From its inception, Protect Our Defenders, informed by experiences of survivors and military justice experts, has advocated for reform of the military justice system and enhanced protections for survivors. POD has done so through direct and grassroots lobbying and media campaigns. At the behest and support of POD, Congress has passed the following reforms to the military justice system:
Article 32 Reform: Prior to the 2013 reform, the Article 32 process had little if any protections for a victim appearing before the investigation. Rather than being a probable cause hearing, the Article 32 process was viewed as an investigation and discovery tool for the defense. This led to often abusive questioning of a victim of sexual assault or rape, having nothing to do with probable cause. The 2013 reform refocused the Article 32 on the question of probable cause, enhanced victim protections (including mental health and Rape Shield), and most importantly gave the victim the option of testifying or not at the hearing.
Eliminate the Use of Good Military Character (“GMC”) in Making Prosecution Decisions: Prior to this change, a commander was required to consider the Good Military Character of the accused in making the decision whether or not to prosecute.
Article 60 Reform: Under Article 60 UCMJ, a convening authority could overturn any verdict and reduce any sentence for any reason or no reason at all. The fallacy of this authority was brought to light when two general officers overturned sex assault convictions based in part on the belief that the offenders were good officers who would not commit the offenses. Congress quickly removed this power from convening authorities to overturn any conviction or reduce a sentence for nonconsensual sex offenses as well as most other offenses.
Codify Right to In-Court Representation for Special Victims’ Counsel (SVC): While all branches of the DoD established a Special Victims’ Counsel program to represent victims of sexual assault and rape, the actual scope of a Counsel’s authority in a court martial was unclear. Often judges would not allow Special Victims’ Counsel to speak on behalf of their clients at a court martial, meaning that the SVC’s were powerless in fighting against unwarranted intrusions into the mental health records and sexual histories of a victim. Congress rectified this by making it clear that the SVC role included representation in court, allowing SVC’s to file motions and make arguments defending their client’s rights.
Mandate Consultation With Victims’ Counsel During Scheduling of Proceedings: Congress instructed the Secretary of Defense to establish policies and procedures designed to ensure that any counsel of a victim of a sexual offense is provided prompt and adequate notice of the scheduling of any hearing, trial, or other proceeding in connection with the prosecution of their case.
Eliminate Good Military Character (“GMC”) as a Defense: An accused used to be able to provide evidence of his “good military character” as a complete defense to any charge including sexual assault. Under the law, good military character was considered sufficient to raise reasonable doubt and there was no equivalent to this rule in the civilian criminal justice system. Now guilt or innocence will be determined the facts of the case not the popularity of the accused.
Eliminate No Punishment as an Option for Penetrative Sex Offenses: Prior to this reform, someone convicted of rape could be sentenced to No Punishment as a sentence. Congress mandated that at a minimum, a convicted rapist must be discharged from the service with a dishonorable discharge.
Strengthen the Psychotherapist-Patient Privilege: Prior to this reform, military judges routinely ordered the disclosure of confidential psycho-therapist records to the perpetrator and his counsel, eviscerating the privilege. The reform eliminated the “constitutionally required exception” commonly used by judges to pierce the privilege. Moreover the change heightened the burden on the defense to show why they should have access to the records. This reform has greatly enhanced the protections promised by the privilege.
Reform of Pre-Trial Depositions: After victims were given the right not to testify Article 32 hearings, the defense sought to use depositions as a means of forcing victims to be subjected to cross-examinations prior to a trial. The deposition rule in effect at the time was poorly written and was used by judges to force victims who were willing to testify at court to undergo invasive depositions. The law was changed making it clear that depositions should not be ordered for any witness who was willing to appear at a trial.
Enhanced Appellate Rights for Victims: For the first time, the victim of a sex assault crime can appeal a military judge’s ruling violating a victim’s rights, such as her mental health privilege or the right to be treated with fairness.
Expansion of SVC Services to Dependents and DoD Civilian Employees: Initially, Special Victims Counsel were only available to active duty service members. Congress mandated that SVC’s will be available to dependents as well as DoD civilian employees.
Address Widespread Trainee Abuse: Recognizing the inherent power imbalance in a trainee environment, Congress created a strict liability standard for military training instructors who engaged in sexual activities with trainees in a basic training environment.
Criminalize “Revenge Porn”: Recognizing the widespread impact on victims who had their intimate images shared without their consent, Congress criminalized the distribution on social media of such videos and photographs. The sharing of such images, as demonstrated by the Marines United scandal, was particularly devastating for military women.
Improve the Quality of Annual SAPRO Reports: Prior to this reform, sexual assaults committed by a military member against his or her spouse or any other family member was not included in the annual report to Congress, significantly undercounting the actual numbers of sexual assaults committed by military members.
Career Military Justice Tracks: The military has resisted efforts to allow attorneys to specialize in military justice litigation, which resulted in too many inexperienced prosecutors trying complex cases. The legislation mandates the military to allow JAG officers to specialize in criminal litigation throughout their careers, which increases the quality of prosecutions and enhances justice.
Strengthen Victim Appellate Rights: Despite Congress’s efforts to allow victims to appeal military judges’ rulings in violation of their rights, the Court of Appeals for the Armed Forces (CAAF) claimed to not have jurisdiction to hear such an appeal, stipulating that only the intermediate service courts had jurisdiction for an appeal by a victim. Congress amended the UCMJ to make it clear to CAAF that it indeed had jurisdiction to hear appeals from victims, giving victims access to the highest military court.
Racial Disparity: Based on POD’s ground-breaking report on racial disparity in military justice system, Congress mandated the Government Accountability Office (GAO) to do an extensive review of the racial disparity problems in the military justice process. In May 2019 the GAO released its report which affirms POD’s findings that Hispanic and Black service members are more likely to face court martial than their white counterparts.
Domestic Violence: For the first time, domestic violence was made a specific offense in the UCMJ. Prior to this, perpetrators of domestic violence escaped being appropriately labeled for their crimes. This legislation ensures that when a military member’s conviction is reported to civilian authorities, his crimes will be properly identified as domestic violence, making it less likely that the offender will have access to firearms.
Expansion of SVC Program to Victims of Domestic Violence: Currently SVC’s are usually only available to victims of sexual assault and rape. However, victims of domestic violence often face the same barriers to justice as victims of sexual violence. As a result, Congress mandated that the DoD study making the SVC’s available to victims of domestic violence.
Racial Disparity: Based on POD’s 2017 racial disparity report that resulted in a GAO review of racial disparity in the military justice system, Congress now requires the military to track race, ethnicity and gender of service members who are court-martialed. The Secretary of Defense is also required to identify causes of disparity and to “take steps to address causes.” POD recommended these reforms in the original disparity report.
Unlawful Command Influence: In 2017, CAAF overturned a rape conviction for unlawful command influence (UCI) even though the court admitted there was no actual UCI and the rapist was in no way prejudiced by any alleged UCI. Congress made it clear CAAF’s ruling was improper and now requires a court to find a UCI violation “materially prejudices the substantial rights of the accused” before a finding or sentence can be overturned on appeal. Prohibiting appellate courts from making victims pay the price for command misconduct that does not prejudice the accused.
Expansion of SVC Program to Include Domestic Violence Victims: In 2018, Congress mandated the military study making SVC’s available for victims of domestic violence. In 2019, Congress specifically expanded SVC services for victims of domestic violence.
Sentencing Guidelines: Courts-martial operate with no sentencing guidelines and very few mandatory minimum sentences. As a result, there is great disparity in military sentences and sentences for sexual violence cases are significantly lighter than in most civilian jurisdictions. For the first time, sentencing guidelines will be developed for courts-martial which will lead to greater accountability for offenders. Guidelines area necessary first step in sentencing reform to ensure offenders are appropriately punished.
Victim Preferences: Since 2015, victims had a right to request their case be handled by civilian authorities rather the chain of command. Based on POD’s interaction with victims, POD knew this right was being ignored by the military. POD convinced Congress to order the DOD IG review the military’s compliance with the law. The IG found that 80% of the time the military failed to inform victims of their right or failed to properly document the victim’s preference. The legislation requires the military properly document its compliance with the law and to train SVCs to be trained on civilian justice matters so that they may properly inform victims to ensure they have the “information necessary to make an informed decision regarding preferences” regarding which jurisdiction to chose. The SVCs must be trained on laws of the state in which the SVC is assigned victim rights, criminal prosecution processes, sentencing processes and protective orders.
Study of Alternative Military Justice System: The Secretary of Defense must study an alternative military justice system based on MJIA and the feasibility of prosecutor based pilot program.
Feres reform: For the first time military victims of medical malpractice may now make claims for damages. At this time, they may not sue in federal court, but this is a major first step towards repealing the Feres doctrine and eventually allowing survivors to recover damages.