court Martials are Courts. Rules of evidence and cross examination apply-and trust me, defense attorneys will do their best to drag the victim through the mud and make her look like a bigger tramp than Delilah. That is their job. These cases are difficult, and it comes as a surprise to no one who understands the nature of the crime that sometimes getting to guilty beyond a reasonable doubt simply cannot be done. To remove this authority from the chain of command lets commanders off the hook and decreases options for securing justice for victims. I am not a lawyer-but it seems a commander has more authority under a murder charge than on a sexual assault one. In what universe does that make sense?
And I'll be blunt. Not everyone of these "he said, she said" cases needs to go to court martial. In many cases-where it is not a full blown rape or even felony sexual assault, the commander may in fact need to punish both parties. These laws make one sex out to be a preferred class. Guess which one? I'll give you a hint, its not the one with a penis.
Which of course, is what the Congress people want. They want to ensure that folks walk around afraid and on eggshells-while they do nothing about the underlying causes, which set people up for failure to begin with. This why I continue to bridle at these calls that the "military needs to change its culture". Um no. You need to understand the problem you create by putting men and women together in large quantities to begin with. The military culture is just fine.
These trouble makers just want to show they "are doing something". Oh you are doing something all right-something really stupid.
This is a bad business. If you claim to say you want to hold commanders accountable, then you HAVE to provide them the tools they need to do their jobs properly. These provisions do not do that.