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Text of the Combating Military Sexual Assault Act of 2013

This bill was introduced on May 15, 2013, in a previous session of Congress, but was not enacted. The text of the bill below is as of May 15, 2013 (Introduced).

I

113th CONGRESS

1st Session

H. R. 2002

IN THE HOUSE OF REPRESENTATIVES

May 15, 2013

(for himself, Ms. Granger, Ms. McCollum, Ms. Kuster, Mrs. Lowey, Ms. Kaptur, Mr. Cole, and Mr. Crenshaw) introduced the following bill; which was referred to the Committee on Armed Services

A BILL

To amend title 10, United States Code, to enhance assistance for victims of sexual assault committed by members of the Armed Forces, and for other purposes.

1.

Short title

This Act may be cited as the Combating Military Sexual Assault Act of 2013 .

2.

Special Victims' Counsel for victims of sexual assault committed by members of the Armed Forces

(a)

Special Victims' Counsel for victims of sexual assault committed by members of the Armed Forces

(1)

In general

Not later than 180 days after the date of the enactment of this Act, the Secretaries of the military departments shall each implement a program on the provision of a Special Victims' Counsel to victims of a sexual assault committed by a member of the Armed Forces.

(2)

Qualification

An individual may not be designated as a Special Victims' Counsel under this subsection unless the individual is—

(A)

a judge advocate who is a graduate of an accredited law school or is a member of the bar of a Federal court or the highest court of a State; and

(B)

is certified as competent to be designated as a Special Victims' Counsel by the Judge Advocate General of the Armed Force of which the individual is a member.

(3)

Duties

(A)

In general

Subject to subparagraph (C), the duties of a Special Victims' Counsel shall include the provision of legal representation to a victim in connection with criminal and civil legal matters related to the sexual assault committed against the victim, including the following:

(i)

Legal assistance regarding criminal liability of the victim.

(ii)

Legal assistance regarding the victim’s responsibility to testify, and other duties to the court.

(iii)

Legal assistance regarding the potential for civil litigation against other parties (other than the Department of Defense).

(iv)

Legal assistance regarding any proceeding in connection with the reporting, investigation, and prosecution of the sexual assault.

(v)

Legal assistance regarding civilian and military restraining and protective orders.

(vi)

Legal assistance regarding available military and veteran benefits.

(vii)

Legal assistance in personal civil legal matters in connection with the sexual assault in accordance with section 1044 of title 10, United States Code.

(viii)

Such other legal representation, advice, and assistance as the Secretary of the military department concerned shall specify for purposes of the program implemented under this subsection.

(B)

Nature of relationship

The relationship between a Special Victims’ Counsel and a victim shall be the relationship between an attorney and client.

(C)

Representation excluded

In providing legal representation, advice, and assistance, a Special Victims’ Counsel may not provide legal representation or appearance in any court, or administrative hearing, except under the following circumstances:

(i)

To the extent that a victim has a right to be heard, in accordance with the Manual for Courts Martial, in proceedings under the Uniform Code of Military Justice, the Special Victims’ Counsel may provide that representation and appear on behalf of the victim, unless excluded by the Secretary of Defense in accordance with clause (ii).

(ii)

The Secretary of Defense may determine to explicitly exclude Special Victims’ Counsel from appearing at a hearing at which a victim has a right to be heard, but, if Special Victims’ Counsel are to be excluded from certain hearings, the Secretary of Defense shall submit a report to Congress at the time of implementation of this Act explaining why the appearance of Special Victim’s Counsel at the hearings would adversely affect the constitutional rights of the accused.

(iii)

To the extent such representation and appearance is allowed under regulations promulgated by the Secretary of the military department concerned regarding the provision of legal assistance in accordance with section 1044 of title 10, United States Code.

(4)

Revision of Manual for Courts-Martial on appearances by special victim’s counsel

Not later than 180 days after the date of the enactment of this Act, the Manual for Courts-Martial shall be revised to provide that military victims of crime, in proceedings under the Uniform Code of Military Justice, to the extent victims have a right to be heard, they have a right to be heard through counsel, if represented and if counsel is reasonably available, unless counsel are excluded by the Secretary of Defense in accordance with clause (ii).

(b)

Assistance and reporting

(1)

Assistance

Section 1565b of title 10, United States Code, is amended—

(A)

by redesignating subsection (b) as subsection (c); and

(B)

by inserting after subsection (a) the following new subsection (b):

(b)

Availability of Special Victims' Counsel for victims of sexual assault committed by members of the Armed Forces

(1)

A member of the armed forces, or a dependent of a member, who is the victim of a sexual assault described in paragraph (2) may be provided assistance by a Special Victims' Counsel.

(2)

A sexual assault described in this paragraph is any offense if alleged to have been committed by a member of the armed forces as follows:

(A)

Any offense covered by section 920 of this title (article 120 of the Uniform Code of Military Justice).

(B)

An attempt to commit an offense specified in subparagraph (A) or (B) as punishable under section 880 of this title (article 80 of the Uniform Code of Military Justice).

(3)

A member of the armed forces or dependent who is the victim of sexual assault described in paragraph (2) shall be informed of the availability of assistance under paragraph (1) as soon as the member or dependent seeks assistance from a Sexual Assault Response Coordinator, a Sexual Assault Victim Advocate, a military criminal investigator, a victim/witness liaison, a trial counsel, health care providers, or any other personnel designated by the Secretary of the military department concerned for purposes of this paragraph. The member or dependent shall also be informed that the assistance of a Special Victims' Counsel under paragraph (1) is optional and may be declined, in whole or in part, at any time.

(4)

Assistance of a Special Victims' Counsel under paragraph (1) shall be available to a member or dependent regardless of whether the member or dependent elects unrestricted or restricted (confidential) reporting of the sexual assault.

.

(2)

Reporting

Subsection (c) of such section, as redesignated by paragraph (1)(A) of this subsection, is further amended in paragraph (2)

(A)

by redesignating subparagraph (C) as subparagraph (D); and

(B)

by inserting after subparagraph (B) the following new subparagraph (C):

(C)

A Special Victims' Counsel.

.

(c)

Conforming amendments to authority on SARC, SAVA, and related assistance

Subsection (a) of such section is amended—

(1)

in paragraph (1), by striking may and inserting shall, upon request,; and

(2)

in paragraph (2)

(A)

by inserting a Special Victims' Counsel, after a Sexual Assault Victim Advocate,; and

(B)

by striking or a trial counsel and inserting a trial counsel, a health care provider, or any other person designated by the Secretary of the military department concerned for purposes of this paragraph.

(d)

Conforming and clerical amendments

(1)

Heading amendment

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

1565b.

Victims of sexual assault: access to legal assistance and services of Sexual Assault Coordinators, Sexual Assault Victim Advocates, and Special Victims' Counsels

.

(2)

Table of sections

The table of sections at the beginning of chapter 80 of such title is amended by striking the item relating to section 1565b and inserting the following new item:

1565b. Victims of sexual assault: access to legal assistance and services of Sexual Assault Coordinators, Sexual Assault Victim Advocates, and Special Victims' Counsels.

.

3.

Enhanced responsibilities of Sexual Assault Prevention and Response Office for Department of Defense sexual assault prevention and response program

(a)

In general

Section 1611(b) of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 ( 10 U.S.C. 1561 note) is amended by striking shall— and all the follows and inserting “shall do the following:

(1)

Oversee development and implementation of the comprehensive policy for the Department of Defense sexual assault prevention and response program, including guidance and assistance for the military departments in addressing matters relating to sexual assault prevention and response.

(2)

Serve as the single point of authority, accountability, and oversight for the sexual assault prevention and response program.

(3)

Undertake responsibility for the oversight of the implementation of the sexual assault prevention and response program by the Armed Forces.

(4)

Collect, maintain, and disseminate data of the military departments on sexual assault in accordance with section 1615.

(5)

Provide oversight to ensure that the military departments maintain documents relating to the following:

(A)

Allegations and complaints of sexual assault involving members of the Armed Forces.

(B)

Courts-martial or trials of members of the Armed Forces for offenses relating to sexual assault.

(6)

Act as liaison between the Department of Defense and other Federal and State agencies on programs and efforts relating to sexual assault prevention and response.

(7)

Oversee development of strategic program guidance and joint planning objectives for resources in support of the sexual assault prevention and response program, and make recommendations on modifications to policy, law, and regulations needed to ensure the continuing availability of such resources.

(8)

Provide to the Secretary of Veterans Affairs any records or documents on sexual assault in the Armed Forces, including restricted reports with the approval of the individuals who filed such reports, that are required by the Secretary of Veterans Affairs for purposes of the administration of the laws administered by the Secretary of Veterans Affairs.

.

(b)

Collection and Maintenance of Data

Subtitle A of title XVI of such Act (10 U.S.C. 1561 note) is amended by adding at the end the following new section:

1615.

Collection and maintenance of data of military departments on sexual assault prevention and response

In carrying out the requirements of section 1611(b)(4), the Director of the Sexual Assault Prevention and Response Office shall do the following:

(1)

Collect, in a manner consistent with the policy and procedures developed pursuant to section 586 of the National Defense Authorization Act for Fiscal Year 2012 ( Public Law 112–81 ; 10 U.S.C. 1561 note), from each military department on a quarterly and annual basis data of such military department on sexual assaults involving members of the Armed Forces.

(2)

Maintain data collected from the military departments under paragraph (1).

(3)

Assemble from the data collected each calendar-year quarter under this section a quarterly report on the involvement of members of the Armed Forces in incidents of sexual assault.

(4)

Develop metrics to measure the effectiveness of, and compliance with, training and awareness objectives of the military departments on sexual assault prevention and response.

(5)

Establish categories of information to be provided by the military departments in connection with reports on sexual assault prevention and response, including, but not limited to, the annual reports required by section 1631, and ensure that the submittals of the military departments for purposes of such reports include data within such categories.

.

(c)

Element on unit of accused and victim in case synopses in annual report on sexual assaults

(1)

In general

Section 1631(f) of such Act ( 10 U.S.C. 1561 note) is amended—

(A)

by redesignating paragraphs (5) and (6) as paragraphs (6) and (7), respectively; and

(B)

by inserting after paragraph (4) the following new paragraph (5):

(5)

The case synopsis shall indicate the unit of each member of the Armed Forces accused of committing a sexual assault and the unit of each member of the Armed Forces who is a victim of sexual assault.

.

(2)

Application of amendments

The amendments made by paragraph (1) shall apply beginning with the report regarding sexual assaults involving members of the Armed Forces required to be submitted by March 1, 2014, under section 1631 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011.

4.

Disposition and other requirements for sex-related offenses under the Uniform Code of Military Justice

(a)

Disposition and other requirements

(1)

In general

Subchapter VI of chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), is amended by inserting after section 830 (article 30) the following new section (article):

830a. Art. 30a.

Sex-related offenses: disposition and other requirements

(a)

In general

Notwithstanding any other provision of this chapter, charges on offenses specified in subsection (b) shall be subject to the disposition requirements in subsection (c) and subject to the other requirements and limitations set forth in this section.

(b)

Covered offenses

The charges on offenses specified in this subsection are charges on the offenses as follows:

(1)

Any offense covered by section 920 of this title (article 120).

(2)

An attempt to commit an offense specified in paragraph (1) or (2) as punishable under section 880 of this title (article 80).

(c)

Disposition requirements

(1)

Subject to paragraph (2), the charges on any offense specified in subsection (b) shall be referred to an appropriate authority for convening general courts-martial under section 822 of this title (article 22) for disposition.

(2)

If the appropriate authority to whom charges described in paragraph (1) would be referred under that paragraph is a member with direct supervisory authority over the member alleged to have committed the offense, such charges shall be referred for disposition to a superior authority competent to convene general courts-martial.

(d)

Victim's rights

A victim of an offense specified in subsection (b) shall have rights as follows:

(1)

To a Special Victims' Counsel provided under section 1565b(b) of this title.

(2)

To have all communications between the victim and any Sexual Assault Response Coordinator, Sexual Assault Victim Advocate, or Special Victims' Counsel for the victim considered privileged communications for purposes of the case and any proceedings relating to the case.

(e)

Availability of writ of mandamus

To seek enforcement of the rights accorded a victim under subsection (d), the victim may apply for a writ of mandamus. The right shall first be asserted to the military judge in any court-martial proceeding in which the accused is being tried. The military judge shall take up and decide any motion asserting a victim's right in this section. If the military judge denies the relief sought, the victim may petition the court of criminal appeals for a writ of mandamus. The Court of Criminal Appeals for an armed force has jurisdiction to grant relief sought under this paragraph. If the court of appeals denies the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion.

.

(2)

Clerical amendment

The table of sections at the beginning of subchapter VI of chapter 47 of such title (the Uniform Code of Military Justice) is amended by inserting after the item relating to section 830 (article 30) the following new item:

830a. Art. 30a. Sex-related offenses: disposition and other requirements.

.

(b)

Revision of Manual for Courts-Martial

The Joint Service Committee on Military Justice shall amend the Manual for Courts-Martial to reflect the requirements in section 830a of title 10, United States Code (article 830a of the Uniform Code of Military Justice), as added by this section, including, in particular, section 306 of the Manual relating to disposition of charges.

5.

Modification of authorities and responsibilities of convening authorities in taking actions on the findings and sentences of courts-martial

(a)

In general

Section 860(c) of title 10, United States Code (article 60(c) of the Uniform Code of Military Justice), is amended—

(1)

in paragraph (2), by adding at the end the following new sentence: In taking such an action (other than an action to approve a sentence), the convening authority or other person taking such action shall prepare a written justification of such action, which written justification shall be made a part of the record of the court-martial.;

(2)

in paragraph (3), by striking the second sentence; and

(3)

by adding at the end the following new paragraphs:

(4)

If a convening authority or other person acts on the findings of a court-martial, the convening authority or other person may not, except for a charge or specification for a minor offense—

(A)

dismiss any charge or specification by setting aside a finding of guilty thereto; or

(B)

change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification.

(5)

For purposes of this section (article), whether an offense is minor depends on the nature of the offense, the circumstances surrounding its commission, and the maximum sentence imposable for the offense if tried by general court-martial. Ordinarily, a minor offense is an offense for which the maximum sentence imposable would not include dismissal or a dishonorable discharge or confinement for longer than one year. The decision whether an offense is minor is a matter of discretion of the convening authority, except that no offense of a sexual nature may be considered minor.

.

(b)

Effective date

The amendments made by this section shall take effect on the date of the enactment of this Act, and shall apply with respect to findings and sentences of courts-martial reported to convening authorities under section 860 of title 10, United States Code (article 60 of the Uniform Code of Military Justice), as so amended, on or after that date.

6.

Availability of Sexual Assault Response Coordinators for members of the National Guard

(a)

Availability in each National Guard State and Territory

Section 584(a) of the National Defense Authorization Act for Fiscal Year 2012 ( Public Law 112–81 ; 125 Stat. 1433; 10 U.S.C. 1561 note) is amended—

(1)

by redesignating paragraph (2) as paragraph (3); and

(2)

by inserting after paragraph (1) the following new paragraph (2):

(2)

Availability in each National Guard State and territory

The National Guard of each State and Territory shall ensure that a Sexual Assault Response Coordinator is available at all times to the members of the National Guard of such State or Territory. The Secretary of the Army and the Secretary of the Air Force may, in consultation with the Chief of the National Guard Bureau, assign additional Sexual Assault Response Coordinators in a State or Territory as necessary based on the resource requirements of National Guard units within such State or Territory. Any additional Sexual Assault Response Coordinator may serve on a full-time or part-time basis at the discretion of the assigning Secretary.

.

(b)

Availability To provide assistance for members of the National Guard in State status

Section 1565b of title 10, United States Code, as amended by section 2 of this Act, is further amended in subsection (a)

(1)

by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and

(2)

by inserting after paragraph (1) the following new paragraph (2):

(2)

In the case of a member of the National Guard in State status under title 32 who is the victim of a sexual assault, assistance provided by a Sexual Assault Response Coordinator shall be provided by the Sexual Assault Response Coordinator Assistance available in the State or Territory concerned under paragraph (2) of section 584(a) of the National Defense Authorization Act for Fiscal Year 2012 ( 10 U.S.C. 1561 note), but, with the approval of the Secretary of the Army or the Secretary of the Air Force, as applicable, may also be provided by Sexual Assault Response Coordinator assigned under paragraph (1) of that section.

.