The Bayonet

Wednesday, Jan. 15, 2014

Legislation changing UCMJ

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WASHINGTON — The National Defense Authorization Act, passed last month, requires sweeping changes to the Uniform Code of Military Justice, particularly in cases of rape and sexual assault.

“These are the most changes to the Manual for Courts-Martial that we’ve seen since a full committee studied it decades ago,” said Lt. Col. John L. Kiel Jr., the Policy Branch chief at the Army’s Criminal Law Division in the Office of the Judge Advocate General.

Key provisions of the Uniform Code of Military Justice, known throughout the military as the UCMJ, that were rewritten under the National Defense Authorization Act for fiscal 2014, or NDAA14 — signed Dec. 26 by President Obama — are Articles 32, 60, 120 and 125.

ARTICLE 32

NDAA14 now requires the services to have judge advocates serve as Article 32 investigating officers, or IOs. Previously, the Army was the only service where judge advocates routinely did not serve as Article 32 IOs.

Article 32 hearings are held to determine if there’s enough evidence to warrant a general court-martial — the most serious type of court-martial used for felony-level offenses like rape and murder.

Congress decided that the services needed to have trained lawyers — judge advocates — consider the evidence, since in their view, trained lawyers are often in the best position to make determinations to go forward with general courts-martial, he said. The reason judge advocates didn’t always serve as 32 IOs in the Army was “largely because we try four times the number of cases of any of the other services,” meaning that it’s an issue of not having enough judge advocates for the high volume of cases.

The Army asked Congress to consider its resourcing issue, he said, so the legislators wrote an exception, stating that “where practicable, you will have a judge advocate conduct the Article 32 investigation,” he said.

Kiel cited a number of circumstances where “where practicable” could apply:

A lot of courts-martial were conducted over the years in Iraq and Afghanistan, where Soldiers were deployed. Some of those involved war crimes, he said. In these cases, the Army found it was sometimes best to have line officers be the Article 32 IOs because they could best put themselves in the shoes of the accused.

Those line officers “understood what it’s like to make decisions in the heat of battle better than a lawyer without those experiences. They added a level of judgment that sometimes judge advocates could not.”

Another example could be travel fraud.

“In the case of complex TDY (temporary duty) fraud for instance, you might want to have a finance officer as the IO,” he said. Besides subject-matter experts being in the best position to be Article 32 IOs, there might simply not be enough judge advocates in the area of the installation, he said. For example, there would likely be enough judge advocates in U.S. Army Forces Command to do 32 hearings, but if a number of hearings came up at once in U.S. Army Training and Doctrine Command installations, they might come up short.

That might jeopardize the right of an accused to a speedy trial if the clock runs out, he noted. And, if a judge advocate is flown in from another installation, travel costs would be incurred.

“Those are very real situations that could impact the ability to get it done expeditiously and cost effectively,” he explained. Other attorneys on an installation cannot always be tapped for Article 32 IO work, he said.

On larger installations, “we have operational law attorneys who potentially could cover down on some of these areas, but we don’t have a lot of those.”

On other installations, administrative law attorneys might have conflicts of interest if they’ve previously rendered some kind of legal review on a case for example, he said.

“And, our administrative law attorneys are always busy reviewing various sorts of investigations and helping the command deal with such things as ethics and family readiness issues,” he continued.

“Then we have our criminal law advocates, trial counsels and defense counsels,” he added. “They’re all conflicted out from being IOs, because they’re actually tasked with presenting evidence during the 32 as they’re acting as counsel to the government or to the accused.”

NDAA14 gives the services one year to phase in this change to Article 32, stipulating that where practicable, judge advocates conduct the investigations.

This provides time for the staff judge advocates to figure out if they have enough judge advocates to fill the requirement to cover down on all the Article 32 hearings and determine which installations are struggling to meet the requirements, he said. Another impact to courts-martial practice is the new requirement for a special victims counsel, Kiel said. The special victims counsel’s task is to provide support and advice to the alleged victim. For example, they must inform the victim of any upcoming hearings — pre-trial confinement, parole board, clemency and so on — and inform the victim that he or she can choose to attend any of those. As well, the victim will be notified in advance of trial dates and be informed of any delays. Furthermore, he said, the special victims counsels may represent the alleged victims during trial, ensuring their rights are not violated, like under the Rape Shield Rule.

The Rape Shield Rule or Military Rule of Evidence 412, prevents admission of evidence concerning sexual predisposition and behavior of an alleged victim of sexual assault.

Kiel provided an aside regarding the Rape Shield Law and how a high-visibility case a few months ago, involving football players at the U.S. Naval Academy, influenced changes to Article 32 by Congress.

In that case, the defense counsel had the victim on the stand for three days of questioning about the alleged victim’s motivations, medical history and apparel during the Article 32 hearing, he related. The cross-examination was perceived by the public and Congress to be disgraceful and degrading, and potentially violating the federal Rape Shield Rule.

With passage of NDAA14, alleged rape and sexual assault victims are no longer subject to that kind of interrogation at the Article 32 hearing, he said.

Previous to NDAA14, alleged victims of sexual assault were ordered to show up at Article 32 hearings and frequently were asked to testify during those hearings as well.

“Congress thought that wasn’t fair, since civilian victims of sexual assault didn’t have to show up or testify,” he said. “Now, any victim of a crime who suffers pecuniary, emotional or physical harm, and is named in one of the charges as a victim, does not have to testify at the hearing.”

Editor’s note: This is the first of a two-part story. Read the rest of the story next week.

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