Sexual Assault: The Court-Martial Process and Victim’s Rights

The Navy is observing Sexual Assault Awareness and Prevention Month with the theme “Courage.” This week’s focus is “Courage to Support.” This blog represents the continuation of a blog posted yesterday and addresses victim’s rights and the support available during the trial process.

SAAPM Courage to Support blog

By Teresa Scalzo, Deputy Director, Trial Counsel Assistance Program

Yesterday, I blogged about reporting a sexual assault and the investigation of a crime. Today, I want to explain what happens when the Naval Criminal Investigative Service (NCIS) investigation nears completion and the legal proceedings begin. Our military justice process includes multiple stages; each with military officials ensuring the processes is fair and upholds good order and discipline.

Depending on the nature and circumstances surrounding the sexual assault alleged, and whether the evidence supports such action, the convening authority/Sexual Assault Initial Disposition Authority (SA-IDA) will decide how to handle the case. The SA-IDA may recommend that the accused face charges at a general court-martial, or may send the accused to a special court-martial, summary court-martial, or non-judicial punishment and may also process the accused for administrative separation.

The trial counsel (prosecutor) typically begins working on a sexual assault case with NCIS during the investigation stage. Normally, the trial counsel will interview and consult with the victim to ensure that the trial counsel understands the facts of the case. The trial counsel will explain to the victim all of his or her rights under the Victim Witness Assistance Program (VWAP) and explain the military justice process every step of the way.

If the case goes to an Article 32 investigation or court-martial, the next step in the process begins when charges are preferred (sworn to). Once that happens, the “suspect” becomes known as the “accused” and the accused is given a military attorney. Charges can immediately be referred to a summary court-martial or special court-martial. However, before a case can go to a general court-martial, the accused has the right to have the charges considered at an Article 32 investigation.

An Article 32 investigation is similar to a civilian preliminary hearing and a victim may have to appear and testify at the hearing. The accused will be present at the Article 32 hearing along with the defense counsel who may cross-examine the victim. An investigating officer will hear the evidence and will write a report, which will include findings as to whether there are reasonable grounds to believe that the accused committed the offenses charged and, if so, make a recommendation on the forum for disposition of the charges.

After considering the investigating officer’s report and the recommendation of a staff judge advocate, the SA-IDA may decide to recommend a general court-martial, or may send the accused to a special court-martial, summary court-martial, impose NJP or, if appropriate, dismiss the charges. The accused may also be processed for administrative separation.

It is important to understand if a case does go to court martial, the trial counsel will work with the victim and the victim advocate throughout the trial process. If the case is referred to a general or special court-martial, the accused chooses if they will be tried by a military judge alone or by a panel of service members who serve as jurors (or “members” as they are called in a court-martial). If the accused is enlisted, he or she can request that at least one-third enlisted members serve on the panel.

Trial

The victim will normally have to testify at the trial and may also have to testify in pretrial motions sessions. Both the prosecution and defense can call witnesses and present evidence during the trial.

The next step is the verdict. The members or military judge must be convinced of the accused’s guilt beyond a reasonable doubt before the accused can be found guilty of the sexual assault or any offense under the Uniform Code of Military Justice (UCMJ).

Finally, if the accused is found guilty, the case will proceed to the sentencing phase. The military judge or members will decide what punishment to adjudge. During a sentencing hearing, both sides may again call witnesses to testify to help determine an appropriate sentence. The victim can testify about the impact of the sexual assault, which may include the emotional, physical, and financial suffering the victim experienced.

Rights of the Victim

Throughout the entire legal process, the victim has certain basic rights. For example, a victim has the right to communicate his or her position about the type of forum (court-martial, NJP, administrative discharge, etc.) in which the case should be handled. Although the convening authority is not bound to dispose of the case as the victim desires, the victim’s views must be carefully considered.

Victims can contact counsel, and victims eligible for military legal assistance services also have access to legal assistance attorneys to help with a wide variety of legal issues related to being the victim of a crime. Additionally, Navy prosecutors provide victims with explanations of victims’ rights; the court-martial process; and available federal, state, or local victim services and compensation.

Under the VWAP program, the victim has certain basic rights throughout the court-martial, including:

- Being treated with fairness and respect for the victim’s dignity and privacy;

- Being reasonably protected from the accused;

- Being notified of court proceedings;

- Being present at all public court proceedings related to the offense, unless the investigating officer or military judge determines that the victim’s testimony would be materially affected if he or she heard other testimony at the pretrial investigation or at trial;

- Conferring with the trial counsel;

- Receiving available restitution, if appropriate; and

- Being provided information about the conviction, sentencing, imprisonment, and release of the offender.

Finally, if the accused is sentenced to confinement in a military brig, the victim will be notified of any changes in the inmate’s status. A trial counsel or designated representative will explain to the victim his or her notification rights.

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Help raise awareness by joining the conversation on social media using #SexualAssault and #SAAPM.

More information about Navy sexual assault prevention, posters and other tools are posted to Navy Personnel Command’s Sexual Assault and Prevention website.

 


For help and support in dealing with a sexual assault, resources are available through:

Safe Helpline (for service members):

● Visit safehelpline.org to receive live, one-on-one confidential help with a trained professionals through a secure instant-messaging format.

● Call 1-877-995-5247 to speak with Safe Helpline staff for personalized advice and support.

● Text your location to 55247 inside the United States or 202-470-5546 outside of the United States to receive automated contact information for the sexual assault response coordinator at your installation or base. A sexual assault victim advocate may be assigned to assist you.

Rape, Abuse, and Incest National Network:

● Visit https://ohl.rainn.org/online/ for free, confidential and secure help that is just a click away.

● Call 1-800-656-HOPE (4673) to speak with trained, professional counselors for advice or support.