Structural reform is central to fixing the broken military justice system, improving the culture and climate within the military, and ensuring that our service members are given access to blind justice equal to the system they have pledged their lives to protect. We support changes to create a fair, impartial, and objective system of justice including giving professional military prosecutors, rather than untrained, conflicted and often biased commanders, the decision to prosecute. And, we offer the following suggestions for fixing additional points of failure in the system and improving justice for our troops.
Create Standing Courts
The military currently does not have standing courts. Instead, courts are created anew each time a convening authority refers charges. As a result, a military judge has no authority to act in any way prior to the referral of charges. Referral does not take place until after many critical legal decisions are made. These are decisions that would be made by a judge or a magistrate in the civilian systems, such as search authorization or reviewing the decision to place someone in pretrial confinement. In the military, these decisions are made by commander or lay magistrates with minimal legal training, often resulting in significant legal errors.
Congress should create standing courts to empower military judges and magistrates to have powers consistent with their civilian equivalents. Judges would also be more readily available to quickly rule on motions such as discovery, hiring of experts, and production of witnesses.
Mandate Judicial Terms
To strengthen both the independence of judges and the quality of judges, judicial assignments should be for a fixed period of at least 4 years for both trial and appellate court judges. The military without a doubt has the least experienced trial and appellate judges in the country. Currently, judges rotate quickly through assignments, often before gaining the experience needed to effectively administer justice. For example, after the 2016 summer rotation, the most experienced judges on the Air Force Court of Criminal Appeals had only been on the court for 1 year.
The FY17 NDAA included language recognizing the problem, but did virtually nothing to fix it. Rather than require fixed terms, the amendment only requires “appropriate minimum periods” subject to exceptions. This will have virtually no impact and leaves too much discretion with the military who opposes fixed terms.
Create a System for Randomly Selecting Court Members
Members should be selected randomly rather than selected by the convening authority. This is one of the more common complaints about military justice and the current process creates many issues on appeal. Commanders should be allowed to exempt certain critical personnel from the random selection list.
The current process of commanders selecting court-members allows commanders to slant a jury toward a desired outcome. Commanders who reluctantly send popular or connected offenders to trial can put their thumb on the scale by selecting members they believe are more likely to vote not guilty.
Create Real Juries for General Courts
Juries for general courts-martial should reach a verdict by consensus. The verdict should be either unanimous or at minimum 6 – 2. The verdict, whether guilty or not guilty, should be reached by consensus.
The military is the only system of justice in the United States to allow a person to be found not guilty without the jury reaching a consensus. A not guilty verdict can be reached by the vote of a small minority of the members in contrast to civilian juries that must reach a verdict, whether guilty or not guilty, by consensus. The process denies survivors a thorough deliberation of the facts and substantially increases the likelihood of an acquittal. Currently, only one-third of all sexual assault and rape cases end in a guilty verdict.
Create Litigation Tracks
Mandate each service to create litigation tracks to allow JAGs to specialize in court-martial trial practice. The tracks will ensure each service develops JAGs with significant in-court experience to provide the best possible prosecutors and defense counsel. To the greatest extent possible, military judges will have significant litigation experience prior to becoming a judge.
The FY17 NDAA watered down both the House and Senate proposals to a meaningless study as to whether there should be specialization in “military justice,” which is not the same as “litigation.” Military justice includes all the bureaucratic functions needed to advise commanders, because of the command-based system, which have little to do with actual in-court talent or experience.
As with judges, too many cases are prosecuted by young and inexperienced prosecutors resulting in cases being presented poorly and ending in acquittals. Sexual assault crimes are the most complex cases that require experienced prosecutors to ensure the best change of achieving justice.
Create Legislation Criminalizing the Nonconsensual Sharing of Intimate Images
While the military has been aware of the problem of what is commonly referred to as revenge porn and abusive cyber bullying since at least 2013, it made no real effort to stop the practice or punish offenders. Due to military leadership indifference, the UCMJ did not adequately criminalize such corrosive behavior. Realizing the need, POD first advocated for a revenge porn statute in 2015. In March 2017 the Marines United scandal shined a light on a culture of misogyny within the ranks of the Marine Corps and the rest of the military. The widespread scandal involved hundreds of active duty members sharing intimate images of fellow military members without their consent and engaging in highly degrading cyber bullying.
Congress must pass legislation specifically criminalizing the sharing of intimate photos without consent and the abusive online conduct that threatens good order and discipline.
Mandate an Independent Review of Racial Disparity in Military Justice
In June 2017, POD released a study on racial disparity in military justice. The report demonstrated a significant and pervasive disparity in the rate of military justice actions between white service members and black service members. This racial disparity was known by military leadership for many years, yet they did nothing to find the cause or solutions for reducing the disparity. Congress must mandate an outside review to determine why the disparity exists and solutions for resolving the disparity. The military should also be required to annually report the rates of military justice actions by race to Congress.
Give Victims Right to Interlocutory Appeal for MRE 513 and 412 rulings
Historically, victims of sexual assault have had no meaningful way to challenge a trial judge’s ruling which violated the victim’s rights contained in MRE 513 (psychotherapist-patient privilege) and MRE 412 (rape shield) rulings, and orders to sit for a deposition despite being available for trial, along with any other rights under the Article 6b (the military’s Crime Victims’ Rights Act). Once the trial judge ruled adversely to a victim, the door was closed to an appeal. Over the past several years, POD has advocated for victims right to access interlocutory appeals in line with the rights of civilian victims under the 18 USC 3771(d)(3), the Federal Crime Victims Rights Act, to protect their rights.
The 2016 NDAA included a provision amending Article 6(b) providing that victims may petition the Court of Criminal Appeals (CCA) for a writ of mandamus to seek enforcement of their rights under MRE 412 and MRE 513, as well as MRE 514 (advocate-victim privilege), MRE 615 (right not to be excluded from court proceedings), or any other right under 6(b), and that victims subject to an order to sit for a deposition may petition to challenge the order. Under this new provision, petitions by victims are required to be given priority by the court.
While the 2016 NDAA changes serve as an improvement, the provision falls short in two important ways: First, the change does not allow a victim to seek review of the CCA’s ruling to the Court of Appeals for the Armed Services (CAAF). This limits the ability of victims to receive meaningful review of orders that violate their rights, and precludes development of the law to guide future decisions. Second, rather than providing for a direct appeal right, Congress limited the review to a “writ of mandamus.” A writ is treated as “a drastic and extraordinary” remedy “reserved for really extraordinary causes.” This extremely high standard makes obtaining meaningful relief in practice almost impossible to achieve. For victims, providing a right in theory means little if in reality it fails to protect them.
POD continues to pressure for direct appeals for victims and the right to appeal to CAAF, the military’s highest court.
Expand Eligibility for Special Victims’ Counsel to Civilians, DoD Employees, and Former Dependents
- The 2016 NDAA expands SVC services to civilian employees of the Department of Defense, with approval from the Secretary of Defense.
The court-martial process is unlike any other criminal process in the country. It is confusing enough for service members, but for civilians with little or no ties to the military, the system can be impossible to understand. The military often seeks jurisdiction over cases involving non-military victims, and these survivors should not be denied the protections that have been put in place to guard against the military’s abusive practices.
This lack of protection is particularly stark for two groups: DoD employees and military spouses. DoD employees receive the same sexual assault training as service members, but some of the fundamental protections covered in these trainings are not afforded to them because of their employment status. For a group who works side-by-side with military members, the unavailability of legal representation is inexcusable. For military spouses and who have been abused, the situation may be especially dire. Under current policy, military spouses may lose eligibility if they divorce their service member spouse in the midst of the criminal process. In this case, they are essentially forced to choose between keeping their attorney and seeking a divorce from their rapist. Every victim deserves legal representation and support during the confusing and often traumatic court-martial process, and the military has a duty to protect all victims who are subject to this system as the result of a rape or assault by a service member.
Provide SVCs with Needed Case Documentation
SVCs are often hindered from providing adequate representation because they are not guaranteed basic access to investigative records, motions, or filings during a court-martial, even when such documentation relates directly to the victim’s rights. Further, the type and timeliness of access to documentation that SVCs receive can vary dramatically between judges and legal offices, adding an additional level of unpredictability to judicial proceedings. Victims and victims’ attorneys must have timely and thorough access to all records they require to represent their client and protect their rights.
Require DoD to Establish a Uniform Process for Tracking and Addressing Retaliation
Two-thirds of victims who report a sexual assault experience retaliation from their peers and chain of command. However, while retaliation was formally made a crime under the FY14 NDAA, the military does not have a centralized or uniform process for tracking or addressing claims of retaliation. In order to fully understand the scope of this issue and the adequacy of its response services, DoD should create a central database to track official reports of reprisal, the results of investigations, and any disciplinary and/or corrective action taken as a result. In order to ensure appropriate oversight, such information should be available to Congress and the public.
Further, DoD’s efforts to combat retaliation are fundamentally inadequate. Currently, victims’ only options are to file an IG complaint, seek assistance from a member of Congress, or report to their commander. However, these options are not sufficient, timely, or appropriate. Over the past decade, the IG has not substantiated a single case of sexual assault-related retaliation. In addition, in cases where the chain of command is involved in either social or professional retaliation (as in most retaliation cases), this system would allow abusers to investigate themselves. Finally, victims should not have to seek relief from harassment or other criminal behavior from a member of Congress – this should be a matter of last resort.
Victims of sexual assault should have an accessible resource on base where they can make a protected report of reprisal. In addition, Congress must act to strengthen military whistleblower protections, which have failed to adequately protect victims of sexual assault who report a criminal act. This reform should include changing the burden of proof for IG investigations to that used by civilian IG’s, and it should involve expanding the definition of prohibited personnel actions (e.g. to include launching a retaliatory investigation). Finally, because many incidents of retaliation are urgent, any investigative or adjudicatory authority must be able to seek a stay on any adverse actions pending an independent investigation.
Allow Victim Participation in Non-Judicial and Administrative Punishment Proceedings
In 2014, criminal charges were filed in just 38% of reported sexual assaults. For many cases, instead of facing a criminal charge, the perpetrator faces non-judicial punishment or an administrative separation board. Currently, victims must be invited into these proceedings, and they are barred from knowing the outcome of the case, even when the perpetrator is disciplined for causing them direct harm. Victims should have the right to submit a statement or other relevant information for consideration during these proceedings, and should be entitled to learn of any punishment their assailant receives.
Improve System for Maintenance and Access to Investigatory and Court-Martial Records
- The 2016 NDAA requires the services to maintain investigation records, including agent case notes, for 50 years.
Storage of investigatory and court-martial records is haphazard and inconsistent across the Services. Depending on the outcome of a case, records may be kept in any number of locations, from the legal office of a base to a central repository. Further, a verbatim record of trial is only prepared in cases that end in conviction–for all other offenses, no transcript is even prepared, making it impossible for the public to see what occurred during public proceedings. Only in some cases are records even digitized. In addition, according to a 2013 IG report, criminal investigative organizations like the Naval Criminal Investigative Service (NCIS) routinely destroy investigative notes within a few years, making it impossible for IG or the public to provide appropriate oversight over military criminal investigations.
The military should implement a standardized process for preparing and maintaining records from courts-martial, including transcripts of proceedings, exhibits, and all other relevant documentation, regardless of the end result of the trial. Investigative records, including case notes, should also be maintained indefinitely. Finally, in order to ensure that the military justice system is as transparent as the civilian justice system, the DoD should create an online document system that is open to the public that contains records from all court-martial and appellate proceedings.
Provide Victims with Limited Immunity for Collateral Misconduct Charges
The specter of punishment for collateral misconduct has a chilling effect on survivors and allows sexual predators to remain hidden in the ranks. According to DoD itself, “[c]ollateral misconduct … is one of the most significant barriers to reporting assault.” When victims engage in minor infractions related to the assault, they are often threatened with disciplinary action, sometimes by the assailant as a tool used to silence them, and many survivors who do come forward find their careers destroyed.
Where evidence of minor misconduct is obtained as the result of a victim or witness’s own report of sexual assault, these individuals should be extended immunity from criminal, non-judicial, and administrative punishments. Such minor misconduct should include issues such as alcohol-related misconduct, adultery, or fraternization.
Similarly, in the aftermath of an assault, temporary lapses in performance are common as survivors struggle to cope with a painful and traumatic event. Some survivors struggle to concentrate on daily tasks, socialize with peers, or even just arrive to work on time. While sometimes this response will develop into a mental health condition, more often, short-term support and accommodations can help service members recover and excel in the military. By retaining qualified service members in the service, the military can avoid the cost of retraining new members and will actually improve good order and discipline.
DoD should provide a moratorium on adverse personnel actions against victims of sexual assault for minor misconduct for a period of time after a report. In addition, DoD regulations should emphasize commanders’ role in supporting survivors of sexual assault and should clarify commanders’ ability to use their discretion in disciplinary matters involving survivors.
Include Sexual Harassment and All Sexual Assault Data in Annual SAPRO Reports
The annual SAPRO Report is intended to inform lawmakers and the public about the handling of sexual misconduct in the Armed Forces. However, this report contains significant gaps solely based on the status of the victim. If a child, intimate partner, or spouse is sexually assaulted, these cases are excluded from the report, making it impossible to determine if the military is handling these cases appropriately.
Sexual harassment in the military is shockingly pervasive and vastly underreported. In FY 2013, the military received just 1,366 reports of sexual harassment, compared to over 5,000 reports of sexual assault. Meanwhile, research shows that nearly 1 out of every 11 service members experience sexual harassment every year. Sexual harassment is a key risk factor of sexual assault and rape, and in order to finally combat this crisis, we must address sexual misconduct and discrimination at all levels.
So that the public and Congress can adequately oversee this issue, DoD should release information on reports of sexual assault involving children, intimate partners, and spouses, as well as reports of sexual harassment, in its annual SAPRO reports. This information should include the number and type of report, the outcome of investigations, and any disciplinary and/or corrective action taken as a result of the report.
Establish System for Enforcement of Sex Offender Registration
- The Military Sex Offender Reporting Act of 2015 requires the Department of Defense to ensure military sex offenders are registered with the National Sex Offender Registry. POD stood with Congresswoman Jackie Speier and Congressman Mike Coffman as they fought to close the loophole that allowed sex offenders to return to civilian society without registering.
The harm and devastation of military sexual assault is not isolated to our service members, but impacts all Americans. DoD’s current system for tracking sex offenders it releases from service is broken, and has allowed convicted predators to disappear into our neighborhoods and operate without suspicion. The military does not currently track convicted offenders serving in its ranks, and it lacks jurisdiction to ensure that military offenders register with civilian authorities upon their release. It is critical that Congress pass legislation to ensure that DoD is properly identifying and tracking these predators and to ensure that registration requirements are properly enforced. This should include requiring DoD to create and maintain its own sex offender database.
Establish Sentencing Guidelines Based on Federal System and Eliminate “No Punishment” Option
- The 2014 NDAA established a mandatory minimum sentence of dismissal for officers and dishonorable discharge for enlisted members convicted of rape, sexual assault, and forcible sodomy for offenses committed after 24 June 2014.
POD will continue to pursue more sentencing guidelines.
There are currently no minimum sentencing guidelines in the military justice system, which has led to extraordinarily disparate sentences among cases and on installations around the world—for which the circumstances do not warrant such divergence. In addition, military judges instruct juries that sentencing options include “no punishment at all,” even for crimes such as rape, or only a fine, reprimand, restriction, hard labor, forfeitures, confinement, or a punitive discharge. They additionally tell members to start from the bottom (most lenient) of the potential punishments and work their way up. These recommendations distort the deliberative process and skew sentencing substantially in favor of the accused. The panel members also make these decisions in a vacuum and are not allowed to know what other juries or judges have given for similar convictions—giving the members no frame of reference on sentencing.
Congress should mandate the establishment of minimum sentencing guidelines, modeled upon the well-established civilian federal system. These guidelines provide a reasonable framework, while still allowing an appropriate degree of flexibility in setting individual sentences based on the specific circumstances.
Allow Victim Impact Statements With Full “Allocution” Rights
- In June 2105, the President signed an executive order modifying Rules for Court-Martial 1001(A), giving victims the right to make a statement before the court during sentencing without being subject to cross-examination.
POD will continue to advocate for allowing victims to provide input on an appropriate sentence.
Right now a victim testifying in sentencing is limited in what he or she can say (they cannot talk about the sentence) and is subject to cross-examination by defense. On the other hand, the accused can say almost anything and is not subject to cross-examination.
Congress needs to clearly establish that victims in the military have the right to full allocution at sentencing. Changes should be made to Article 42 (oaths) and RCM 1001 (scope of victim impact statement) to clarify that these rights are not limited in scope.