Friday, August 18, 2023

BE CAREFUL WHAT YOU WISH FOR, YOU MIGHT JUST GET IT! CHANGES TO THE UNIFORM CODE OF MILITARY JUSTICE (UCMJ) GOING INTO EFFECT IN DECEMBER 2023 RAISES THE BAR FOR CHARGING SERVICE MEMBERS WITH SEX CRIMES SO WILL RESULT IN FEWER, NOT MORE, PROSECUTIONS – Which Might Just Be a Good Thing!

 

By Alex Horton, Published 14 August 2023 at 1815 EDT

 Last month, President Biden signed an order implementing bipartisan reforms that, among other things, establish independent military prosecutors to oversee cases involving sexual assault, domestic violence and murder, removing that responsibility from commanders.…

https://www.washingtonpost.com/national-security/2023/08/14/vanessa-guillen-cecily-aguilar/?commentID=89dd3912-fc0f-4d4b-9c68-7b06c566c3b4

Be careful what you ask for, you might just get it. The Military expects that as a result of this change there will be far fewer accused actually charged or brought to Court Martial. In sexual misconduct cases, commanders are much more inclined to charge an accused and let a court adjudge guilt which does result in a high acquittal rate. Military prosecutors are much more concerned with winning and their win-loss stats so only bring “slam dunk” cases to trail and don’t prosecute the tougher cases. Hence, the “close calls” will no longer be brought to Justice.

The change is the biggest reform to the Uniform Code of Military Justice since its creation in 1950, the White House said.” Actually this is incorrect. The biggest chance happened in 1968 when accused got lawyers to represent them in Special Courts. Before then, accused were represented by an officer randomly selected off a duty roster.

Since the UCMJ went into effect on 31 May 1951, the administration of Military justice has been the exclusive responsibility of Commanders so this change taking effect this December which removes from commanders the decision to charge and try a service member for sexual assault and 13 other special victim related crimes is a radical departure from what has been working for the past 72 years. With this change the decision to charge and try these crimes will rest with independent military prosecutors and the net effect will be a drastically reduced number of rape and sexual assault prosecutions.

I entered the Army as a High School Grad Draftee inducted at the Scranton/Wilkes-Barre Pennsylvania MEPS. I tested out high enough to be offered the opportunity to attend Officers Candidate School (still carrying my Draftee US serial number) and after commissioning I went to Vietnam as a new Second Lieutenant.  I extended in Vietnam to come home a decorated Captain with a CIB and stayed in the Army retiring after 30 years as a Full Colonel/06.  During my 30 years in the service I Commanded Four Companies, was the Executive Officer of a Combat Battalion, Commanded a Divisional Combat Battalion on the DMZ in Korea and Commanded at the Brigade level so I had a Ton of time with troops. Because I was a Court Martial Convening Authority, I attended the Senior Officers Legal Course at the Army Judge Advocate General (JAG) School on campus at the University of Virginia Law School in Charlottesville, Virginia. My point is I have had extensive experience melting out Military Justice and supervising subordinate Commanders as they executed their responsibilities disciplining troops.

Uniform prosecution standards also would forever put to rest the military’s traditional practice of using the less rigorous standard of probable cause to refer a case to court-martial. Over the last decade, the probable cause referral standard has likely been the culprit for the low conviction rate in sexual assault cases in the armed forces. Additionally, the military is the only jurisdiction in the United States of America that uses probable cause (the standard of proof to obtain a warrant) to refer a case to a felony level trial where the burden of proof is beyond a reasonable doubt. The probable cause standard to refer a case to court-martial has allowed military sexual assault prosecutions for years. As military lawyers with established independent offices charged with prosecuting special victim crimes, it might adopt the principles of prosecution as stringent as the Department of Justice. If its prosecutors across all services use the heightened referral standards, it will result in a significant reduction in the number of victims being able to confront their violators or having their day in court.  Although most commanders were already referring most credible allegations to Court Martial, they were also following orders contained in these Federal Statutes.

1.    Commanding Officers were told in NDAA-14 that all sexual assault cases should be referred for courts-martial. Such a provision essentially replaces a presumption of innocence with a presumption of probable cause.

2.    Commanding Officers were told in NDAA-14 that a failure to maintain a healthy “command climate” (aka high referral rate for sexual assault allegations) will be relieved of their post.

3.    The statute of limitation for sex offenses was lengthened.

4.    Sexual Assault Prevention and Response training sessions for service members ignore presumption of innocence by teaching “start by believing” and “never question the victim.”

5.    “Victim-centered investigation” models teach investigators to “believe the victim” and not question inconsistencies in the complainant’s story, which it attributes to trauma and not deception. This approach negates the opportunity for a fair and impartial investigation.

Although sexual assault is a grave concern, Congress first over-reacted by forcing Commanding Officers to pursue criminal charges in every case regardless of the merit of the allegations.  As a result of the over-charging, data shows that acquittal rates for sex offenses between 2012 and 2014 were very high. Rather than modifying Congressional mandates, the Congressional and the Presidential solution was to remove jurisdiction for administering Military Justice from Commanders where it had been for at least 70+ years.

The answer was not to make it easier for prosecutors to convict, but to improve the investigation process to produce reliability of results.

the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) released a report in October 2020 exploring the astounding number of sexual assault cases that are referred to trial without sufficient admissible evidence to obtain a conviction. The committee argues that this serious problem has significant negative implications for the accused, the victim, and the military justice process. So Congress first created the situation and rather than fixing it removed Commanders from the problems.  Remember, it’s the Commander that is responsible for maintaining good order and discipline in their unit and pays the price if they fail to so it.

 

When the public sees a military sexual assault case go to trial with insufficient evidence, it sends a message that this is a political prosecution, not one based on evidence. This creates the impression that the military will take any case to trial, degrading confidence in legitimate cases that actually have enough evidence.

Here is what one universally respected expert in Military Law had to say about the subject:

The Military takes tough sexual assault cases to trial. That's why its conviction rate is low.

Everyone wants nothing more than to see the eradication of sexual assault from the military and society. But not at the expense of constitutional rights.

If you are an outsider only loosely familiar with the concept of “sexual assault in the military,” then you may be susceptible to what seem to be altruistic proposals from advocacy groups and senators looking to change the laws surrounding sexual assault in our armed forces. But as a career military justice practitioner, both on the prosecutorial and defense sides, I would caution you to look closely at any proposals put forth to determine if they will actually prevent or reduce sexual assault in the military, or adjudicate the cases in a more “fair” manner.

If you have a low conviction rate in particular types of cases, the overarching reason should be pretty obvious — you’re taking close cases to trial. This is precisely the military’s formula. So, instead of telling certain alleged victims of sexual assault that their cases cannot be prosecuted (or will likely result in an acquittal), the military takes a wide swath of sexual assault cases to trial that vastly span the spectrum when it comes to evidentiary strength. That has yielded an acquittal rate of nearly 93% in recent years.

Transferring disposition authority from commanders to career prosecutors in all likelihood will not increase the number of sexual assault prosecutions. But I am hopeful that, if passed, it will yield prosecutorial decisions that are solely evidence-based, without direct command influence. This model will relatedly result in higher conviction rates (if that’s actually a goal). But Congress and advocacy groups may still be unappeased because reports of sexual assault will continue to rise, with lower prosecution rates.

And while the constitutional rights of a person accused of a crime may not be in vogue in the current cultural environment, that does not make them any less critical. The presumption of innocence, burdens of proof, due process, fair trials, competent representation and the like are only buzz words until you’re the one with your actual freedom on the line.

When members of Congress bemoan the low conviction rates in military sex assault cases, what they are saying is this: Without analyzing the specific facts and circumstances of each and every case or sitting through the trials, I believe that these people were wrongfully found not guilty in a court of law that afforded these military members the same constitutional rights as anyone brought to justice in this country.

 

Opinion: Uniform standards needed now for sexual assault prosecution offices

By Meghan Tokash and Paul Grimm   3 July 2023

A gavel rests on the judge’s bench in the courtroom of the 39th Air Base Wing legal office at Nov. 14, 2019, at Incirlik Air Base, Turkey. (Staff Sgt. Joshua Magbanua/Air Force)

The United States military is this year executing the most historic and transformative change to military justice since the creation of the Uniform Code of Military Justice in 1950. On Dec. 28, 2023, the decision to charge and try a service member for sexual assault and 13 other special victim related crimes will be removed from commanders and will rest in the hands of independent military prosecutors. The offices housing these specialized litigators became fully operational on July 1, 2023.

But the secretary of defense has one crucial outstanding task left: create uniform prosecution standards across all the services, which he can do with a stroke of a pen. This final action — or failure to act — could make or break the success of the independent special victim’s prosecution offices.

In 2021, service members past and present raised their voices to the Independent Review Commission on Sexual Assault in the Military. They identified the command-driven justice system as a perpetrator of broken trust for survivors and criminally accused navigating the military justice landscape. The secretary of defense and the Congress listened.

On Dec. 28, 2021, the historic legislation removing commanders from prosecuting special victim cases became law. On July 1, the new Offices of Special Trial Counsel, or OSTC, in the Department of the Navy, the Army, and the Air Force made their groundbreaking debut.

On June 9, 2023, after five years of rigorous study, data collection, and stakeholder engagement, the Defense Advisory Committee on the Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, or DAC-IPAD, released a report to the secretary of defense and Congress recommending Secretary Lloyd Austin revise Appendix 2.1 of the MCM to establish uniform prosecution standards that align with the prosecution principles contained in the United States Justice Manual.

In its report, the DAC-IPAD included a proposal to create a statement of prosecutorial practices and policies that every judge advocate can use when exercising prosecutorial discretion. The proposed prosecution standards provide that counsel for the government refer charges to a court-martial only if they believe that the service member’s conduct constitutes an offense under the Uniform Code of Military Justice, or UCMJ, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction when viewed objectively by an unbiased fact finder.

This is not a radical idea — in fact, admissible evidence to obtain and sustain a conviction is the gold standard used by prosecutors across the United States Department of Justice. Presently, the military uses the much lower standard of probable cause to send a case to trial and that is not the industry standard.

The DAC-IPAD is comprised of current and former United States district court judges, a state circuit court judge, a former clerk of court for federal bankruptcy court, federal and state prosecutors, a defense appellate counsel, the federal public defender for Washington, D.C., a nationally recognized criminologist, the nation’s top forensic nurse examiner, a former Department of Defense general counsel, a former DoD associate deputy general counsel, a deputy assistant secretary at the Department of Education, and the executive director of the National Crime Victim Law Institute. Many committee members have prior military service as judge advocates (including these two authors who both served as Army judge advocates) and have the expertise and judicial prowess to underwrite such a recommendation that elevates the referral standard.

This policy detail is essential, and timing is everything.

Presently, the military does not have uniform standards to properly guide its prosecutors and each OSTC is writing its own so-called “business rules” that will detail how judge advocates screen, charge, and refer cases. Shrouded in a veil of secrecy, these “rules” are deemed “pre-decisional” by the Pentagon so the public has had no visibility, input, or oversight of their development.

If the secretary of defense does not move swiftly, each service may create different standards governing prosecutorial decision-making. Uniform prosecution standards issued by the secretary of defense would assure service members that criminal cases are being evaluated consistently to avoid charging disparities and unfavorable trial outcomes for both victims and accused.

Uniform prosecution standards also would forever put to rest the military’s archaic practice of using the less rigorous standard of probable cause to refer a case to court-martial. Over the last decade, the probable cause referral standard has likely been the culprit for the abysmal conviction rate in sexual assault cases in the armed forces. Additionally, the military is the only jurisdiction in the United States of America that uses probable cause (the standard of proof to obtain a warrant) to refer a case to a felony level trial where the burden of proof is beyond a reasonable doubt. The probable cause standard to refer a case to court-martial has plagued military sexual assault prosecutions for years. As the military professionalizes lawyers in its ranks with the establishment of independent offices charged with prosecuting special victim crimes, it must also adopt uniform principles of prosecution on par with the Department of Justice. And its prosecutors across all services should use the heightened referral standard of admissible evidence to obtain and sustain a conviction.

Secretary Austin need only adopt the DAC-IPAD’s proposal contained in Appendix G of its newly released report. The proposed standards provide military prosecutors policies and practices that promote the reasoned exercise of prosecutorial authority that will contribute to the fair, evenhanded administration of the UCMJ. Furthermore, the promulgation of these standards by Secretary Austin will establish trust that important prosecutorial decisions will be made rationally and objectively based on an individualized assessment of the facts and circumstances of each case. Establishing the rules now and making them uniform sends a message to sexual assault victims, those criminally accused, and the American public that the military’s new prosecutorial offices will abide by policy designed to prevent unwarranted preferral and referral disparities — both actual and perceived.

The implementation of independent special victim prosecution offices is imminent. The policy guiding these new offices must ensure uniformity, reliability, and consistency that is vital to any prosecutorial function. Without uniform guidance from the secretary, each OSTC may have conflicting standards for screening cases, preferring charges, and referring cases to trial. Worse, prosecutors within each service’s OSTC could use different standards for exercising prosecutorial discretion. Disparate case outcomes will only exacerbate the problem of broken trust in the military’s handling of sexual assault cases. Without uniform prosecution standards, a decade’s effort at military justice reform and the success of the independent special victim prosecution offices will be in jeopardy.

The Hon. Paul Grimm is a retired United States district court judge and professor of the practice of law and director of the Bolch Judicial Institute at Duke Law SchoolMeghan Tokash is a federal prosecutor with the Department of Justice and served as a commissioner on the Secretary of Defense’s Independent Review Commission on Sexual Assault in the Military. When she was an active duty Army judge advocate, Ms. Tokash served as Gen. Austin’s senior trial counsel for U.S. Forces-Iraq from 2010-2011.

Both Judge Grimm and Ms. Tokash are members of the Defense Advisory Committee on the Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces. Their opinions are their own and not those of the full DAC-IPAD, the Department of Justice or the Duke Law School.


28 July 2023

President Biden to Sign Executive Order Implementing Bipartisan Military Justice Reforms

WHITE HOUSE RELEASE

Today, President Biden will sign an Executive Order to implement historic, bipartisan military justice reforms that significantly strengthen how the military handles sexual assault cases. The Executive Order transfers key decision-making authorities from commanders to specialized, independent military prosecutors in cases of sexual assault, domestic violence, murder, and other serious offenses by amending the Uniform Code of Military Justice (UCMJ).

These changes, which implement reforms passed by Congress in the Fiscal Year 2022 National Defense Authorization Act (FY22 NDAA), represent the most significant transformation of the military justice system since the UCMJ was established in 1950. The historic reforms announced today will better protect victims and ensure prosecutorial decisions are fully independent from the chain of the command. They follow decades of tireless efforts by survivors, advocates, and Members of Congress, to strengthen the military justice system’s response to gender-based violence and build on recommendations from the Independent Review Commission on Sexual Assault in the Military (IRC), which Secretary Austin established at President Biden’s direction as one of his earliest acts in office.

These reforms are a turning point for survivors of gender-based violence in the military. They fulfill President Biden’s promise to fundamentally shift how the military justice system responds to sexual assault and related crimes, which is something President Biden has prioritized since Day One of this administration. Ending gender-based violence wherever it occurs has been a top priority for the President throughout his career—as a Senator, and as Vice President. As Commander in Chief, he’s made clear that our one truly sacred obligation as a nation is to prepare and equip those we send into harm’s way, and to care for them and their families both while they are deployed and when they return home. The reforms implemented through today’s Executive Order do just that, promoting dignity and respect for those who serve by better protecting our servicemembers and making the military safer and more just.

Today’s Executive Order takes important action to reform our military justice system by amending the Manual for Courts-Martial and its accompanying Rules for Courts-Martial including by:

·         Establishing the rules that will govern the new Offices of Special Trial Counsel (OSTC), the independent military prosecutors who will now decide, in the place of commanders, whether to prosecute covered offenses such as sexual assault and domestic violence, child abuse, and murder;

·         Making clear that prosecutorial decisions made by special trial counsel are binding and fully independent from the chain of command;

·         Delineating the relationship and authorized interactions between special trial counsel and commanders to protect the independence of special trial counsel;

·         Modernizing procedures to better protect victims and promote fairness before, during and after court-martial proceedings;

·         Reforming the court-martial sentencing system to promote uniformity and fairness, as recommended by the IRC, to reduce disparities in sentencing in cases of rape and sexual assault; and

·         Creating a uniform evidence standard for non-judicial punishment actions, which the IRC highlighted as critical to make consistent across the military services given that most sexual misconduct cases are handled by nonjudicial punishment rather than courts-martial.

This month also marks two years since the IRC published its final report, outlining recommendations to improve accountability, prevention, climate and culture, and victim care and support. Today’s Executive Order advances the IRC’s core accountability recommendations and builds on the progress that has already been made by the Department of Defense in implementing the IRC’s more than 80 recommendations, including:

·         Establishing the Offices of Special Trial Counsel. In July 2022, with direction from Secretary Austin, the Army, Navy, Marine Corps, and Air Force, including the Space Force, established and staffed their OSTCs to assume authority for prosecutorial decisions for covered offenses including sexual assault and domestic violence at the end of 2023. Beginning January 1, 2025, special trial counsel prosecutorial authority will expand to include sexual harassment cases.

·         Hiring, Training, and Empowering the Prevention Workforce. Consistent with the IRC’s recommendation to establish a dedicated prevention workforce with public health expertise, the Department of Defense launched a phased approach to hiring a primary prevention workforce with 2,000 skilled professionals who will promote the health of their military community and work with leaders to change policies and implement prevention activities. In December 2022, the Department of Defense released guidance for this new workforce, and hiring and onboarding is underway at installations around the world.

·         Strengthening and Professionalizing the Sexual Assault Response Workforce. The Department of Defense, in collaboration with the Military Services and National Guard has adopted a comprehensive approach to restructuring, professionalizing, strengthening, and resourcing for the sexual assault response workforce. This includes moving Sexual Assault Response Coordinators (SARCs) and Victim Advocates (VAs) from the command reporting structure, and generally eliminating collateral duty for SARCs and VAs.  This standardized approach across the Department of Defense is nearing completion.

·         Improving the Military’s Response to Domestic Violence and Sexual Harassment. Recognizing sexual assault can overlap with other forms of gender-based violence, the IRC recommended ways to improve accountability and support to survivors of domestic violence and sexual harassment. The Administration has:

o    Reissued and revised the Defense Department’s domestic abuse policy in December 2021. Key updates include expanding eligibility for Sexual Assault Prevention and Response program services to domestic violence survivors who have experienced sexual assault;

o    Tracked the prevalence of domestic abuse/intimate partner-related sexual assault by collecting information on the victim-perpetrator relationship in the Workplace and Gender Relations Surveys of Active-Duty Members (WGRA), and Workplace and Gender Relations Surveys of Reserve Component Members (WGRR);

o    Expanded victim advocate services, reporting options and support to survivors of sexual harassment, through new guidance issued by the Department of Defense in September 2022. This guidance has been implemented across all Military Departments;

o    Starting with the Navy and the Marine Corps, issued policies for the independent investigation of sexual harassment reports, moving these investigations outside the chain of command of both the individual reporting sexual harassment and the alleged offender. The Department of Defense is working to develop a comprehensive approach to address this issue across all Military Departments; and

o    Amended the Manual for Courts-Martial through an Executive Order in January 2022 that established sexual harassment as a specific offense under the UCMJ, strengthening the military justice response in prosecuting cases of domestic violence, and implementing changes to the UCMJ to criminalize the wrongful broadcast or distribution of intimate visual images.


26 JANUARY 2022

Executive Order, 2022 Amendments to the Manual for Courts-Martial

white HOUSE RELEASE

Today, President Biden signed an Executive Order to amend the Uniform Code of Military Justice, which is key to advancing the historic, bipartisan military justice reform he signed into law last month through the National Defense Authorization Act (NDAA).

This Executive Order strengthens the military justice system’s response to gender-based violence, and delivers on key recommendations from the Independent Review Commission on Sexual Assault in the Military (IRC) that Secretary of Defense Lloyd Austin launched in March 2021.

This year’s NDAA also included key components of the I Am Vanessa Guillén Act, which honors the memory of Army Specialist Vanessa Guillén, whose experience with severe sexual harassment was followed by her brutal murder, drawing national attention to the scourge of sexual violence in the military.  The Guillén family’s leadership and determination in advocating for change underscored the need for military justice reform, including how the Uniform Code of Military Justice (UCMJ) addresses sexual harassment. The Executive Order that the President signed today establishes sexual harassment as a specific offense under the UCMJ. It also strengthens the military justice response in prosecuting cases of domestic violence, and fully implements changes to the military justice code to criminalize the wrongful broadcast or distribution of intimate visual images. 

As this Executive Order goes into effect today, we reaffirm our commitment to advancing the military justice reform that the President signed into law as part of the NDAA, which includes the historic shift of legal decisions from commanders to independent, specialized prosecutors in cases of sexual assault, domestic violence, and other serious crimes.  And we honor the courage and leadership of the many survivors and advocates who long fought for these critical changes. 

President Biden has long been committed to ending domestic violence, sexual assault, and other forms of gender-based violence, first as a United States Senator, then as Vice President, and now as President and Commander-in-Chief.  These efforts have become even more critical during the COVID-19 pandemic, as risk for gender-based violence has increased in the United States and around the world.  The important steps we have taken today build on the ongoing efforts of the Biden-Harris Administration to address gender-based violence, wherever it occurs, including by directing $1 billion in supplemental funding through the American Rescue Plan for domestic violence and sexual assault prevention and services, andsigning into law the Amendments to the Victims of Crime Act (VOCA), resulting in an increase of hundreds of millions of dollars of non-taxpayer funding for lifesaving services to crime victims around the country. Today’s Executive Order also reinforces the commitments of the Biden-Harris Administration to supporting survivors by releasing the first-ever National Strategy on Gender Equity and Equality in the United States, which identifies gender-based violence prevention and response as a core strategic priority for President Biden. The strategy also names military justice reform as an essential component of elevating gender equality in security processes.

Today marks another turning point for survivors of gender-based violence in the military.  Moving forward, the Administration will continue to advance prevention, promote safe and respectful military climates, and strengthen care and support for survivors.

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