Title II — S. 1775 (Placed on Calendar Senate)

Sec. 201 Elimination of five-year statute of limitations on trial by court-martial for additional offenses involving sex-related crimes

(a)

In general— Subsection (a) of section 843 of title 10, United States Code (article 43 of the Uniform Code of Military Justice), is amended by striking “rape, or rape of a child” and inserting “rape or sexual assault, or rape or sexual assault of a child”.

(b)

Conforming amendment— Subsection (b)(2)(B)(i) of such section (article) is amended by inserting before the period at the end the following: “, unless the offense is covered by subsection (a)”.

(c)

Effective date— The amendments made by this section shall apply with respect to offenses committed on or after the date of the enactment of this Act.

Sec. 202 Review of decisions not to refer charges of certain sexual offenses to trial by court-martial

(a)

In general— The Secretary of Defense shall require the Secretaries of the military departments to provide for review of decisions not to refer charges to trial by court-martial in cases where a specified sexual offense has been alleged by a victim of the alleged offense.

(b)

Specified sexual offenses— For purposes of this section, a specified sexual offense is any of the following:

(1)

Rape or sexual assault under subsection (a) or (b) of section 920 of title 10, United States Code (article 120 of the Uniform Code of Military Justice).

(2)

Forcible sodomy under section 925 of title 10, United States Code (article 125 of the Uniform Code of Military Justice).

(3)

An attempt to commit an offense specified in paragraph (1) or (2) as punishable under section 880 of title 10, United States Code (article 80 of the Uniform Code of Military Justice).

(c)

Review of cases not referred to court-martial following staff judge advocate or senior trial counsel recommendation of referral for trial— In any case where a staff judge advocate, pursuant to section 834 of title 10, United States Code (article 34 of the Uniform Code of Military Justice), or the senior trial counsel detailed to the case recommends that charges of a specified sexual offense be referred to trial by court-martial and the convening authority decides not to refer the charges to a court-martial, the convening authority shall forward the case file to the Secretary of the military department concerned for review as a superior authorized to exercise general court-martial convening authority.

(d)

Review of cases not referred to court-martial following staff judge advocate or senior trial counsel recommendation not to refer for trial— In any case where a staff judge advocate, pursuant to section 834 of title 10, United States Code (article 34 of the Uniform Code of Military Justice), or the senior trial counsel detailed to the case recommends that charges of a specified sexual offense should not be referred to trial by court-martial and the convening authority decides not to refer the charges to a court-martial, the convening authority shall forward the case file for review by a superior commander authorized to exercise general court-martial convening authority.

(e)

Elements of case file— A case file forwarded to higher authority pursuant to subsection (c) or (d) shall include the following:

(1)

All charges and specifications preferred under section 830 of title 10, United States Code (article 30 of the Uniform Code of Military Justice).

(2)

All reports of investigations of such charges, including the military criminal investigative organization investigation report and the investigating officer’s report under section 832 of title 10, United States Code (article 32 of the Uniform Code of Military Justice).

(3)

The written advice of the staff judge advocate to the convening authority pursuant to section 834 of title 10, United States Code (article 34 of the Uniform Code of Military Justice), together with a certification by the staff judge advocate as to whether the facts as reported by the victim of the alleged offense or complaining witness, if true, would or would not constitute a specified sexual offense.

(4)

A written statement explaining the reasons for the convening authority’s decision not to refer the charges to trial by court-martial.

(5)

A certification that the victim of the alleged offense or complaining witness was informed of the convening authority’s decision to forward the case as provided in subsection (c) or (d).

(f)

Notice on results or review— The victim of the alleged offense shall be notified of the results of the review conducted under subsection (c) or (d) in the manner prescribed by the victims and witness assistance program of the Armed Force concerned.

(g)

Allegation of specified sexual offense— The Secretary of Defense shall require the Secretaries of the military departments to develop a system to ensure that a victim of an alleged offense has an opportunity to specify that the offense alleged is a specified sexual offense either at the time of making an unrestricted report of the allegation or during the criminal investigation of the allegation.

Sec. 203 Defense counsel interview of complaining witnesses in presence of trial counsel or outside counsel

Section 846 of title 10, United States Code (article 46 of the Uniform Code of Military Justice), is amended—

(1)

by inserting “(a) Opportunity To obtain witnesses and other evidence.—” before “The trial counsel”;

(2)

by striking “Process issued” and inserting the following:

“(c) Process—Process issued”

(3)

by inserting after subsection (a), as designated by paragraph (1), the following new subsection (b):

“(b) Interview of complaining witnesses by defense counsel

“(1) Upon notice by trial counsel to defense counsel of the name and address of the complaining witness or witnesses trial counsel intends to call to testify in any portion of an investigation under section 832 of this title (article 32) or a court-martial under this chapter, defense counsel shall make all requests to interview any such complaining witness through trial counsel.

“(2) If requested by a complaining witness subject to a request for interview under paragraph (1), any interview of the witness by defense counsel shall take place only in the presence of trial counsel, counsel for the witness, or outside counsel.”

Sec. 204 Mandatory discharge or dismissal for certain sex-related offenses under the Uniform Code of Military Justice and trial of such offenses by general courts-martial

(a)

Mandatory discharge or dismissal required—

(1)

In general— Section 856 of title 10, United States Code (article 56 of the Uniform Code of Military Justice), is amended—

(A)

by inserting “(a)” before “The punishment”; and

(B)

by adding at the end the following new subsection:

“(b) While a person subject to this chapter who is found guilty of an offense under section 920, 920b, or 925 of this title (article 120, 120b, or 125) or an attempt to commit such an offense as punishable under section 880 of this title (article 80) shall be punished as a general court-martial may direct, such punishment must include, at a minimum, dismissal or dishonorable discharge.”

(2)

Clerical amendments—

(A)

Section heading— The heading of such section is amended to read as follows:

“856. Art. 56. Maximum and minimum limits”

(B)

Table of sections— The table of sections at the beginning of subchapter VIII of chapter 47 of such title is amended by striking the item relating to section 856 and inserting the following new item:

(b)

Jurisdiction limited to general courts-martial— Section 818 of such title (article 18 of the Uniform Code of Military Justice) is amended—

(1)

by inserting “(a)” before the first sentence;

(2)

in the third sentence, by striking “However, a general court-martial” and inserting the following:

“(b) A general court-martial”

(3)

by adding at the end the following new subsection:

“(c) Consistent with section 810, 820, and 856(b) of this title (articles 19, 20, and 56(b)), only general courts-martial have jurisdiction over an offense specified in section 856(b)(2) of this title (article 56(b)(2)).”

(c)

Effective date— The amendments made by this section shall take effect 180 days after the date of the enactment of this Act.

Sec. 205 Limitation on authority of convening authority to modify findings of a court-martial

(a)

Limitation of authority to offenses that would not normally warrant trial by court-martial— Subsection (c) of section 860 of title 10, United States Code (article 60 of the Uniform Code of Military Justice), is amended—

(1)

in paragraph (3)—

(A)

by inserting “may be taken” after “findings of a court-martial”;

(B)

by striking “is not required. However,” and inserting “only with respect to a qualified offense. With respect to such an offense,”;

(C)

by striking “may—” and all that follows through “(A) dismiss” and inserting “may dismiss”;

(D)

by striking “; or” and inserting a period; and

(E)

by striking subparagraph (B); and

(2)

by adding at the end the following new paragraph:

“(4)

“(A) In paragraph (3), the term qualified offense means, except as provided in subparagraph (B), an offense under this chapter for which—

“(i) the maximum sentence of confinement that may be adjudged does not exceed one year; and

“(ii) the sentence adjudged does not include dismissal, a dishonorable or bad-conduct discharge, or confinement for more than six months.

“(B) Such term does not include the following:

“(i) An offense under section 920 of this title (article 120).

“(ii) An offense under section 920a of this title (article 120a).

“(iii) An offense under section 920b of this title (article 120b).

“(iv) An offense under section 920c of this title (article 120c).

“(v) Such other offenses as the Secretary of Defense may prescribe by regulation.”

(b)

Requirement for explanation in writing— Such subsection is further amended by adding after paragraph (4), as added by subsection (a)(2), the following new paragraph:

“(5) If the convening authority or other person authorized to act under this section modifies the findings or sentence of a court-martial, such person shall prepare a written explanation for such modification. Such explanation shall be made a part of the record of trial and action thereon.”

(c)

Conforming amendment— Subsection (e)(3) of such section (article) is amended in the first sentence by inserting “(if authorized to do so under subsection (c))” after “findings and sentence”.

(d)

Effective date— The amendments made by subsections (a) and (c) shall apply with respect to offenses committed on or after the date of the enactment of this Act.

Sec. 206 Participation by complaining witnesses in clemency phase of courts-martial process

Section 860(b) of title 10, United States Code (article 60(b) of the Uniform Code of Military Justice), is amended by adding at the end the following new paragraphs:

“(5)

“(A) If an accused elects to submit matters for consideration by the convening authority under this subsection, a copy of any portion of such matters that refers to a complaining witness shall be provided to the complaining witness before the convening authority takes any action on the findings or sentence under this section.

“(B)

“(i) Upon receipt of matters under this paragraph, a complaining witness shall have 10 days to submit materials in response to such matters to the convening authority.

“(ii) If a complaining witness shows that additional time is required for submission of materials under this subparagraph, the convening authority or other person taking action under this section, for good cause, may extend the applicable period for submission of such materials for not more than an additional 20 days.

“(6) In any case in which findings and sentence have been adjudged for an offense involving a complaining witness, the complaining witness shall be provided an opportunity to submit matters to the convening authority for consideration prior to taking action under this section.

“(7) The convening authority shall not consider under this section any submitted matters that go to the character of a complaining witness unless such matters were presented at the court-martial.”

Sec. 207 Secretary of Defense report on modifications to the Uniform Code of Military Justice to prohibit sexual acts and contacts between military instructors and trainees

(a)

Report required— Not later than 60 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report setting forth the recommendations of the Secretary for such legislative action as the Secretary considers appropriate to modify chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), to prohibit sexual acts and contacts between military instructors and their trainees.

(b)

Covered military instructors— For purposes the report required by this section, military instructors shall include the following:

(1)

Drill Sergeants in the Army.

(2)

Drill Instructors in the Marine Corps.

(3)

Recruit Division Commanders in the Navy.

(4)

Military Training instructors in the Air Force.

(5)

Company Commanders in the Coast Guard.

(6)

Such other members of the Armed Forces as the Secretary considers appropriate for purposes of the report as having supervisory authority over new recruits in the Armed Forces undergoing basic training (or its equivalent).

Sec. 208 Sense of Senate on disposition of charges involving certain sexual misconduct offenses under the Uniform Code of Military Justice through courts-martial

(a)

Sense of Senate— It is the sense of the Senate that—

(1)

any charge regarding an offense specified in subsection (b) should be disposed of by court-martial, rather than by non-judicial punishment or administrative action; and

(2)

in the case of any charge regarding an offense specified in subsection (b) that is disposed of by non-judicial punishment or administrative action, rather than by court-martial, the disposition authority should include in the case file a justification for the disposition of the charge by non-judicial punishment or administrative action, rather than by court-martial.

(b)

Covered offenses— An offense specified in this subsection is any of the following offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice):

(1)

Rape or sexual assault under subsection (a) or (b) of section 920 of such chapter (article 120 of the Uniform Code of Military Justice).

(2)

Forcible sodomy under section 925 of such chapter (article 125 of the Uniform Code of Military Justice).

(3)

An attempt to commit an offense specified in paragraph (1) or (2), as punishable under section 880 of such chapter (article 80 of the Uniform Code of Military Justice).

Sec. 209 Sense of Senate on the discharge in lieu of court-martial of members of the Armed Forces who commit sexual-related offenses

It is the sense of the Senate that—

(1)

the Armed Forces should be sparing in discharging in lieu of court-martial members of the Armed Forces who have committed rape, sexual assault, forcible sodomy, or attempts to commit such offenses, and should do so only when the facts of the case clearly warrant such discharge;

(2)

whenever possible, the victims of offenses referred to in paragraph (1) should be consulted prior to the determination regarding whether to discharge the members who committed such offenses;

(3)

commanding officers should consider the views of victims of offenses referred to in paragraph (1) when determining whether to discharge the members who committed such offenses in lieu of trying such members by court-martial; and

(4)

the discharge of any member who is discharged as described in paragraph (1) should be characterized as Other Than Honorable.

Title II — Related Military Justice Matters

II Related Military Justice Matters