Washington, D.C. – U.S. Senators Barbara Boxer (D-CA), Lindsey Graham (R-SC), Jeanne Shaheen (D-NH), Roy Blunt (R-MO), Claire McCaskill (D-MO), Kirsten Gillibrand (D-NY), Max Baucus (D-MT), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), Kelly Ayotte (R-NH), Susan Collins (R-ME), and John McCain (R-AZ) today introduced bipartisan legislation to amend Article 32 of the Uniform Code of Military Justice (UCMJ) to help prevent abusive treatment of sexual assault victims in a pre-trial setting. In the House, Representatives Jackie Speier (D-CA) and Patrick Meehan (R-PA) will introduce companion legislation.
A story on the front page of the New York Times recently detailed the case of a female midshipman at the U.S. Naval Academy who was subjected to roughly 30 hours of intimidating and invasive questioning by attorneys for her alleged assailants during an Article 32 proceeding—a pre-trial investigation required under the UCMJ before a case can be referred to a general court-martial.
Senator Boxer said, “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.”
“Article 32 hearings had the effect of putting the victims on trial and serve to dissuade them from ever coming forward in the first place,” Representative Speier said. “This chilling effect on cases must end.”
“It takes bravery to come forward to report a sexual assault, and victims should never be put on trial for doing so,” said Representative Patrick Meehan, a former federal prosecutor. “This bipartisan bill will add important protections for victims in Article 32 proceedings, reforms that have long been effective in civilian courts.”
“We have to protect our servicemen and women not only from sexual assault from within their own ranks but also from aggressive and unfair questioning during an investigation,” Senator Shaheen said. “Our bipartisan proposal will not only help protect our servicemen and women from harassment and intimidation, but it will help increase reporting of sexual assault and ultimately, help restore confidence in our military justice system.”
“Sexual assault in the military is simply intolerable, and there’s no reason these victims should be re-victimized during pre-trial investigations,” Senator Blunt said. “This bipartisan legislation will help to ensure that Article 32 hearings focus on determining whether there is probable cause as originally intended, while protecting alleged sexual assault victims from becoming the target of unwarranted and abusive questioning.”
“Everyone who’s looked at the Article 32 process agreed that it’s unnecessarily harsh for survivors and that it has become an overly broad tool that has expanded beyond its original function,” said Senator McCaskill, a former courtroom prosecutor of sex crimes. “These aggressive, commonsense reforms will ensure that the process does not discourage survivors from coming forward, and that survivors’ rights are also strengthened and solidified.”
“Victims of military sexual assault should never be the person on trial,” Senator Gillibrand said. “This bipartisan measure makes the reforms we need to treat victims with respect and dignity, and gives them a better sense that coming forward is worth it so we can hold more assailants accountable. The Article 32 Reform Act would make meaningful reforms to ensure that victims who bravely come forward to report sexual assault are not harassed and intimidated during Article 32 proceedings.”
“No one should have to relive the trauma they endured in order to seek justice. This bill will strengthen our work to combat sexual violence in the military by creating an environment where survivors can come forward without fear of intimidation,” Senator Baucus said. “We must double down on our efforts to protect survivors and prevent violence from happening in the first place.”
Senator Blumenthal said, “When military victims of sexual assault are forced to endure hours of insensitive and intrusive questioning by military justice officials, they are treated more like perpetrators than victims. Limiting the scope of Article 32 proceedings and requiring a military lawyer to oversee them will ensure that victims of sexual assault are not further harmed by the same military justice system that is put in place to protect them.”
“Given that too many sexual assaults already go unreported, it is simply wrong that the men and women who have the courage to step forward and report their attacks have to endure humiliating, invasive interrogation,” Senator Hirono said.
“Survivors of sexual assault in the military have repeatedly told us that they experience intimidation and retribution for speaking out about these horrific crimes, and no one should be forced to endure 30 hours of abusive questioning as they seek justice,” Senator Collins said. Reforming Article 32 procedure is an important step forward in protecting survivors of sexual assault in the military and encouraging other survivors to come forward.”
Specifically, the bill would bring Article 32 proceedings more in line with the conduct of preliminary hearings under Rule 5.1 of the Federal Rules of Criminal Procedure. It would limit the scope of Article 32 proceedings to the question of probable cause to help prevent abusive and unwarranted questioning of sexual assault victims. It would also require Article 32 proceedings to be presided over by a military lawyer whose rank is equal to or higher than the trial counsel and the defense counsel. In addition, the bill would require Article 32 proceedings to be recorded and a copy of the recording and a transcript to be made available to all parties, and the victim and victim’s counsel, upon request. The bill also includes a provision that would prevent crime victims from being forced to testify at Article 32 proceedings. These reforms would apply to all Article 32 proceedings, not just in cases of sexual assault.
According to the Department of Defense, an estimated 26,000 instances of unwanted sexual contact occurred in the military last year, but only 3,374 sexual assaults were reported. Equally concerning is that many sexual assault victims who do report these crimes drop out of the process before their cases even make it to trial. In fact, the Judge Advocate General for the U.S. Air Force, Lieutenant General Richard Harding, told the Senate Armed Services Committee in March that nearly 30 percent of sexual assault victims who had originally agreed to help prosecute their alleged offenders changed their minds before trial. General Harding also noted that many victims feel re-victimized by the investigative and judicial processes in the military.
“Senator Boxer has drawn a clear line in the sand to protect victims of sexual assault from further abuse by our military justice system. And in doing so, she has mobilized a powerful, bipartisan group of senators who have come together on behalf of our men and women in uniform,” said Anu Bhagwati, Service Women’s Action Network executive director and former Marine Corps captain. “Article 32 preliminary hearings should not subject victims to hours of questioning in an attempt to degrade, humiliate and discredit them. Almost 90% of military sexual assault victims do not report, often because of fear, intimidation and retaliation. Service Women’s Action Network believes Senator Boxer’s common-sense reforms will help increase reporting and help restore our troops’ faith and confidence in military justice.”
“It is time to abolish the practice of allowing defense attorneys to conduct a mini-trial before they ever get to a court-martial,” said Nancy Parrish, President of Protect Our Defenders, “We need to reign in the Article 32 process and restore it to its appropriate role as a hearing to determine whether there is probable cause to recommend proceeding to General Courts-Martial.”
“No one should be forced to endure what the Naval Academy Midshipman recently endured: an abusive quasi-judicial charade that was intended to suppress rather than elicit truth,” said Susan Burke of Burke PLLC, “I applaud Senator Boxer and Congresswoman Speier for drafting legislation that will reform this broken system and call on their Congressional colleagues to ensure its immediate passage.”