Congress is facing two competing proposals to reform pretrial hearings to make the process less invasive for sexual assault victims.
While similar in intent, the different approaches leave open the question of how far lawmakers are willing to go in overhauling the process that determines whether enough evidence exists to take a case to trial — a process that some say “re-victimizes” rape and assault victims.
“It is time to stop putting sexual assault victims on trial,” said Rep. Mike Turner, R-Ohio, a senior member of the House Armed Services Committee and sponsor of HR 3360, one of the Article 32 reform bills.
That same point is made by Anu Bhagwati, a former Marine Corps captain who is executive director of Service Women’s Action Network. “Article 32 preliminary hearings should not subject victims to hours of questioning in an attempt to degrade, humiliate and discredit them,” she said, noting that fear of intimidation and retaliation are prime reasons why the majority of military sexual assault victims do not report the crime.
Sen. Barbara Boxer, D-Calif., chief sponsor of S 1644, a second bill to change the pretrial hearing process, said military procedures put victims through something “that has no parallel in the civilian world.”
Boxer’s bill has 15 bipartisan cosponsors. Turner has not collected any cosponsors for his bill.
Boxer’s bill is likely to become an amendment to the 2014 defense authorization bill, and with strong bipartisan support appears to have a good chance of passing the Senate. The House has already passed its version of the annual defense policy bill, so Turner has a free-standing measure that is unlikely to pass the House this year but could be used as a basis for a compromise between the House and Senate.
The Turner and Boxer proposals have similarities.
For example, both allow the victim to decline to testify. And both, in slightly different ways, also try to limit cross-examinations of witnesses and pretrial investigations to issues related to probable cause that a crime occurred.
“Unfortunately, this pretrial hearing has turned into a mini-trial in which the victim is often victimized and discouraged from participating in the prosecution process,” Turner said.
Both bills try to ensure that an experienced judge advocate presides over the hearing, although Boxer’s is more specific: It would require the judge advocate conducting the hearing to hold a rank equal or greater than that of the trial and defense counsel, which Turner aides said could delay some hearings if senior military lawyers are not immediately available.
Turner’s bill also would establish a discovery process for what government-gathered information must be shared with the accused.
Boxer’s bill has a requirement that the pretrial hearing be recorded and transcribed, with a copy made available to the victim if the victim or victim’s legal counsel requests it.
“Victims of military sexual assault should never be the person on trial,” said Sen. Kirsten Gillibrand, D-N.Y., chairwoman of the Senate Armed Services Committee’s personnel panel and a cosponsor of Boxer’s bill.