Legal assistance reps discuss how UCMJ changes could affect servicemembers
February 20, 2014
The fiscal 2014 National Defense Authorization Act, which passed in December, requires significant changes to the Uniform Code of Military Justice, which will change how rape and sexual assault cases are investigated in all service branches.
Those changes, made to Articles 32, 60, 120 and 125 in the UCMJ, are outlined in the Army News Services article in this issue of the Belvoir Eagle, beginning on Page A1.
Maj. Tricia Birdsell, chief of military justice and special assistant United States attorney, office of the Staff Judge Advocate, Fort Belvoir, and Capt. Katherine Mitroka, judge advocate and special victims counsel for the Military District of Washington, told the Belvoir Eagle how these changes could affect the military community.
Belvoir Eagle: What do these changes mean for servicemembers?
Birdsell: These changes demonstrate to servicemembers the importance of sexual assault cases and offer new privileges that were not previously available for victims of sexual assault.
Belvoir Eagle: What kind of advice and support will Special Victims Counsel (SVC) offer victims?
Mitroka: SVCs assist victims in understanding and navigating the potential investigatory and legal processes involved in responding to sexual assault. They represent the victim as a single point of contact for the victim in an effort to minimize confusion and the number of times a victim must explain what happened. The SVC's job is to ensure the victim's questions and concerns are addressed correctly and as efficiently as practicable. SVCs can also provide traditional legal assistance, as necessary, and interface with the court and other legal personnel on the victim's behalf. SVCs will communicate the victim's priorities and wishes especially as regards protecting victim privacy. Additionally, SVCs can take eligible victims of sexual assault as clients even if the victim elects to make a restricted report or no report at all.
The SVC does NOT seek to influence the type of reporting choice the victim ultimately makes. Also, an SVC does not have control over whether victims are called as witnesses on the merits in a court-martial. However, the SVC can assist in preparing the victim to testify should that occur as well as accompany the victim to any interviews with law enforcement, the government, or the defense. The 2014 NDAA does envision that victims may elect not to testify during Article 32 proceedings. Whether this course of action is appropriate will be determined on a case-by-case basis. Finally, the SVC's role is different from a defense attorney's. SVCs do not defend their clients against criminal allegations, but rather seek to inform and empower their clients during the processes involved in responding to sexual assault.
Belvoir Eagle: How will SVCs better support victims than the old system, where victims did not have an SVC and could be ordered to testify at Article 32 hearings?
Mitroka: The Article 32 is not the same as a court-martial. Instead, it fulfills a role more similar to a grand jury hearing in the civilian court system. The 2014 NDAA allows victims to decline to testify at an Article 32 hearing. Whether that victim will be called to testify in a court-martial is another matter entirely and not one within the purview of an SVC. Technically, although subject to some limitations such as the right to remain silent, a Soldier can be ordered to testify. So, it is possible that a Soldier-victim could be ordered to testify at a court-martial. The government may choose to pursue this course of action should it feel the testimony is necessary to prosecute the offender something which may also be in the interest of the victim.
Belvoir Eagle: Do you have any examples of how any of these UCMJ changes have affected any cases in the Washington, D.C. or Fort Belvoir area?
Birdsell: Even though many of the changes are statutorily phased in over the next year, several are already in effect in the National Capital Region. For instance, all Article 32 hearings involving an Article 120 crime (sexual related crimes) have had a JAG officer appointed as the investigating officer. This has been followed for the last several months and has been a successful change. Additionally, the Special Victims Counsel program was up and running early in the fall of 2013 and the SVCs have seen a large number of clients already. Many victims are seeking out the assistance of the SVC and are receiving quality assistance from the counsel on their cases.
Belvoir Eagle: How will these changes affect courts-martial cases for servicemembers accused or found guilty of sexual assault?
Birdsell: The changes do not significantly affect servicemembers accused of a sexual assault. The accused servicemember would still have the right to an impartial Article 32 hearing and the right to a fair trial. The minor changes are that a military victim may be entitled to decline to testify at the Article 32 hearing, and a JAG will serve as the investigating officer. However, even though a victim may no longer be required to testify at an Article 32 hearing, their sworn statements given to the Criminal Investigative Division can still be considered.
The changes to Article 60 on the scope of authority for a convening authority will impact servicemembers found guilty of a sexual assault in the post-trial phase. Prior to the changes, a servicemember could submit matters to the convening authority and ask for the convening authority to reduce their sentence or dismiss certain charges. Though a convicted servicemember may still submit matters to the convening authority, a convening authority will no longer have the authority in a sexual assault case to dismiss charges for which the servicemember was convicted. However, a convening authority will still be able to reduce a sentence adjudged at a court-martial if there is a pre-trial agreement in place. The victim may also submit matters to the convening authority. Additionally, servicemembers need to be aware that if they are found guilty of certain crimes that there are now mandatory punishments, such as a dishonorable discharge.
Belvoir Eagle: How will these changes affect victims?
Birdsell: Military victims of sexual assault will have several more rights and privileges than they previously had. Along with the right to a Special Victims Counsel, a military victim will also have the right to decline to testify at an Article 32 hearing (a right that was already available to a civilian victim), and the right to be heard directly through their SVC at certain points in the court-martial process.
Belvoir Eagle: Anything else that our readers should know about these changes?
Birdsell: If leaders have questions about the changes reflected in the 2014 NDAA, they should contact their trial counsel. If servicemembers would like more information about the SVC program, they can contact the Fort Myer Legal Assistance Office (where the SVCs are located) at (703) 696-0761 and ask for an SVC, the Fort Belvoir Sexual Harassment/Assault Response and Prevention Office at (703) 805-4352 or the SHARP 24/7 HOTLINE at (703) 740-7029.