Chapter 3 Specific Justice Systems and Victims' Rights

Section 3, Military Justice

Abstract

Members of the U.S. military are subject to the same rules of behavior as the civilian population, but as defenders of the nation, they may be ordered to commit acts that are considered criminal in the nonmilitary community. Therefore, they require a justice system that is tailored to their unique tasks and responsibilities. This chapter provides a brief overview of the military justice system--its structure, organization, and procedures for the charging, prosecution, and punishment of offenses. It explains the Victim-Witness Assistance Programs that provide victims and witnesses of military crime with guidance through the justice system. It outlines related programs designed to assist military families in coping with child and spousal abuse and to assist military personnel in coping with sexual harassment, sexual assault, and job discrimination. Finally this chapter discusses the measures the federal government has authorized to compensate victims of military crime and the use of negotiated restitution as a condition for pretrial agreements and parole.

Learning Objectives

Upon completion of this chapter, students will understand the following concepts:

• How offenses are charged, disposed, and punished in the military justice system, including nonjudicial punishments, punitive discharges, and appeals.



• The components of the military's Bill of Rights for victims of crime.



• The types of assistance provided to victims of crime in the military through the Family Advocacy Program, the Equal Opportunity Program, and the Navy's Sexual Assault Victim Intervention Program.



• Laws governing federal compensation for the victimization by military personnel of military dependants and of foreign inhabitants in a foreign country.

Statistical Overview

• In 1997, sexual assault was the most common offense for which inmates were held in military prison, accounting for 30.6% of all military prisoners. Other violent offenses for which military personnel were incarcerated were homicides, 11%; assault, 8.6%; robbery, 1.7%; and other violent crimes,0.3%. Nonviolent offenses included drug offenses, 20.2%; property crimes, 17.2%; military offenses, 7.6%; public disorder, 1.7%; and other, 1.4% (BJS January 2000).

Sexual Harassment

Sexual harassment charges were filed in late 1999 by the first three-star and ranking female general in the Army. The case marks the beginning of a new round of investigations into sexual harassment in the military. Groping charges were made against another general, who was the victim's immediate superior, at the time the events were alleged to have occurred in 1996. The harassment was reported at that time and dealt with in a non-public manner. Last year, when the alleged offender was promoted to a higher rank, the victim took her charges to the Army Inspector General's Office. Women make up 15 percent of the army's 479,000 people, but there are only 10 women among the 301 Army generals on active duty (Ricks 5 April 2000).

Introduction

The last decade has witnessed heightened interest in the rights and needs of crime victims throughout the military. The Department of Defense (DoD) has issued extensive policy guidance to assign responsibilities and to establish procedures and program standards for providing victim assistance. Military installations around the world have established comprehensive programs and entered into Memoranda of Understanding with neighboring civilian communities to enhance and protect the rights of victims throughout the military criminal justice system. Through collaboration with the Office for Victims of Crime, the DoD has provided training and technical assistance to improve victims' rights and services when military personnel are involved in crimes.

Overview of the Military Justice System

The Uniform Code of Military Justice (UCMJ), enacted by Congress, contains the substantive and procedural laws governing the military justice system. The President prescribes procedural rules and punishments for violations of crimes in the Manual for Courts-Martial (MCM).

Investigations of serious offenses involving military personnel such as rape, indecent assault, drugs, or larceny are usually conducted by a criminal investigative agency, such as the Army's Criminal Investigation Command (CID). For less serious offenses and most military-connected crimes, the authority rests with military or security police investigators. In cases involving very minor offenses, the immediate commander of the military member suspected will conduct or cause to be made a preliminary inquiry. Lawyers, known as judge advocates, are actively involved in advising commanders throughout the process.

Unlike civilian communities, military commanders exercise discretion in deciding whether an offense should be charged and how the offenders should be punished. The disposition decision is one of the most important and difficult decisions facing a commander. The commander has a number of options available for the resolution of disciplinary problems. Briefly summarized, they are as follows:

• The commander may choose to take no action. The circumstances surrounding an event actually may warrant that no adverse action be taken. The preliminary inquiry might indicate that the accused is innocent of the crime or that the only evidence is inadmissible. The commander may decide that other valid reasons exist not to prosecute.



• The commander may initiate administrative action against a service member. The commander might determine that the best disposition for this offense and this offender is to take administrative rather than punitive action. Administrative action is not punitive in character; instead, it is meant to be corrective and rehabilitative. Administrative actions include measures ranging from counseling or a reprimand to involuntary separation.



• The commander may dispose of the offense with nonjudicial punishment. Article 15, UCMJ, is a means of handling minor offenses requiring immediate corrective action. Nonjudicial punishment hearings are non-adversarial. They are not a "mini-trial" with questioning by opposing sides. The commander conducts the hearing. The service member may request an open or closed hearing, speak with an attorney about his case, have someone speak on his behalf, and present witnesses who are reasonably available. The rules of evidence do not apply. In order to find the service member guilty, the commander must be convinced beyond a reasonable doubt that the service member committed the offense. The maximum punishment depends on the rank of the commander imposing punishment and the rank of the service member being punished. The service member has a right to appeal the imposing commander's decision to the next higher commander.



• The commander may dispose of the offense by court-martial. If the commander decides that the offense is serious enough to warrant trial by court-martial, the commander may exercise the fourth option, preferring and forwarding charges. The commander may choose from three potential levels of court-martial: summary, special, or general. These courts-martial differ in the procedures, rights, and possible punishment that can be adjudged:
  • A summary court-martial is designed to dispose of minor offenses. Only enlisted service members may be tried by summary court-martial. A single officer presides over the hearing. The accused has no right to counsel but may hire an attorney to represent him or her.
    
    
  • A special court-martial is an intermediate level composed of either a military judge alone, or at least three members and a judge. An enlisted service member may ask that at least one-third of the court members be enlisted. There is both a prosecutor, commonly referred to as the trial counsel, and a defense counsel. In addition, the accused may be represented by civilian counsel, at no expense to the government, or by an individually requested military counsel.
    
    
  • A general court-martial is the military's highest level trial court. This court tries service members for the most serious crimes. The punishment authority of the general court-martial is limited by the maximum authorized punishment for each offense in the Manual for Courts-Martial. Before any charge is sent to a general court-martial, an Article 32 investigation must be conducted. The Article 32 investigation is closely akin to the civilian grand jury investigation. At the close of thehearing, the Article 32 officer makes a recommendation concerning the disposition of the charges. The recommendation is not binding on the convening authority. The general court-martial may take either of two forms. It may consist of a military judge and not less than five members, or solely of a military judge. The accused may elect trial by judge alone in all cases except those referred as capital cases. In a trial with court members, a minimum of five members must be present. An accused enlisted service member is entitled to at least one-third enlisted membership upon request.

The trial of a court-martial is not unlike a civilian criminal trial. The differences lie in the procedural requirements. The military follows rules of evidence patterned after the Federal Rules of Evidence. The members or judge hears evidence and renders a decision concerning the accused's guilt. In order to convict the accused, the members must be persuaded beyond a reasonable doubt that the accused is guilty. If the accused is convicted, a sentencing hearing is held.

An accused convicted by court-martial is entitled to review of his or her trial. Before approving a court-martial conviction and sentence, the convening authority must be satisfied beyond a reasonable doubt that the findings are supported by the evidence. The type of review depends on the level of trial and nature of the approved sentence. Some appeals may proceed all the way the United States Supreme Court.

The initial step in the appellate process is a review by the convening authority. The convening authority may approve all or any part of a legal sentence; he or she may mitigate a sentence or change the punishment to one of a different nature so long as the severity of the punishment is not increased.

If the convening authority approves a punitive discharge (either a bad-conduct discharge, dishonorable discharge, or dismissal) or confinement in excess of one year, the record of trial must be reviewed by the Department's Court of Criminal Appeals. This court, composed of military judges, will weigh the evidence and decide whether the findings and sentence are legally correct and, if so, whether the sentence is appropriate. The court may set aside the findings and sentence or may reduce the sentence, but it cannot increase the severity of the punishment.

The next court in the appellate process, the Court of Appeals for the Armed Forces, is composed of five civilian judges appointed by the President for fifteen year terms. This Court reviews questions of law only. Both the accused and the government may petition the Supreme Court for a writ of certiorari from the Court of Appeals for the Armed Forces. The review by the Supreme Court is entirely discretionary and extremely rare.

Executive Order

To address hate and bias crimes in the military, President Clinton signed an executive order on October 9, 1999, that amended the Manual for Courts-Martial, which establishes procedures for criminal trials in the armed forces. The order makes a number of changes to modernize the rules of evidence thatapply to court-martial proceedings. Gay rights advocates called for the order in the wake of the killing in July 1999 of Army Pvt. Barry Winchell at Fort Campbell, Kentucky, because he was believed to be homosexual. He was beaten to death with a baseball bat. President Clinton's order also extends limited protection to homosexuals in the military who confide their sexual orientation to psychotherapists.

The new rule provides that evidence of a violent hate or bias crime may be presented to the sentencing authority as an aggravating factor in the determination of the appropriate sentence. Section 1. Part II of the Manual for Courts-Martial, United States, R.C.M. 1001(b)(4) is amended by inserting the following:

Evidence in aggravation includes, but is not limited to, evidence of financial, social, psychological, and medical impact on or cost to any person or entity who was the victim of an offense committed by the accused and evidence of significant adverse impact on the mission, discipline, or efficiency of the command directly and immediately resulting from the accused's offense. In addition, evidence in aggravation may include evidence that the accused intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.

As is increasingly the case in civilian courts, this rule sends a strong message that violence based on hatred will not be tolerated. In particular, the rule provides that the sentencing authority may consider whether the offense was motivated by the victim's race, color, religion, national origin, ethnicity, gender, disability or sexual orientation (Uniform Code of Military Justice, 10 U.S.C. 801-946).

DoD Victim and Witness Assistance Programs

DoD Directive 1030.1, Victim and Witness Assistance (November 23, 1994) and DoD Instruction 1030.2, Victim and Witness Assistance Procedures (December 23, 1994) implement statutory requirements for victim and witness assistance and provide guidance for assisting victims and witnesses of crime from initial contact through investigation, prosecution, and confinement.

Together, the Directive and Instruction provide policy guidance and specific procedures to be followed for victim and witness assistance in all sectors of the military. They apply to the Office of the Secretary of Defense and the following military components:

• The Chairman of the Joint Chiefs of Staff.



• The Unified Combatant Commands.



• The Inspector General of the Department of Defense.



• Department of Defense Field Activities and Defense Agencies.



• The Military Services, including the Coast Guard (when operating as a Service in the Navy).

The Directive includes a Bill of Rights which closely resembles the Federal Crime Victims' Bill of Rights. DoD officials are responsible for ensuring that victims of military crimes are afforded the rights to:

• Be treated with fairness and respect.



• Be reasonably protected from the offender.



• Be notified of court-martial proceedings.



• Be present at court-martial proceedings.



• Confer with the government attorney.



• Available restitution.



• Know outcome of trial and release from confinement.

The DoD victim and witness assistance programs cover the entire military justice process--from investigation through prosecution and confinement.

In providing services and assistance to victims, the DoD programs emphasize an interdisciplinary approach involving the following:

• Law enforcement personnel.



• Criminal investigators.



• Chaplains.



• Family advocacy personnel.



• Emergency room personnel.



• Family service center personnel.



• Equal opportunity personnel.



• Judge advocates.



• Unit commanding officers.



• Corrections personnel.

DoD victim and witness assistance programs use standard forms to advise victims and witnesses of their rights during all stages of a case. The following chart lists the DoD forms, when they are used, and their purpose: