A radical overhaul of the military’s Article 32 pretrial hearing system is being proposed by a bipartisan group of senators, aimed at, but not limited to, protecting the victims of sexual assault from being badgered by defense lawyers during the proceedings.
Sen. Barbara Boxer, D-Calif., is the chief sponsor of a measure that would require the judge in an Article 32 hearing to be of equal or higher rank than the defense counsel; would limit proceeding to determining only whether there is probable cause to go to trial; would require the entire proceedings to be recorded; and would give a crime victim the right not to testify.
Boxer, a long-time advocate of tougher prosecution of sex crimes in the military, called the current pre-trial hearing system a “disaster” that needs to be reformed to be more like civilian courts.
One of the chief cosponsors of the legislation is Sen. Lindsey Graham, R-S.C., the Senate’s leading expert on the military justice system. A senior member of the Senate Armed Services Committee and ranking Republican on the committee’s personnel panel, Graham is an Air National Guard judge advocate general and former military judge.
The proposal, introduced Tuesday and expected to be offered as an amendment to the 2014 defense authorization bill when the Senate takes up that measure in the next few weeks, would apply to Article 32 hearings conducted one year after it becomes law. With a final defense bill not expected to become law until December, that means the Boxer proposal would not apply before December 2015.
She said a key goal of the proposed changes is to limit the questioning of sexual assault and rape victims, who under current Article 32 rules can face unlimited questions on almost unlimited topics.
“Right now there are no restrictions,” she said in a meeting with reporters, adding that the process appears to be one reason why so many service members who report being raped or sexually assaulted decide not to pursue charges.
While victims don’t have to testify, their sworn statements could be used in the pre-trial hearing to decide whether to go forward with a case, under the proposal.
Boxer said she was spurred to introduce her bill by the 30 hours of testimony in September of a U.S. Naval Academy rape victim who had accused three other midshipmen of raping her at a party.
“There is simply no reason that victims of military sexual assault should have to endure vicious and invasive questioning during a marathon, pre-trial interrogation that has no parallel in the civilian world,” she said.
Her bill comes at a time when Congress is wrestling with how to improve the way that the military handles sexual assault prosecutions. The Senate is expected to face two stark choices during consideration of the defense bill, one that would try to improve the current military justice system and a second that would take prosecution of major crimes outside the military chain of command.
Boxer said the Article 32 reform she is proposing would be helpful no matter which course ultimately is taken, but added that that she supports the Military Justice Improvement Act sponsored by Sen. Kirsten Gillibrand, D-N.Y., that would shift the investigation, prosecution and sentencing of major crimes to an independent criminal command.
Gillibrand is close to having 50 cosponsors for her bill, enough to pass the Senate as long as no procedural objections are raised.