VICTIMS RIGHTS IN THE MILITARY: EMPOWERING SEXUAL ASSAULT VICTIMS WITH A MEANINGFUL DOD VICTIMS BILL OF RIGHTS. Major Greg J. Thompson * ABSTRACT

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1 VICTIMS RIGHTS IN THE MILITARY: EMPOWERING SEXUAL ASSAULT VICTIMS WITH A MEANINGFUL DOD VICTIMS BILL OF RIGHTS Major Greg J. Thompson * ABSTRACT The Department of Defense (DoD) has spent decades attempting to formulate a meaningful policy for victims rights in the military courtsmartial system. The result has been less than helpful to the victims, as the scales of justice have weighed heavily in favor of the accused. Although current DoD policy affords victims rights, they lack specific actionable meaning. Up until December 26, 2013, with the passage of the Fiscal Year 2014 National Defense Authorization Act (FY14 NDAA), DoD victims rights were not written into the Manual for Courts- Martial; they did not give victims standing to make a statement to the court; they did not give victims power to deny interviews with defense attorneys; they did not give victims a right to be heard at many proceedings; and as a result, in many cases, these so-called victims rights did not afford victims the day in court that they not only deserved, but that justice required. Although the FY14 NDAA provides measures to remedy this imbalance, it does not go far enough. This article proposes a set of legal rights that would move the DoD further along on a path to correct the imbalance a victim suffers when injected into the military courts-martial process. These proposed rights have all been recognized in either state constitutions, legal precedent, or legislative act. Although these proposed victim rights cut against time honored DoD tradition, they are necessary, as the media continues to identify that the military system, while fair, has room for improvement, especially when it comes to handling sexual assault cases and particularly in addressing the fact that victims in the military system feel they lack power and a voice. This set of proposed legal rights offers that * Major Greg J. Thompson (B.S., University of Arizona; J.D., University of Arizona) is a United States Air Force judge advocate, at the time of this writing served as the Staff Judge Advocate to the 451st Air Expeditionary Wing, Kandahar Airfield, Afghanistan. Upon graduation from law school, Major Thompson was employed as a law clerk to the Honorable John E. Davis, Pima County Superior Court, followed by three years as a Deputy County Attorney at the Pima County Attorney s Office, Tucson, Arizona. In the Air Force, Major Thompson has served as a prosecutor and defense attorney on a wide variety of courts-martial charges as well as an Assistant Professor of Law at the United States Air Force Academy. He is a member of the Arizona and Colorado Bars. The views expressed herein are solely those of the author and do not reflect the official positions of the U.S. Air Force, the Department of Defense, or the U.S. Government.

2 424 Virginia Journal of Social Policy & the Law [Vol. 21:3 back to them, while ensuring the constitutional rights of the accused are protected. CONTENTS Abstract I. Introduction II. The Problem III. The Status Quo and the Need for Change IV. Department of Defense Progress V. Proposed Changes to the UCMJ VI. Conclusion I. INTRODUCTION A justice system cannot truly be just if it is not vested with the confidence of the people it is meant to serve. This is as true for the military as it is for civilians. In order for the system to work, people need to be able to trust that the system will dispassionately pursue the facts and protect the due process rights of all parties involved. Victims of wrongdoing must be secure in the knowledge that they can rely on the system to deliver justice without needlessly exacerbating the wounds left by the crime committed against them. U.S. Senator John Cornyn, R-Texas 1 The Department of Defense (DoD) has spent decades attempting to formulate a meaningful policy for victims rights in the military courtmartial system. The result has been less than helpful to victims of crimes as the scales of justice have weighed heavily in favor of the accused. Prior to December 26, 2013, the DoD victims rights were not written into the Manual for Courts-Martial. For decades, victims did not have standing to make a statement to the court, nor did they have an unfettered right to be heard at most proceedings. This article proposes a set of legal rights that would move the DoD further along a path to correct the imbalance a victim suffers when injected into the court-martial process. These proposed rights have been recognized in state constitutions, legal precedent, or legislative act. Although these proposed victim rights cut against a long line of DoD tradition, they are necessary. The media continues to identify that the military system, while fair, has room for improvement, especially when it comes to the handling of sexual assault cases. The DoD must respond 1 U.S. Senator John Cornyn, R-Texas, Op-Ed., Someone to Speak For and Protect Sexual Assault Victims, SAN ANTONIO EXPRESS-NEWS, Aug. 4, 2013, at F6.

3 2014] Victims Rights in the Military 425 with a meaningful set of victims rights and not a menu of nonspecific, vague, and unenforceable options. Victims need a voice in the courtmartial process. A new set of rights will offer just that. II. THE PROBLEM Why does the DoD need to change its approach to victims rights and amend the Manual for Courts-Martial? There are several reasons why change is needed. First, the DoD system provides imbalanced actionable rights, disproportionately favoring the due process rights of the accused over those of the victim in a manner that is out of step with the majority of courts. Second, victims do not have confidence in the military justice system because the process does not provide a full hearing for the victim. Third, when confidence in the system is broken, and victims feel they have no power and no voice in the system, the result will be discouraged victims who are less likely to report sexual assaults. Service members and their dependents who are 18 years of age or older who are sexually assaulted have two reporting options: Unrestricted or Restricted Reporting. 2 Restricted and Unrestricted reports have a unique definition in the DoD. Unrestricted Reporting allows a victim of sexual assault to access medical treatment and counseling and request an official investigation of the allegation using existing reporting channels. 3 This election allows the investigative process to move forward and ultimately, when the evidence warrants, a court-martial to convene to hold the offender accountable. Unrestricted Reporting of sexual assault is favored by the DoD. 4 However, one major roadblock to increasing the percentage of reports that are Unrestricted is victim confidence in the military justice process. Alternatively, a victim may file a Restricted Report. Restricted Reporting allows an eligible sexual assault victim to confidentially disclose the assault to specified individuals, and still receive medical treatment and counseling offered to victims who make Unrestricted Reports, while not triggering an official investigation. 5 A Restricted Report will not be reported to law enforcement or the service member s command. 6 2 U.S. DEP T OF DEF., DIR , SEXUAL ASSAULT PREVENTION AND RESPONSE (SAPR) PROGRAM para. 4(k) (23 Jan. 2012), incorporating change 30 Apr [hereinafter DODD ]. 3 Id. at 4(k)(1). 4 Id. at 4(k). 5 Id. at 4(k)(2). 6 Id.

4 426 Virginia Journal of Social Policy & the Law [Vol. 21:3 Data involving victims of sexual assault is readily available because sexual assault cases are a current DoD focus item. 7 The DoD Fiscal Year 2012 Annual Report on Sexual Assault in the Military (FY14 NDAA), is a comprehensive review of the data and trends in sexual assault reporting, prosecution, and education. 8 This report found that [o]f the 3,374 reports of sexual assault in FY12, 2,558 were Unrestricted Reports. The Military Services initially received 981 Restricted Reports. At the request of the victim, 165 reports were converted from Restricted to Unrestricted, leaving 816 reports remaining Restricted in FY12. 9 The DoD s priority is to increase the climate of victim confidence associated with reporting. 10 Such an increase in confidence in the military justice process should lead to a greater number of reports of sexual assault as well as an increase in reports moving from Restricted to Unrestricted. At present, the Department estimates that about 11 percent of the sexual assaults that occur each year are reported to a DoD authority. 11 Another obstacle facing victims of sexual assault crimes is a statistical disparity between the age and sometimes rank of the victim and the offender. 12 The vast majority of sexual assault victims are female, under the age of twenty-five, and of junior-enlisted grades. 13 Fifty-one percent of victims are between the ages of twenty and twentyfour. 14 Seventy-three percent of victims are enlisted and in the lowest four military grades of E1 E4. 15 The vast majority of perpetrators tend to be male, under the age of thirty-five, and of junior-enlisted grades. 16 Forty-two percent of perpetrators are twenty-five years of age and older, and thirty-nine percent of perpetrators are ranked above E1 E4. 17 This data suggests that while some sexual assaults occur in an environment where age and rank disparity does not exist, the risk of such disparity is of statistical significance. In some cases, there is a real environment where the victim may be more easily intimidated into not reporting because of age and rank disparity. This problem can be exacerbated where the system is not well suited to protect the victim in the military 7 See U.S. DEP T OF DEF., FISCAL YEAR 2012 ANNUAL REPORT ON SEXUAL ASSAULT IN THE MILITARY (15 Apr. 2013). 8 Id. 9 Id. at Id. at Id. at See id. at Id. at Id. at Id. at Id. at See id. at

5 2014] Victims Rights in the Military 427 justice process, and where no guarantees can be made to the victim about the treatment the process will provide. A concrete and effective bill of rights for victims could help minimize the impact of age and rank disparity in reporting outcomes. Such changes can provide a victim with the confidence of a more equitable distribution of rights between the accused and the victim at a military court-martial, especially when the accused may be both older and outrank the victim. A key component in creating an atmosphere in the DoD to encourage a greater rate of Unrestricted reporting is victim confidence in the military justice process. 18 The DoD Annual Report on Sexual Assault in the Military, FY 2012 states: Victims confidence in the military justice process is believed to influence [a victim s] decision to report a sexual assault and ultimately participate in military justice actions. For example, of the Active Duty women who indicated on the 2012 [Workplace and Gender Relations Survey of Active Duty Members] that they experienced [unwanted sexual contact] and did not report it, 50 percent believed that nothing would be done with their report, and 43 percent heard about negative experiences other victims went through who reported their situation. 19 The DoD has made a marked effort to create an environment that works with and encourages victims to willingly participate in the military justice process. 20 Research shows that reporting the crime is most victims primary link to getting medical treatment and assistance. 21 Therefore, measures that increase confidence in the military justice system with regards to the rights of a victim during the court-martial process will necessarily promote the stated goals of the DoD, and create an environment that is more supportive of victims during the military justice process. A justice process with a great reputation and which victims view favorably would remove a major sexual assault reporting obstacle. It would also increase the percentage of cases where victims decided to move from a Restricted report to an Unrestricted report and prosecution of the offender. 18 Id. at Id. 20 Id. at Id.

6 428 Virginia Journal of Social Policy & the Law [Vol. 21:3 III. THE STATUS QUO AND THE NEED FOR CHANGE Concerning victims rights in the military, the DoD has a set of shalls it terms rights in Department of Defense Directive (DoDD) These shalls are found in the United States Code at 42 U.S.C , titled Services to victims. 23 The statute s first order is to require that a responsible official (RO) shall: (A) inform a victim of the place where the victim may receive emergency medical and social services. (B) inform a victim of any restitution or other relief to which the victim may be entitled under this or any other law and manner in which such relief may be obtained. (C) inform a victim of public and private programs that are available to provide counseling, treatment, and other support to the victim; and (D) assist a victim in contacting the persons who are responsible for providing the services and relief described in [the above paragraphs]. 24 Each of these shalls provides a victim with assistance in communicating and receiving information only. Each enumerated duty of the RO reflects basic common sense. If a RO failed to accomplish any of these informational tasks, a reasonable person would find a fundamental failure to meet a basic duty of care for any victim. That is why to call these inherent fundamental duties of the RO rights begs further analysis. For example, the first shall requires a RO to inform the victim where to receive emergency care. Thus, it requires information alone. One can imagine situations where information alone will not be enough for a victim to get the proper emergency care required. In those situations, this minimal requirement will be met, while the victim s care is not. Second, informing a victim of available restitution options is of little help in a DoD system that functions with no internal procedure for 22 DEP T OF DEF., DIR , VICTIM AND WITNESS ASSISTANCE (13 Apr. 2004), current as of 23 Apr [hereinafter DODD ]. 23 Crime Control Act of 1990, 42 U.S.C (2012). 24 Id (c)(1)(A) (D).

7 2014] Victims Rights in the Military 429 a victim to receive restitution. 25 Although there may be limited options for a victim to receive restitution, those are rare and specialized in each service. This hardly seems like a right or a shall. The second shall is [a] responsible official shall arrange for a victim to receive reasonable protection from a suspected offender and persons acting in concert with or at the behest of the suspected offender. 26 What does it mean to be reasonably protected? This shall is as vague as the other rights and offers no measurable or specific right or even examples of what this shall means in practice. But it sounds good. The third set of shalls addresses what is required during a criminal investigation. During an investigation and prosecution of a crime, a RO shall provide a victim the earliest possible notice of: (A) the status of the investigation of the crime, to the extent it is appropriate to inform the victim and to the extent that it will not interfere with the investigation; (B) the arrest of a suspected offender; (C) the filing of charges against a suspected offender; (D) the scheduling of each court proceeding that the witness is either required to attend or, under section 1102(b)(4), is entitled to attend; (E) the release or detention status of an offender or suspected offender; (F) the acceptance of a plea of guilty or nolo contendere or the rendering of a verdict after trial; and (G) the sentence imposed on an offender, including the date on which the offender will be eligible for parole. 27 This set of shalls is once again directed at notification. They codify what a reasonable attorney, Government official, person of 25 But cf. DODD , supra note 22, para ( [C]rime victim has the right to receive available restitution. ) U.S.C (c)(2). 27 Id (c)(3)(A) (G).

8 430 Virginia Journal of Social Policy & the Law [Vol. 21:3 common sense, or ordinary citizen would find to be the minimum standard of care. During court proceedings, a responsible official shall ensure that a victim is provided a waiting area removed from and out of the sight and hearing of the defendant and defense witnesses. 28 This shall codifies common concern, protocol, and decency. It does not give a victim actionable rights to be heard at the court-martial of the accused who victimized them. After trial, a RO shall provide a victim the earliest possible notice of: (A) the scheduling of a parole hearing for the offender; (B) the escape, work release, furlough, or any other form of release from custody of the offender; and (C) the death of the offender, if the offender dies while in custody. 29 This includes more shalls of notification that a reasonable person would expect to be made regardless of statutory codification. At all times, a responsible official shall ensure that any property of a victim that is being held for evidentiary purposes be maintained in good condition and returned to the victim as soon as it is no longer needed for evidentiary purposes. 30 Although this provision seems of value to protect a victim s interest in their own property, it does not address the length of time that property maintains evidentiary purpose or value. Evidence in a criminal case is held until the end of appellate action, unless the government agency releases it, making it subject to the risk of being unavailable for a subsequent trial should the accused prevail on appeal. The time that passes between seizure of evidence and the conclusion of the appellate process is measured in years. A reasonable view of the above provision is that any seized property would be returned as soon as possible not years later, which is the reality. This provision does nothing to expedite the process of return of property to a victim. Finally, a RO shall provide the victim with general information regarding the corrections process, including information about work U.S.C (c)(4) (2012). 29 Id (c)(5)(A) (C). 30 Id (c)(6).

9 2014] Victims Rights in the Military 431 release, furlough, probation, and eligibility for each. 31 This again shows the pattern of the United States Code to provide general information alone, and the DoD framing these notification requirements as rights in DoDD DoD Directive outlines the DoD s approach to victim rights, and references Sections and of Title 42 in the United States Code. DoD Directive provides that law enforcement and legal personnel directly engaged in the detection, investigation, or prosecution of crimes, shall ensure that victims are accorded their rights, and that a crime victim has the right to 32 : Be treated with fairness and respect for the victim s dignity and privacy Be reasonably protected from the accused offender Be notified of court proceedings Be present at all public court proceedings related to the offense, unless the court determines that testimony by the victim would be materially affected if the victim heard other testimony at trial Confer with the attorney for the Government in the case Receive available restitution Be provided information about the conviction, sentencing, imprisonment, and release of the offender. 33 None of these rights were included in the Manual for Courts- Martial until December 26, There are no repercussions outlined for violating any of these rights. 35 These rights are nothing more than common decency. A victim should always be treated fairly and with respect. 36 A victim should always be reasonably protected from the 31 Id (c)(8). 32 DODD , supra note 22, para Id. at paras See National Defense Authorization Act for Fiscal Year 2014, Pub. L. No , sec. 1701, 806(b), 127 Stat. 672, (2013) [hereinafter FY14 NDAA]. 35 See DODD , supra note 22; FY14 NDAA, supra note DODD , supra note 22, para

10 432 Virginia Journal of Social Policy & the Law [Vol. 21:3 accused offender. 37 The victim should always be notified of court proceedings. 38 A victim should be able to be present at all stages of a criminal offense, to include public court proceedings related to the offense. 39 The victim should always be able to speak to the prosecutor about the case. 40 The victim is not able to receive restitution in a courtmartial as a part of the presentencing hearing. 41 Restitution cannot be issued at a court-martial by a judge or jury. 42 The victim should always be provided information about the conviction, sentencing, imprisonment, and release. 43 All seven of these rights are what a prosecutor should do in a matter of professional legal practice. None of these rights are actionable in court if violated, and no remedy is outlined in DoDD Put simply, these are not really rights by any common definition, but professional duties and standard ethical requirements of the military justice system. DoDD uses the term rights to describe this list of seven entitlements. Black s Law Dictionary provides a definition of a right as a power, privilege, or immunity secured to a person by law. 45 By definition, a right cannot exist unless it is secured by law, which necessarily requires the right be enforceable in court. However, the rights recognized by DoDD lack an enforcement mechanism. 46 Rather, they are granted by the DoD only as a Directive. A military judge would likely find the DoDD persuasive authority without any teeth to enforce its provisions. Considering that these provisions are weak ones of notification, information, and reasonable protections, to call them rights as the DoD does, is a stretch of credulity. Congress, when enacting the legislation that incorporated many of the above rights into the Manual for Courts-Martial, acknowledged that it left open the question of enforceability. Nevertheless, Congress required that [n]ot later than one year after the date of the enactment of this Act [December 26, 2013] recommendations shall be made regarding 37 Id. at para Id. at para Id. at para It should be noted that this directive does allow the court to restrict the victim s presence if the court determines that testimony by the victim would be materially affected if the victim heard other testimony at trial. Id. 40 Id. at para Id. at para MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M (2012) [hereinafter MCM]. 43 DODD , supra note 22, para See id. 45 Right, BLACK S LAW DICTIONARY (9th ed. 2009), available at WestlawNext (emphasis added). 46 See DODD , supra note 22, para

11 2014] Victims Rights in the Military 433 enforcement and implementation mechanisms. 47 Given this directive, the legislation known as FY14 NDAA was the first response to amend the Uniform Code of Military Justice (UCMJ) that afforded victims some basic rights. It came after a firestorm of media attention directed at the sexual assault problem in the military. IV. DEPARTMENT OF DEFENSE PROGRESS Though the DoD began 2013 with a set of shalls that it termed rights, it has made progress throughout the year in recognizing and beginning to remedy the longstanding deficiencies. On January 24, 2013, the Secretary of the Air Force ordered implementation of a vanguard Special Victim s Counsel (SVC) Program. 48 The fledgling Air Force SVC program provides counsel to victims of sexual assault. 49 The Air Force has assigned a cadre of military lawyers to represent victims of sexual assault at no expense to the victim. 50 The SVC program in its Rules of Programs and Procedure, implicitly acknowledges its shortcomings in the area of affirmative victim rights: The SVC Program does not increase a victim s standing in court-martial hearings and other military justice proceedings beyond the standing victims are currently afforded under existing law and rules (e.g., evidentiary hearings under MREs 412, 513, and 514).... Victims, whether represented by SVC or civilian counsel, are not parties to a court-martial under RCM 103 and do not have the same entitlements as parties under the UCMJ. 51 Commendably, the SVC Rules describe one of its objectives as empowering victims: Victims have several enumerated rights in the military justice process, but are not always aware of these rights or do not feel they have a voice to enforce these rights. An SVC will provide professional and knowledgeable counsel to victims in voicing their concerns and 47 FY14 NDAA, supra note 34, sec. 1701, 806(b)(b), 127 Stat 672, Memorandum from AF/AJ, U.S. Dep t of the Air Force, to MAJCOMs et al., subject: Air Force Guidance Memorandum to AFI , Legal Assistance, Notary, and Preventive Law Programs, (24 Jan. 2013) [hereinafter AFI Memo]. 49 Id. 50 U.S. AIR FORCE, SPECIAL VICTIMS COUNSEL RULES OF PRACTICE AND PROCEDURE 2 (2013) [hereinafter SVC RULES]. 51 Id. at 1.

12 434 Virginia Journal of Social Policy & the Law [Vol. 21:3 complaints with the process and enforcing these enumerated rights, without infringing upon the rights of the accused. 52 As previously discussed, the rights the SVC Rules refer to and notes that a victim may not always be aware of include the right to be notified of court proceedings 53 and be provided information about the conviction, sentencing, imprisonment, and release of the offender. 54 These two rights would not be enhanced by an SVC making a victim more aware of them because they are informational-only rights. This leaves the SVC the task of empowering the victim through employment of legal rights by providing a voice to the other five rights : to be treated with fairness and respect; 55 be reasonably protected; 56 be present at all proceedings unless the court determines otherwise; 57 confer with the attorney for the Government; 58 and receive available restitution 59 (which is not available at court-martial and otherwise limited in the military justice system). 60 The SVC Rules note the limitations to actionable legal rights, as they discuss only the Victims Right to Consultation and the Victims Right to Notification when describing the advocacy provided during the military justice process. 61 The SVC program is one of great value to the Air Force and the DoD. The problem is that victims, and therefore their SVCs, do not have powerful rights. As discussed below, this is distinct from most state jurisdictions that offer victims rights and a voice during trial and throughout the justice process. On August 14, 2013, the Secretary of Defense, the Honorable Chuck Hagel, issued a memorandum on the subject of Sexual Assault Prevention and Response. 62 In this memorandum, Secretary Hagel directed immediate implementation of several measures to gain greater consistency of effort and enhance oversight, investigative quality, pretrial investigations, and victim support. 63 Secretary Hagel directed 52 Id. at DODD , supra note 22, para Id. at para Id. at para Id. at para Id. at para Id. at para Id. at para See MCM, supra note SVC RULES, supra note 50, Rule 4.1 at Memorandum from Chuck Hagel, Sec y of Def., to Sec ys of the Military Dep ts, subject: Sexual Assault Prevention and Response (14 Aug. 2013) [hereinafter Sexual Assault Prevention and Response Memo]. 63 Id. at 1.

13 2014] Victims Rights in the Military 435 an initiative regarding victim legal support. Such support had already been directed by the United States Air Force Judge Advocate General through the SVC program. Secretary Hagel concluded that such a model should exist in each branch of service. Secretary Hagel directed: Improving Victim Legal Support: Secretaries of the Military Departments shall establish a special victim s advocacy program best suited for that Service that provides legal advice and representation to the victim throughout the justice process. Each service will identify and periodically share best practices, and will establish an initial operating capability not later than November 1, 2013, and a fully established program by January 1, Secretary Hagel s directive advances the Air Force flagship SVC program, but fails to address the key problem with such a program as previously discussed: sufficient actionable victim rights do not exist. Only once sufficient rights exist will SVC be able to argue on victims behalf more effectively and provide the voice to the victim that Secretary Hagel intended. A recent example of the inefficacy of SVC counsel in the face of weak underlying victim rights surfaced in the United States Air Force Court of Criminal Appeals (AFCCA) in LRM v. Kastenberg, 65 a rape and sexual assault case convened at Holloman Air Force Base, New Mexico a case also heard at the United States Court of Appeals for the Armed Forces (CAAF). 66 Captain (Capt) Seth Dilworth was appointed as special victims counsel for LRM. In his formal notice of appearance, Capt Dilworth stated that LRM had standing involving any issues arising under [Military Rules of Evidence (M.R.E.)] 412, 513, and 514 in which she is the patient or witness as the subject of the motion. Capt Dilworth noted that his formal involvement in the court-martial would be limited to asserting A1C [LRM] s enumerated rights as a victim of crime under federal law and [M.R.E.] 412, 513 and Id. 65 LRM v. Kastenberg, No , 2013 WL (A.F. Ct. Crim. App. Apr. 2, 2013). 66 LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013). 67 Id. at 366.

14 436 Virginia Journal of Social Policy & the Law [Vol. 21:3 After the military judge denied the SVC attorney and LRM standing to be heard, the SVC attorney filed a motion to reconsider. 68 LRM filed a motion to reconsider, asking... that the military judge grant LRM limited standing to be heard through counsel of her choosing in hearings related to M.R.E. 412, M.R.E. 513, [Crime Victims Rights Act, 18 U.S.C (CVRA)], and the United States Constitution. The military judge denied the motion for reconsideration in full. Notably absent in all arguments to the military judge at the trial court, the AFCCA, and the CAAF was any reference to DoDD granting a victim rights at military courts-martial. The reason for this is that there are no DoDD rights that would be helpful to the SVC. This case demonstrates a symptom of the larger problem. The SVC attorney was left with his only source of argument, aside from the particularized evidentiary rules, being the CVRA and the United States Constitution. The United States Constitution does not contain the word victim, and the CVRA did not confer rights to a victim at a military court-martial, only to victims in the civilian justice system. 69 The CVRA provides that a victim of a crime has the right to be reasonably heard at any public proceeding in the district court involving release or any parole proceeding. 70 However, the military service courts did not recognize the CVRA s application to victims rights during a court-martial, and did not allow victims counsel to advance arguments connected to the CVRA on their behalf, in part, because of the court s finding of the CVRA s non-applicability. 71 The United States Air Force Court of Criminal Appeals in LRM v. Kastenberg concluded: [W]e disagree with A1C LRM s contention that the CVRA s provision that states it applies to any court proceeding involving an offense against a crime victim includes military courts-martial and thus gives us the authority to issue a writ of mandamus granting her the requested relief. See 18 U.S.C. 3771(b)(1). We find this statue does not enlarge our existing jurisdiction. See United States v. Dowty, 48 M.J. 102, 111 (C.A.A.F. 1998) (Military courts must exercise great caution in 68 Id. at Crime Victims Rights Act, 18 U.S.C. 3771(a)(4) (2012). 70 Id. 3771(a)(4). 71 LRM v. Kastenberg, No , 2013 WL at *6 (A.F. Ct. Crim. App. Apr. 2, 2013).

15 2014] Victims Rights in the Military 437 overlaying a generally applicable [victim rights] statute... onto the military system. ); United States v. McElhaney, 54 M.J. 120, 124 (C.A.A.F. 2000) (Although they have many similarities, the military and civilian justice systems are separate as a matter of law and changes to the latter do not directly affect the former.). 72 This rationale supports the proposition of adding actionable victims rights that offer victims and their counsel articulable rights that imply or explicitly grant standing to argue for those rights to the court-martial. 73 These rights should be added to the UCMJ itself by executive order. The United States Court of Appeals for the Armed Forces subsequently reviewed LRM v. Kastenberg and made no finding on CVRA grounds, therefore leaving CVRA a right at federal district courts but not at courtmartials. 74 The problem that starkly confronts the DoD is that if victims have a host of resources, including counsel at no expense, but no rights privileges or power secured to the victim by law then the resources are like a tale full of sound and fury, [s]ignifying nothing. 75 To begin to remedy this problem, on December 26, 2013, President Barack Obama signed into law the National Defense Authorization Act for Fiscal Year 2014 (FY14 NDAA), which, among other legislation, essentially codified the CVRA into the Uniform Code of Military Justice at Article Codification of the CVRA into the UCMJ will allow victims basic standing to at least have their SVC attorneys heard at a court-martial. These newly codified rights were not guaranteed to victims prior to the FY14 NDAA, and are the first step towards providing victims of crimes actionable rights. FY14 NDAA, Section 1701, provides in part: (a) A victim of an offense under this chapter has the following rights... (2) The right to reasonable, accurate, and timely notice of any of the following: 72 Id. 73 Id. 74 LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013). 75 WILLIAM SHAKESPEARE, MACBETH, act 5, sc. 5, ll (Horace Howard Furness ed., 2d ed. 1873). 76 FY14 NDAA, supra note 34.

16 438 Virginia Journal of Social Policy & the Law [Vol. 21:3 (A) A public hearing concerning the continuation of confinement prior to trial of the accused. (B) A preliminary hearing under section 832 of this title (article 32) relating to the offense. (C) A court-martial relating to the offense. (D) A public proceeding of the service clemency and parole board relating to the offense. (E) The release or escape of the accused, unless such notice may endanger the safety of any person. (3) The right not to be excluded from any public hearing or proceeding described in paragraph (2) unless the military judge or investigating officer, as applicable, after receiving clear and convincing evidence, determines that testimony by the victim of an offense under this chapter would be materially altered if the victim heard other testimony at that hearing or proceeding.... (7) The right to proceedings free from unreasonable delay. 77 Prior to FY14 NDAA, DoDD stated that crime victims had the right to [b]e present at all public court proceedings related to the offense, unless the court determines that testimony by the victim would be materially affected if the victim heard other testimony at trial. 78 This language allowed wide discretion for judicial interpretation regarding when a victim s testimony would be materially affected. This Directive invited the defense to object to the victim s presence in every proceeding where the victim was a witness. Because of the nature of being a victim, a victim is an ipso facto witness in nearly every case. If the military 77 Id. 78 DODD , supra note 22, para

17 2014] Victims Rights in the Military 439 judge ruled in favor of the defense, there was little recourse for either party and the victim was sequestered. Military Rule of Evidence 615, Exclusion of Witnesses, exists to prevent witnesses from being influenced by hearing testimony of other witnesses. It states that: At the request of the prosecution or defense the military judge shall order witnesses excluded so that they cannot hear the testimony of other witnesses... [t]his rule does not authorize exclusion of (1) the accused,... or (5) any victim of an offense from the trial of an accused for that offense because such victim may testify or present any information in relation to the sentence or that offense during the presentencing proceedings. 79 This rule allows exclusion of victims from trial unless the case is at the sentencing phase. In contrast, the accused has the right to be present in the courtroom throughout the entire trial and then, if the accused chooses to testify, he or she does so with full knowledge of all the evidence, including all testimony in the case presented. Because the testimony of the accused typically occurs at the end of the entire trial on the merits, the accused has a great advantage in ensuring such statements are consistent with other evidence introduced at trial. The Government s only remedy to this is cross-examination of the accused regarding his presence in the courtroom and ability to listen to all the testimony against him, as well as his own defense witnesses. Why should the rule be different for a victim of a crime? What travesty of justice would occur if the victim hears testimony in the case? The defense attorney may cross-examine the victim on the impact of his or her presence in the courtroom up to that point in time. The military members of the jury know this is the case, because they can see the victim in the courtroom and can factor that into deliberations and the evidentiary weight they give the testimony of the victim. Unlike the accused, the victim must testify in the Government s case-in-chief, and therefore cannot have heard as much evidence when he or she takes the stand to testify when compared to the accused. The mere presence of a victim in the courtroom does not prejudice a judge or panel of military members sitting as a jury, nor does it interfere with the accused s right to a fair trial. [T]here is nothing inherently prejudicial in the presence of the victim. The fact that a defendant may 79 MCM, supra note 42, M.R.E. 615.

18 440 Virginia Journal of Social Policy & the Law [Vol. 21:3 not want the reminder of the crime to be a real presence, we do not see of itself, as an interference with the defendant s right to a fair trial. 80 The right to be present without caveat has been adopted by constitutional provision in fifteen states, including: Alaska, 81 Arizona, 82 California, 83 Colorado, 84 Idaho, 85 Louisiana, 86 Michigan, 87 Missouri, 88 Nevada, 89 New Mexico, 90 Oklahoma, 91 Oregon, 92 South Carolina, 93 Tennessee, 94 and Utah. 95 It has also been adopted by statute in Montana, 96 and by addition to the Rules of Evidence in Arkansas. 97 Opponents of this proposition argue that a provision allowing a victim to sit through the entire court-martial will fundamentally deny material constitutional rights of the accused that could impact the result of the court-martial. This argument has been made in states with the same provision without success. In Landon v. State, 98 an Alaskan Court of Appeals case, the defendant was convicted of violating a domestic violence restraining order and criminal mischief in the third degree, both misdemeanors. The defendant alleged error because the judge, pursuant to Article I, Section 24 of the Alaska Constitution, denied his pretrial motion to exclude the victim from the courtroom during the testimony of other witnesses. The defendant cited Alaska Rule of Evidence as well as provisions of 80 People v. Ramer, 21 Cal. Rptr. 2d 480, 484 (Cal. Ct. App. 1993). 81 ALASKA CONST. art. I, 24 ( [T]he right to... be present at all criminal... proceedings where the accused has the right to be present. ). 82 ARIZ. CONST. art. II, 2.1(A)(3). 83 CAL. CONST. art. I, 28(b)(7). 84 COLO. CONST. art. II, 16a. 85 IDAHO CONST. art. I, 22(4). 86 LA. CONST. art. I, MICH. CONST. art. I, 24(1). 88 MO. CONST. art. I, 32(1)(1). 89 NEV. CONST. art. I, 8(2)(b). 90 N.M. CONST. art. II, 24(A)(5). 91 OKLA. CONST. art. II, 34(A). 92 OR. CONST. art. I, 42(1)(a). 93 S.C. CONST. art. I, 24(A)(3). 94 TENN. CONST. art. I, 35(c). 95 UTAH CONST. art. I, 28(1)(b). 96 MONT. CODE ANN (1) (2013). 97 ARK. R. EVID Landon v. State, No. A-6479, 1999 WL (Alaska Ct. App. Feb. 3, 1999). 99 ALASKA R. EVID. 615 ( At the request of a party the court may order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion. This rule does not authorize exclusion of (1) a party who is a natural person; (2) an officer or employee of a party which is not a natural person designated as its representative by its

19 2014] Victims Rights in the Military 441 the Alaska Constitution and the Due Process Clause and Confrontation Clause of the United States Constitution. 100 The Alaskan constitutional provision allowing the presence of the victim whenever the accused has the right to be present is identical to the one proposed by this article. The court ruled that the victim s presence in the courtroom during trial did not violate the Confrontation Clause of the Sixth Amendment to the United States Constitution, 101 nor the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 102 Therefore, the Alaska Court of Appeals, having found no error and no violations of the United States Constitution or the Alaska Constitution, affirmed the conviction of the defendant. 103 FY14 NDAA makes the first step towards remedy of the imbalance suffered by the victim in not being able to advocate for mere presence in the courtroom at a court-martial. The second remedy addressed by the incorporation of CVRA in FY14 NDAA is a corollary to the accused s right to a speedy trial. It is codified in the CVRA and FY14 NDAA as the victim s right to proceedings free from unreasonable delay. 104 The recent case illustrating the impact on victims from a prolonged wait for court-martial is the case of Major Nidal Hasan, the assassin at Fort Hood. 105 Major Hasan was charged with killing thirteen people on November 5, The court-martial on the merits began on August 6, 2013, nearly four years after the crime. Although the Hasan case included many difficult legal obstacles and the inherent complexities of a homicide death penalty case, there were forty-three victims of his criminal acts waiting for justice. These victims waited four years to have their day in court. It is impossible to quantify the impact those years have on a crime victim s daily life. Victims do not choose the situation they find themselves in, and in a military court-martial, victims are caught in a system that only offers actionable rights to the accused. In the military system before FY14 NDAA, the victim had no right to a speedy trial, but instead enjoyed the right to be treated with fairness and attorney, or (3) a person whose presence is shown by a party to be important to the presentation of his cause.... ). 100 Landon v. State, No. A-6479, 1999 WL 46543, at * Id. at * Id. 103 Id. at * FY14 NDAA, supra note 34, sec. 1701, 806(a)(7), 127 Stat 672, Nomaan Merchant & Paul J. Weber, Long-Delayed Trial in Fort Hood Shootings Moves Rapidly as Victims Recall Chaotic Scene, TIMES COLONIST, Aug. 9, 2013, Id.

20 442 Virginia Journal of Social Policy & the Law [Vol. 21:3 respect 107 and to be notified of all court-martial proceedings, 108 whenever they may occur. These rights could not begin to erase the pain of waiting four years for a trial date. The Constitution of the State of California describes the problem from a victim s perspective to include a view of the process that goes well beyond the trial itself into appeal and parole hearings and the impact prolonged judicial proceedings have on victims: Victims of crime are entitled to finality in their criminal cases. Lengthy appeals and other post-judgment proceedings that challenge criminal convictions, frequent and difficult parole hearings that threaten to release criminal offenders, and the ongoing threat that the sentences of criminal wrongdoers will be reduced, prolong the suffering of crime victims for many years after the crimes themselves have been perpetrated. This prolonged suffering of crime victims and their families must come to an end. 109 The United States Constitution affords the accused the right to a speedy trial. 110 Rule for Courts-Martial 707 requires the accused be brought to trial within 120 days after the earlier of: (1) Preferral of charges; (2) The imposition of restraint under R.C.M. 304(a)(2) (4); or (3) Entry on active duty under R.C.M Additionally, under Article 10 of the UCMJ, where an accused is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him. 112 Conversely, should it be in the best interest of the accused to delay the case, the victim has no such menu of rights to exert and must rely on the good will of the military judge, assuming the military judge seeks victim input on a requested delay. The victim has no enumerated right to offer his or her input nor to be heard by the judge. The FY14 NDAA allows a minimal provision that will be tested with time to see if victims see swifter justice upon their request. There are twenty-one states that recognize a victim s right to a speedy trial or a similar right. This right of a victim to a speedy trial has been adopted by constitutional provision by the following states: 107 DODD , supra note 22, para Id. at para CAL. CONST. art. I, 28(a)(6). 110 U.S. CONST. amend. VI. 111 MCM, supra note 42, R.C.M. 707(a). 112 UCMJ art. 10 (2012).

21 2014] Victims Rights in the Military 443 Alaska, 113 Arizona, 114 California, 115 Connecticut, 116 Idaho, 117 Illinois, 118 Michigan, 119 Missouri, 120 New Mexico, 121 Tennessee, 122 and Wisconsin. 123 This right of a victim to a speedy trial has been codified by state statute in the following states: Delaware, 124 Florida, 125 Kentucky, 126 Louisiana, 127 Maryland, 128 Minnesota, 129 Nebraska, 130 North Dakota, 131 Oklahoma, 132 and Utah. 133 Although the DoD has made some foundational progress in offering victims rights, it has much further to go to ensure that victims have a voice and that the DoD system is one that is known for providing that voice by the power of specific and enforceable law. 113 ALASKA CONST. art. I, 24 ( [T]he right to timely disposition of the case following the arrest of the accused. ). 114 ARIZ. CONST. art. 2, 2.1(A)(10), implemented in ARIZ. REV. STAT. ANN , (West 2013). 115 CAL. CONST. art. I, 28(a)(4), 28(b)(9). 116 CONN. CONST. art. I, 8(b)(2). 117 IDAHO CONST. art. I, 22(2), implemented in IDAHO CODE ANN (1)(c) (2013). 118 ILL. CONST. art. I, 8.1(a)(6), implemented in 725 ILL. COMP. STAT. ANN. 120/4(a)(6) (West 2013). 119 MICH. CONST. art. I, 24(1), implemented in MICH. COMP. LAWS ANN., , a (West 2014) ( a speedy trial may be scheduled for any case where the victim is... (a) A victim of child abuse... (b) A victim of criminal sexual conduct... (c) Sixty-five years of age or older. (d) An individual with a disability that inhibits the individual s ability to attend court... ). 120 MO. CONST. art. I, 32(1)(5), implemented in MO. ANN. STAT (1)(16) (West 2014). 121 N.M. CONST. art. II, 24(A)(2), implemented in N.M. STAT. ANN (B) (West 2013). 122 TENN. CONST. art. I, 35(6). 123 WIS. CONST. art. 1, 9m, implemented in WIS. STAT. ANN (k) (West 2014). 124 DEL. CODE tit. 11, 9404 (2014). 125 FLA. STAT. ANN (1)(a)(7) (West 2013). 126 KY. REV. STAT. ANN (West 2013) ( [S]peedy trial where child victim is involved. ). 127 LA. REV. STAT. ANN. 46:1844(J) (2013). 128 MD. CODE ANN. CRIM. PROC (b)(13) (West 2014). 129 MINN. STAT. ANN. 611A.033 (West 2013). 130 NEB. REV. STAT. ANN (2)(i) (West 2013). 131 N.D. CENT. CODE ANN (West 2013). 132 OKLA. STAT. ANN. tit. 21, 142A-2(17) (West 2013) ( In all criminal cases and juvenile proceedings involving a child victim or witness, the court and the state's attorney shall take appropriate action to ensure a speedy trial... ). 133 UTAH CODE ANN (h), (2) (West 2013).

22 444 Virginia Journal of Social Policy & the Law [Vol. 21:3 V. PROPOSED CHANGES TO THE UCMJ Many states have adopted constitutional and legislative provisions that preserve and protect certain enumerated rights on behalf of victims of crime. These models have been tested for decades and are worthy of careful consideration regarding their efficacy of giving victims a voice and the right to exert that voice, while not compromising the constitutional rights and privileges of the accused. The state models are synthesized at the end of the review of each proposed change for consideration of their now long-standing impact on state victims rights. To remedy the problem of disempowered victims of crime in the DoD by providing rights that constitute a voice for a victim and offer empowerment to victims, consider the following proposed amendments to the Uniform Code of Military Justice: Crime victims 134 shall have the following rights: The right to refuse an interview, deposition, or other discovery request by the accused, the accused s attorney, or other person acting on behalf of the accused, and to set reasonable conditions on the conduct of any such interview to which the victim consents, and the right to be advised of this right by the Government attorney or trial counsel. The accused, the accused s attorney, or an agent of the accused shall only initiate contact with a victim through the Government attorney or trial counsel. 2. The right to provide input, written or oral, to the Government attorney, and in writing to the convening authority, on any pretrial plea agreement, or disposition of preferred charges short of trial; and where the victim disagrees with the pretrial plea agreement or disposition of preferred charges short of trial to be accepted by the convening authority, the right of the victim to make an in-person oral statement to the convening authority on that issue. 3. The right to be heard during the presentencing hearing in the same manner and under the same rules as the accused to include the right to deliver an unsworn statement that is not subject to crossexamination by the accused s counsel or by the court-martial. Such an unsworn statement may be 134 This term would require a proper broadly-construed definition. 135 In addition to those that already exist.