Judicial Proceedings Panel
Request for Information - Set #1

Letters to Department of Defense and the Services

Responses from Department of Defense and the Services
Letter to the Secretary of Defense

Letter to the Secretary of the Army

Letter to the Secretary of the Navy

Letter to the Secretary of the Air Force

Letter to the Chairman of the Joint Chiefs of Staff

Letter to the Commandant of the Coast Guard
Response from the General Counsel, Department of Defense

Response from the SJA to the Commandant of the Marine Corps

Response from the Air Force Legal Operations Agency

Response from the Chairman of the Joint Chiefs of Staff

Response from the Commandant of the Coast Guard

National Defense Authorization Act - Section 576: Independent Reviews and Assessments of Uniform Code of Military Justice and Judicial Proceedings of Sexual Assault Cases

 

Request for Information - Set #1
Questions with Responses

Section I.  Article 120 of the Uniform Code of Military Justice (UCMJ)

Question 1Since its enactment, have you identified problems, issues, or concerns regarding the statutory language of Article 120 (2012) or application of the amended statute to the prosecution of sexual assault offenses? If so, how have you addressed the issue or how can/should it be resolved (i.e., statutory change or amendment, changes to the Rules of Courts-Martial through a Presidential Executive Order, case law development, judges instructions, etc.)?

Question 2Provide all views, formal positions, recommendations, and correspondence that DoD, the Joint Service Committee, or the Services submitted to Congress or Congressional representatives regarding the 2012 amendments to Article 120, prior to or after its enactment (from 2007 to the present). Please include submissions on specific statutory recommendations, anticipated effects of amendments, impact assessments, suggestions for further recommendations, problems or concerns, etc.

Question 3What impact would separating penetrative and contact offenses into separate punitive articles under the UCMJ have on the prosecution or defense of sexual assault cases? Would such a change have other impacts or consequences on the military justice system?

Question 4Provide copies of court motions, responses, court-martial rulings, appellate briefs and appellate decisions related to the 2012 amendment of Article 120 (including, but not limited to, constitutional challenges and challenges to military judge instructions). A representative sample is acceptable for issues that have been commonly raised.

Question 5For military judge instructions on Article 120 (2012) offenses:

a. Provide copies (or hyperlinks to) standard Benchbook instructions used by each Service’s trial judges for Article 120 offenses

b. Provide judge’s instructions that have deviated from the standard Benchbook instructions. At a minimum, responses should identify instructions used to inform members on the following:
  • Elements;
  • Specifications; and
  • Applicable definitions, including those used to instruct military panels on constructive force, coercion, or use of rank/authority in sex offenses.

c. If not addressed in question 4 above, have statutory deficiencies been identified at trial or on appeal regarding judges’ instructions for offenses charged according to the 2012 version of Article 120?


Question 6Provide all training materials regarding the 2012 version of Article 120 used at all military judges training courses as well as training materials for trial and defense counsel produced by each Service’s Military Justice Division and Judge Advocate General’s School.

Question 7Focusing on offenses involving abuse of power or position:

a. What theories of criminal liability are used for trainer/trainee and senior/subordinate relationships, and why are they treated the same or differently?

b. Provide copies (or hyperlinks to) Service and/or subordinate command policies that prohibit trainer/trainee relationships and senior/subordinate relationships.

Question 8Please provide any Service or command policies restricting disposition decisions for cases involving allegations of a sexual act or contact between either a trainer and trainee or a senior and subordinate.

Question 9What impact on trial practice would you anticipate if a “strict liability” standard was applied to sexual assault allegations involving trainer/trainee and/or senior/subordinate relationships? What impact would such a change have on organizational discipline and effectiveness?

Question 10If available, please provide sample specifications illustrating how prosecutors have charged an offense where there was a sexual act or sexual contact that involved constructive force by a trainer against a trainee or a senior against a subordinate:

a. According to the pre-2007 version of Article 120?

b. According to the 2007-2012 version of Article 120?

c. According to the current version of Article 120? If charged differently, please provide separate draft specifications for cases involving a trainer and trainee and a superior and subordinate.

Question 11Other than charging offenses under Article 120, how have offenses been charged in cases of a sexual nature that involved either a trainer or superior who abused their power? Please provide sample specifications illustrating how offenses have been charged according to other punitive articles of the UCMJ. Have the 2007 and 2012 amendments to Article 120 changed how these offenses have been charged?

Question 12Please provide copies of all Department and/or Service positions submitted (either separately or jointly through the Joint Service Committee) to Congress regarding House Resolution (H.R.) 430.

Section II.  A Victim's Access to Information                                                                                                                                 

Question 13Provide the draft Executive Order specifying information a sexual assault victim would be entitled to receive from the filing of a report through the military justice process and detailed procedures for victims to receive such information.

Question 14According to current policies, what documents and/or information is a sexual assault victim entitled to receive from parties to the case during the different phases of the court-martial process:

a. Pre-trial?

b. During the merits phase of a court-martial?

c. Before sentencing?

Question 15What guidance, programs, or procedures provide victims access to information relevant to the protection of the rights codified in Article 6b?

Question 16Requests for information relating to the victim or the victim’s rights:

a. What is the process by which a victim or victim’s counsel submits a request for information during the different phases of the court-martial process?

b. In practice, how have issues related to victim requests for information been resolved?

c. To whom does a victim or the victim’s counsel make requests for information during each phase of the court-martial process?

d. Who makes pre-trial and post-trial decisions with respect to victims’ requests and/or motions?

e. What recourse is available to a victim when a request or motion is denied?

f. In practice, what remedies have counsel sought on behalf of victims when a request or motion for information has been denied?

Question 17Provide copies of any policies, memorandums, training materials, or other guidance regarding a victim’s right to access information provided to:

a. Investigators.

b. SARCs/FAP Advocates.

c. Prosecutors.

d. Defense Counsel.

e. Special Vicitms' Counsel.

f. Military Judges.

g. Sexual Assault Victims.

h. Commanders.

Question 18Provide copies (with personally identifiable information redacted) of the following documents from January 1, 2013 through September 30, 2014, related to requests for information made before, during, or after trial by adult victims of sexual assault (a representative sample is acceptable for issues that are commonly raised):

a. Motions.

b. Responses.

c. Court-Martial Rulings.

d. Writs.

e. Appellate Briefs.

f. Appellate Rulings.

g. Any other requests for documents or information by or on behalf of victims, particularly before referral.

Section III.  Special Victim’s Counsel (including Navy and Marine Corps Victim’s Legal Counsel)

Question 19 Other than the Report on the Implementation of Section 1716 of the FY14 NDAA (Apr. 4, 2014), provide all directives, instructions, regulations, memorandums, or other guidance that have been developed or issued regarding establishment of the SVC Program. Please include those relating to:

a.  Formation and structure of the SVC Program.

b. Scope of representation of SVCs.

c. Implementation requirements, goals, objectives of the SVC Program.

d. Program and performance assessment metrics.

e. Reporting requirement on program status and metrics.

f. Program evaluation standards.

g. Training requirements for SVCs.

h. SVC training course guidelines and standards.

i. Oversight and coordination of the programs within and across the Services.

Question 20Have DoD and Service doctrinal publications (regulations, directives, instructions, manuals, and training materials) been updated to reflect §1716 (Designation and availability of Special Victims’ Counsel for victims of sex-related offenses) of the FY14 NDAA? If updated, please provide copies of the changes (or links to electronic copies). If not updated, what is the timeframe and process for revision of publications and training materials?

Question 21To understand the structure of each Service’s SVC Program:

a. Provide organizational charts for the Service’s SVC Program.

b. How are staffing decisions made for the number of SVCs and SVC offices required?

c. How many SVC offices are there in your Service? What support staff is assigned to SVCs, and what other support is available to them?

d. Describe the reporting structure and organization of your Service’s SVC Program. Please describe the rationale for the employing this structure. 

e. Who rates or evaluates the duty performance of SVCs? What criteria are used to evaluate the performance of individual SVCs?

f. Where are SVC offices physically located (e.g., within SJA legal office, in a multi-disciplinary center, within the FAP office, etc.) on Service installations or in different environments (e.g., joint bases, deployed environments)?

Question 22Sustainment of the SVC program:

a. How many SVC billets are currently authorized for your SVC program?

b. How many SVC billets will be authorized in FY15, FY16, and FY17?

c. What is the long-term plan for sustaining personnel and funding requirements for the SVC program?

d. How is SVC program funding allocated in POM planning or other resource management planning?

e. Are there plans to expand or narrow the scope of the SVC program from FY14 to FY17? If so, please explain.

Question 23Provide copies of any defense motions, government responses, or rulings that have addressed the SVC program’s structure or organization. In particular, provide copies of any motions challenging the chain of command of SVCs or potential conflicts of interest due to the rating scheme or location of SVCs or their offices.

Question 24What is the status of expanding SVC representation to child victims of sexual offenses? How will §1701 of the FY14 NDAA, which requires designation of a representative for certain victims (such as a child or incapacitated victim), impact the role or effectiveness of SVCs? Please provide any guidance that addresses this issue.

Question 25How are SVCs selected? Among currently serving SVCs, how many (or what percentage) requested assignment to the program?

Question 26What happens if a judge advocate is assigned to serve as an SVC and does not want to do the job or isn’t a good fit for the position? How often has this happened?

Question 27Is there guidance that protects SVCs from retaliation or adverse career impact because of their SVC service?

Question 28Does your Service require certification of SVCs? If so, what is required to be certified? If not, what training and/or experience are required to be eligible to serve as an SVC?

a. How many counsel from your Service have received SVC training to date?

b. How many JAGs currently serving as SVCs have not received SVC training?

c. Are there practice limitations or oversight requirements for SVCs who serve clients prior to SVC training or certification?

d. Are there Service rules or other guidance for how long an SVC may take clients prior to receiving SVC training or certification?

Question 29What Service training courses have been provided to SVCs? For each course that has been offered by your Service, please provide:

a. Date(s).

b. Location.

c. Number of SVC attendees, broken down by Service.

d. Roster of instructors (by duty title rather than name).

e. Syllabus.

f. Course materials.

Question 30How many SVC courses does your Service plan to host each year? Are SVC courses coordinated among the Services?

Question 31Have counsel from your Service received SVC training from another Service? If so, how many?

Question 32What non-DoD training courses have SVCs attended? For each course attended, please provide:

a. Date(s).

b. Name of organization conducting training.

c. Location.

d. Number of SVCs that attended.

e. Roster of instructors.

f. Syllabus.

g. Course materials, if available.

Question 33Have counsel from the other Services attended your SVC training courses? If so, please indicate how many JAGs from each Service have participated in each of your SVC courses.

Question 34How many military judges in your Service have received formal SVC training to date? What percentage of currently serving military judges has received such training?

Question 35Are the Services coordinating on SVC program training, best practices, and/or procedures? If so:

a. How often are coordination meetings held?

b. Who participates in coordination efforts?

c. How are coordinated decisions reached?

d. Are there standards for training and procedures across the Services? If so, where are these requirements found?

e. Does DoD oversee operation of or standards for Service SVC programs?

Question 36How do the members of the SAPR program, VWAP, FAP, coordinate with legal assistance attorneys, and SVCs coordinate the services provided to victims?

Question 37In your Service, are there plans or intent to merge or co-locate any of the victim assistance programs? If so, please describe. If not, why not?

Question 38How do SVC programs operate in joint and deployed environments? Are there uniform policies and procedures for SVCs in joint environments?

Question 39. (Number Not Used)

Question 40Provide copies of any reports, data, or presentations that have been created to assess the SVC Program. Indicate the purpose and frequency of reports or assessments and who received them. For recurring or routine reports, please provide a representative sample.

Question 41What metrics are currently tracked by DoD and each Service for the SVC Program? Who reviews SVC metrics, and how frequently are reviews conducted?

Question 42How is SVC program data collected and by whom?

Question 43If tracked, please provide metrics and data on:

a. SVC utilization rate for victims making restricted reports.

b. SVC utilization rate for victims making unrestricted reports.

c. Conversion rates for victims who have made restricted reports (for both those represented by an SVC and those not represented).

d. Dropout rate for victims participating in investigations and/or courts-martial (for both those represented by an SVC and those not represented).

e. Reenlistment rates for victims making restricted and unrestricted reports (for both those represented by an SVC and those not represented).

f. Location and staffing of SVC offices versus frequency of restricted and unrestricted reports.

Question 44Are SVCs required to complete any forms or reports for each case or client? If so, provide sample copies.

Question 45Are victim satisfaction surveys utilized? If so, please describe the survey process and provide copies of surveys and reports produced from them.

 

 


Section IV.  Victim Privacy Issues: Past Sexual Conduct and Mental Health Records

Question 46How do commanders and/or legal representatives preserve and protect personal information contained in evidence of prior sexual conduct (MRE 412) and mental health records (MRE 513) of adult victims during Article 32 hearings and at trial? How has Executive Order 13669 (June 13, 2014) impacted or changed procedures for Article 32 hearings?

Question 47In addition to Executive Order 13669, what guidance and/or procedures address whether and how investigating officers hear and review MRE 412 or MRE 513 evidence before determining admissibility?

Question 48Notwithstanding the provisions of RCM 1103A (sealed exhibits and proceedings), how can JPP members and/or staff review portions of records of trial that have been sealed pursuant to MRE 412 and/or MRE 513 in order to accomplish the JPP’s statutory mandate to review and assess and assess these issues?

Question 49What regulations and policies govern how military law enforcement, trial counsel, defense counsel obtain mental health records of military victims? What procedures do MCIOs, prosecutors, and defense counsel follow to obtain a military victim’s mental health records?

Question 50How do trial and defense counsel obtain mental health records of non-military victims?

Question 51What rules, regulations, and policies govern how investigating officers at Article 32 hearings preserve and protect personal information contained in mental health records of adult victims of sexual assault? How do these differ from processes used by military judges at courts-martial?

Question 52Victim notification regarding the use of mental health records:

a. Is there a policy addressing victim notification when the government seeks a victim’s mental health records?

b. If a victim’s mental health records are in the possession of the United States Government and are requested by the defense, is the victim notified?

c. Prior to issuance of a subpoena to a mental health facility seeking a victim’s records, is the victim notified?

 


Section V.  Compensation / Restitution

Question 53Provide the Services’ definitions of, and distinction between, “compensation” and “restitution” as those terms relate to victims of criminal offenses. Please provide a copy of (or hyperlink to) source regulations, instructions, directives, etc. for these definitions.

Question 54What current options are available to provide compensation and/or restitution available to victims of offenses committed by Service members? For each option, provide the following:

a. Is the option Service-specific or applicable across DoD?

b. What rules, regulations, and/or policies govern each option?

c. When did the option become available for victims?

d. Is the option limited to victims of a specific offense or limited in other ways (age, status, etc.)?

e. Is victim compensation or restitution tracked? If so, how is it tracked and reported?

f. For restitution, please address the following questions based on guidance contained in DoD Directive 1030.01 and applicable Service regulations:

     i. How does each Service ensure restitution to the victim of a criminal offense is considered by court-martial convening authorities as a condition of pretrial agreements and clemency, and by the clemency and parole boards for sentence reduction, clemency, and parole decisions?

     ii. For courts-martial cases:

          a) How many courts-martial cases in FY12, FY13, and FY14 included restitution to the victim as a condition of pretrial agreements, sentence reduction, clemency, or parole?

          b) What are the most common court-martial charges that have resulted in restitution being paid to a victim?

          c) Please provide a sampling of court-martial documents, to include pretrial agreements, final actions, etc., that indicate restitution terms and corresponding sentence reduction, clemency, or parole.

     iii. For cases not resolved at courts-martial, how may commanders utilize restitution to victims as a factor when deciding case disposition? Provide a sampling of cases summaries (to include alleged offenses and documentation, where available) where this has occurred.            

Question 55Other than those options explained in the previous question, have victims requested or sought other forms of compensation, restitution, services, benefits, etc.?

Question 56What impacts may result from allowing a court-martial, either by court members or military judge, to direct restitution to the victims of offenses? What mechanisms exist or would be required to enforce restitution sentences?

Question 57How can military victims continue to receive treatment, counseling, etc., for injuries related to the crime committed against them after separation or retirement from the Armed Forces? How are victims informed of these options?

Question 58Regarding forfeitures of wages imposed pursuant to Article 58b of the UCMJ:

a. What options are currently available to convening authorities for waiving forfeitures? In what instances can forfeitures be waived and to whom can forfeited wages be directed?

b. How would allowing forfeited wages of incarcerated Service members to be used as restitution or compensation to victims of criminal offenses impact current wage forfeiture options?


Question 59Regarding claims made under Article 139 of the UMCJ:

a. What rules, regulations, and/or policies govern procedures, proper claims and claimants, limitations, etc. for Article 139 claims?

b. What claims under Article 139 were submitted to the Services in FY12, FY13, and FY14? Please provide the status of claimant (military or civilian, business, etc.), details of the claim (including description of property taken or damaged, etc.), alleged offenses under the UCMJ, final outcome, and any assessment of damages.

c. What impacts may result from expanding Article 139 to include claims for bodily harm?

Question 60Regarding State Victim Compensation Funds:

a. Do the Services notify victims of their options for seeking compensation through a State Victim Compensation Fund? Is the notification required by DoD and/or Service policy? If yes, please provide copies of all policies.

b. Are personnel within each Service trained regarding State Victim Compensation Funds? If so, which personnel?

c. For personnel trained on State Victim Compensation Funds, please describe any training received, including courses attended and training material received through courses and other resources.

d. Do DoD or the Services collect information or statistics about compensation received by victims of sexual assault in the military from State Victim Compensation Funds? If so, please provide copies of recent reports and information.

 

 

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