Changes to Article 32 Hearings and other victims’ rights: What you need to know

By Rear Adm. Sean Buck
Director, 21st Century Sailor Office

If you’ve been reading my blogs, you know my role as Director of the 21st Century Sailor Office includes responsibility for the sexual assault prevention and response program for our Navy.

I want to share with you some recent key improvements to our military justice system – changes which make it safer and easier for victims of sexual assault to report incidents, and hopefully, more likely that they will remain in the investigative process, all the way to final resolution.

The National Defense Authorization Act (NDAA) of FY2014 contained some key provisions to improve Article 32 hearings – some coming later this year, and some effective now.

What is an Article 32 hearing? These are “preliminary hearing” investigative proceedings, which have been compared to civilian grand juries.  The purpose of these hearings is to provide a recommendation to the convening authority of whether a case should be referred to court-martial or other appropriate disposition.  An Article 32 hearing is held before charges can be referred to a general court-martial.  And soon, the purpose of the preliminary hearing will be limited to determining the following:  whether there is probable cause to believe an offense was committed, jurisdiction of the offense, proper charges, and recommended disposition.

The most important change coming for these hearings, in my opinion, is that alleged military victims will no longer have to testify or even be present at them, if they so desire.  All victims – military and civilian – of all crimes, not just sexual assault, will have the right to decline to testify at the Article 32 preliminary hearing if desired.  If a victim desires not to physically testify at this hearing, their sworn statement will be considered as evidence instead.  Examination of witnesses is restricted to matters relevant to the charges.  No longer will a purpose of the hearing be for the defense to obtain discovery in their case.  Attorneys will no longer be able to publicly and officially dive into personal matters unrelated to the incident at hand at these hearings.

Second, the legislation provides that, whenever practical, only judge advocates will be Hearing Officers in Article 32s.  We’ve done this in practice in the Navy for a long time and by policy, Hearing Officers in sexual assault cases will always be judge advocates.

Third, the Hearing Officer, whenever practicable, will be senior to both the defense counsel and the prosecutor.

These new Article 32 provisions will take effect in December of this year.

However, another important change in the legislation concerning victims is effective immediately:  When a defense counsel wishes to interview a victim of an alleged sex-related offense, he or she must request the interview through the prosecutor, once the victim has been identified as a witness who will testify in the case.

Additionally, two victims’ rights that were in the civilian federal statute are now added in military law:  First, the victim has the right to be heard at certain hearings, including pretrial confinement, sentencing, and clemency and parole.  Second, victims have a right to proceedings free from unreasonable delay.  The statute also requires the military to create regulations providing an enforcement mechanism for victims’ rights.

Finally, one more change in the law provides victims the right to participate in the clemency phase of the court-martial process.  Effective this June, victims will be provided an opportunity to submit matters to the convening authority to consider in post-trial action, even after an accused has been convicted and sentenced at court-martial.

If we are to continue to gain the trust of service members to report any incident of sexual assault, we must ensure that our process of investigation and adjudication fully respects victims’ rights – that the victim be protected from the accused, accorded every means of privacy, and treated with dignity and respect.

All of these new provisions are designed to build critical trust:  trust of victims in our response, investigative and adjudicative systems; trust in our chains of command that each and every report can be made safely, and trust earned by our Navy that victims may report sexual assaults without fear of reprisal.   The overarching goal is a fair process for all involved – victim and accused.   If you are the victim of a sexual assault and have legal questions, call a Victims’ Legal Counsel to discuss your rights.

I know those were a lot of legal references, but these changes are important to understand.  They are even more important to talk about, with your shipmates, your Chiefs, and your commanders.  If you have any questions, seek out your nearest JAG officer.

No one should serve in fear.  Don’t be afraid to report if you’ve been a victim of sexual assault.  Together, we will work to protect victims of sexual assault and hold perpetrators appropriately accountable.