REPORT ON RESTITUTION AND 

COMPENSATION FOR MILITARY 

ADULT SEXUAL ASSAULT CRIMES

JUDICIAL 

PROCEEDINGS 

PANEL

REPORT ON

RESTITUTION AND 

COMPENSATION

FOR MILITARY ADULT

SEXUAL ASSAULT CRIMES

February 2016
JUDICIAL PROCEEDINGS PANEL

CHAIR

The Honorable Elizabeth Holtzman

MEMBERS

The Honorable Barbara S. Jones

Mr. Victor Stone

Professor Thomas W. Taylor

Vice Admiral Patricia A. Tracey, U.S. Navy, Retired

STAFF DIRECTOR

Colonel Kyle W. Green, U.S. Air Force

DEPUTY STAFF DIRECTOR

Lieutenant Colonel Kelly McGovern, U.S. Army

CHIEF OF STAFF

Mr. Dale L. Trexler

DESIGNATED FEDERAL OFFICIAL

Ms. Maria Fried
Report of the Judicial Proceedings 

Since Fiscal Year 2012 Amendments Panel

Restitution and Compensation for 

Military Adult Sexual Assault Crimes 

February 2016
5

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

JUDICIAL PROCEEDINGS PANEL

 

One Liberty Center • Suite 150 • 875 North Randolph Street • Arlington, VA 22203

 

 

February 1, 2016

The Honorable John McCain The Honorable Jack Reed

Chair, Committee Ranking Member, Committee

on Armed Services on Armed Services

United States Senate United States Senate

Washington, DC 20510 Washington, DC 20510

The Honorable Mac Thornberry The Honorable Adam Smith

Chair, Committee Ranking Member, Committee

on Armed Services on Armed Services

United States House of United States House of

Representatives Representatives

Washington, DC 20515 Washington, DC 20515

The Honorable Ashton B. Carter

Secretary of Defense

1000 Defense Pentagon

Washington, DC 20301-1000

Dear Chairs, Ranking Members, and Mr. Secretary:

We are pleased to submit this report of the Judicial Proceedings Since Fiscal Year 

2012 Amendments Panel (JPP) on additional duties assigned to the JPP in section 1731 of 

the National Defense Authorization Act for Fiscal Year 2014. This report summarizes the 

JPP’s assessments regarding the adequacy of the provision of compensation and 

restitution for victims of sexual assault crimes committed by military Service personnel.

Included in this report are six recommendations to help simplify and accelerate the 

financial recovery of victims from sexual assault crimes committed by Service members.

To gather information for this report, the JPP held public meetings to hear from 

civilian and military experts and practitioners. We also researched publicly available 

information and reviewed information from the Department of Defense, the Military 

Services, and victim advocacy organizations. The JPP expresses sincere appreciation to 

everyone who contributed to this report.

Elizabeth Holtzman

Chair

Barbara Jones

Victor Stone

Tom Taylor

Patricia Tracey
6

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

-2-

The JPP looks forward to continuing our review of military judicial proceedings 

for sexual assault crimes and addressing other topics in future reports.

Respectfully submitted,

_______________________________

Honorable Elizabeth Holtzman, Chair

____________________________ _____________________________

Honorable Barbara S. Jones Victor Stone

___________________________ ____________________________

Thomas W. Taylor Patricia A. Tracey
1

Contents

Judicial Proceedings Panel REPORT ON RESTITUTION AND COMPENSATION FOR MILITARY ADULT SEXUAL ASSAULT CRIMES 1

Transmittal Letter 5

Table of Contents 1

EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF JPP RECOMMENDATIONS ON 

RESTITUTION AND COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. Background and Congressional Tasking

B. Financial Needs and Challenges of Sexual Assault Victims

II. PROVISIONS OF RESTITUTION TO VICTIMS OF 

OFFENSES COMMITTED BY SERVICE MEMBERS . . . . . . . . . . . . . . . . . . . . . 13

A. Background

B. Restitution Mechanisms under the UCMJ and Their Current 

Availability to Sexual Assault Victims

C. Stakeholder Perspectives 

D. JPP Assessment and Recommendations Regarding Restitution

III. DIRECTING COURT-MARTIAL FORFEITURES TO VICTIMS............ 25

A. Mechanics of Waived and Deferred Forfeitures under the Current UCMJ

B. Stakeholder Perspectives

C. JPP Assessment and Recommendations Regarding Forfeitures

IV. ARTICLE 139 OF THE UCMJ: REDRESS OF INJURIES TO PROPERTY . . . . 29

A. Background

B. Scope and Limitations

C. Alternative Means to Seek Compensation for Personal Property Damage or Loss: 

the Military Personnel and Civilian Employees Claims Act (PCA)

D. Stakeholder Perspectives

E. JPP Assessment and Recommendations Regarding Article 139

Table of Contents
2

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

V. MEANS FOR PROVIDING CARE AND COMPENSATION 

TO SEXUAL ASSAULT VICTIMS.................................... 35

A. DoD Health Care

B. VA Health Care and Compensation

C. Transitional Compensation for Abused Dependents (TCAD)

D. State Crime Victim Compensation (CVC) Programs

E. Tort Remedies

F. Perspectives on Establishing a Uniform DoD Compensation Program

G. Best Practices in Establishing National Compensation Programs

H. JPP Assessment and Recommendations Regarding a Uniform 

DoD Compensation Program

APPENDICES

A. Judicial Proceedings Panel Authorizing Statutes

B. Judicial Proceedings Panel Members

C. Staff Members and Designated Federal Officials

D. Judicial Proceedings Panel Public Meetings 

Addressing Victim Restitution and Compensation

E. Acronyms and Abbreviations

F. Sources Consulted
3

Executive Summary

RESTITUTION AND COMPENSTATION FOR VICTIMS OF ADULT SEXUAL 

ASSAULT CRIMES

Victims of sexual assault can be saddled with serious and long-term expenses incurred as a result of 

the crime. The expenses run the gamut from forensic testing to long-term mental health care, from a 

broken or lost cell phone to relocation. Fortunately, for victims who are active duty Service members 

or dependents of active duty Service members, these expenses are generally covered entirely by health 

insurance or DoD programs and services. However, a civilian assaulted by a Service member is left to 

his or her own devices. As a last resort, a civilian victim may access a state crime victims compensation 

program, but the amount recovered and the entitlement to funds vary from state to state and many 

programs do not adequately serve victims of sexual assault committed by Service members. 

In the Fiscal Year 2014 National Defense Authorization Act (NDAA), Congress tasked the JPP to 

review mechanisms for providing compensation and restitution to victims of sexual assault crimes 

committed by Service members. Specifically, Congress required the JPP to examine (1) requiring 

convicted Service members to provide restitution to victims, (2) expanding Article 139 of the UCMJ, 

and (3) providing incarcerated Service members’ forfeited wages to victims. The JPP heard from 

civilian and military experts and practitioners; reviewed information received from DoD, the military 

Services, and victim advocacy organizations; and reviewed publicly available information to complete 

its assessment and arrive at its recommendations.

The JPP carefully considered the three options tasked by Congress for expanding compensation and 

restitution. This report explains why the JPP believes they should not be adopted and why DoD 

can best serve the financial needs of sexual assault victims by establishing a new, uniform DoD 

compensation program that provides benefits without regard to the location of the offense or the 

victim’s state of residence. The JPP recommends this new program be made available to victims, 

regardless of military status, who were assaulted after October 2005, when DoD’s restricted reporting 

requirement became available. While claimants should be required to provide sufficient documentation 

that the crime occurred and that they experienced out-of-pocket financial losses as a result, there 

should be no requirement for claimants to have reported the crime to law enforcement. The program 

should cover out-of-pocket losses of the following types: medical and mental health expenses, both 

past and future; lost income; travel/relocation expenses; and personal property loss/damage. This 

report provides the JPP’s detailed recommendations on funding of the program, eligibility of claimants, 

methodology for calculating awards, and proof and due process requirements.

The JPP hopes that this review and these recommendations will help simplify and accelerate the 

financial recovery of victims from sexual assault crimes committed by Service members.

Executive Summary
4

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES
5

Summary of JPP Recommendations on 

Restitution and Compensation*

SUMMARY OF JPP RECOMMENDATIONS ON RESTITUTION AND 

COMPENSATION*

Recommendation 12: The Department of Defense establish a new, uniform program that 

provides compensation for unreimbursed out-of-pocket expenses of victims of sexual assault 

crimes committed by Service members.

• All victims of sexual assault crimes committed by military members should have convenient 

access to a compensation system that is fair and efficient, providing uniform benefits regardless of 

the location of the offense or the victim’s state of residence.

• Coverage for the financial needs of sexual assault victims may depend on the status of the victim; 

active duty Service members and dependents of active duty Service members receive medical 

care and other benefits through DoD. Civilian victims who do not receive DoD-provided care or 

benefits are relegated to state compensation programs that vary in their requirements and policies.

• A DoD compensation program for sexual assault victims should cover out-of-pocket losses of the 

following types: medical and mental health expenses, both past and future; lost income; travel 

expenses; relocation costs; and damage to, or loss of, personal property. 

• The Department of Defense should structure its new program to replicate the best practices of 

state crime victim compensation programs, some of which are described in part V of this report.

• Congress tasked the JPP to review compensation and restitution for crimes committed under the 

UCMJ; therefore, it was beyond the Panel’s scope to consider whether a DoD program should 

extend coverage to additional circumstances, such as cases where a victim is sexually assaulted on 

a military installation by a person not subject to the UCMJ.

Recommendation 13: Congress not amend the Uniform Code of Military Justice to add 

restitution as an authorized punishment that may be adjudged at courts-martial.

• Numerous changes to the Uniform Code of Military Justice and Manual for Courts-Martial

would be required to incorporate restitution as an authorized punishment, and instituting them 

would risk unintended consequences with potentially far-reaching effects on broader processes of 

military justice. 

• The number of cases in which restitution would be desired, appropriate, and actually obtained is 

relatively small, and the financial needs of these victims would be equally well or better served by 

establishing a new uniform DoD compensation program.

* JPP Recommendations 1–11 are included in the Judicial Proceedings Panel Initial Report 11 (Feb. 2015), available at 

http://jpp.whs.mil/public/docs/08-Panel_Reports/JPP_InitialReport_Final_20150204.pdf.

Summary of JPP Recommendations on Restitution and Compensation
6

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

Recommendation 14: The military Services provide recurring training to trial practitioners 

and victim assistance personnel on the availability and use of restitution in pretrial agreements 

between the government and the accused.

• Under current rules for courts-martial, restitution may be considered in pretrial negotiations, but 

this option is rarely used in practice.

Recommendation 15: The President enact the Department of Defense’s recently proposed 

executive order to modify Rule for Courts-Martial 705(d)(3) to provide victims the right to be 

heard before a convening authority enters into a pretrial agreement.

• Whether to include restitution in a pretrial agreement is within the discretion of the convening 

authority. Army policy requires convening authorities to consider whether to include restitution 

in a pretrial agreement before signing it, and the other Services should consider adopting the same 

policy.

• There is currently no requirement in any of the military Services that a victim or victim’s counsel 

provide input regarding a pretrial agreement, and victims are sometimes not advised of a pretrial 

agreement until after it has been signed. 

Recommendation 16: Congress not amend the Uniform Code of Military Justice to direct that 

the forfeited wages of incarcerated members of the Armed Forces be used to pay compensation to 

victims of sexual assault crimes committed by Service members.

• Modifying the law regarding distribution of forfeitures could curtail important benefits to current 

recipients of funds from courts-martial forfeitures, which include the Armed Forces Retirement 

Home and dependents of convicted Service members.

• Modifying forfeitures could unnecessarily complicate or impede operation of a uniform DoD 

compensation program.

Recommendation 17: Congress not amend Article 139 of the Uniform Code of Military Justice to 

include bodily harm among the injuries meriting compensation for redress.

• Assessing physical or mental injuries would often require more complex investigations than those 

currently conducted under Article 139 for property losses.

• Commander-directed Article 139 investigations into physical or mental injuries for bodily injury 

claims could compete or even conflict with criminal investigations of sexual assault reports.

• The broader financial needs of sexual assault victims would be better served through a uniform 

DoD compensation program.
7

Introduction I.

A. BACKGROUND AND CONGRESSIONAL TASKING

Congress directed the Judicial Proceedings Panel (JPP) “to conduct an independent review and 

assessment of judicial proceedings conducted under the Uniform Code of Military Justice [UCMJ] 

involving adult sexual assault and related offenses” since 2012, when Article 120 of the UCMJ was 

amended, “for the purpose of developing recommendations for improvements to such proceedings.”1

The Secretary of Defense appointed five members to the JPP in June 2014, and this Panel held its first 

meeting in August 2014. The JPP submitted its first report in February 2015 addressing the following 

topics:

• the implementation and effects of the 2012 amendments to Article 120 of the UCMJ;

• the implementation and effects of special victims’ counsel programs by DoD and the military 

Services;

• victim privacy issues in military sexual assault cases; and

• the rights and needs of sexual assault victims to receive case information and participate in the 

military judicial process.2

This follow-on report focuses on the availability of restitution and compensation for victims of Article 

120 offenses. Section 1735 of the National Defense Authorization Act for Fiscal Year 2014 tasked the 

JPP to “conduct [a]n assessment of the adequacy of the provision of compensation and restitution for 

victims of offenses under [the UCMJ], and develop recommendations on expanding such compensation 

and restitution.”3

 In particular, Section 1735 directed the JPP to consider the following three options 

for expanding compensation and restitution:

(i) providing the forfeited wages of incarcerated Service members to victims of offenses as 

compensation;

(ii) including bodily harm among the injuries meriting compensation for redress under Article 139 

of the UCMJ (Redress of injuries to property); and

(iii) requiring restitution by Service members to victims of their offenses upon the direction of a 

court-martial.4

1 National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239 [hereinafter FY13 NDAA], § 576(a)(2), 

126 Stat. 1632 (2013).

2 See Judicial Proceedings Panel, Initial Report (Feb. 2015) [hereinafter JPP Initial Report], available at http://jpp.whs.mil/

Public/docs/08-Panel_Reports/JPP_InitialReport_Final_20150204.pdf.

3 National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66 [hereinafter FY14 NDAA], § 1735(b)(1)(D), 

127 Stat. 672 (2013).

4 FY14 NDAA, supra note 3, at § 1735(b)(1)(D).

I. Introduction
8

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

These issues were the focus of the JPP’s public meetings in March and June 2015, where the Panel 

heard testimony from 28 witnesses. The JPP also requested and analyzed information from the DoD, 

the military Services, and victim advocacy organizations. In addition, the JPP reviewed publicly 

available information and conducted legal research and analysis of relevant topics, in accordance with 

the Federal Advisory Committee Act of 1972.5

 The information received and considered by the JPP 

is available on its website (http://jpp.whs.mil). The JPP is grateful to all presenters and to others who 

provided information and assistance as part of this review and assessment.

Although not specifically expressed, the JPP’s overarching mandate is to assess military judicial 

proceedings in cases of adult sexual assault.6

 Therefore, the Panel’s assessment and recommendations 

focus on the availability and utility of restitution and compensation for victims of adult sexual assault 

crimes under the UCMJ.7

B. FINANCIAL NEEDS AND CHALLENGES OF SEXUAL ASSAULT VICTIMS

Studies indicate that victims of sexual assault regard financial assistance as critical to their recovery.8 In 

the words of one scholar on sexual violence, restoring their financial losses resulting from abuse “can 

make a decided difference in victims’ abilities to recover.”9

However, victims are often deterred from seeking reimbursement by significant barriers.10 One problem 

is that sexual assault, in comparison with other forms of violent crime, is chronically underreported.11

Victims frequently fear reprisal, especially when they previously knew their offender (as is often the 

case).12 Moreover, those victims who do not file a report to the police, or disclose the assault to a 

health care or other professional, generally are not eligible for state crime victim compensation funds; 

see part V(D)(3) and (4), below.

The most substantial expenses for sexual assault victims usually are related to health care.13 Victims 

may require treatment for physical injury as well as psychological trauma, which frequently includes 

5 5 U.S.C. App. 2 (2012); see also 41 C.F.R. § 102-3.50(a).

6 See FY13 NDAA, supra note 1, at § 576(a)(2).

7 Transcript of JPP Public Meeting 7 (Mar. 13, 2015) (introductory remarks of JPP Acting Chair). All transcripts of JPP 

public meetings are available on the JPP’s website at http://jpp.whs.mil/.

8 Transcript of JPP Public Meeting 51 (Mar. 13, 2015) (testimony of Professor Julie Goldscheid, CUNY School of Law); 

Julie Goldscheid, Crime Victim Compensation in a Post-9/11 World, 79 Tul. L. Rev. 167, 226 & n.298 (2004).

9 Goldscheid, supra note 8, at 228.

10 See, e.g., Njeri Mathis Rutledge, Looking a Gift Horse in the Mouth—The Underutilization of Crime Victim 

Compensation Funds by Domestic Violence Victims, 19 Duke J. Gender L. & Pol’y 223, 244, 263 (2011); Transcript of 

JPP Public Meeting 119–20 (Mar. 13, 2015) (testimony of Professor Julie Goldscheid, CUNY School of Law).

11 Report of the Response Systems to Adult Sexual Assault Crimes Panel 59 (June 2014) [hereinafter RSP Report], 

available at http://responsesystemspanel.whs.mil/public/docs/Reports/00_Final/RSP_Report_Final_20140627.pdf; see 

also Transcript of JPP Public Meeting 148 (Mar. 13, 2015) (testimony of Ms. Nikki S. Charles, Co-Executive Director, 

Network for Victim Recovery of DC (NVRDC), and former Administrator of Victim Services, Maryland Criminal Injuries 

Compensation Board) (stating that approximately 40% of sexual assault victims served by NVRDC do not report incident 

to law enforcement).

12 RSP Report, supra note 11, at 59–60.

13 Transcript of JPP Public Meeting 54 (Mar. 13, 2015) (testimony of Professor Julie Goldscheid, CUNY School of Law).
9

I. INTRODUCTION

post-traumatic stress, depression, and abuse of alcohol or drugs.14 These conditions, in addition to 

the shorter-term shock, grief, and sense of loss that are commonly associated with violent crime, often 

require counseling.15 Medical or mental health care sometimes must continue for an extended period—

for example, when the victim contracts a sexually transmitted infection or experiences post-traumatic 

stress disorder (PTSD).16 Sexual assault victims who have sought and received treatment incur medical 

costs that have been estimated to average more than $2,000 per incident,17 and those who lack 

insurance are often unable to pay for needed services.18

Victims may also be saddled with other serious and long-term expenses. Sometimes they must take 

leave without pay while coping with the psychological trauma following a sexual assault, and many 

lose their jobs altogether19—especially in cases in which the perpetrator is a co-worker.20 When lost 

productivity and pain and suffering are included, the total cost to a survivor of a single sexual assault 

offense may range between $87,000 and $110,000.21

When a spouse or partner is the offender, victims often incur many additional costs. Because they 

frequently find it necessary to relocate, 22 they may have to provide new security and utility deposits, as 

well as to move or purchase furniture and other household goods.23 Such costs may be considerable, 

14 Transcript of JPP Public Meeting 54 (Mar. 13, 2015) (testimony of Professor Julie Goldscheid, CUNY School of Law); 

id. at 62 (testimony of Professor Njeri Mathis Rutledge, South Texas College of Law); id. at 153 (testimony of Ms. Nikki 

S. Charles, Co-Executive Director, Network for Victim Recovery of DC (NVRDC), and former Administrator of Victim 

Services, Maryland Criminal Injuries Compensation Board); U.S. Dep’t of Veterans Affairs, “Military Sexual Trauma” 

(Oct. 2014) [hereinafter VA MST Fact Sheet], available at http://www.mentalhealth.va.gov/docs/mst_general_factsheet.pdf; 

The Relationships Between Military Sexual Assault, Post-Traumatic Stress Disorder and Suicide, and on Department of 

Defense and Department of Veterans Affairs Medical Treatment and Management of Victims of Sexual Trauma, Hearing 

Before the Senate Armed Services Personnel Subcommittee, 113th Cong. 1, 55 (2014) [hereinafter SASC Testimony] 

(testimony of Dr. Margret E. Bell, Director for Education and Training, National Military Sexual Trauma Support Team, 

Department of Veterans Affairs); Written Statement of Professor Njeri Mathis Rutledge, South Texas College of Law, to 

JPP 1 (submitted Mar. 11, 2015). All written statements submitted to the JPP on this topic can be found on its website at 

http://jpp.whs.mil/index.php/staff-2/topic-comprest.

15 Goldscheid, supra note 8, at 173.

16 SASC Testimony, supra note 14, at 60 (testimony of Dr. Karen S. Guice, Principal Deputy Assistant Secretary of Defense 

for Health Affairs).

17 Written Statement of Professor Julie Goldscheid, CUNY School of Law, to JPP 1 & n.2 (Mar. 18, 2015) (citing recent 

studies by Centers for Disease Control and the White House Council on Women and Girls); Transcript of JPP Public 

Meeting 54, 86 (Mar. 13, 2015) (testimony of Professor Julie Goldscheid, CUNY School of Law).

18 Rutledge, supra note 10, at 254.

19 Transcript of JPP Public Meeting 55 (Mar. 13, 2015) (testimony of Professor Julie Goldscheid, CUNY School of Law); 

Written Statement of Professor Julie Goldscheid, CUNY School of Law, to JPP 2 (Mar. 18, 2015).

20 Transcript of JPP Public Meeting 153 (Mar. 13, 2015) (testimony of Ms. Nikki S. Charles, Co-Executive Director, 

Network for Victim Recovery of DC (NVRDC), and former Administrator of Victim Services, Maryland Criminal Injuries 

Compensation Board).

21 Written Statement of Professor Julie Goldscheid, CUNY School of Law, to JPP 1 & n.3 (Mar. 18, 2015); Transcript 

of JPP Public Meeting 54, 86 (Mar. 13, 2015) (testimony of Professor Julie Goldscheid, CUNY School of Law); id. at 

156 (testimony of Ms. Lindsey Silverberg, Outreach and Advocacy Supervisor, Network for Victim Recovery of DC 

(NVRDC)).

22 Transcript of JPP Public Meeting 62 (Mar. 13, 2015) (testimony of Professor Njeri Mathis Rutledge, South Texas College 

of Law); Written Statement of Professor Njeri Mathis Rutledge, South Texas College of Law, to JPP 2; Rutledge, supra

note 10, at 223; see also Transcript of JPP Public Meeting 139 (Mar. 13, 2015) (testimony of Ms. Laura Banks Reed, 

Director, D.C. Superior Court Crime Victims Compensation Program) (“If the sexual assault occurs in the victim’s home, it 

becomes a crime scene. That is not a place that they want to return to and in some instances even can return to.”).

23 Rutledge, supra note 10, at 227–28.
10

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

since victims who leave their home often take only the bare essentials with them.24 These victims 

suddenly find themselves bearing sole and immediate responsibility for meeting their own basic needs, 

as well as those of their children.25 In addition, they often face significant legal fees in connection with 

divorce and/or child custody proceedings.26

If the spouse or partner perpetrator is a Service member who is prosecuted and convicted at courtmartial, dependent victims frequently lose financial support, housing, and medical benefits.27 For more 

information on the financial consequences a court-martial conviction has on the accused and his or her 

dependents, see part III(B), below.

More generally, as explained throughout this report, the status of victims of sexual assault offenses 

committed by Service members affects their access to financial assistance. The JPP identified three main 

categories of victims in sexual assaults committed by military personnel: active duty Service members, 

dependents of an active duty Service member, and civilians. Each category has unique gaps in coverage 

for their financial losses, as summarized in the chart below.

24 Id. at 228 n.31.

25 Id. at 228.

26 Id.

27 Written Statement of Professor Njeri Mathis Rutledge, South Texas College of Law, to JPP 2.
11

I. INTRODUCTION

Chart: Victims’ Financial Needs Resulting from Sexual Assault Crimes

Coverage for 

ACTIVE DUTY 

Victims

Coverage for 

DEPENDENT

Victims

Coverage for 

CIVILIAN

Victims

MEDICAL/MENTAL 

HEALTH CARE

(e.g., SAFE exam,28 testing for 

sexually transmitted infections 

(STIs), prophylactic medications, 

psychotherapy, psychiatric medications, 

treatment for drug/alcohol abuse)

Total

(TRICARE29)

Total

(TRICARE)

Emergency

care only*/**

FUTURE MEDICAL/MENTAL 

HEALTH CARE

(e.g., treatment for late-onset PTSD)

Possible;* 

see part 

V(A), below 

(TRICARE; VA)

Possible;* 

see part V(A), 

below (TRICARE)

None*

LOST INCOME Total

(Service pay)

Partial**

(TCAD,30 courtmartial forfeitures)

None**

TRAVEL/RELOCATION COSTS

(e.g., transportation of victim, moving 

expenses, security deposit, attendance 

at court-martial and other hearings)

Possible**

(DoD expedited 

transfer)

Possible**

(DoD personal 

safety move)

None**

(except for 

attendance at 

judicial proceedings)

PERSONAL PROPERTY LOSS/

DAMAGE

(e.g., cell phones, computers, clothing)

Possible

(Article 139; 

PCA31)

Possible 

(Article 139; PCA 

if DoD employee)

Possible 

(Article 139; PCA if 

DoD employee)

PAIN AND SUFFERING None None

Possible

(lawsuit against 

Service member in 

civilian court)

28 29 30 31

* compensation may be available from private health insurer

** compensation may be available from state crime victim compensation (CVC) program

28 Sexual assault forensic examination; see part V(A)(1), infra.

29 TRICARE health care program; see part V(A), infra.

30 Transitional Compensation for Abused Dependents; see part V(C), infra.

31 Military Personnel and Civilian Employees Claims Act; see part IV(C), infra.
12

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES
13

Provisions of Restitution to Victims of 

Offenses Committed by Service Members II.

A. BACKGROUND

1. Theories of Restitution and Its Distinction from Compensation

Black’s Law Dictionary defines restitution as reimbursement for a crime victim’s out-of-pocket 

expenses, “paid by a criminal to a victim, not awarded in a civil trial for tort, but ordered as part of a 

criminal sentence or as a condition of probation.”32 Whereas restitution is a court-ordered punishment 

paid by an individual convicted of a crime, compensation is paid by the government, irrespective of 

a conviction.33 Restitution and compensation “share a dual role of reimbursing victims for verifiable 

expenses.”34 But as the nexus between the payment and the crime becomes more attenuated, 

“compensation” becomes the more accurate term.35

Civilian courts have traditionally used restitution as a remedy for property crimes “to financially 

restore a person economically damaged by another’s actions, thereby preventing the unintended 

beneficiary from being unjustly enriched at the aggrieved party’s expense.”36 The military justice system 

has taken the same approach.37

A restitution expert told the JPP that restitution “is not principally a punishment, it’s not a substitute 

or an alternative to a fine or incarceration. Its goal is to compensate the victim.”38 She elaborated, 

quoting a statement found in several U.S. Courts of Appeals opinions: “It is essentially a civil 

remedy created by Congress and incorporated in criminal proceedings for reasons of economy and 

32 National Crime Victim Law Institute (NCVLI), Fundamentals of Victims’ Rights: A Victim’s Right to Restitution,

Victim Law Bull., Nov. 2011, at 1 & n.1 (quoting Black’s Law Dictionary); Coast Guard’s Response to JPP Request for 

Information 53 (Nov. 6, 2014) (same); see also Rutledge, supra note 10, at 256.

33 See, e.g., Transcript of JPP Public Meeting 106 (Mar. 13, 2015) (testimony of Professor Njeri Mathis Rutledge, South 

Texas College of Law); id. at 202 (testimony of Major Mark D. Sameit, U.S. Marine Corps, Officer in Charge, Trial 

Counsel Assistance Program); Rutledge, supra note 10, at 256–57.

34 Transcript of JPP Public Meeting 7 (Mar. 13, 2015) (testimony of Professor Njeri Mathis Rutledge, South Texas College of 

Law).

35 Transcript of JPP Public Meeting 76 (Mar. 13, 2015) (testimony of Professor Cortney E. Lollar, University of Kentucky 

College of Law); Cortney E. Lollar, What Is Criminal Restitution?, 100 Iowa L. Rev. 93, 100–01 & n.19 (2014).

36 Lollar, supra note 35, at 100; Transcript of JPP Public Meeting 75 (Mar. 13, 2015) (testimony of Professor Cortney 

E. Lollar, University of Kentucky College of Law) (noting that restitution historically has been conceptualized as 

disgorgement of unlawful gain).

37 Transcript of JPP Public Meeting 76–77, 92 (Mar. 13, 2015) (testimony of Professor Cortney E. Lollar, University of 

Kentucky College of Law).

38 Transcript of JPP Public Meeting 270 (Mar. 13, 2015) (testimony of Ms. Susan Smith Howley, Director, Public Policy, 

National Center for Victims of Crime).

II. Provisions of Restitution to Victims of Offenses 

Committed by Service Members
14

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

practicality.”39 In other words, restitution spares the victim of a crime the time and expense of hiring 

an attorney to bring a separate civil suit for damages.40

Rather than being a form of punitive damages directed at the offender, another expert explained to the 

JPP, restitution seeks to reimburse a victim for expenses paid out of pocket.41 A U.S. Court of Appeals 

decision noted that the “primary and overarching goal” of restitution in federal court is “to make 

victims of crime whole, to fully compensate these victims for their losses and to restore these victims 

to their original state of well-being.”42 Whether restitution is viewed as punitive or as a civil remedy is 

highly significant in the context of military justice, as explained in part II(B)(1), below (discussing Rule 

for Courts-Martial 201).

2. Restitution in Civilian Courts

Restitution is available as a court-ordered remedy in every state.43 Although their specific wording 

varies, most state restitution statutes allow for the recovery of a broad range of losses.44 Many cover 

unusual expenses such as the purchase of a guard dog, the installation of a fence, or enrollment in selfdefense courses.45

Restitution is also available as a court-ordered remedy in the federal court system. Under the 

Mandatory Victim Restitution Act (MVRA), federal judges must award restitution for crimes of 

violence as well as property crimes.46 Addressing a broad range of losses,47 it is ordered as part of 

the sentencing proceedings. When a case falls within the scope of the MVRA, the court orders the 

probation officer to obtain and incorporate in the presentence report “information sufficient for the 

court to exercise its discretion in fashioning a restitution order,” including, “to the extent practicable, 

a complete accounting of the losses to each victim.”48 Victims may also choose to provide their own 

39 Transcript of JPP Public Meeting 270 (Mar. 13, 2015) (testimony of Ms. Susan Smith Howley, Director, Public Policy, 

National Center for Victims of Crime); e.g., United States v. Caruth, 418 F.3d 900, 904 (8th Cir. 2005).

40 Transcript of JPP Public Meeting 270 (Mar. 13, 2015) (testimony of Ms. Susan Smith Howley, Director, Public Policy, 

National Center for Victims of Crime).

41 Transcript of JPP Public Meeting 65 (Mar. 13, 2015) (testimony of Professor Njeri Mathis Rutledge, South Texas College 

of Law) (noting that restitution is “not intended to be a form of punitive damages”); Written Statement of Professor Njeri 

Mathis Rutledge, South Texas College of Law, to JPP 4 (describing restitution as “an effort to restore a victim financially 

for financial losses experienced”).

42 NCVLI, supra note 32, at 2 (quoting United States v. Gordon, 393 F.3d 1044, 1053 (9th Cir. 2004)).

43 Transcript of JPP Public Meeting 270 (Mar. 13, 2015) (testimony of Ms. Susan Smith Howley, Director, Public Policy, 

National Center for Victims of Crime); see also NCVLI, supra note 32, at 2 & n.2 (collecting state restitution statutes). In 

Texas and Michigan, restitution is now a constitutional right. Rutledge, supra note 10, at 258 & n.315.

44 NCVLI, supra note 32, at 3.

45 NCVLI, supra note 32, at 3 & n.3 (collecting cases).

46 18 U.S.C. § 3663A(c)(1)(A); Transcript of JPP Public Meeting 270 (Mar. 13, 2015) (testimony of Ms. Susan Smith 

Howley, Director, Public Policy, National Center for Victims of Crime).

47 These include the cost of necessary medical and related professional services, the cost of necessary physical and 

occupational therapy and rehabilitation, and “lost income and necessary child care, transportation, and other expenses 

incurred during [the victim’s] participation in the investigation or prosecution of the offense or attendance at court 

proceedings related to the offense.” 18 U.S.C. § 3663A(b).

48 18 U.S.C. § 3664(a), (e). The defendant must also file an affidavit “fully describing [his or her] financial resources,” 

“including a complete listing of all assets owned or controlled” at the time of arrest. 18 U.S.C. § 3664(d)(3).
15

II. PROVISIONS OF RESTITUTION TO VICTIMS OF OFFENSES COMMITTED BY SERVICE MEMBERS

statement of losses.49 The burden of demonstrating the amount of a victim’s loss is on the government, 

and any disputes are resolved by the court, using a “preponderance of the evidence” standard.50

This mandatory restitution system does not take into account the defendant’s circumstances.51 In the 

words of one scholar, the judge must order the defendant to pay whatever is determined to be the “full 

amount” of restitution, even if the defendant “has no income or ability to pay, and it takes her the 

remainder of her life to do so.”52 Owing to this “lack of relationship between the amount ordered and 

its corresponding collectability,” only 5% of restitution owed to non-government victims is now being 

collected.53 In practice, restitution generally remains unpaid, and victims are left wanting.54 As a result, 

one restitution expert told the JPP, victim satisfaction has decreased: “[R]ather than feeling like the 

system is more responsive to them now because their views are being taken into consideration, they’re 

feeling like they’re being promised something that is not realistic.”55

To enforce restitution, federal judges “have authority to revoke probation or supervised release and 

impose a prison sentence if the offender ‘willfully’ refuses to pay restitution or fails to make ‘sufficient 

bona fide efforts legally to acquire the resources’ to pay off the fine.”56 Convicted civilian defendants 

regularly suffer such revocation.57 If a defendant knowingly fails to pay restitution, he or she may be 

subject to any sentence that might originally have been imposed.58

The Crime Victims’ Rights Act (CVRA), enacted in 2004, provides victims “the right to full and timely 

restitution as provided in law” and requires courts to ensure that victims are afforded this right.59 In 

2013, Congress enacted Article 6b of the UCMJ, making clear that the CVRA applies to crime victims 

in the military justice process, including the “right to receive restitution as provided in law.”60

49 18 U.S.C. § 3664(d)(2)(A)(vi).

50 18 U.S.C. § 3664(e).

51 The judge must order the defendant to pay restitution “to each victim in the full amount of each victim’s losses as 

determined by the court and without consideration of the economic circumstances of the defendant.” 18 U.S.C. § 3664(f)

(1)(A).

52 Lollar, supra note 35, at 127.

53 Lollar, supra note 35, at 126 n.124 (quoting Mary Beth Buchanan, Director, Executive Office of U.S. Attorneys, U.S. Dep’t 

of Justice); Transcript of JPP Public Meeting 69–70 (Mar. 13, 2015) (testimony of Professor Cortney E. Lollar, University 

of Kentucky College of Law) (noting that criminal debt from unpaid restitution fees rose from $6 billion to $64 billion in 

the first 14 years of mandatory restitution).

54 Written Statement of Professor Njeri Mathis Rutledge, South Texas College of Law, to JPP 4 (suggesting defendants’ 

indigence is “one of the primary reasons restitution orders have been unsuccessful”); Lollar, supra note 35, at 124–25 

(noting difficulty of finding employment, as well as maintaining current employment, following a criminal conviction).

55 Transcript of JPP Public Meeting 70 (Mar. 13, 2015) (testimony of Professor Cortney E. Lollar, University of Kentucky 

College of Law); accord Lollar, supra note 35, at 126 n.124 (“The result of so much unpaid restitution is that many 

victims end up feeling more disempowered and disillusioned with the criminal justice system than they would if they were 

given a realistic sense of how restitution works in practice.”).

56 Lollar, supra note 35, at 124 & n.111 (quoting Bearden v. Georgia, 461 U.S. 660, 672 (1983)); see also 18 U.S.C. § 

3664(m) (providing for enforcement of restitution orders).

57 Lollar, supra note 35, at 124 & n.111.

58 18 U.S.C. § 3614(a).

59 18 U.S.C. § 3771(a)(6), (b)(1).

60 FY14 NDAA, Pub. L. No. 113-66, § 1701, 127 Stat. 672 (2013).
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

Nevertheless, military judges have no current authority to order restitution as a court-martial 

punishment.61 In the military justice system, restitution is available only in the limited ways described 

below. 

B. RESTITUTION MECHANISMS UNDER THE UCMJ AND THEIR CURRENT 

AVAILABILITY TO SEXUAL ASSAULT VICTIMS

1. Restitution in Pretrial Agreements

Rule for Courts-Martial (R.C.M.) 201 provides that “[t]he jurisdiction of courts-martial is entirely 

penal or disciplinary.”62 However, under R.C.M. 705(c)(2)(C), trial counsel—as prosecutors are 

called in the military justice system—may seek, as a term of a pretrial agreement (PTA), the accused’s 

“promise to provide restitution.”63 According to one expert, incorporating an agreement in a PTA is 

the best way under the present system for a victim to get restitution, particularly when its payment 

is required before trial.64 Should the accused fail to pay restitution in accordance with the PTA, he 

or she would receive the sentence as adjudged, because the government would no longer be bound 

to the agreed-to cap.65 Scholarship reviewed by the JPP indicates that military appellate courts have 

consistently enforced restitution provisions in PTAs.66

The Services do not currently track the use of restitution in PTAs: the Navy, Marine Corps, and Coast 

Guard reported to the JPP that they were not aware of its employment in any recent Article 120 case,67

61 See Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM], Rule for Courts-Martial [hereinafter 

R.C.M.] 1003(b). Rule 1003 allows the following authorized punishments: a reprimand, forfeiture of pay and allowances, 

a fine, reduction in pay grade, restriction to specified limits, hard labor without confinement, confinement, a punitive 

separation, and death. Id.

62 MCM, supra note 61, R.C.M. 201(a)(1). The drafters’ discussion of this provision adds: “A court-martial has no power to 

adjudge civil remedies. For example, a court-martial may not adjudge the payment of damages, collect private debts, order 

the return of property, or order a criminal forfeiture of seized property.” Accordingly, one JPP presenter testified before the 

JPP, military judges arguably lack authority to order restitution as part of a pretrial agreement. Transcript of JPP Public 

Meeting 307 (Mar. 13, 2015) (testimony of Major Richard M. Cloninger, U.S. Marine Corps, Regional Victims’ Legal 

Counsel).

63 Transcript of JPP Public Meeting 19–21 (Mar. 13, 2015) (testimony of Colonel John G. Baker, U.S. Marine Corps, Chair, 

Joint Service Committee on Military Justice); see also Transcript of JPP Public Meeting 111–12 (June 18, 2015) (testimony 

of Mr. R. Peter Masterton, Chief, European Tort Claims Division, U.S. Army Claims Service Europe).

64 Lieutenant Colonel David M. Jones, Making the Accused Pay for His Crime: A Proposal to Add Restitution as an 

Authorized Punishment under Rule for Courts-Martial 1003(B), 52 Naval L. Rev. 1, 5 (2005). If the PTA does not require 

restitution to be paid until after trial, additional confinement is triggered by failure to pay. Id. at 6. But to enforce such 

a position, the convening authority must hold a vacation hearing, assuming that enforcement is still possible (i.e., that 

the accused is still confined and that the suspension period has not passed). Id. According to one expert, the convening 

authority may be reluctant to hold such a time-consuming hearing, especially when the accused has paid most of the 

amount prescribed. Id.

65 Transcript of JPP Public Meeting 112 (June 18, 2015) (testimony of Mr. R. Peter Masterton, Chief, European Tort Claims 

Division, U.S. Army Claims Service Europe).

66 Jones, supra note 64, at 5; see, e.g., United States v. Williams, 60 M.J. 360, 363 (C.A.A.F. 2004) (holding that parties’ 

disagreement as to whether PTA required restitution be paid before or after trial can provide basis for government’s 

withdrawal from PTA).

67 Services’ Responses to JPP Request for Information 54(f)(ii) (Nov. 6, 2014). The Army and Air Force reported that they do 

not track the use of restitution provisions in PTAs.
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II. PROVISIONS OF RESTITUTION TO VICTIMS OF OFFENSES COMMITTED BY SERVICE MEMBERS

and all noted that it was most common in cases involving larceny, wrongful appropriation, or fraud.68

Indeed, in practice, restitution is rarely sought for sexual assault victims during pretrial negotiations.69

At the same time, sexual assault victims are made aware that it is available. DD Form 2701, Initial 

Information for Victims and Witnesses of Crime—the short form issued by military criminal 

investigative organizations (MCIOs) to victims—notifies them that restitution “can be used as a 

condition of a pre-trial agreement to plead guilty to an offense.”70 The officer-in-charge of the Marine 

Corps Trial Counsel Assistance Program told the JPP that his Service provides annual training to victim 

assistance personnel and trial counsel on seeking restitution during pretrial negotiations.71

Whether a PTA will include a provision requiring restitution ultimately remains within the discretion 

of the convening authority.72 In the Army, the convening authority is required to consider whether 

to include restitution in a PTA before signing it.73 But there is currently no requirement in any of the 

military Services to seek input from a victim or victim’s counsel regarding a PTA.74 According to one 

practitioner, victims are sometimes not advised of a PTA until after the PTA has been signed.75

Recently, DoD proposed an executive order that would add a provision to the Rules for CourtsMartial requiring that before entering into a PTA, the victim be provided an opportunity to express 

views concerning the PTA terms and conditions, and that the convening authority consider the 

victim’s views.76 Currently, such information may be provided by victims’ legal counsel, including 

special victims’ counsel (SVCs).77 If a victim lacks representation (as may be particularly likely for 

68 Services’ Responses to JPP Request for Information 54(f)(ii) (Nov. 6, 2014). For samples of restitution language as used in 

PTAs, see the Services’ Responses to JPP Request for Information 54(f)(ii)(c) (Nov. 6, 2014).

69 See Transcript of JPP Public Meeting 233 (Mar. 13, 2015) (testimony of Mr. Charles A. Cosgrove, Chief, Programs 

Branch, Criminal Law Division, Office of The Judge Advocate General, U.S. Army); id. (testimony of senior trial counsel 

and SVCs that they had never sought restitution for a sexual assault victim as part of a PTA). One SVC observed that in 

general, PTAs are used less often in military courts than in the civilian system. Transcript of JPP Public Meeting 234–35 

(Mar. 13, 2015) (testimony of Captain Joseph B. Ahlers, U.S. Air Force, Special Victims’ Counsel).

70 Transcript of JPP Public Meeting 193–94 (Mar. 13, 2015) (testimony of Mr. Charles A. Cosgrove, Chief, Programs 

Branch, Criminal Law Division, Office of The Judge Advocate General, U.S. Army). See U.S. Dep’t of Defense, DD 

Form 2701, Initial Information for Victims and Witnesses of Crime (Aug. 2013), contained in DoD’s Response to JPP 

Request for Information 60(a) (Nov. 6, 2014). In the Army, these forms are routinely furnished again by victim assistance 

personnel. Id. (testifying that victim witness liaisons—i.e., paralegals or judge advocates designated to assist victims of 

crime during court-martial—are instructed to distribute Form 2701 “early and often”).

71 Transcript of JPP Public Meeting 198–99 (Mar. 13, 2015) (testimony of Major Mark D. Sameit, U.S. Marine Corps, 

Officer In Charge, Trial Counsel Assistance Program); see also id. at 234 (testifying that Marine Corps victim witness 

liaisons—i.e., paralegals or judge advocates designated to assist victims of crime during the court-martial—use Form 2701 

to brief victims on seeking restitution during pretrial negotiations).

72 Transcript of JPP Public Meeting 305 (Mar. 13, 2015) (testimony of Major Richard M. Cloninger, U.S. Marine Corps, 

Regional Victims’ Legal Counsel).

73 U.S. Dep’t of Army, Reg. 27-10, Military Justice, para. 17-16(c) (Oct. 3, 2011), available at http://www.apd.army.mil/

pdffiles/r27_10.pdf.

74 Transcript of JPP Public Meeting 43 (Mar. 13, 2015) (testimony of Colonel John G. Baker, U.S. Marine Corps, Chair, Joint 

Service Committee on Military Justice).

75 Transcript of JPP Public Meeting 306 (Mar. 13, 2015) (testimony of Major Richard M. Cloninger, U.S. Marine Corps, 

Regional Victims’ Legal Counsel).

76 80 Fed. Reg. 63,204, 63,205 (Oct. 19, 2015) (proposing new R.C.M. 705(d)(3) (Victim consultation)), available at http://

www.gpo.gov/fdsys/pkg/FR-2015-10-19/pdf/2015-26485.pdf; see also Transcript of JPP Public Meeting 38–42 (Mar. 13, 

2015) (testimony of Colonel John G. Baker, U.S. Marine Corps, Chair, Joint Service Committee on Military Justice).

77 According to one practitioner, however, SVCs lack sufficient guidance on the amount of restitution warranted for proper 
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

civilians), the trial counsel is responsible for soliciting such views and conveying them to the convening 

authority.78

This proposed executive order follows the June 2014 Response Systems to Adult Sexual Assault 

Crimes Panel (RSP) recommendation that the Manual for Courts-Martial be modified and appropriate 

regulations implemented to provide victims the right to be heard before the convening authority 

proposes or responds to a PTA offer.79 The JPP urges adoption of this proposal.

2. Restitution in Post-Trial Clemency and Parole

Under Article 60 of the UCMJ, convening authorities have the power to grant clemency to convicted 

Service members—that is, to modify court-martial findings and to reduce a court-martial sentence 

in whole or in part.80 After conviction and sentencing, the military judge may recommend that the 

convening authority disapprove or suspend some portion of punishment imposed if the accused makes 

restitution to the victim within a certain period.81 DD Form 2701 informs victims that restitution “can 

be used . . . as a condition of clemency.”82 However, it does not explain that for restitution to become 

such a condition, the accused must request it and the convening authority must approve it.83

In addition, each military Service administers a system of parole.84 The authority of the Services’ 

clemency and parole boards to grant clemency to an accused who is in confinement is distinct from 

that of a convening authority after trial but before the convicted Service member is confined.85 DoD 

policy requires that clemency and parole boards “shall consider making restitution to the victim a 

condition of granting” clemency and parole.86

compensation of the victim for his or her losses. Transcript of JPP Public Meeting 306–07 (Mar. 13, 2015) (testimony 

of Major Richard M. Cloninger, U.S. Marine Corps, Regional Victims’ Legal Counsel). As directed by the FY14 NDAA, 

the military Services created SVC programs in 2013 for the purpose of providing legal assistance to military victims of 

sexual assault. Victims’ counsel within the Navy and Marine Corps are known as victims’ legal counsel (VLC), but for the 

purposes of this report, “SVC” will be used for victims’ counsel across the Services.

78 Transcript of JPP Public Meeting 38–42 (Mar. 13, 2015) (testimony of Colonel John G. Baker, U.S. Marine Corps, Chair, 

Joint Service Committee on Military Justice). Trial counsel sometimes conveys the victim’s views on the PTA through 

the staff judge advocate rather than directly to the convening authority. Id. at 44. This route can be taken even when the 

victim is represented by an SVC. See Services’ Responses to RSP Request for Information 68 (Nov. 21, 2013).

79 RSP Report, supra note 11, at 29.

80 10 U.S.C. § 860 (UCMJ art. 60).

81 Jones, supra note 64, at 7 & n.33 (collecting case examples); see also United States v. Delagarza, No. 20080891 (A. 

Ct. Crim. App. 2010) (memorandum opinion) (reviewing ineffective assistance of counsel claim where military judge 

had recommended that convening authority approve only 12 of 18 months of adjudged confinement if accused paid full 

restitution).

82 See DoD’s Response to Request for Information 60(a) (Nov. 6, 2014).

83 See Jones, supra note 64, at 8.

84 10 U.S.C. § 952.

85 For more information, see Paula B. McCarron, After the Gavel Falls: An Introduction to the Department of Defense 

Clemency and Parole Process, 27 Fed. Sent’g Rep. 173, 173 (Feb. 2015).

86 U.S. Dep’t of Def., Dir. 1030.1, Victim and Witness Assistance pt. 4.5 (Apr. 23, 2004), quoted in Jones, supra note 64, at 

17 & n.87.
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II. PROVISIONS OF RESTITUTION TO VICTIMS OF OFFENSES COMMITTED BY SERVICE MEMBERS

The Services do not currently track how often restitution is imposed through clemency or parole 

processes or how consistently it is paid.87 The Marine Corps reported that it is unaware of any Article 

120 case in which restitution was included as a condition of parole.88

C. STAKEHOLDER PERSPECTIVES 

Presenters’ testimony and written materials submitted to the JPP made the following observations and 

arguments that favor establishing restitution as an authorized punishment at courts-martial:

• Restitution makes the perpetrator directly accountable to the victim and ensures that the 

perpetrator will recognize that the offense caused personal harm.89 This accountability is 

extremely important to some victims; it is separate from the accused’s accountability for 

violating the law, which is the reason for sentencing the accused to confinement.90 The option 

of seeking restitution enables victims to regain a sense of control.91

• Restitution could be enforced in a variety of ways, such as garnishing the accused’s pay; 

having the government pay restitution by proxy, then recover the money from the accused 

over time; allowing the states to enforce military judges’ restitution orders; and imposing 

contingent confinement or recalling the accused from appellate leave if he or she fails to make 

restitution.92 Of these suggested ways of enforcing restitution, the National Center for Victims 

of Crime endorses restitution by proxy, noting that it would provide immediate relief to the 

victim.93

• Restitution allows victims to spend funds as they choose and to pay for needs that 

compensation mechanisms typically do not cover (e.g., property loss or damage, purchase of 

home security systems, fence installation, job retraining, a guard dog, self-defense courses).94

87 Services’ Responses to JPP Request for Information 54(f)(ii)(a) (Nov. 6, 2014).

88 Marine Corps’ Response to JPP Request for Information 54(f)(ii)(a) (Nov. 6, 2014).

89 Transcript of JPP Public Meeting 271–72 (Mar. 13, 2015) (testimony of Ms. Susan Smith Howley, Director, Public Policy, 

National Center for Victims of Crime); Transcript of JPP Public Meeting 103 (June 18, 2015) (testimony of Mr. R. Peter 

Masterton, Chief, European Tort Claims Division, U.S. Army Claims Service Europe).

90 Transcript of JPP Public Meeting 271–72 (Mar. 13, 2015) (testimony of Ms. Susan Smith Howley, Director, Public Policy, 

National Center for Victims of Crime).

91 Transcript of JPP Public Meeting 281, 340–41 (Mar. 13, 2015) (testimony of Ms. Bridgette Marie Harwood, Director of 

Legal Services, Network for Victim Recovery of DC (NVRDC)).

92 Jones, supra note 64, at 42. If sentenced to a punitive discharge or dismissal, a Service member may be required to take 

appellate leave after the convening authority’s action during appellate review of his or her sentence. See 10 U.S.C. § 876a 

(UCMJ art. 76a).

93 Transcript of JPP Public Meeting 275, 347–49 (Mar. 13, 2015) (testimony of Ms. Susan Smith Howley, Director, Public 

Policy, National Center for Victims of Crime); see also Written Statement of Professor Njeri Mathis Rutledge, South 

Texas College of Law, to JPP 5 (opining that “[t]he ability of a military judge to determine whether restitution should be 

awarded w[ould] increase confidence in the system and the perception of fairness”). For more on the advantages of the 

restitution-by-proxy proposal, and how it might be implemented, see Jones, supra note 64, at 44–50.

94 Transcript of JPP Public Meeting 268–69 (Mar. 13, 2015) (testimony of Ms. Susan Smith Howley, Director, Public Policy, 

National Center for Victims of Crime); NCVLI, supra note 32, at 3.
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

• Restitution would also give the sentencing authority more flexibility, adding an additional 

“tool” to the “toolkit” from which he or she has to choose the most appropriate punishment 

for the individual accused.95

Other presenters’ testimony and written materials submitted to the JPP made observations and 

arguments weighing against establishing restitution as an authorized punishment at courts-martial. 

These included the following:

• In sexual assault cases, the victim is less likely to report, charges are less likely to be filed, and 

the defendant is less likely to be convicted.96 Therefore, restitution is not a reliable remedy for 

sexual assault victims.97

• Enforcement of restitution orders requires standing courts and probation officers, neither of 

which currently exists in the military justice system..98

• Restitution is not a meaningful remedy unless payment is reasonably certain.99 But a conviction 

generally tends to raise barriers to payment—and when the same system that is responsible 

for trying the accused (and punishing that individual, if guilty) is also his or her employer, 

the likelihood of payment is reduced even more.100 Indeed, the accused’s ability to pay might 

be affected, for example, by any automatic or adjudged forfeitures,101 or by the accused’s 

discharge or expiration of term of service while in confinement, resulting in both cases in pay 

being discontinued.102

• Even after being awarded, restitution might conceivably have to be rescinded if a conviction 

were set aside, in which case the accused would be entitled to restoration of all property of 

which the sentence had deprived him or her.103

95 Transcript of JPP Public Meeting 103, 106–07 (June 18, 2015) (testimony of Mr. R. Peter Masterton, Chief, European 

Tort Claims Division, U.S. Army Claims Service Europe).

96 Transcript of JPP Public Meeting 277 (Mar. 13, 2015) (testimony of Ms. Susan Smith Howley, Director, Public Policy, 

National Center for Victims of Crime); accord Goldscheid, supra note 8, at 179–80.

97 Goldscheid, supra note 8, at 179–80 (noting that sexual assault cases are “notorious” for their underreporting, underprosecution, and low conviction rates).

98 Transcript of JPP Public Meeting 355–56 (Mar. 13, 2015) (testimony of Colonel Michael Mulligan, U.S. Army, Chief, 

Criminal Law Division, Office of The Judge Advocate General); id. at 362–63 (testimony of Ms. Teresa P. Scalzo, Deputy 

Director, U.S. Navy Trial Counsel Assistance Program); see also Jones, supra note 64, at 40–41.

99 Transcript of JPP Public Meeting 213–14 (Mar. 13, 2015) (testimony of Lieutenant Commander Patrick K. Korody, U.S. 

Navy, Supervising Attorney, Victims’ Legal Counsel Program); see also Rutledge, supra note 10, at 256 (referring to lack of 

offender resources as “[t]he perennial issue for restitution”); Goldscheid, supra note 8, at 180.

100 See Transcript of JPP Public Meeting 119–20 (June 18, 2015) (testimony of Mr. R. Peter Masterton, Chief, European Tort 

Claims Division, U.S. Army Claims Service Europe).

101 See part III(A), infra.

102 Transcript of JPP Public Meeting 102–03 (June 18, 2015) (testimony of Mr. R. Peter Masterton, Chief, European Tort 

Claims Division, U.S. Army Claims Service Europe); id. at 105, 125–26 (testimony of Ms. Jennifer Riley, Assistant Counsel 

for Military and Civilian Pay, Defense Finance and Accounting Service (DFAS)).

103 Transcript of JPP Public Meeting 109–10 (June 18, 2015) (testimony of Ms. Jennifer Riley, Assistant Counsel for Military 

and Civilian Pay, Defense Finance and Accounting Service (DFAS)); see also MCM, supra note 61, R.C.M. 1208(b) (“[A]

ll rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or 

disapproved by any competent authority shall be restored unless a new trial, other trial, or rehearing is ordered and such 

executed part is included in a sentence imposed at the new trial, other trial, or rehearing.”).
21

II. PROVISIONS OF RESTITUTION TO VICTIMS OF OFFENSES COMMITTED BY SERVICE MEMBERS

• Because sentencing normally immediately follows the guilt phase of the trial, the victim’s losses 

(and the accused’s resources) would have to be disclosed at the outset of the court-martial. 

Such disclosures could open up new avenues of cross-examination that in a close case might be 

decisive.104 Moreover, because there is no presentencing report in the military justice system, 

it might be difficult to gather the appropriate evidence pertaining to restitution in advance of 

findings.105

• The trial counsel—responsible for all witnesses’ travel, all evidence, all subpoenas, even the 

accused’s uniform—is already overburdened. The responsibility to present restitution evidence 

at sentencing would add to this excessive load.106

• Because there are no sentencing guidelines, sentencing authorities—particularly panel 

members—would have very little guidance regarding whether restitution should be awarded 

and, if awarded, how much. The result would be a lack of uniformity.107 Panel members might 

be inclined to give a shorter sentence to increase the probability that the accused would pay 

restitution once released. In addition, panel members might not be educated on how victims 

react to trauma (and thus might not know that seemingly counterintuitive behaviors are quite 

common).108

• The prospect of restitution payments could become fodder for the defense to impeach the 

victim at trial (i.e., as providing a financial motive to lie), especially in light of existing 

stereotypes about women’s readiness to fabricate sexual assault allegations.109 Defense efforts 

to make the victim’s financial circumstances an issue might result in a trial within the trial, 

given the existing liberal rules of discovery.110

104 Transcript of JPP Public Meeting 203 (Mar. 13, 2015) (testimony of Major Mark D. Sameit, U.S. Marine Corps, Officer In 

Charge, Trial Counsel Assistance Program); but see Jones, supra note 64, at 40–41.

105 Transcript of JPP Public Meeting 100–02, 106–07, 116–18 (June 18, 2015) (testimony of Mr. R. Peter Masterton, Chief, 

European Tort Claims Division, U.S. Army Claims Service Europe) (describing typical process in claims cases); but see

Transcript of JPP Public Meeting 240–41 (Mar. 13, 2015) (testimony of Lieutenant Commander Patrick K. Korody, U.S. 

Navy, Supervising Attorney, Victims’ Legal Counsel Program); Jones, supra note 64, at 41.

106 Transcript of JPP Public Meeting 203–04 (Mar. 13, 2015) (testimony of Major Mark D. Sameit, U.S. Marine Corps, 

Officer In Charge, Trial Counsel Assistance Program).

107 Transcript of JPP Public Meeting 99–100, 106–07 (June 18, 2015) (testimony of Mr. R. Peter Masterton, Chief, European 

Tort Claims Division, U.S. Army Claims Service Europe).

108 Transcript of JPP Public Meeting 204–05, 237–38 (Mar. 13, 2015) (testimony of Major Mark D. Sameit, U.S. Marine 

Corps, Officer In Charge, Trial Counsel Assistance Program); id. at 321–22 (testimony of Major Mary Ellen Payne, U.S. 

Air Force, Government Trial and Appellate Counsel Division); but see Jones, supra note 64, at 41–42.

109 Transcript of JPP Public Meeting 320–21 (Mar. 13, 2015) (testimony of Major Mary Ellen Payne, U.S. Air Force, 

Government Trial and Appellate Counsel Division); id. at 301 (testimony of Ms. Teresa P. Scalzo, Deputy Director, U.S. 

Navy Trial Counsel Assistance Program); see also Coast Guard’s Response to JPP Request for Information 56 (Nov. 6, 

2014).

110 Transcript of JPP Public Meeting 320–21 (Mar. 13, 2015) (testimony of Major Mary Ellen Payne, U.S. Air Force, 

Government Trial and Appellate Counsel Division); see also Coast Guard’s Response to JPP Request for Information 56 

(Nov. 6, 2014).
22

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

D. JPP ASSESSMENT AND RECOMMENDATIONS REGARDING RESTITUTION

The Panel recommends that Congress not amend the UCMJ to add restitution as an authorized 

punishment that may be adjudged at courts-martial. However, the Panel makes the following 

observations based on its review:

• The focus of currently available restitution mechanisms in the military justice system—that is, 

the power of the convening authority and parole board to grant the accused’s request to pay 

the victim’s expenses—is on the accused’s ability to negotiate a more favorable sentence, not on 

making the victim whole.

• In general, the powers of military judges have expanded over time. Initially their 

responsibilities were relatively limited, but military judges now have authorities similar to those 

of other federal judges. At the same time, the ability of convening authorities to override the 

findings and sentence of a court-martial has diminished. Allowing military judges to grant and 

enforce restitution to sexual assault victims would another step in this gradual evolution.

• As described above, there are a variety of mechanisms for enforcing restitution. The structure 

used by federal courts to enforce restitution, which allows victim input, could be adopted in 

the Rules for Courts-Martial. 

• Many victims and victims’ advocates strongly urged the Panel to recommend that restitution 

be made available to victims of sexual assault committed by Service members. Much testimony 

emphasized the psychological value to victims that comes from making the perpetrator, rather 

than DoD or another government entity, directly accountable. According to this testimony, 

restitution enables victims to regain a sense of control over their lives. In addition, unlike other 

remedies, restitution allows victims to spend the compensation that they receive as they choose.

In concluding that courts-martial sentencing procedures should not be modified to incorporate 

restitution, the Panel considered the substantial changes to the current system that would be required 

and the relatively few cases in which restitution would be needed. Numerous changes to the UCMJ and 

Manual for Courts-Martial (MCM) would be necessary or advisable in order to add restitution as an 

authorized punishment at courts-martial:

• R.C.M. 201 would require modification to provide for an exception to the nature of courtsmartial jurisdiction, which is now “entirely penal or disciplinary” (R.C.M. 201(a)(1)). 

• R.C.M. 701(a)(5) and R.C.M. 703(c), which require pretrial discovery of evidence and 

information to be presented in findings and sentencing, would require modification to 

introduce a delay so that the government and defense could each present restitution evidence 

and the military judge could resolve any disputes regarding such evidence.

• If sentencing procedures are delayed to allow for discovery or disclosure of restitution 

information from victims, guidance for what to do with the accused (i.e., send back to unit, 

place on excess leave, etc.) and the panel members during the delay must be developed.

• The authority to determine and impose restitution would need to be assigned. Restitution 

could be incorporated as an authorized punishment to be considered by the sentencing 

authority in the court-martial, or the authority could be vested in the military judge in all cases 

(even those in which a panel of members determines the sentence). The act of setting restitution 
23

II. PROVISIONS OF RESTITUTION TO VICTIMS OF OFFENSES COMMITTED BY SERVICE MEMBERS

could also be separated from sentencing, enabling it to remain an independent decision not 

affected by the sentencing authority’s determinations regarding the other forms of punishment.

• Military judges would require guidance to assist the sentencing authority in determining 

(a) whether restitution is appropriate (if it is optional) and, (b) if so, how much should be 

awarded.

• Article 60 would require amendment to establish what authority the convening authority 

would have with regard to adjudged restitution.

• The UCMJ would require amendment to establish a hierarchy of payments for restitution and 

forfeitures. For example, Article 58b could be amended to allow the convening authority to 

waive forfeitures for an additional six months for payment of restitution, following the existing 

six-month waiver that is available for the benefit of the accused’s dependents.

• Guidance providing rules and responsibilities for determining an accused’s payment schedule 

and plan would need to be developed. 

• Restitution would require an enforcement mechanism to ensure payment. The Panel considered 

different options:

promulgate an R.C.M. giving a designated commander the authority to order the 

disbursing officer to garnish the accused’s pay in the amount of restitution ordered;

promulgate an R.C.M. authorizing additional confinement if the accused fails to pay 

restitution;

enact a statute to authorize the Secretary of Defense to pay restitution to victims up front 

and seek reimbursement from the accused afterward;

amend Article 58b to allow the government to take pay and allowances from the accused 

and pay restitution to the victim instead; or

amend the federal restitution statute to allow a victim who has been awarded restitution at 

a court-martial to get a judgment lien against the accused in state court.

• R.C.M. 1208(d) would require amendment to explain whether (and if so, how) restitution 

payments already made would be returned in the event a sentence were set aside.

The Panel concludes that making these substantial changes for the limited purpose of accommodating 

the addition of restitution as an authorized punishment would risk unintended consequences, several 

of which might have far-reaching effects on broader processes of military justice. Given the relatively 

small number of cases in which restitution would be desired, appropriate, and actually obtained, the 

Panel does not believe such risk to be warranted. Moreover, the Panel believes problems that might be 

addressed by making restitution an authorized punishment could be solved equally well or better by 

establishing a new uniform DoD compensation program, as recommended in part V(H), below.

Even without adding it as an authorized punishment at courts-martial, restitution remains a possibility 

in pretrial agreements between the government and the accused. The Panel concludes that this option, 

which is currently available but rarely exploited, could help address victims’ financial losses.
24

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

In order to encourage the use of restitution in pretrial agreements, the Panel recommends the 

following:

• The Army, Air Force, Navy, and Coast Guard should consider following the lead of the Marine 

Corps, which has begun to provide annual training to trial counsel and victim assistance 

personnel on seeking restitution during pretrial negotiations. The Services should also consider 

providing such training to SVCs.

• The President should enact DoD’s proposed executive order to modify the Manual for CourtsMartial and provide victims the right to be heard before the convening authority enters into a 

PTA. 

The Panel also recommends that the Services begin tracking cases in which restitution is included as a 

condition of parole.
25

Directing Court-Martial 

Forfeitures to Victims III.

III. DIRECTING COURT-MARTIAL FORFEITURES TO VICTIMS

A. MECHANICS OF WAIVED AND DEFERRED FORFEITURES UNDER THE 

CURRENT UCMJ

The UCMJ currently includes two articles that allow a convening authority to direct that the 

accused’s dependents receive money that would otherwise be subject to forfeiture. Under Article 57, 

the convening authority may defer forfeitures adjudged at a court-martial, which otherwise become 

effective 14 days after sentencing. Deferral must be requested by the accused, who receives the money 

subject to forfeiture and must transfer it to his or her dependent(s).111

Under Article 58b, the convening authority may waive automatic forfeitures (imposed when the 

sentence includes a punitive discharge or confinement for more than six months) for up to six months 

and direct that the amounts be paid to the accused’s dependent(s). The waiver can be requested at any 

time. Either the accused or the accused’s dependent(s) can request the waiver, or it can be granted on 

the convening authority’s own initiative.112

In practice, waiver and deferral of forfeitures generally enable the accused’s dependents to receive the 

accused’s pay for about 10 months after conviction.113 Waiver of forfeitures is the most common form 

of clemency granted by the convening authority; it generally is included in pretrial agreements in cases 

in which there are dependents.114

B. STAKEHOLDER PERSPECTIVES

Presenter testimony and written materials submitted to the JPP made the following observations and 

arguments, all of which weighed against directing court-martial forfeitures to victims:

• Compensating the victim with forfeited funds is arguably contrary to the purpose of Article 

58b, which is to provide for families, especially children, who are innocent victims of their 

sponsor’s crimes and have no way of providing for themselves. It is money that, in most cases, 

is used to help the family bounce back from the loss of the primary or sole breadwinner, 

covering expenses for a short period during which the accused’s spouse can find a job or other 

means of support. In contrast, a victim who is not the accused’s dependent has not necessarily 

suffered financially as a result of the crimes, may still be drawing full pay from a military or 

civilian job, and may have other sources of compensation.115

111 10 U.S.C. § 957; see also Transcript of JPP Public Meeting 137–38 (June 18, 2015) (testimony of Ms. Jennifer Riley, 

Assistant Counsel for Military and Civilian Pay, Defense Finance and Accounting Service (DFAS)).

112 10 U.S.C. § 958b; see also Transcript of JPP Public Meeting 137–38 (June 18, 2015) (testimony of Ms. Jennifer Riley, 

Assistant Counsel for Military and Civilian Pay, Defense Finance and Accounting Service (DFAS)).

113 Services’ Responses to JPP Request for Information 58(a) (Nov. 6, 2014).

114 Coast Guard’s Response to JPP Request for Information 58(b) (Nov. 6, 2014).

115 Coast Guard’s Response to JPP Request for Information 58(b) (Nov. 6, 2014).
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

• In practice, unless the accused voluntarily requests deferral of automatic forfeitures, 

payments do not begin to be made to dependents until the convening authority takes 

action several months after trial, and these waived forfeitures must be diligently pursued 

by dependents.116 In dependent victim cases, the accused may decide against requesting 

deferral, in order to prevent his or her dependents from receiving any assistance until 

the convening authority acts or until Transitional Compensation for Abused Dependents 

(TCAD; see part V(C)) takes effect.117

• Under Article 58b, payments may not continue for more than six months following the 

convening authority’s action.118

• In the event that the accused’s term of service expires, dependents stop receiving forfeited pay, 

because there is no longer any pay to forfeit.119

• Some victims might be dissatisfied to learn that the money does not come directly from the 

accused.120

• The prospect of waiver of forfeitures frequently motivates an accused to enter into a pretrial 

agreement. For Service members with dependents, requiring that forfeited pay be directed to 

victims rather than dependents could reduce an accused’s willingness to enter into a PTA.121

• If the victim is given the opportunity to receive financial compensation through forfeitures, 

panel members may see it as a motive for the victim to lie. They are particularly likely to make 

this assumption if the victim has financial debts of his or her own at the time of the assault—as 

is often the case, since victims are typically young.122

• Currently, fines and forfeitures adjudged against enlisted personnel and warrant officers are 

the largest source of revenue for the Armed Forces Retirement Home.123 Although the Home 

received $28.2 million in FY14 in fines and forfeitures, this source of the Home’s income has 

been steadily declining since FY09.124

116 Transcript of JPP Public Meeting 208–11, 253–54 (Mar. 13, 2015) (testimony of Lieutenant Commander Patrick K. 

Korody, U.S. Navy, Supervising Attorney, Victims’ Legal Counsel Program).

117 Transcript of JPP Public Meeting 254 (Mar. 13, 2015) (testimony of Lieutenant Commander Patrick K. Korody, U.S. 

Navy, Supervising Attorney, Victims’ Legal Counsel Program).

118 Transcript of JPP Public Meeting 211, 249–50 (Mar. 13, 2015) (testimony of Lieutenant Commander Patrick K. Korody, 

U.S. Navy, Supervising Attorney, Victims’ Legal Counsel Program); id. at 312 (testimony of Major Richard M. Cloninger, 

U.S. Marine Corps, Regional Victims’ Legal Counsel).

119 Transcript of JPP Public Meeting 105–06, 110–11 (June 18, 2015) (testimony of Ms. Jennifer Riley, Assistant Counsel for 

Military and Civilian Pay, Defense Finance and Accounting Service (DFAS)).

120 Transcript of JPP Public Meeting 343–44 (Mar. 13, 2015) (testimony of Ms. Susan Smith Howley, Director, Public Policy, 

National Center for Victims of Crime, and Ms. Teresa P. Scalzo, Deputy Director, U.S. Navy Trial Counsel Assistance 

Program).

121 Coast Guard’s Response to JPP Request for Information 58(b) (Nov. 6, 2014).

122 Coast Guard’s Response to JPP Request for Information 58(b) (Nov. 6, 2014).

123 See Armed Forces Retirement Home, Congressional Budget Justification: Fiscal Year 2016, at 26, available at https://

www.afrh.gov/sites/default/files/AFRH_CBJ_2016.pdf; see also 10 U.S.C. § 2772 (Share of fines and forfeitures to benefit 

Armed Forces Retirement Home); 24 U.S.C. § 419 (Armed Forces Retirement Home Trust Fund).

124 Armed Forces Retirement Home, FY14 Performance and Accountability Report 31, available at https://www.afrh.gov/

sites/default/files/PAR/afrhentirepar14.pdf.
27

III. DIRECTING COURT-MARTIAL FORFEITURES TO VICTIMS

C. JPP ASSESSMENT AND RECOMMENDATIONS REGARDING FORFEITURES

The Panel does not recommend that the forfeited wages of incarcerated members of the Armed Forces 

be directed to pay compensation to victims of sexual assault crimes committed by Service members. 

The Panel recognizes the perspective expressed by some presenters that some victims might experience 

personal satisfaction if they could view the accused as the source of their compensation. However, the 

Panel is concerned that the value of directing forfeited wages to victims would be outweighed by the 

potential harm that could result from the disruption of benefits to current recipients of funds from 

courts-martial forfeitures, including the residents of the Armed Forces Retirement Homes and the 

dependents of incarcerated Service members. 

In addition, such a change might unnecessarily complicate and impede operation of the new uniform 

DoD compensation system recommended by the Panel, which is intended to provide compensation 

for out-of-pocket costs. Under the proposed compensation program described in part V(H) below, 

adjudicators would take into account any alternative source of compensation that victims might receive 

that could be used to cover their losses—such as forfeited wages of the accused that are directed to a 

victim. 
28

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES
29

Article 139 of the UCMJ: 

Redress of Injuries to Property IV.

A. BACKGROUND

Article 139 permits claims to be filed against Service members who wrongfully take or willfully 

damage or destroy the property of others.125 Crime victims—whether military or civilian—can obtain 

reimbursement for up to $10,000 in out-of-pocket expenses resulting from property loss or damage.126

Article 139 claimants must file a report with the offender’s commander within 90 days of the 

incident.127 Within four working days of receiving the claim, an investigating officer or board is 

appointed to investigate it.128 If the offender’s commander finds in favor of the victim—using the 

standard of a preponderance of the evidence—he or she orders the finance office to garnish the 

offender’s wages and pay the victim directly.129

For FY12–FY14, the Services reported the following annual average number of Article 139 claims for 

property damage:

Military Service Article 139 Claims

Army 68

Air Force 2

Navy 0

Marine Corps 0

Coast Guard 0

None of these claims arose from an Article 120 case.130

125 Colonel R. Peter Masterton, U.S. Army, Claims Office Management, 2011-SEP Army Law. 48, 54 (Sept. 2011). See 10 

U.S.C. § 939 (UCMJ art. 139).

126 Transcript of JPP Public Meeting 12 (Mar. 13, 2015) (testimony of Colonel John G. Baker, U.S. Marine Corps, Chair, Joint 

Service Committee on Military Justice); Jones, supra note 64, at 10–11.

127 Transcript of JPP Public Meeting 12 (Mar. 13, 2015) (testimony of Colonel John G. Baker, U.S. Marine Corps, Chair, Joint 

Service Committee on Military Justice); Jones, supra note 64, at 10–11.

128 Transcript of JPP Public Meeting 12 (Mar. 13, 2015) (testimony of Colonel John G. Baker, U.S. Marine Corps, Chair, Joint 

Service Committee on Military Justice); Jones, supra note 64, at 10–11.

129 Transcript of JPP Public Meeting 12 (Mar. 13, 2015) (testimony of Colonel John G. Baker, U.S. Marine Corps, Chair, 

Joint Service Committee on Military Justice); Jones, supra note 64, at 10–11; Masterton, supra note 125, at 54. The article 

also provides: “If the offenders cannot be ascertained, but the organization or detachment to which they belong is known, 

charges totaling the amount of damages assessed and approved may be made in such proportion as may be considered just 

upon the individual members thereof who are shown to have been present at the scene at the time the damages complained 

of were inflicted, as determined by the approved findings of the board.” 10 U.S.C. § 939(b) (UCMJ art. 139(b)).

130 Services’ Responses to JPP Request for Information 59(b) (Nov. 6, 2014); see also Transcript of JPP Public Meeting 

290–91 (Mar. 13, 2015) (testimony of Colonel Michael Mulligan, U.S. Army, Chief, Criminal Law Division, Office of The 

Judge Advocate General) (describing Article 139 claims paid following 2009 Fort Hood shootings).

IV.

Article 

139 of the 

UCMJ: 

Redress of 

Injuries to 

Property
30

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

When asked about the relatively low number of Article 139 claims in most Services, a JPP presenter 

noted that neither commanders nor victims are well-informed about the process. He added that some 

Services have begun to improve Article 139 education and training.131 In particular, the Marine Corps 

now provides annual training to victim-witness liaisons, trial counsel, commanders, and other support 

personnel on options for victim restitution.132

B. SCOPE AND LIMITATIONS

Article 139 expressly excludes bodily injury.133 In the words of one expert, Article 139 “contemplates 

only willful property damage or theft of tangible property, nothing more.”134

Military justice practitioners voiced concern to the JPP that ongoing criminal investigations might 

be hindered if the Article 139 process were expanded to cover bodily injury claims, since Article 139 

investigating officers also are empowered to summon and question witnesses and to receive depositions 

and other documentary evidence.135 A civilian scholar wrote to the JPP that additional research 

would be appropriate to examine the question of whether expanding Article 139 might complicate 

the already-difficult prosecution of sexual assault cases.136 For specific arguments presented to the JPP 

against amending Article 139 to include bodily harm, see part D, below.

A scholarly article reviewed by the JPP noted that funds would generally be available elsewhere 

to satisfy a bodily injury styled as an Article 139 claim, because the offender usually is still being 

paid while the investigation is under way.137 However, the JPP heard testimony that payment would 

not always be assured. A practitioner told the JPP that the Article 139 process sometimes does not 

conclude until after the accused is released from active duty, at which time his or her wages can no 

longer be garnished.138 Likewise, a victim would not receive any money if the offender is in a “no-pay” 

status (e.g., is on excess leave or appellate leave, or has an unauthorized absence).139

131 Transcript of JPP Public Meeting 13–14, 18 (Mar. 13, 2015) (testimony of Colonel John G. Baker, U.S. Marine Corps, 

Chair, Joint Service Committee on Military Justice). In particular, the Marine Corps now provides annual training on 

Article 139 claims. Transcript of JPP Public Meeting 198 (Mar. 13, 2015) (testimony of Major Mark D. Sameit, U.S. 

Marine Corps, Officer In Charge, Trial Counsel Assistance Program).

132 Transcript of JPP Public Meeting 198 (Mar. 13, 2015) (testimony of Major Mark D. Sameit, U.S. Marine Corps, Officer In 

Charge, Trial Counsel Assistance Program).

133 Jones, supra note 64, at 11; Julie Dickerson, A Compensation System for Military Victims of Sexual Assault and 

Harassment, 222 Mil. L. Rev. 211, 225 (Winter 2014).

134 Jones, supra note 64, at 11.

135 Transcript of JPP Public Meeting 12–15 (Mar. 13, 2015) (testimony of Colonel John G. Baker, U.S. Marine Corps, Chair, 

Joint Service Committee on Military Justice); id. at 311 (testimony of Major Richard M. Cloninger, U.S. Marine Corps, 

Regional Victims’ Legal Counsel); see also Coast Guard’s Response to JPP Request for Information 59(c) (Nov. 6, 2014).

136 Written Statement of Professor Njeri Mathis Rutledge, South Texas College of Law, to JPP 5.

137 Jones, supra note 64, at 10–11.

138 Transcript of JPP Public Meeting 310–11 (Mar. 13, 2015) (testimony of Major Richard M. Cloninger, U.S. Marine Corps, 

Regional Victims’ Legal Counsel).

139 Transcript of JPP Public Meeting 310–11 (Mar. 13, 2015) (testimony of Major Richard M. Cloninger, U.S. Marine Corps, 

Regional Victims’ Legal Counsel).
31

IV. ARTICLE 139 OF THE UCMJ: REDRESS OF INJURIES TO PROPERTY

C. ALTERNATIVE MEANS TO SEEK COMPENSATION FOR PERSONAL 

PROPERTY DAMAGE OR LOSS: THE MILITARY PERSONNEL AND CIVILIAN 

EMPLOYEES CLAIMS ACT (PCA)

The Military Personnel and Civilian Employees Claims Act (PCA) enables victims who are Service 

members or DoD employees to file claims against the government for damage to or loss of personal 

property as a consequence of service, including seizure of evidence.140 Victims can be compensated for 

lost items such as cell phones, computers, and clothing141—and, in some cases, for being temporarily 

deprived of such items.142

These compensated losses mainly occur during government-sponsored shipments.143 Sexual assault 

victims can seek compensation from the government under the PCA for loss of personal property 

seized as evidence,144 but they cannot file a PCA claim against an offender for the damage or harm he 

or she has caused.145 The Army and Air Force currently use this mechanism to compensate for seized 

evidence more often than does the Marine Corps, which only recently has begun to train its trial 

counsel on this application of the act.146

D. STAKEHOLDER PERSPECTIVES

Presenters’ testimony and written materials submitted to the JPP made the following observations and 

arguments, all of which weighed against amending Article 139 to include bodily harm:

• Article 139’s (or the Services’) 90-day reporting requirement is not congruent with Article 120 

cases, where reports are sometimes made much later.147

140 E.g., U.S. Dep’t of Army, Reg. 27-20, Claims para. 11-5(k) (Feb. 8, 2008). The PCA does not permit payments to civilian 

victims who are not DoD employees. 31 U.S.C. § 3721; Written Statement of Colonel John G. Baker, U.S. Marine Corps, 

Chair, Joint Service Committee on Military Justice, to JPP para. 4 (Mar. 20, 2015) (clarifying prior testimony at public 

meeting regarding Military Claims Act).

141 Transcript of JPP Public Meeting 218, 248 (Mar. 13, 2015) (testimony of Captain Joseph B. Ahlers, U.S. Air Force, Special 

Victims’ Counsel); id. at 257 (testimony of Lieutenant Commander Patrick K. Korody, U.S. Navy, Supervising Attorney, 

Victims’ Legal Counsel Program).

142 E.g., U.S. Dep’t of Army Reg. 27-20, Claims para. 11-5(k) (Feb. 8, 2008) (“Deprivation of property held as evidence may 

be considered a payable loss when, after taking all circumstances into consideration, the approval authority determines 

that the temporary loss of the property will work a grave hardship on a claimant who is a victim of a crime.”).

143 Masterton, supra note 125, at 50.

144 See U.S. Dep’t of Army Reg. 27-20, Claims para. 11-5 (Claims payable) (Feb. 8, 2008).

145 31 U.S.C. § 3721; Transcript of JPP Public Meeting 248–49 (Mar. 13, 2015) (testimony of Captain Joseph B. Ahlers, U.S. 

Air Force, Special Victims’ Counsel).

146 Transcript of JPP Public Meeting 246–47 (Mar. 13, 2015) (testimony of Major Mark D. Sameit, U.S. Marine Corps, 

Officer In Charge, Trial Counsel Assistance Program).

147 Transcript of JPP Public Meeting 199–200 (Mar. 13, 2015) (testimony of Major Mark D. Sameit, U.S. Marine Corps, 

Officer In Charge, Trial Counsel Assistance Program); id. at 311 (testimony of Major Richard M. Cloninger, U.S. Marine 

Corps, Regional Victims’ Legal Counsel); id. at 331 (testimony of Ms. Teresa P. Scalzo, Deputy Director, U.S. Navy Trial 

Counsel Assistance Program).
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

• If the Article 139 process begins before court-martial proceedings, the act of making the claim 

determination may preclude the commander from making a preferral or referral decision:148

under the Rules for Courts-Martial, an “accuser” is disqualified from convening the accused’s 

court-martial or from referring charges to it.149

• If the Article 139 process were delayed until after court-martial, an enlisted accused would 

already have begun forfeiting allowances and pay, resulting in at least two undesirable secondorder effects. First, the unforfeited pay available would be much less, because the accused 

is often reduced in rank. At the same time, because officers and warrant officers would not 

suffer a similar automatic reduction, the accused’s rank before sentencing would strongly 

influence the outcome, with large disparities between different ranks. Second, the victim might 

experience less satisfaction, since the money would actually be coming from the government 

rather than directly from the accused.150

• Article 139 investigating officers are currently not trained to investigate sexual assault,151 and 

they are not lawyers.152 The present system is relatively efficient and quick.153

• Sexual assault victims might use an expanded Article 139 to seek payment for long-term care, 

pain and suffering, and emotional distress. Commanders are not necessarily equipped to handle 

claims that may resemble complex personal injury suits in civilian jurisdictions.154

• In a meritorious claim for a substantial amount of money, deduction from the offender’s 

paychecks would likely be the only way to satisfy the debt. This method of payment would 

create tension between the need to maintain good order and discipline by promptly discharging 

sexual assault offenders and the need to keep attackers on the payroll in order to ensure that 

victims could be compensated.155

• Expanding Article 139 would increase the risk of false allegations, and the defense would likely 

point to financial motivations to impeach victims’ credibility.156

148 Transcript of JPP Public Meeting 200–01 (Mar. 13, 2015) (testimony of Major Mark D. Sameit, U.S. Marine Corps, 

Officer In Charge, Trial Counsel Assistance Program); Jones, supra note 64, at 12.

149 MCM, supra note 61, R.C.M. 504(c)(1), 601(c).

150 Transcript of JPP Public Meeting 200–02 (Mar. 13, 2015) (testimony of Major Mark D. Sameit, U.S. Marine Corps, 

Officer In Charge, Trial Counsel Assistance Program).

151 Transcript of JPP Public Meeting 200 (Mar. 13, 2015) (testimony of Major Mark D. Sameit, U.S. Marine Corps, Officer In 

Charge, Trial Counsel Assistance Program).

152 Transcript of JPP Public Meeting 332–33 (Mar. 13, 2015) (testimony of Colonel Michael Mulligan, U.S. Army, Chief, 

Criminal Law Division, Office of The Judge Advocate General).

153 Transcript of JPP Public Meeting 332–33 (Mar. 13, 2015) (testimony of Colonel Michael Mulligan, U.S. Army, Chief, 

Criminal Law Division, Office of The Judge Advocate General).

154 Transcript of JPP Public Meeting 208–11, 253–54 (Mar. 13, 2015) (testimony of Lieutenant Commander Patrick K. 

Korody, U.S. Navy, Supervising Attorney, Victims’ Legal Counsel Program); Air Force’s Response to JPP Request for 

Information 59(c) (Nov. 6, 2014).

155 Air Force’s Response to JPP Request for Information 59(c) (Nov. 6, 2014).

156 Air Force’s Response to JPP Request for Information 59(c) (Nov. 6, 2014); but see Written Statement of Professor Njeri 

Mathis Rutledge, South Texas College of Law, to JPP 5 (noting that “[a]ny amount awarded would need to be verifiable 

(similar to [ ] property claims) and limited to the amount of loss caused by the conduct”).
33

IV. ARTICLE 139 OF THE UCMJ: REDRESS OF INJURIES TO PROPERTY

• As the accused currently has very limited due process rights under Article 139, exposing him 

or her to damages not just for property damage, which is fairly easy to ascertain, but also for 

bodily injury could raise constitutional due process concerns.157

E. JPP ASSESSMENT AND RECOMMENDATIONS REGARDING ARTICLE 139

The Panel recommends against amending Article 139 to include claims for “bodily injury.” Asking 

Article 139 investigators to assess physical and mental injury and distress would add an unfair and 

unreasonable burden, since their primary task of reimbursing property loss involves little discretion. 

In addition, the Panel is concerned that an investigation of an Article 139 claim for bodily harm could 

compete or even conflict with any criminal investigation into a sexual assault report. Moreover, the 

Panel believes that the recommended uniform DoD compensation program, as described in part V(H), 

below, would be a better vehicle than Article 139 for recovery of property losses resulting from sexual 

assault.

However, the Panel also recommends that the Army, Air Force, Navy, and Coast Guard follow the 

Marine Corps’ lead in enhancing education and training on the Article 139 process, to make better use 

of this efficient mechanism for investigation and inquiry that is focused on property loss.

157 Army’s Response to JPP Request for Information 59(c) (Nov. 6, 2014); see also Transcript of JPP Public Meeting 92–93 

(Mar. 13, 2015) (testimony of Professor Cortney E. Lollar, University of Kentucky College of Law) (noting constitutional 

implications of transforming Article 139 from a reimbursement statute to a punishment statute).
34

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES
35

Means for Providing Care and V. Compensation to Sexual Assault Victims

A. DOD HEALTH CARE

Health insurance for active duty Service members and their dependents is provided through DoD’s 

TRICARE health care program. These individuals are enrolled without charge, and they pay nothing 

out of pocket for covered health care services from a provider within network or, if they have obtained 

a referral and prior authorization, out of network.158

1. Emergency Care

All sexual assault victims who go to the emergency room of a military treatment facility, whatever their 

TRICARE coverage or eligibility, receive care that “meets or exceeds” the recommendations set forth 

in the Department of Justice (DoJ) National Protocol on Sexual Assault Medical Forensic Examination 

Programs.159 In carrying out the DoJ National Protocol, DoD responds to all cases of sexual assault as 

“priority care emergencies,” regardless of the victim’s demeanor and of evidence of physical injuries.160

Among the components of this priority care are:

• prompt transportation to, and evaluation at, the exam site;

• complete physical assessment, examination, and treatment of injuries, including immediate 

emergency interventions;

• availability of a sexual assault forensic examination (SAFE exam); and 

• consultation regarding “further health care options,” including testing for sexually 

transmitted infections (STIs), prophylactic medications and treatments (including emergency 

contraception), and behavioral health services.161

158 U.S. Dep’t of Def., Defense Health Agency, “TRICARE Choices in the United States: At a Glance” 5 (Aug. 2015), at

http://www.tricare.mil/~/media/Files/TRICARE/Publications/BrochuresFlyers/Choices_Glance_BR.pdf.

159 Transcript of JPP Public Meeting 15 (June 18, 2015) (testimony of Dr. Cara J. Krulewitch, Director, Women’s Health, 

Medical Ethics and Patient Advocacy, Clinical and Policy Programs, Office of the Secretary of Defense); see also U.S. 

Dep’t of Justice, Office on Violence Against Women, A National Protocol For Sexual Assault Medical Forensic

Examinations: Adults/Adolescents (Apr. 2013), available at https://www.ncjrs.gov/pdffiles1/ovw/241903.pdf; U.S. Dep’t

of Def., Dir. 6495.01, Sexual Assault Prevention and Response (SAPR) Program (Jan. 20, 2015) [hereinafter DoDD

6495.01], ¶ 4]; U.S. Dep’t of Def., Instr. 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures

(July 7, 2015) [hereinafter DoDI 6495.02] encl. 7, ¶¶ c, e.

160 Transcript of JPP Public Meeting 15 (June 18, 2015) (testimony of Dr. Cara J. Krulewitch, Director, Women’s Health, 

Medical Ethics and Patient Advocacy, Clinical and Policy Programs, Office of the Secretary of Defense); DoDD 6495.01], 

¶ 4.

161 Transcript of JPP Public Meeting 15 (June 18, 2015) (testimony of Dr. Cara J. Krulewitch, Director, Women’s Health, 

Medical Ethics and Patient Advocacy, Clinical and Policy Programs, Office of the Secretary of Defense); DoDD 6495.01, ¶ 

4; DoDI 6495.02 encl. 7, ¶¶ c, e.

V. Means for Providing Care and Compensation to Sexual Assault Victims
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

DoD policy further requires that the emergency care provided be gender-responsive, culturally and 

linguistically appropriate, and victim-focused.162

2. Additional Care

The type and extent of non-emergency care available depends on the victim’s status.163 A victim 

requiring additional health care services who is not an active duty Service member or dependent is 

referred to civilian providers.164 DoD providers must offer to assess all sexual assault victims for 

risk of pregnancy, exposure to STIs, and behavioral health issues, but any testing or services deemed 

appropriate after this initial consultation does not qualify as emergency care.165

Active duty Service members and their dependents are eligible for additional services that, if deemed 

medically necessary, are covered under the statutorily defined benefits of TRICARE health insurance.166

These benefits include behavioral health medications and two psychotherapy sessions per week.167

Within 60 days of losing TRICARE eligibility, former active duty Service members and their 

dependents may choose to pay to continue coverage similar to the TRICARE Standard option.168

Active duty Service members may purchase temporary coverage for up to 18 months, and dependents 

for up to 36 months.169 As of October 2015, premiums are $1,300 per quarter for individuals and 

$2,925 per quarter for families.170

3. Transition to Veterans Affairs (VA)

DoD collaborates with VA program offices to ensure that military sexual trauma (MST)-specific 

content is part of the mandatory outprocessing (i.e., Transition Assistance Program) completed by 

162 Transcript of JPP Public Meeting 15 (June 18, 2015) (testimony of Dr. Cara J. Krulewitch, Director, Women’s Health, 

Medical Ethics and Patient Advocacy, Clinical and Policy Programs, Office of the Secretary of Defense); DoDD 6495.01, ¶ 

4, Glossary; DoDI 6495.02 encl. 7, ¶ c.

163 Transcript of JPP Public Meeting 15 (June 18, 2015) (testimony of Dr. Cara J. Krulewitch, Director, Women’s Health, 

Medical Ethics and Patient Advocacy, Clinical and Policy Programs, Office of the Secretary of Defense).

164 Transcript of JPP Public Meeting 15 (June 18, 2015) (testimony of Dr. Cara J. Krulewitch, Director, Women’s Health, 

Medical Ethics and Patient Advocacy, Clinical and Policy Programs, Office of the Secretary of Defense); id. at 47–48 

(testimony of Ms. Mary Kaye Justis, Director, TRICARE Health Plan).

165 See Transcript of JPP Public Meeting 15 (June 18, 2015) (testimony of Dr. Cara J. Krulewitch, Director, Women’s Health, 

Medical Ethics and Patient Advocacy, Clinical and Policy Programs, Office of the Secretary of Defense); id. at 53–55 

(testimony of Ms. Mary Kaye Justis, Director, TRICARE Health Plan); DoDD 6495.01, ¶ 4; DoDI 6495.02 encl. 7, ¶¶ c, e.

166 Transcript of JPP Public Meeting 15 (June 18, 2015) (testimony of Dr. Cara J. Krulewitch, Director, Women’s Health, 

Medical Ethics and Patient Advocacy, Clinical and Policy Programs, Office of the Secretary of Defense); id. at 51 

(testimony of Ms. Mary Kaye Justis, Director, TRICARE Health Plan). Retirees are also eligible for TRICARE health care 

services. Id. For eligibility of National Guard and Reserve Component members, see DoDD 6495.01, ¶ 2.a(2).

167 Transcript of JPP Public Meeting 49–50 (June 18, 2015) (testimony of Ms. Mary Kaye Justis, Director, TRICARE Health 

Plan); U.S. Dep’t of Def., Defense Health Agency, “Psychotherapy,” at http://www.tricare.mil/CoveredServices/IsItCovered/

Psychotherapy.aspx.

168 U.S. Dep’t of Def., Defense Health Agency, “Continued Health Care Benefit Program,” at http://www.tricare.mil/chcbp.

169 Transcript of JPP Public Meeting 50–51 (June 18, 2015) (testimony of Ms. Mary Kaye Justis, Director, TRICARE Health 

Plan); see also U.S. Dep’t of Defense, Defense Health Agency, “Continued Health Care Benefit Program,” at http://www.

tricare.mil/chcbp. For more information, see Humana Military, “Continued Health Care Benefit Program” (Oct. 2015), at

http://go.usa.gov/2P5F.

170 Humana Military, “Continued Health Care Benefit Program” (Oct. 2015), at http://go.usa.gov/2P5F.
37

V. MEANS FOR PROVIDING CARE AND COMPENSATION TO SEXUAL ASSAULT VICTIMS

all Service members.171 Each Service’s Sexual Assault Prevention and Response program distributes 

information about the VA’s services to DoD sexual assault response coordinators (SARCs), other staff, 

and Service members.172 Information about the VA’s MST-related health care services is also supplied 

by DoD’s Safe Helpline, which provides live, one-on-one crisis support and offers intervention services, 

emotional support, and information.173

For Service members already receiving mental health care, a joint DoD/VA program called 

“inTransition” ensures continuity as they move from DoD to VA health care systems or providers.174

To make transition of care seamless, personal coaches maintain regular contact by telephone with 

Service members, helping them to locate community resources, support groups, and crisis intervention 

services; a call center is available at all times.175 These personal coaches focus entirely on helping 

Service members to maintain continuity of care: they do not deliver behavioral health care to Service 

members or manage cases.176

Working with the VA, DoD recently introduced a new course to increase Service members’ awareness 

of MST before they return to civilian life.177 During the separation health assessment, VA health care 

providers inform these individuals of the VA benefits that are available for MST-related disabilities, 

emphasizing the importance of reporting any MST incident while in service and of retaining materials 

(e.g., treatment records) that could later be used to help support a disability claim.178

171 SASC Testimony, supra note 14, at 58 (Joint Statement of Dr. Margret E. Bell, Director for Education and Training 

National Military Sexual Trauma Support Team, Department of Veterans Affairs, and Dr. Susan J. McCutcheon, National 

Mental Health Director, Family Services, Women’s Mental Health, and Military Sexual Trauma, Department of Veterans 

Affairs). MST is a term used by the VA but not by DoD. Transcript of JPP Public Meeting 18 (June 18, 2015) (testimony 

of Dr. Stacey Pollack, National Director of Program Policy Implementation, Veterans Health Administration).

172 SASC Testimony, supra note 14, at 58 (Joint Statement of Dr. Margret E. Bell, Director for Education and Training 

National Military Sexual Trauma Support Team, Department of Veterans Affairs, and Dr. Susan J. McCutcheon, National 

Mental Health Director, Family Services, Women’s Mental Health, and Military Sexual Trauma, Department of Veterans 

Affairs).

173 SASC Testimony, supra note 14, at 88–89 (written answers of Dr. Karen S. Guice, Principal Deputy Assistant Secretary of 

Defense for Health Affairs, and Dr. Susan J. McCutcheon, National Mental Health Director, Family Services, Women’s 

Mental Health, and Military Sexual Trauma, Department of Veterans Affairs, to question submitted by Senator Kirsten E. 

Gillibrand (D-NY)).

174 SASC Testimony, supra note 14, at 88–89 (written answer of Dr. Karen S. Guice, Principal Deputy Assistant Secretary of 

Defense for Health Affairs, to question submitted by Senator Kirsten E. Gillibrand (D-NY)).

175 SASC Testimony, supra note 14, at 88–90 (written answers of Dr. Karen S. Guice, Principal Deputy Assistant Secretary of 

Defense for Health Affairs, and Dr. Susan J. McCutcheon, National Mental Health Director, Family Services, Women’s 

Mental Health, and Military Sexual Trauma, to questions submitted by Senator Kirsten E. Gillibrand (D-NY)). For more 

specific information as to how DoD and the VA ensure continuity of care for Service members distinguished by type of 

separation (e.g., retirement, medical discharge, etc.), see id. at 105–06 (written answer of Dr. Karen S. Guice, Principal 

Deputy Assistant Secretary of Defense for Health Affairs, to question submitted by Senator Lindsey Graham (R-SC)).

176 SASC Testimony, supra note 14, at 65 (written answers of Dr. Karen S. Guice, Principal Deputy Assistant Secretary of 

Defense for Health Affairs, Dr. Nathan W. Galbreath, Senior Executive Advisor, Department of Defense Sexual Assault 

Prevention and Response Office, and Ms. Jacqueline Garrick, Director, Department of Defense Suicide Prevention Office).

177 Transcript of JPP Public Meeting 23, 95–96 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of 

Program Policy Implementation, Veterans Health Administration); id. at 97–98 (testimony of Dr. Cara J. Krulewitch, 

Director, Women’s Health, Medical Ethics and Patient Advocacy, Clinical and Policy Programs, Office of the Secretary of 

Defense).

178 Transcript of JPP Public Meeting 23, 64–65 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of 

Program Policy Implementation, Veterans Health Administration); see also U.S. Dep’t of Veterans Affairs, “Information 

for Servicemembers about Military Sexual Trauma” (Dec. 2014) [hereinafter VA MST Separation Handout], available at

http://jpp.whs.mil/Public/docs/03_Topic-Areas/05-Comp_Rest/20150618/21_VA_MST_Separation_Handout.pdf.
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

B. VA HEALTH CARE AND COMPENSATION

VA health care is available to former active duty Service members as well as former members of 

the National Guard and Reserves.179 Veterans of all three types are also all eligible to apply for VA 

compensation benefits.180 However, veterans who received an adverse discharge (other-than-honorable, 

bad-conduct, or dishonorable) may not have access to VA health care and may not be eligible to apply 

for VA benefits.181

1. VA Health Care

According to the National Director of Program Policy Implementation of the Veterans Health 

Administration, in the VA’s national screening program, every veteran who is seen for health care is 

asked whether he or she has experienced MST.182 The VA created the program because many victims 

were reluctant to volunteer information without being asked.183 Each veteran who discloses a past 

incident of assault is given information on MST-related services at the VA and on how to access care.184

The explicit policy of the Veterans Health Administration is “to provide Veterans and eligible 

individuals who report having experienced MST with free care for all physical and mental health 

conditions determined by their VA provider to be related to the experiences of MST.”185 This free 

care for physical and mental health conditions related to MST includes pharmaceutical, inpatient, 

179 Transcript of JPP Public Meeting 40 (June 18, 2015) (testimony of Ms. Stephanie Li, Chief, Regulations and Policy Staff, 

Veterans Benefits Administration). 

180 Transcript of JPP Public Meeting 40 (June 18, 2015) (testimony of Ms. Stephanie Li, Chief, Regulations and Policy Staff, 

Veterans Benefits Administration).

181 Transcript of JPP Public Meeting 42 (June 18, 2015) (testimony of Ms. Stephanie Li, Chief, Regulations and Policy Staff, 

Veterans Benefits Administration). For more information, see Major John W. Brooker, U.S. Army, et al., Beyond “T.B.D.”: 

Understanding VA’s Evaluation of a Former Servicemember’s Benefit Eligibility Following Involuntary or Punitive 

Discharge from the Armed Forces, 214 Mil. L. Rev. 1, App. H (Winter 2014).

182 Transcript of JPP Public Meeting 19–20 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of Program 

Policy Implementation, Veterans Health Administration); VA MST Fact Sheet, supra note 14. MST is statutorily defined 

as “[p]sychological trauma, which in the judgment of a mental health professional employed by the Department, resulted 

from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment which occurred while the 

veteran was serving on active duty, active duty for training, or inactive duty training.” 38 U.S.C. § 1720D(a)(1); accord

Transcript of JPP Public Meeting 18, 20 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of Program 

Policy Implementation, Veterans Health Administration); VA MST Fact Sheet, supra note 14. In accordance with the 

VA’s interpretation of the definition, MST can arise from sexual harassment, including threatening or offensive remarks 

about a person’s body or sexual activities, or threatening or unwanted sexual advances. VA MST Fact Sheet, supra note 

14; Transcript of JPP Public Meeting 19 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of Program 

Policy Implementation, Veterans Health Administration); VA MST Separation Handout 1, supra note 178.

183 Transcript of JPP Public Meeting 18, 20 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of Program 

Policy Implementation, Veterans Health Administration); VA MST Fact Sheet, supra note 14; see also RSP Report, 

supra note 11, at 59 (noting that compared to reporting rates for other forms of violent crime, victims of sexual assault 

chronically underreport).

184 Transcript of JPP Public Meeting 20 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of Program 

Policy Implementation, Veterans Health Administration); SASC Testimony, supra note 14, at 83–84 (written answers of 

Dr. Susan J. McCutcheon, National Mental Health Director, Family Services, Women’s Mental Health, and Military Sexual 

Trauma, Department of Veterans Affairs, to questions submitted by Senator Kirsten E. Gillibrand (D-NY)) (describing 

other ways in which VA informs veterans of availability of MST-related services).

185 U.S. Dep’t of Veterans Affairs, VHA Dir. 2010-033, Military Sexual Trauma (MST) Programming para. 2a (July 14, 

2010), quoted in Brooker, et al., supra note 181, at 101.
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V. MEANS FOR PROVIDING CARE AND COMPENSATION TO SEXUAL ASSAULT VICTIMS

and residential mental and physical treatment, whatever the patient’s income or length of service.186

It is provided regardless of veterans’ eligibility for VA benefits (i.e., monthly compensation)—that is, 

whether or not they are able to meet any of the three requirements described in section B(2), below.187

Notably, veterans need not have reported an incident of sexual assault (or harassment) while on active 

duty to receive free treatment at the VA for MST-related conditions.188

Every VA health care facility offers MST-related services and has providers knowledgeable about 

treatment of MST symptoms.189 Available services include:

• formal psychological assessment and evaluation;

• psychiatric treatment; and

• individual and group psychotherapy.190

Veterans may specify the desired gender of their provider.191 For MST-related PTSD, which is the most 

common MST-related condition (as described below), all VA health care facilities provide cognitive 

processing therapy and prolonged exposure, two approaches for treating PTSD that are widely 

considered to be effective.192 Every VA health care facility also has an MST coordinator, who serves 

as a point of contact for MST-related issues and helps veterans locate and access MST services and 

186 Transcript of JPP Public Meeting 20–21 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of Program 

Policy Implementation, Veterans Health Administration); VA MST Fact Sheet, supra note 14; U.S. Dep’t of Veterans 

Affairs, “Quick Facts About VA’s Health Care Services for Military Sexual Trauma (MST)” (Apr. 2015) [hereinafter VA 

Quick Facts on MST Services], available at http://www.mentalhealth.va.gov/docs/VAHCS_MST_April2015.pdf. The VA 

interprets the statutory definition of MST very broadly. See Brooker, supra note 181, at 101–02 (noting that certain former 

Service members lacking veteran status may be eligible for VA healthcare for MST-related conditions).

187 Transcript of JPP Public Meeting 21, 37–38, 43–44, 78–79 (June 18, 2015) (testimony of Dr. Stacey Pollack, National 

Director of Program Policy Implementation, Veterans Health Administration); VA MST Fact Sheet, supra note 14.

188 Transcript of JPP Public Meeting 21 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of Program 

Policy Implementation, Veterans Health Administration); VA MST Fact Sheet, supra note 14. In many cases, as explained 

below, veterans who have experienced MST can also receive benefits even though they did not report the sexual assault 

while on active duty.

189 VA MST Separation Handout, supra note 178; VA Quick Facts on MST Services, supra note 186.

190 VA Quick Facts on MST Services, supra note 186.

191 Transcript of JPP Public Meeting 76–77 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of Program 

Policy Implementation, Veterans Health Administration); VA MST Separation Handout, supra note 178.

192 Transcript of JPP Public Meeting 20 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of Program 

Policy Implementation, Veterans Health Administration); SASC Testimony, supra note 14, at 55–56 (testimony of Dr. 

Margret E. Bell, Director for Education and Training National Military Sexual Trauma Support Team, Department of 

Veterans Affairs); id. at 104–05 (written answers of Dr. Susan J. McCutcheon, National Mental Health Director, Family 

Services, Women’s Mental Health, and Military Sexual Trauma, Department of Veterans Affairs, to questions submitted by 

Senator Lindsey Graham (R-SC)). The VA also has residential and inpatient mental health programs available to veterans 

in need of more intensive treatment and support. VA MST Separation Handout, supra note 178, at 3; VA Quick Facts on 

MST Services, supra note 186.
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

programs provided by the VA.193 In fiscal year 2013, the VA provided MST-related health care to 

93,439 veterans.194

2. VA Disability Compensation

VA disability compensation—that is, a monthly benefit check—is available to those veterans who 

have experienced MST whose claims satisfy clearly defined criteria: (1) they have a current physical or 

mental condition that is disabling; (2) they experienced MST during their military service; and (3) a 

link exists between the current disability and the MST.195 However, veterans who seek compensation 

benefits need not wait for the outcome of their claim before receiving medical or mental health 

treatment, as described above, for any disability or condition that requires it.196

The disability associated with MST for which the VA most frequently provides benefits is PTSD.197

In PTSD cases, in order to find that MST occurred, the VA looks for “markers”—that is, indirect or 

circumstantial evidence contemporaneous with the alleged incident of sexual assault (or harassment).198

Examples of markers include a worsening of duty performance; a request for transfer to another 

unit; seeking health care (physical or mental); testing for pregnancy or STIs; statements from family 

members, fellow Service members, clergy, or counselors; and even diary entries.199

If at least one marker is found, the claim proceeds to a VA mental health professional who determines 

whether, in his or her professional opinion, the marker or markers—together with the claimant’s 

statement and physical examination—show a service-connected compensable injury.200 An adjudicator 

193 Transcript of JPP Public Meeting 20 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of Program 

Policy Implementation, Veterans Health Administration); MST VA Fact Sheet, supra note 14. For more information on 

the responsibilities of MST coordinators, see SASC Testimony, supra note 14, at 81–82 (written answers of Dr. Susan J. 

McCutcheon, National Mental Health Director, Family Services, Women’s Mental Health, and Military Sexual Trauma, 

Department of Veterans Affairs, to questions submitted by Senator Kirsten E. Gillibrand (D-NY)).

194 SASC Testimony, supra note 14, at 56 (Joint Statement of Margret E. Bell, Ph.D., Director for Education and Training 

National Military Sexual Trauma Support Team, Department of Veterans Affairs, and Dr. Susan J. McCutcheon, National 

Mental Health Director, Family Services, Women’s Mental Health, and Military Sexual Trauma, Department of Veterans 

Affairs).

195 Transcript of JPP Public Meeting 21–22 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of Program 

Policy Implementation, Veterans Health Administration); id. at 61 (testimony of Ms. Stephanie Li, Chief, Regulations and 

Policy Staff, Veterans Benefits Administration); VA MST Separation Handout, supra note 178, at 2.

196 Transcript of JPP Public Meeting 37–39 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of Program 

Policy Implementation, Veterans Health Administration, and Ms. Stephanie Li, Chief, Regulations and Policy Staff, 

Veterans Benefits Administration); id. at 43–44) (testimony of Dr. Stacey Pollack, National Director of Program Policy 

Implementation, Veterans Health Administration) (noting that veterans can receive VA health care without ever having to 

apply for VA compensation benefits).

197 Transcript of JPP Public Meeting 22 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of Program 

Policy Implementation, Veterans Health Administration); id. at 61–62 (noting that over 90% of MST benefits claims are 

based on PTSD).

198 Transcript of JPP Public Meeting 22 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of Program 

Policy Implementation, Veterans Health Administration); id. at 31–32, 82–83 (testimony of Ms. Stephanie Li, Chief, 

Regulations and Policy Staff, Veterans Benefits Administration); id. at 34–35 (testimony of Ms. Diana M. Williard, Quality 

Assurance Officer, Compensation Service, Veterans Benefits Administration).

199 Transcript of JPP Public Meeting 22 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of Program 

Policy Implementation, Veterans Health Administration); id. at 35 (testimony of Ms. Diana M. Williard, Quality 

Assurance Officer, Compensation Service, Veterans Benefits Administration); VA MST Separation Handout, supra note

178, at 2.

200 Transcript of JPP Public Meeting 32, 82 (June 18, 2015) (testimony of Ms. Stephanie Li, Chief, Regulations and Policy 
41

V. MEANS FOR PROVIDING CARE AND COMPENSATION TO SEXUAL ASSAULT VICTIMS

ultimately denies or approves the claim and, if it is approved, assigns a percentage rating based on the 

severity of the disability.201

VA presenters told the JPP that in order to improve the grant rate for MST-related PTSD claims, in 

2011 VA health care providers and claim adjudicators began receiving extensive training on how to 

identify markers.202 Within six months of launching this training, the grant rate for such benefits claims 

increased from 34% to 55%.203 Since 2011, the annual grant rate for MST-related PTSD claims has 

remained within five percentage points of the grant rate for combat-related PTSD claims.204 Currently, 

the VA is conducting a de novo review of claims denied before December 2011 to determine whether 

adjudicators who had not been retrained overlooked existing markers of service-connected MSTrelated PTSD.205

For claims seeking benefits for mental disabilities and conditions other than PTSD that are related to 

MST, including depression and anxiety, the VA does not use markers to determine eligibility.206 Instead, 

it requires direct evidence that the injury or disability began or worsened during the veteran’s service.207

The Ruth Moore Act of 2015 proposes to ease the burden of proof for claimants seeking disability 

compensation for MST-related conditions.208 The House version of the bill was passed in July 2015; the 

Senate version was referred to its Committee on Veterans’ Affairs in March 2015.209

Staff, Veterans Benefits Administration).

201 U.S. Government Accountability Office (GAO), Military Sexual Trauma: Improvements Made, But VA Can Do More

to Track and Improve the Consistency of Disability Claim Decisions 18 (June 2014) [hereinafter GAO Report] (providing 

visual overview of process for adjudicating MST-related claims).

202 Transcript of JPP Public Meeting 33 (June 18, 2015) (testimony of Ms. Stephanie Li, Chief, Regulations and Policy 

Staff, Veterans Benefits Administration); id. at 23 (testimony of Dr. Stacey Pollack, National Director of Program Policy 

Implementation, Veterans Health Administration). For details of this training, see GAO Report, supra note 201, at 10–11, 

and Invisible Wounds: Examining the Disability Compensation Benefits Process for Victims of Military Sexual Trauma: 

Hearing Before the Subcommittee on Disability Assistance and Memorial Affairs of the House Committee on Veterans’ 

Affairs, 112th Cong. 1, 37–38 (2012) (testimony of Mr. Thomas Murphy, Director, Compensation and Pension Service, 

Department of Veterans Affairs).

203 Transcript of JPP Public Meeting 33 (June 18, 2015) (testimony of Ms. Stephanie Li, Chief, Regulations and Policy Staff, 

Veterans Benefits Administration); SASC Testimony, supra note 14, at 91 (written answer of Dr. Karen S. Guice, Principal 

Deputy Assistant Secretary of Defense for Health Affairs, and Dr. Susan J. McCutcheon, National Mental Health Director, 

Family Services, Women’s Mental Health, and Military Sexual Trauma, Department of Veterans Affairs, to question 

submitted by Senator Kirsten E. Gillibrand (D-NY)); see also GAO Report, supra note 201, at 13–14.

204 Transcript of JPP Public Meeting 33 (June 18, 2015) (testimony of Ms. Stephanie Li, Chief, Regulations and Policy 

Staff, Veterans Benefits Administration); id. at 23 (testimony of Dr. Stacey Pollack, National Director of Program Policy 

Implementation, Veterans Health Administration).

205 Transcript of JPP Public Meeting 88–89 (June 18, 2015) (testimony of Ms. Stephanie Li, Chief, Regulations and Policy 

Staff, Veterans Benefits Administration); U.S. Dep’t of Veterans Affairs, “Disability Compensation for Conditions 

Related to Military Sexual Trauma (MST)” (Apr. 2015), available at http://www.benefits.va.gov/BENEFITS/factsheets/

serviceconnected/MST.pdf. For more information, see GAO Report, supra note 201, at 12, 19–21 (finding that, and 

explaining why, many veterans eligible for de novo review are not resubmitting claims).

206 Transcript of JPP Public Meeting 61–62 (June 18, 2015) (testimony of Ms. Stephanie Li, Chief, Regulations and Policy 

Staff, Veterans Benefits Administration).

207 Transcript of JPP Public Meeting 62 (June 18, 2015) (testimony of Ms. Stephanie Li, Chief, Regulations and Policy Staff, 

Veterans Benefits Administration); VA MST Separation Handout, supra note 178, at 2. For more information, see GAO 

Report, supra note 201, at 23–24.

208 See H.R. 1607, 114th Cong., Ruth Moore Act of 2015 (2015); S. 865, 114th Cong., Ruth Moore Act of 2015 (2015).

209 Congress.gov, “H.R. 1607—Ruth Moore Act of 2015,” at https://www.congress.gov/bill/114th-congress/house-bill/1607; 

Congress.gov, “S. 865—Ruth Moore Act of 2015,” at https://www.congress.gov/bill/114th-congress/senate-bill/865/

related-bills.
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

From the initial filing to determination of benefits, the average MST claim takes nearly 300 days to 

process, although some go through in as few as 125 days.210 A veteran remains eligible to receive VA 

medical or mental health treatment for any MST-related disability irrespective of whether he or she 

filed or received benefits for a claim.211

If a claim is denied, the claimant has one year to appeal.212 At any time after an appeal is denied or 

withdrawn, a claimant can reopen his or her claim by producing new and material evidence.213 Given 

new evidence, there is no limit to the number of times that the claim can be reopened.214

C. TRANSITIONAL COMPENSATION FOR ABUSED DEPENDENTS (TCAD)

1. Background

Transitional Compensation for Abused Dependents (TCAD) is intended to help ease physically or 

sexually abused dependents’ unexpected transition from military to civilian life.215 The program 

provides support for up to 36 months in cases in which the dependents’ sponsor separated from the 

military—either administratively or punitively—because of the abuse.216 TCAD payments are fixed 

amounts; they increase slightly each December and are currently $1,254 to the spouse and $311 per 

child per month.217

TCAD does not require a showing of economic harm—it is directed toward dependents, not victims—

and is not paid by the accused.218 Thus, TCAD is interim support for victims of domestic abuse, not 

210 Transcript of JPP Public Meeting 32, 92 (June 18, 2015) (testimony of Ms. Diana M. Williard, Quality Assurance Officer, 

Compensation Service, Veterans Benefits Administration).

211 Transcript of JPP Public Meeting 37–39 (June 18, 2015) (testimony of Dr. Stacey Pollack, National Director of Program 

Policy Implementation, Veterans Health Administration, and Ms. Stephanie Li, Chief, Regulations and Policy Staff, 

Veterans Benefits Administration).

212 Transcript of JPP Public Meeting 86 (June 18, 2015) (testimony of Ms. Stephanie Li, Chief, Regulations and Policy Staff, 

Veterans Benefits Administration) (describing appeals process in detail).

213 Transcript of JPP Public Meeting 87 (June 18, 2015) (testimony of Ms. Stephanie Li, Chief, Regulations and Policy Staff, 

Veterans Benefits Administration).

214 Transcript of JPP Public Meeting 87 (June 18, 2015) (testimony of Ms. Stephanie Li, Chief, Regulations and Policy Staff, 

Veterans Benefits Administration).

215 U.S. Dep’t of Def., Instr. 1342.24, Transitional Compensation for Abused Dependents para. 3.1 (Jan. 16, 1997), available 

at http://www.cac.mil/docs/DODI-1342.24.pdf; Army’s Response to JPP Request for Information 54(a) (Nov. 6, 2014).

216 U.S. Dep’t of Def., Instr. 1342.24, Transitional Compensation for Abused Dependents para. 6.2.1 (Jan. 16, 1997); see 

also Jones, supra note 64, at 13 (citing 10 U.S.C. § 1059).

217 U.S. Dep’t of Def., Financial Management Reg. 7000.14-R, vol. 7B, ch. 60, at 8–9 (Feb. 2015), available at http://

comptroller.defense.gov/Portals/45/documents/fmr/Combined_Volume1-15.pdf.

218 Transcript of JPP Public Meeting 223 (Mar. 13, 2015) (testimony of Captain Joseph B. Ahlers, U.S. Air Force, Special 

Victims’ Counsel); id. at 253 (testimony of Lieutenant Commander Patrick K. Korody, U.S. Navy, Supervising Attorney, 

Victims’ Legal Counsel Program); id. at 307–08 (testimony of Major Richard M. Cloninger, U.S. Marine Corps, Regional 

Victims’ Legal Counsel); Jones, supra note 64, at 13.
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V. MEANS FOR PROVIDING CARE AND COMPENSATION TO SEXUAL ASSAULT VICTIMS

a restitution scheme.219 The duration of compensation depends on the amount of time left on the 

accused’s service contract.220 Typically, TCAD payments last for 12 to 24 months.221

The JPP received information from the Army and the Marine Corps on TCAD training. In those two 

Services, victim witness liaisons (i.e., paralegals or judge advocates designated to assist victims of crime 

during the court-martial) are trained on TCAD annually.222

2. Limitations

Presenters’ testimony and written materials submitted to the JPP identified various obstacles to and 

weaknesses of TCAD:

• TCAD is not triggered unless and until the offender is convicted at court-martial or 

administratively separated for a qualifying domestic abuse offense. Article 15 nonjudicial 

punishment does not trigger TCAD.223

• TCAD is subject to various requirements, including that the dependent spouse may not reside 

with the accused and did not participate in the abuse.224

• In practice, according to several practitioners who testified before the JPP, dependents must 

diligently pursue TCAD, and it takes several months for them to receive the first payment.225

This delay is significant, since early compensation is what matters most to victims, particularly 

in domestic cases.226

• According to one expert, the availability of TCAD “undoubtedly makes it easier for [trial 

counsel] to convince reluctant spouses to testify against their abusers” but “does nothing . . . 

to alleviate the economic impact felt by the majority of victims harmed by military members’ 

219 Jones, supra note 64, at 13.

220 U.S. Dep’t of Def., Instr. 1342.24, Transitional Compensation for Abused Dependents para. 6.2.1 (Jan. 16, 1997); see 

also Transcript of JPP Public Meeting 30–31 (Mar. 13, 2015) (testimony of Colonel John G. Baker, U.S. Marine Corps, 

Chair, Joint Service Committee on Military Justice).

221 Transcript of JPP Public Meeting 308–09 (Mar. 13, 2015) (testimony of Major Richard M. Cloninger, U.S. Marine Corps, 

Regional Victims’ Legal Counsel).

222 Transcript of JPP Public Meeting 191–92 (Mar. 13, 2015) (testimony of Mr. Charles A. Cosgrove, Chief, Programs 

Branch, Criminal Law Division, Office of The Judge Advocate General, U.S. Army); id. at 198 (testimony of Major Mark 

D. Sameit, U.S. Marine Corps, Officer In Charge, Trial Counsel Assistance Program).

223 Transcript of JPP Public Meeting 308 (Mar. 13, 2015) (testimony of Major Richard M. Cloninger, U.S. Marine 

Corps, Regional Victims’ Legal Counsel); Written Statement of Mr. Gene McCleskey, Director, Texas Crime Victims’ 

Compensation Program, to JPP 1 (submitted Mar. 11, 2015). Article 15 of the UCMJ allows commanders to impose 

disciplinary punishments for minor offenses without a court-martial.

224 Transcript of JPP Public Meeting 30–31 (Mar. 13, 2015) (testimony of Colonel John G. Baker, U.S. Marine Corps, Chair, 

Joint Service Committee on Military Justice).

225 Transcript of JPP Public Meeting 208–09 (Mar. 13, 2015) (testimony of Lieutenant Commander Patrick K. Korody, U.S. 

Navy, Supervising Attorney, Victims’ Legal Counsel Program); id. at 309 (testimony of Major Richard M. Cloninger, U.S. 

Marine Corps, Regional Victims’ Legal Counsel); see also Written Statement of Professor Njeri Mathis Rutledge, South 

Texas College of Law, to JPP 2.

226 Transcript of JPP Public Meeting 309–10 (Mar. 13, 2015) (testimony of Major Richard M. Cloninger, U.S. Marine Corps, 

Regional Victims’ Legal Counsel).
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

criminal behavior.”227 One SVC testified before the Panel that in practice, dependent victims 

often remain “in a complex bind of whether to report the crime [and] be cut off from the 

offending service member, or simply stay silent.”228

D. STATE CRIME VICTIM COMPENSATION (CVC) PROGRAMS

1. Background

State crime victim compensation (CVC) programs provide financial assistance to victims, including 

military victims, for crimes that occur in a state’s jurisdiction.229 All 50 states, as well as Puerto Rico 

and the U.S. Virgin Islands, operate them.230 Forty-two programs, including those of D.C. and Puerto 

Rico, are funded primarily from state criminal court fees and fines, and 11 programs are funded 

primarily by legislative appropriations from general revenue.231 In all states, the rest of the funding—

about $150 million per year—comes from federal sources such as the Crime Victims Fund established 

by the Victims of Crime Act of 1984 (VOCA).232 The Crime Victims Fund also funds the International 

Terrorism Victim Expense Reimbursement Program (ITVERP), the sole federal CVC program, which 

provides compensation to U.S. victims of acts of international terrorism.233

227 Jones, supra note 64, at 13.

228 Transcript of JPP Public Meeting 223 (Mar. 13, 2015) (testimony of Captain Joseph B. Ahlers, U.S. Air Force, Special 

Victims’ Counsel) (adding, “[t]hat is a choice no victim should have to make”).

229 National Association of Crime Victim Compensation Boards (NACVCB), “Compensation for Crime Victims” [hereinafter 

NACVCB Brochure], available at http://www.nacvcb.org/NACVCB/files/ccLibraryFiles/Filename/000000000120/

BrochureCVC1.pdf ; NACVCB, “Crime Victim Compensation: Resources for Recovery” [hereinafter NACVCB, 

“Resources for Recovery”], available at http://www.nacvcb.org/NACVCB/files/ccLibraryFiles/Filename/000000000243/

Fact%20sheet2014.doc; see also Written Statement of Mr. Gene McCleskey, Director, Texas Crime Victims’ Compensation 

Program, to JPP 1 (submitted Mar. 11, 2015).

230 NACVCB Brochure, supra note 229; NACVCB, “Resources for Recovery,” supra note 229; Transcript of JPP Public 

Meeting 127–28 (Mar. 13, 2015) (testimony of Mr. Dan Eddy, Executive Director, National Association of Crime Victim 

Compensation Boards).

231 NACVCB, “Compensation Funding Sources,” available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/05-Comp_

Rest/20150918/08_NACVCB_CompFundingSources_Info.pdf (detailing funding of each program).

232 Id.; Transcript of JPP Public Meeting 128, 135 (Mar. 13, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards); see also id. at 137 (testimony of Ms. Laura Banks Reed, Director, 

D.C. Superior Court Crime Victims Compensation Program); id. at 146 (testimony of Mr. Gene McCleskey, Director, 

Texas Crime Victims’ Compensation Program); Written Statement of Mr. Gene McCleskey, Director, Texas Crime Victims’ 

Compensation Program, to JPP (submitted Mar. 11, 2015). Like the state funding of CVC programs, federal funding 

mostly comes from offender fines and penalties. Goldscheid, supra note 8, at 187; Written Statement of Mr. Dan Eddy, 

Executive Director, NACVCB, to JPP 3 (June 18, 2015). Consequently, the funding level of CVC programs varies from 

year to year depending on the amount of fines collected from defendants. Id. For more information about how funding is 

calculated annually, see 66 Fed. Reg. 27158–65; U.S. Dep’t of Justice, Office for Victims of Crime, “OVC Fact Sheet,” at 

http://ojp.gov/ovc/pubs/crimevictimsfundfs/intro.html.

233 Transcript of JPP Public Meeting 128 (Mar. 13, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards); Judicial Proceedings Panel, “JPP Staff Minutes of 2015 VOCA 

National Training Conference” 3 (Aug. 24–27, 2015) [hereinafter “JPP Staff VOCA Conference Minutes”], at http://jpp.

whs.mil/Public/docs/03_Topic-Areas/05-Comp_Rest/20150918/02_Minutes_Compensation_Conference.pdf.
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V. MEANS FOR PROVIDING CARE AND COMPENSATION TO SEXUAL ASSAULT VICTIMS

State CVC programs are considered payers of last resort, in that they cover certain expenses not paid 

for by insurance or another program,234 or by restitution (if collected).235 As one scholar observed, “for 

a victim whose offender is never captured, is never convicted, or is unable to pay, CVC funds may be 

that victim’s only source of compensation.”236

CVC programs have limited public resources and are generally designed to be safety nets to help 

victims get through the initial trauma of a crime; they are not intended to provide long-term aid.237 All 

U.S. CVC programs—including all state programs and ITVERP, the sole federal program—cover both 

medical and mental health care as well as lost wages.238 But property loss or damage usually is not 

covered, except for medically necessary devices like eyeglasses.239

Currently, compensation for pain and suffering is available in only one state, Tennessee, which awards 

up to $3,000 (as determined by claim adjudicators).240 Although Rhode Island’s CVC program 

initially offered up to $25,000 to address pain and suffering, that benefit was discontinued after about 

two decades, because it led to a severe claim backlog and bankrupted the program.241 Delaware’s 

compensation for pain and suffering was similarly suspended after that program, too, failed.242

Compensation for pain and suffering is not available from ITVERP.243

Hawaii’s program takes a unique approach to pain and suffering: it offers $800 to recognize the 

claimant’s victimization.244 This “acknowledgment award” is “symbolic in nature” and “not intended 

to quantify physical and/or emotional losses suffered as the result of a crime.”245

234 NACVCB Brochure, supra note 229; NACVCB, “Resources for Recovery,” supra note 229; see also Written Statement 

of Mr. Gene McCleskey, Director, Texas Crime Victims’ Compensation Program, to JPP 1 (submitted Mar. 11, 2015); 

Goldscheid, supra note 8, at 190. 

235 Transcript of JPP Public Meeting 187–90 (June 18, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards).

236 Rutledge, supra note 10, at 259–60.

237 Transcript of JPP Public Meeting 182–83 (Mar. 13, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards).

238 Transcript of JPP Public Meeting 202 (June 18, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards); Judicial Proceedings Panel, “JPP Staff VOCA Conference Minutes,” 

supra note 233, at 3.

239 NACVCB Brochure, supra note 229; NACVCB, “Resources for Recovery,” supra note 229; see also Transcript of JPP 

Public Meeting 180 (Mar. 13, 2015) (testimony of Mr. Gene McCleskey, Director, Texas Crime Victims’ Compensation 

Program).

240 Written Statement of Mr. Dan Eddy, Executive Director, National Association of Crime Victim Compensation Boards, to 

JPP 4 (June 18, 2015).

241 Written Statement of Mr. Dan Eddy, Executive Director, National Association of Crime Victim Compensation Boards, to 

JPP 3 (June 18, 2015); Transcript of JPP Public Meeting 184–85 (June 18, 2015) (testimony of Mr. Dan Eddy, Executive 

Director, NACVCB).

242 Written Statement of Mr. Dan Eddy, Executive Director, National Association of Crime Victim Compensation Boards, to 

JPP 3 (June 18, 2015).

243 Judicial Proceedings Panel, “JPP Staff VOCA Conference Minutes,” supra note 233, at 3.

244 Written Statement of Mr. Dan Eddy, Executive Director, National Association of Crime Victim Compensation Boards, to 

JPP 3–4 (June 18, 2015).

245 State of Hawaii Crime Victim Compensation Commission, “Benefits,” at http://dps.hawaii.gov/cvcc/benefits/.
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

Coverage among the various state CVC programs varies significantly.246 Overall caps range from 

$100,000 in Nevada to $6,000 in Puerto Rico, while New York has no limit on compensation for 

medical costs.247 The most common maximum reimbursable amount is $25,000.248 About one-third 

to one-half of state CVC programs cover some expenses for relocation or emergency shelter.249 As 

described below, statutory requirements vary from state to state, as does the extent to which programs 

enforce them in practice.

In addition to CVC programs, which provide funds, local public agencies and community-based 

organizations across the country receive VOCA grants to deliver various services—such as crisis 

intervention, emergency shelter and transportation, and criminal justice advocacy—directly to 

victims.250 In 2014, these organizations helped 201,113 adult victims of sexual assault.251 VOCA 

organizations also give victims information on how to seek CVC funds through the state CVC 

programs.252

In fiscal year 2015, states will receive about four times as much VOCA victim assistance funding as 

they received in fiscal year 2014.253 None of this increase will go to state CVC programs, however.254

2. Program Administration 

To receive CVC funds, a victim must apply for them. This means that the victim must be notified of 

the existence of the program, must navigate the application process, must follow its procedures, and 

must follow up with necessary documentation.255 State CVC programs are operated by small staffs and 

depend heavily on police, prosecutors, and victim service agencies to inform victims of their availability 

and how to apply.256 Moreover, CVC programs currently are barred from using more than 5% of their 

246 See NACVCB Brochure, supra note 229; NACVCB, “Resources for Recovery,” supra note 229.

247 NACVCB Brochure, supra note 229; NACVCB, “Resources for Recovery,” supra note 229.

248 NACVCB Brochure, supra note 229; NACVCB, “Resources for Recovery,” supra note 229.

249 Transcript of JPP Public Meeting 167, 174–75 (Mar. 13, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards); Written Statement of Professor Njeri Mathis Rutledge, South Texas 

College of Law, to JPP 2; see also id. at 139, 176–77 (testimony of Ms. Laura Banks Reed, Director, D.C. Superior Court 

Crime Victims Compensation Program) (noting that D.C. program also pays for security systems, lock changes, and bars 

on windows); id. at 145 (testimony of Mr. Gene McCleskey, Director, Texas Crime Victims’ Compensation Program); 

Rutledge, supra note 10, at 232–33 (describing relatively generous relocation assistance available in Texas, Florida, and 

Alaska); see also Judicial Proceedings Panel, “JPP Staff VOCA Conference Minutes,” supra note 233, at 3 (noting that 

several managers of state CVC programs that cover relocation expenses characterized this coverage as very costly and 

challenging to administer).

250 U.S. Dep’t of Justice, Office for Victims of Crime, “Victims of Crime Act: Rebuilding Lives Through Assistance and 

Compensation,” at http://www.ovc.gov/images/VOCA_Chart.jpg; see also Transcript of JPP Public Meeting 128, 135 

(Mar. 13, 2015) (testimony of Ms. Kathy Nelson, Victim and Witness Assistance Program (VWAP) Coordinator, Peterson 

Air Force Base, U.S. Air Force) (describing victim assistance services available in Colorado Springs, Colorado).

251 Judicial Proceedings Panel, “JPP Staff VOCA Conference Minutes,” supra note 233, at 1.

252 U.S. Dep’t of Justice, Office for Victims of Crime, “Victims of Crime Act: Rebuilding Lives through Assistance and 

Compensation,” at http://www.ovc.gov/images/VOCA_Chart.jpg.

253 Judicial Proceedings Panel, “JPP Staff VOCA Conference Minutes,” supra note 233, at 1.

254 Id.

255 Transcript of JPP Public Meeting 313–14 (Mar. 13, 2015) (testimony of Major Richard M. Cloninger, U.S. Marine Corps, 

Regional Victims’ Legal Counsel).

256 NACVCB Brochure, supra note 229; NACVCB, “Resources for Recovery,” supra note 229; Transcript of JPP Public 
47

V. MEANS FOR PROVIDING CARE AND COMPENSATION TO SEXUAL ASSAULT VICTIMS

federal funding on administrative costs and training.257 Owing to such restrictions on staffing and 

administrative support, state CVC programs are generally both underpublicized and overworked, and 

they often have extensive backlogs.258

Most state CVC programs are operated by individuals trained in victim services, who work closely 

with their counterparts in other programs.259 About one-fourth of state CVC programs are operated by 

boards whose members are appointed by the governor;260 according to one practitioner, some of these 

appointed administrators lack sufficient training.261 One compensation expert testified before the JPP 

that because of the significant discretion given to CVC program administrators, the results of claims 

can be somewhat arbitrary.262

3. Requirements for Compensation

State CVC funds are subject to various program requirements and limitations, two of which 

are especially noteworthy. First, in most states, victims must report the crime promptly to law 

enforcement—in many jurisdictions, as quickly as within 48 to 72 hours.263 Second, victims generally 

must agree to cooperate with law enforcement—that is, report the crime to police, provide information 

Meeting 182–83 (Mar. 13, 2015) (testimony of Mr. Dan Eddy, Executive Director, National Association of Crime Victim 

Compensation Boards).

257 42 U.S.C. § 10602(a)(3).

258 Transcript of JPP Public Meeting 113–14 (Mar. 13, 2015) (testimony of Professor Julie Goldscheid, CUNY School of 

Law); Rutledge, supra note 10, at 240; Goldscheid, supra note 8, at 189.

259 Transcript of JPP Public Meeting 164 (Mar. 13, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards).

260 Transcript of JPP Public Meeting 185–86 (Mar. 13, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards).

261 Transcript of JPP Public Meeting 185–86 (Mar. 13, 2015) (testimony of Ms. Nikki S. Charles, Co-Executive Director, 

Network for Victim Recovery of DC (NVRDC), and former Administrator of Victim Services, Maryland Criminal Injuries 

Compensation Board).

262 Transcript of JPP Public Meeting 63, 80 (Mar. 13, 2015) (testimony of Professor Njeri Mathis Rutledge, South Texas 

College of Law); see also Rutledge, supra note 10, at 242, 271 (asserting that consideration of victims’ contributory 

misconduct “is merely an invitation for CVC employees to impose their subjective feelings about cases and victims”).

263 NACVCB Brochure, supra note 229; NACVCB, “Resources for Recovery,” supra note 229; NACVCB, “Basic Program 

Information,” available at http://www.nacvcb.org/index.asp?sid=7; Transcript of JPP Public Meeting 172–74 (Mar. 13, 

2015) (testimony of Mr. Dan Eddy, Executive Director, National Association of Crime Victim Compensation Boards); id.

at 63 (testimony of Professor Njeri Mathis Rutledge, South Texas College of Law); id. at 150–51 (testimony of Ms. Nikki 

S. Charles, Co-Executive Director, Network for Victim Recovery of DC (NVRDC), and former Administrator of Victim 

Services, Maryland Criminal Injuries Compensation Board). But see Transcript of JPP Public Meeting 175, 211–12 (June 

18, 2015) (testimony of Mr. Dan Eddy, Executive Director, National Association of Crime Victim Compensation Boards) 

(noting that California, Texas, Ohio, and other large states have no reporting deadline); Written Statement of Mr. Dan 

Eddy, Executive Director, NACVCB, to JPP 1 (June 18, 2015) (same).
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

to prosecutors, and testify against the accused (if necessary).264 Nationally, in 2012 nearly half of all 

CVC claims were denied, most for failing to satisfy one or both of these requirements.265

Other CVC program requirements and limitations include:

• filing deadlines: victims generally must file a claim within one or two years of the incident;266

• behavior restrictions: victims must not have engaged in contributory misconduct—that is, 

unlawful conduct that the claim adjudicator determines caused the sexual assault (sometimes 

called the “innocent victim” requirement);267

• total benefit caps (most often $25,000) and sub caps (particularly for mental health counseling, 

which exist in about half the jurisdictions and can be as low as $1,000);268

• exclusions of certain procedures (e.g., abortion, tattoo removal) and of more progressive 

therapies (e.g., massage therapy, acupuncture, mindfulness and meditation);269 and

• exclusions based on location: although victims can sometimes seek compensation from foreign 

CVC programs, about half of the U.S. state CVC programs do not compensate residents when 

they are victimized by crimes committed abroad.270

264 Transcript of JPP Public Meeting 63 (Mar. 13, 2015) (testimony of Professor Njeri Mathis Rutledge, South Texas College 

of Law); id. at 150 (testimony of Ms. Nikki S. Charles, Co-Executive Director, Network for Victim Recovery of DC 

(NVRDC), and former Administrator of Victim Services, Maryland Criminal Injuries Compensation Board); Rutledge, 

supra note 10, at 244. While California amended its statute in 2014 to eliminate its reporting requirement for victims of 

military sexual assault, it remains to be seen whether other states will follow its lead. See 2014 Cal. Legis. Serv. 506 (A.B. 

2545) (2014) (amending Cal. Gov’t Code § 13956); NACVCB Brochure, supra note 229; Written Statement of Professor 

Njeri Mathis Rutledge, South Texas College of Law, to JPP 3; Written Statement of Mr. Dan Eddy, Executive Director, 

National Association of Crime Victim Compensation Boards, to JPP 1 (June 18, 2015). But see id. at 2 (noting that in 

many cases, even where the offender is prosecuted, the victim already has been paid by time of trial).

265 Written Statement of Professor Njeri Mathis Rutledge, South Texas College of Law, to JPP 3; see also Rutledge, supra

note 10, at 244 & n.182 (citing 2003 study finding that 53% of CVC administrators attributed reporting and cooperation 

requirements as depressing claims in underserved groups).

266 NACVCB Brochure, supra note 229; NACVCB, “Basic Program Information,” supra note 263.

267 NACVCB Brochure, supra note 229; Transcript of JPP Public Meeting 151–52 (Mar. 13, 2015) (testimony of Ms. Nikki 

Charles, Co-Executive Director, Network for Victim Recovery of DC (NVRDC), and former Administrator of Victim 

Services, Maryland Criminal Injuries Compensation Board); id. at 162–63 (testimony of Mr. Dan Eddy, Executive Director, 

National Association of Crime Victim Compensation Boards); Transcript of JPP Public Meeting 212–13 (June 18, 2015) 

(testimony of Mr. Dan Eddy, Executive Director, National Association of Crime Victim Compensation Boards); NACVCB, 

“Contributory Conduct Requires Causal Connection, Kansas Court Rules” (provided to JPP June 22, 2015) (summarizing 

and quoting Fisher v. Ks. Crime Victims Comp. Bd., 124 P.3d 74 (Ks. 2005)), at http://jpp.whs.mil/Public/docs/03_TopicAreas/05-Comp_Rest/20150618/19_NACVCB_Kansas_Contrib_Conduct_Case_Synopsis.pdf.

268 NACVCB Brochure, supra note 229; NACVCB, “Basic Program Information,” supra note 263; NACVCB, “Resources for 

Recovery,” supra note 229; Transcript of JPP Public Meeting 182 (Mar. 13, 2015) (testimony of Mr. Dan Eddy, Executive 

Director, National Association of Crime Victim Compensation Boards); id. at 152–53 (testimony of Ms. Nikki S. Charles, 

Co-Executive Director, Network for Victim Recovery of DC (NVRDC), and former Administrator of Victim Services, 

Maryland Criminal Injuries Compensation Board).

269 Transcript of JPP Public Meeting 152–53 (Mar. 13, 2015) (testimony of Ms. Nikki S. Charles, Co-Executive Director, 

Network for Victim Recovery of DC (NVRDC), and former Administrator of Victim Services, Maryland Criminal Injuries 

Compensation Board); see also Judicial Proceedings Panel, “JPP Staff VOCA Conference Minutes,” supra note 233, at 1 

(noting that VOCA is silent as to compensation for abortions and that state statutes are controlling).

270 NACVCB, “Resources for Recovery,” supra note 229; Transcript of JPP Public Meeting 298 (Mar. 13, 2015) (testimony 

of Ms. Teresa P. Scalzo, Deputy Director, U.S. Navy Trial Counsel Assistance Program); Dickerson, supra note 133, at 
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V. MEANS FOR PROVIDING CARE AND COMPENSATION TO SEXUAL ASSAULT VICTIMS

The eligibility rules vary from state to state, as does the extent to which they are enforced in practice. 

In particular, the cooperation requirement and contributory misconduct restriction are differently 

interpreted and applied across the CVC programs.271

4. CVC Compensation in Sexual Assault Cases

Nationally, sexual assault victims often do not pursue CVC funds.272 In 2012, for example, less than 

10% of the approximately 141,000 CVC claims were filed by sexual assault victims.273 This total, 

13,157, is especially low in light of the number of sexual assault victims—nearly 206,000, or more 

than 15 times as many—who were served by victim assistance programs across the country in that 

same year.274 More recently, the total compensation awarded to sexual assault victims nationally has 

also fallen, from $18 million in fiscal year 2013 to $12.7 million in fiscal year 2014.275

State CVC program managers attribute recent declines in claim filings and compensation awarded 

to an apparent increase in the proportion of victims with health insurance.276 As a result so-called 

collateral sources of compensation such as coverage provided by the Affordable Care Act and 

Medicaid expansion, fewer victims are incurring out-of-pocket costs for medical care and counseling.277

Meanwhile, violent crime continues to decline, reinforcing the trend toward a decrease in claim 

filings.278

Generally speaking, state CVC programs enforce their eligibility rules less strictly in sexual assault 

cases. For example, many CVC programs have begun showing more flexibility in applying the 

reporting requirement to sexual assault claimants.279 They sometimes allow for exceptions to their 

reporting requirements for good cause shown,280 and some programs with strict reporting requirements 

240; Transcript of JPP Public Meeting 221 (June 18, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards); Judicial Proceedings Panel, “JPP Staff VOCA Conference Minutes,” 

supra note 233, at 2.

271 Rutledge, supra note 10, at 241–44. Rather than completely deny compensation in contributory conduct cases, some state 

CVC programs—for example, the Illinois program—reduce awards by certain percentages (e.g., 25 or 50%). Judicial 

Proceedings Panel, “JPP Staff VOCA Conference Minutes,” supra note 233, at 5. The percentages are tied to the degree of 

the victim’s responsibility for his or her injury, as determined by claim adjudicators. Id.

272 Written Statement of Professor Njeri Mathis Rutledge, South Texas College of Law, to JPP 3.

273 Written Statement of Professor Njeri Mathis Rutledge, South Texas College of Law, to JPP 3; see U.S. Dep’t of Justice, 

Office for Victims of Crime, “2012 Victims of Crime Act Performance Report,” at http://ojp.gov/ovc/grants/vocanpr_vc12.

html.

274 Written Statement of Professor Njeri Mathis Rutledge, South Texas College of Law, to JPP 3.

275 Judicial Proceedings Panel, “JPP Staff VOCA Conference Minutes,” supra note 233, at 4.

276 Id. at 3.

277 Id.

278 Id.

279 Transcript of JPP Public Meeting 174 (Mar. 13, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards); Transcript of JPP Public Meeting 211–12 (June 18, 2015) (testimony 

of Mr. Dan Eddy, Executive Director, NACVCB); see also Written Statement of Mr. Dan Eddy, Executive Director, 

NACVCB, to JPP 1 (June 18, 2015) (noting that 32 states provide compensation to sexual assault victims for testing of 

STIs, prophylactic medications, and/or counseling, regardless of whether they ever reported).

280 NACVCB, “Basic Program Information,” supra note 263; see also Transcript of JPP Public Meeting 151 (Mar. 13, 2015) 

(testimony of Ms. Nikki S. Charles, Co-Executive Director, Network for Victim Recovery of DC (NVRDC), and former 

Administrator of Victim Services, Maryland Criminal Injuries Compensation Board).
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

routinely waive them in sexual assault cases.281 In California, legislation that is expected to pass in late 

2015 would prohibit denial of compensation based solely on a sexual assault victim’s failure to report 

to the police.282

In some jurisdictions, eligibility or compensation itself has been linked to obtaining a sexual assault 

forensic examination (SAFE exam). For example, in New York State and Washington, D.C., obtaining 

a SAFE exam satisfies the reporting requirement.283 In Texas, in accordance with a statute that 

became effective in September 2015, a victim who submits to a SAFE exam automatically receives 

compensation for treatment received at the time of the exam, regardless of whether he or she reported 

the sexual assault.284

As defined by the federal Violence Against Women Act (VAWA),285 however, a SAFE exam does not 

necessarily include all medical testing and treatment that a victim might need following a sexual 

assault.286 Most jurisdictions include testing for sexually transmitted infections (STIs) and pregnancy 

as part of a SAFE exam, but in many jurisdictions, SAFE exams do not include HIV prophylaxis, STI 

treatment, or emergency contraception.287 Victims may be required to pay for the costs of these other 

tests and treatments up front, and then apply for reimbursement through their state’s CVC program.288

While a state CVC program must “promote[ ] victim cooperation with the reasonable requests of law 

enforcement authorities” in order to receive VOCA funding,289 VOCA leaves the interpretation of this 

cooperation requirement to the state programs, and thus their approaches to it vary.290 Many CVC 

281 Written Statement of Mr. Dan Eddy, Executive Director, National Association of Crime Victim Compensation Boards, to 

JPP 1 (June 18, 2015); see also Rutledge, supra note 10, at 271 & n.444 (noting that some programs allow consideration 

of testimony in support of a civil protection order to suffice) (citing CVC programs of California, Illinois, and Delaware); 

Judicial Proceedings Panel, “JPP Staff VOCA Conference Minutes,” supra note 233, at 6 (noting that under Texas statute, 

effective September 2015, civil protective order can substitute for police report); id. at 3 (noting that some state programs, 

such as Hawaii’s, apply a blanket waiver to their reporting requirement in sexual assault cases); id. at 5 (noting that CVC 

programs in Maine and Missouri often waive reporting requirement in sexual assault cases).

282 Judicial Proceedings Panel, “JPP Staff VOCA Conference Minutes,” supra note 233, at 6. The California legislation would 

permit that state’s CVC program to consider, as a substitute for a police report, medical records documenting injuries 

consistent with the allegations, mental health records, or documentation that the victim received a SANE exam. Id.

283 Transcript of JPP Public Meeting 131 (Mar. 13, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards); id. at 137 (testimony of Ms. Laura Banks Reed, Director, D.C. 

Superior Court Crime Victims Compensation Program); see also Rutledge, supra note 10, at n.444 (noting that California 

CVC board may consider medical or mental health records in absence of police report).

284 2015 Tex. Sess. Law. Serv. 924 (West); see also Transcript of JPP Public Meeting 131, 146 (Mar. 13, 2015) (testimony of 

Mr. Dan Eddy, Executive Director, National Association of Crime Victim Compensation Boards, and Mr. Gene McCleskey, 

Director, Texas Crime Victims’ Compensation Program); Transcript of JPP Public Meeting 207 (June 18, 2015) (testimony 

of Mr. Dan Eddy, Executive Director, NACVCB).

285 VAWA established as a condition for federal funding of women’s services and programs that sexual assault victims be 

provided with access to a SAFE exam. 42 U.S.C. § 3796gg-4(a)(1). To be VAWA-compliant, grantees must not (1) charge 

victims for exams or (2) require victims to cooperate with law enforcement or participate in the criminal justice system. 42 

U.S.C. § 3796gg-4(d)(1). About two-thirds of the states use CVC funds to pay for at least some SAFE exams, and more 

than one-third use only CVC funds to pay for SAFE exams. Judicial Proceedings Panel, “JPP Staff VOCA Conference 

Minutes,” supra note 233, at 4.

286 Judicial Proceedings Panel, “JPP Staff VOCA Conference Minutes,” supra note 233, at 4.

287 Id. at 4, 6.

288 Id. at 4.

289 42 U.S.C. § 10602(b)(2).

290 Judicial Proceedings Panel, “JPP Staff VOCA Conference Minutes,” supra note 233, at 1.
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V. MEANS FOR PROVIDING CARE AND COMPENSATION TO SEXUAL ASSAULT VICTIMS

programs are showing increasing flexibility.291 For example, 30 CVC programs provide compensation 

for SAFE exams to all sexual assault victims without regard to cooperation (or reporting).292 Most 

of these programs also automatically pay for related services that are immediately needed, such as 

prophylactic medications and testing for STIs.293 In addition, some CVC programs routinely waive the 

cooperation requirement in sexual assault cases.294

The September 2015 Texas statute that guarantees compensation for medical treatment at the time 

of a SAFE exam regardless of reporting also applies whether or not the victim cooperates with law 

enforcement.295 But victims in need of follow-up care (and/or lost wages) must provide assistance.296

In the absence of a SAFE exam, to be eligible for CVC funds in Texas sexual assault victims must 

demonstrate “substantial” cooperation with law enforcement; merely reporting anonymously to the 

police, for example, is insufficient.297

Legislation similar to the Texas statute already exists in Georgia and is pending in Louisiana. An 

alternative approach was adopted in Connecticut, where a law enacted in 2012 allows a sexual assault 

victim to satisfy the reporting requirement by providing information about the incident to any of a 

number of specified professionals (e.g., medical, mental health, social work) aside from the police.298

Finally, CVC programs generally do not consider contributory misconduct on the part of the victim 

in sexual assault cases, either as part of their explicit guidelines or as a matter of standard practice.299

In several states—including Hawaii, Louisiana, Pennsylvania, and Utah—such consideration is 

prohibited.300

291 Transcript of JPP Public Meeting 213–14 (June 18, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards); Written Statement of Mr. Dan Eddy, Executive Director, NACVCB, 

to JPP 1–2 (June 18, 2015) (noting that 32 states provide compensation to sexual assault victims for STI testing, 

prophylactic medications and/or counseling, regardless of whether they satisfy the state’s cooperation requirement); 

Judicial Proceedings Panel, “JPP Staff VOCA Conference Minutes,” supra note 233, at 5; id. at 6 (noting that the pending 

California legislation would prohibit that state’s CVC program from finding lack of cooperation based solely on a sexual 

assault victim’s delay in reporting the crime).

292 Transcript of JPP Public Meeting 134 (Mar. 13, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards).

293 Transcript of JPP Public Meeting 135 (Mar. 13, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards).

294 Transcript of JPP Public Meeting 176–77 (June 18, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards); Judicial Proceedings Panel, “JPP Staff VOCA Conference Minutes,” 

supra note 233, at 5.

295 2015 Tex. Sess. Law. Serv. 924 (West); see also Transcript of JPP Public Meeting 131, 146 (Mar. 13, 2015) (testimony of 

Mr. Dan Eddy, Executive Director, National Association of Crime Victim Compensation Boards, and Mr. Gene McCleskey, 

Director, Texas Crime Victims’ Compensation Program).

296 Judicial Proceedings Panel, “JPP Staff VOCA Conference Minutes,” supra note 233, at 6.

297 Id. 

298 Id.

299 Transcript of JPP Public Meeting 177–78, 203–06 (June 18, 2015) (testimony of Mr. Dan Eddy, Executive Director, 

National Association of Crime Victim Compensation Boards); Written Statement of Mr. Dan Eddy, Executive Director, 

NACVCB, to JPP 2 (June 18, 2015).

300 Judicial Proceedings Panel, “JPP Staff VOCA Conference Minutes,” supra note 233, at 5.
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

5. State CVC Programs as a Compensation Mechanism for Victims of Sexual Assault Offenses 

Committed by Service Members

Nationwide, the proportion of state CVC claimants seeking compensation for crimes committed by 

Service members is unknown, but it is likely relatively small.301 In Texas, which includes several major 

military installations, only about 50 (less than 0.2%) of the more than 25,000 CVC claims filed in the 

state each year involve crimes committed by Service members.302 According to the director of the Texas 

CVC program, the most common crime underlying these claims involved domestic violence.303

Victims in the military learn of CVC resources through DD Form 2701, Initial Information for Victims 

and Witnesses of Crime, which tells them that “[i]f you do not have insurance to pay the cost of your 

medical or counseling bills, or related expenses, the state Crime Victim Compensation office may be 

able to assist.”304 The back of this pamphlet contains blank lines where victim assistance personnel 

may fill in contact information for CVC programs available in the victim’s area.305 Except for the Coast 

Guard, the Services regularly provide training to those responsible for advising victims about state or 

local CVC programs, such as victim witness liaisons.306 Training is also conducted by the National 

Association of Crime Victim Compensation Boards as well as by individual CVC programs.307

An additional hurdle faced by some military victims in seeking CVC compensation is that an MCIO 

investigation report, not a restricted report, may be required to satisfy a given CVC program’s 

reporting requirement.308 Moreover, even when sufficient documentation exists, Service member victims 

must rely on cooperation from commands or MCIOs to assist them in providing it, a process that 

sometimes takes months.309 In 2014, however, California amended its statute to eliminate its reporting 

requirement for victims of military sexual assault, and other states may follow its lead.310

301 Transcript of JPP Public Meeting 166 (Mar. 13, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards); Transcript of JPP Public Meeting 215–16 (June 18, 2015) (testimony 

of Mr. Dan Eddy, Executive Director, NACVCB).

302 Transcript of JPP Public Meeting 166 (Mar. 13, 2015) (testimony of Mr. Gene McCleskey, Director, Texas Crime Victims’ 

Compensation Program).

303 Written Statement of Mr. Gene McCleskey, Director, Texas Crime Victims’ Compensation Program, to JPP (submitted 

Mar. 11, 2015).

304 See DoD’s Response to JPP Request for Information 60(a) (Nov. 6, 2014).

305 DoD’s Response to JPP Request for Information 60(a) (Nov. 6, 2014); Transcript of JPP Public Meeting 193 (Mar. 13, 

2015) (testimony of Mr. Charles A. Cosgrove, Chief, Programs Branch, Criminal Law Division, Office of The Judge 

Advocate General, U.S. Army).

306 Services’ Responses to JPP Request for Information 60 (Nov. 6, 2014).

307 Written Statement of Mr. Gene McCleskey, Director, Texas Crime Victims’ Compensation Program, to JPP 1 (submitted 

Mar. 11, 2015).

308 Transcript of JPP Public Meeting 206–09 (June 18, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards).

309 Transcript of JPP Public Meeting 313–14 (Mar. 13, 2015) (testimony of Major Richard M. Cloninger, U.S. Marine Corps, 

Regional Victims’ Legal Counsel); Transcript of JPP Public Meeting 216 (June 18, 2015) (testimony of Mr. Dan Eddy, 

Executive Director, National Association of Crime Victim Compensation Boards).

310 See 2014 Cal. Legis. Serv. 506 (A.B. 2545) (2014) (amending Cal. Gov’t Code § 13956); NACVCB Brochure, supra note 

229; Written Statement of Professor Njeri Mathis Rutledge, South Texas College of Law, to JPP 3; Written Statement 

of Mr. Dan Eddy, Executive Director, National Association of Crime Victim Compensation Boards, to JPP 1 (June 18, 

2015); see also Transcript of JPP Public Meeting 128 (March 13, 2015) (testimony of Mr. Dan Eddy, Executive Director, 

NACVCB) (noting that California was first state to establish CVC program, in 1965).
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V. MEANS FOR PROVIDING CARE AND COMPENSATION TO SEXUAL ASSAULT VICTIMS

The Services do not currently track compensation received by sexual assault victims from state 

CVC programs.311 But victims of offenses committed by Service members clearly are not uniformly 

compensated across the country, since compensation amounts, rules, and procedures vary from state 

to state.312 This variation presents a challenge to SVCs and Victim and Witness Assistance Program 

(VWAP) personnel attempting to provide accurate and complete advice to Service member victims who 

may be eligible for CVC funds in a given state.313

E. TORT REMEDIES

Just as a sexual assault victim may sue a civilian for civil damages, including pain and suffering, 

a sexual assault victim may sue a Service member in civilian court.314 Sexual assault suits in any 

jurisdiction are rare, however, because they face obvious obstacles and challenges, ranging from the 

cost of legal representation and the limited resources of most defendants to the uncertainty of civil 

damages and the stress inherent in discovery, particularly depositions, in sexual assault cases.315

Furthermore, the frequency with which Service members transfer duty locations and move to other 

jurisdictions makes litigation against Service members particularly problematic.316

In addition, unlike a civil action against a civilian,317 suits in sexual assault cases against a Service 

member generally may not seek redress from the perpetrator’s employer. While the Federal Tort Claims 

Act (FTCA)318 and the Military Claims Act (MCA)319 each permit payment of certain claims for death, 

injury, or property loss caused by negligent or wrongful acts of military personnel, both require the 

311 Services’ Responses to JPP Requests for Information 54(e), 60(d) (Nov. 6, 2014).

312 E.g., Dickerson, supra note 133, at 240; Transcript of JPP Public Meeting 209–10 (Mar. 13, 2015) (testimony of 

Lieutenant Commander Patrick K. Korody, U.S. Navy, Supervising Attorney, Victims’ Legal Counsel Program); id. at 269 

(testimony of Ms. Susan Smith Howley, Director, Public Policy, National Center for Victims of Crime).

313 Transcript of JPP Public Meeting 220–21 (Mar. 13, 2015) (testimony of Captain Joseph B. Ahlers, U.S. Air Force, Special 

Victims’ Counsel); id. at 223–24 (calling for creation of “an information nucleus that SVCs and VWAPs can look to 

for assistance in navigating not only a potential DOD restitution program, but also the state and federal-based [CVC] 

programs”).

314 Dickerson, supra note 133, at 219; Transcript of JPP Public Meeting 192–93 (June 18, 2015) (testimony of Mr. R. Peter 

Masterton, Chief, European Tort Claims Division, U.S. Army Claims Service Europe).

315 See Dickerson, supra note 133, at 219, 239; Rutledge, supra note 10, at 260–62; Written Statement of Professor Julie 

Goldscheid, CUNY School of Law, to JPP 2 (Mar. 18, 2015); Goldscheid, supra note 8, at 222–23.

316 See Transcript of JPP Public Meeting 192–93, 197 (June 18, 2015) (testimony of Mr. R. Peter Masterton, Chief, European 

Tort Claims Division, U.S. Army Claims Service Europe).

317 Transcript of JPP Public Meeting 87–88 (Mar. 13, 2015) (testimony of Professor Julie Goldscheid, CUNY School of Law); 

Written Statement of Professor Julie Goldscheid, CUNY School of Law, to JPP 1 (Mar. 18, 2015).

318 28 U.S.C. §§ 2671–2680. The FTCA permits payment of claims to civilians for death, injury, or property loss caused by 

negligent or wrongful acts of military personnel who are acting within the scope of employment. Masterton, supra note 

125, at 52; Transcript of JPP Public Meeting 101 (June 18, 2015) (testimony of Mr. R. Peter Masterton, Chief, European 

Tort Claims Division, U.S. Army Claims Service Europe).

319 10 U.S.C. § 2733. The MCA permits payment of claims arising outside the United States from death, injury, or property 

loss caused by negligence or wrongful acts of military personnel or civilian employees acting within the scope of 

employment. Id.; see also Written Statement of Colonel John G. Baker, U.S. Marine Corps, Chair, Joint Service Committee 

on Military Justice, to JPP para. 4 (Mar. 20, 2015) (clarifying prior testimony at public meeting regarding Military Claims 

Act); see also generally Masterton, supra note 125, at 50–53; Transcript of JPP Public Meeting 101 (June 18, 2015) 

(testimony of Mr. R. Peter Masterton, Chief, European Tort Claims Division, U.S. Army Claims Service Europe).
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

negligent or wrongful act to have been committed within the scope of employment.320 Thus both 

statutes effectively bar sexual assault claims.321

Moreover, the Feres322 doctrine prohibits claims against the U.S. government for “injury that occurs 

while the complaining party is in active-duty status, on a military base, or engaged in a military 

mission.”323 The Feres doctrine remains controversial, but recent efforts to enact legislation to lessen its 

effect have been unsuccessful.324

Finally, the Foreign Claims Act (FCA) permits payment of claims to foreign nationals for death, 

injury, or property loss caused by negligent or wrongful acts of military personnel outside the United 

States.325 Claims are evaluated under the law of the foreign country in which they arise.326 Although 

the negligent or wrongful acts need not have been committed within the scope of a Service member’s 

duties,327 the FCA is of no help to victims who are U.S. citizens, as its purpose is to maintain good 

relations with foreign countries in which U.S. Service members are stationed.328

F. PERSPECTIVES ON ESTABLISHING A UNIFORM DOD COMPENSATION 

PROGRAM

One option suggested by presenters’ testimony and written materials submitted to the JPP is to 

establish a uniform DoD crime victim compensation program. Presenters’ testimony and written 

materials offered the following observations and arguments in favor of establishing such a program:

• A DoD CVC program would have its own uniform eligibility rules, thereby avoiding the 

varying requirements in the 50+ jurisdictions of the state CVC programs. Victims would be 

320 Dickerson, supra note 133, at 226; Transcript of JPP Public Meeting 101 (June 18, 2015) (testimony of Mr. R. Peter 

Masterton, Chief, European Tort Claims Division, U.S. Army Claims Service Europe).

321 Dickerson, supra note 133, at 226; Transcript of JPP Public Meeting 101 (June 18, 2015) (testimony of Mr. R. Peter 

Masterton, Chief, European Tort Claims Division, U.S. Army Claims Service Europe).

322 Feres v. United States, 340 U.S. 135 (1950), cited in Dickerson, supra note 133, at 226.

323 Dickerson, supra note 133, at 218 (internal quotation marks omitted); see also Transcript of JPP Public Meeting 191–93 

(June 18, 2015) (testimony of Mr. R. Peter Masterton, Chief, European Tort Claims Division, U.S. Army Claims Service 

Europe).

324 Masterton, supra note 125, at 52; Written Statement of Service Women’s Action Network (SWAN) to JPP (submitted Mar. 

11, 2015).

325 10 U.S.C. § 2734; see also Masterton, supra note 125, at 56; Transcript of JPP Public Meeting 113–14, 171, 218–20 (June 

18, 2015) (testimony of Mr. R. Peter Masterton, Chief, European Tort Claims Division, U.S. Army Claims Service Europe). 

For information on the Military Personnel and Civilian Employees Claims Act (PCA), see part IV(C), supra.

326 10 U.S.C. § 2734; see also Masterton, supra note 125, at 56; Transcript of JPP Public Meeting 113–14, 171, 196–99 (June 

18, 2015) (testimony of Mr. R. Peter Masterton, Chief, European Tort Claims Division, U.S. Army Claims Service Europe).

327 10 U.S.C. § 2734; see also Masterton, supra note 125, at 56; Transcript of JPP Public Meeting 113–16, 171 (June 18, 

2015) (testimony of Mr. R. Peter Masterton, Chief, European Tort Claims Division, U.S. Army Claims Service Europe) 

(detailing FCA claims process).

328 R. Peter Masterton, Unique Aspects of Article 139 Claims Overseas, 2015-SEP Army Law. 33, 33 (Sept. 2015); Transcript 

of JPP Public Meeting 114 (June 18, 2015) (testimony of Mr. R. Peter Masterton, Chief, European Tort Claims Division, 

U.S. Army Claims Service Europe).
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V. MEANS FOR PROVIDING CARE AND COMPENSATION TO SEXUAL ASSAULT VICTIMS

treated the same, regardless of their status (military, dependent, or civilian), and regardless of 

any possible changes in their status during the course of the court-martial process.329

• A DoD CVC program would not be tethered to the need for a criminal conviction and 

sentence, the offender’s financial situation, or a court’s continued jurisdiction.330 DoD could 

accommodate many of the issues and complications that often arise in Article 120 cases, such 

as restricted reporting, victims’ delay in reporting, and future losses (e.g., long-term medical or 

mental health care), as well as cases arising overseas.331

• A DoD CVC program would be part of the DoD budget and be subject to Congress’s 

appropriations process. The benefits of structuring the fund in this way would mirror those 

gained through litigating cases in civil court: it would function to provide relief to victims while 

also holding the military accountable in its efforts to eradicate sexual assault, because Congress 

would directly oversee both the program’s appropriations and its authorization. The DoD CVC 

program could be augmented by any funds obtained through convictions (e.g., fines, forfeiture 

of pay and allowances), which would be collected and paid to victims.332

• Many victims have no desire for any further dealings with the perpetrator. A DoD CVC 

program would enable these victims to avoid the kind of reengagement required by other 

compensation or restitution mechanisms (e.g., at a restitution hearing, in the clemency or 

parole process).333

Presenters’ testimony and written materials submitted to the JPP made the following observations and 

arguments weighing against establishing a uniform DoD crime victim compensation program:

• While substantial federal resources fund state CVC programs, there currently is no national 

CVC program except for ITVERP, the federal CVC program for victims of international 

terrorism.334

• One JPP presenter opined that a centralized compensation board “would not be conducive to a 

proper claims investigation,” which generally needs to be done at the local level.335

• One JPP presenter raised the apparent inequity in guaranteeing compensation to eligible 

victims who happened to be victimized by a Service member while excluding victims of 

329 Transcript of JPP Public Meeting 328–30 (Mar. 13, 2015) (testimony of Major Richard M. Cloninger, U.S. Marine Corps, 

Regional Victims’ Legal Counsel).

330 Transcript of JPP Public Meeting 101–02, 114–15 (Mar. 13, 2015) (testimony of Professor Cortney E. Lollar, University of 

Kentucky College of Law); id. at 111–13 (testimony of Professor Julie Goldscheid, CUNY School of Law).

331 Transcript of JPP Public Meeting 300–31 (Mar. 13, 2015) (testimony of Ms. Teresa P. Scalzo, Deputy Director, U.S. Navy 

Trial Counsel Assistance Program); id. at 369–70 (testimony of Ms. Bridgette Marie Harwood, Director of Legal Services, 

Network for Victim Recovery of DC (NVRDC)).

332 Written Statement of Greg Jacobs, Policy Director, Service Women’s Action Network (SWAN) to JPP (submitted Mar. 11, 

2015).

333 Transcript of JPP Public Meeting 58, 119–20 (Mar. 13, 2015) (testimony of Professor Julie Goldscheid, CUNY School of 

Law).

334 NACVCB, “Resources for Recovery,” supra note 229.

335 Transcript of JPP Public Meeting 172–73 (June 18, 2015) (testimony of Mr. R. Peter Masterton, Chief, European Tort 

Claims Division, U.S. Army Claims Service Europe).
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

identical crimes committed under similar circumstances merely because the offender was not a 

Service member.336

• One JPP presenter cautioned against establishing a uniform program that might provide 

incentives for false reporting, particularly if payments are made regardless of actual loss and 

regardless of any report to law enforcement.337

G. BEST PRACTICES IN ESTABLISHING NATIONAL COMPENSATION 

PROGRAMS

In considering the advantages and disadvantages of a uniform compensation program for victims 

of sexual assault offenses committed by Service members, the JPP remains mindful of the following 

fundamental issues that must be addressed when designing, implementing, and administering 

compensation programs intended to serve as alternatives to the tort system for innocent victims, 

whether of crime or of catastrophe:

• Funding: How much will the program cost,338 and what will be the sources of its funding?339 Is 

there a cap on the aggregate amount of funds appropriated?340 The answers to these questions 

help determine how all other issues are resolved.341

• Eligibility: Who is eligible to receive compensation?342 How direct need a claimant’s injuries be 

to be compensable?343

• Methodology: How is the amount of compensation calculated for each victim? Does the 

methodology, for example, allow for varying amounts based on tort concepts such as pain and 

336 Transcript of JPP Public Meeting 180–81 (June 18, 2015) (testimony of Mr. Dan Eddy, Executive Director, National 

Association of Crime Victim Compensation Boards) (noting that similar criticisms have been lodged against the large 

alternative compensation programs).

337 Written Statement of Mr. Dan Eddy, Executive Director, National Association of Crime Victim Compensation Boards, to 

JPP 4 (June 18, 2015).

338 Transcript of JPP Public Meeting 140–41 (June 18, 2015) (testimony of Mr. Kenneth R. Feinberg, Founder and Managing 

Partner, Feinberg Rozen, LLP). Mr. Feinberg has served as special master or administrator appointed by the President to 

design and execute the compensation funds assisting victims of numerous recent mass crimes and disasters, including the 

attacks of September 11, 2001, the 2007 Virginia Tech shootings, the 2010 BP Deepwater Horizon oil spill, and the 2013 

Boston Marathon bombing. See also Written Statement of Mr. Dan Eddy, Executive Director, National Association of 

Crime Victim Compensation Boards, to JPP 3 (June 18, 2015). 

339 Transcript of JPP Public Meeting 140–41 (June 18, 2015) (testimony of Mr. Kenneth R. Feinberg, Founder and Managing 

Partner, Feinberg Rozen, LLP); Written Statement of Mr. Dan Eddy, Executive Director, National Association of Crime 

Victim Compensation Boards, to JPP 3 (June 18, 2015); see also Linda S. Mullenix, Designing Compensatory Funds: In 

Search of First Principles, 3 Stan. J. Complex. Litig. 1, 8 (Winter 2015) (describing different funding sources of several 

recent alternative compensation programs).

340 Transcript of JPP Public Meeting 140–41 (June 18, 2015) (testimony of Mr. Kenneth R. Feinberg, Founder and Managing 

Partner, Feinberg Rozen, LLP).

341 Transcript of JPP Public Meeting 140–41 (June 18, 2015) (testimony of Mr. Kenneth R. Feinberg, Founder and Managing 

Partner, Feinberg Rozen, LLP).

342 Transcript of JPP Public Meeting 142 (June 18, 2015) (testimony of Mr. Kenneth R. Feinberg, Founder and Managing 

Partner, Feinberg Rozen, LLP); Written Statement of Mr. Dan Eddy, Executive Director, National Association of Crime 

Victim Compensation Boards, to JPP 4 (June 18, 2015).

343 Kenneth R. Feinberg, Unconventional Responses to Unique Catastrophes, 45 Akron L. Rev. 575, 578–79 (2011–12).
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V. MEANS FOR PROVIDING CARE AND COMPENSATION TO SEXUAL ASSAULT VICTIMS

suffering and emotional distress? Or is it a simpler methodology allowing flat amounts for 

certain defined eligible injuries, regardless of the extent of lost wages, pain and suffering, and 

so on?344 The chosen methodology must be transparent,345 and it should not take into account 

supplemental compensation that victims may or may not receive from other sources.346

• Proof Requirements: What documentation or other corroboration must claimants produce 

to demonstrate that they are entitled to compensation?347 Is there a jurisdictional deadline 

for submission of such proof, and, if so, when is it?348 Like the methodology, the proof 

requirements must be transparent.349

• Due Process:350

Is the claimant entitled to a hearing? If so, how formal is it (e.g., is it transcribed)? Must 

the claimant appear and, if so, must the claimant’s testimony be under oath?

What burden of proof must the claimant satisfy?

What procedures govern assertion of the claim?

Who adjudicates the claim?

May, or must, the claimant be represented by counsel?

Is an adversarial party permitted to oppose the claim?

If the claim is denied, does the claimant have the right to appeal? If so, who hears the 

appeal?

If the claim is granted, does the claimant, by accepting compensation, thereby waive the 

right to file a lawsuit?

344 Transcript of JPP Public Meeting 142–43, 163–65 (June 18, 2015) (testimony of Mr. Kenneth R. Feinberg, Founder and 

Managing Partner, Feinberg Rozen, LLP); Feinberg, supra note 343, at 579; Written Statement of Mr. Dan Eddy, Executive 

Director, National Association of Crime Victim Compensation Boards, to JPP 3 (June 18, 2015).

345 Transcript of JPP Public Meeting 142 (June 18, 2015) (testimony of Mr. Kenneth R. Feinberg, Founder and Managing 

Partner, Feinberg Rozen, LLP); see, e.g., The One Fund Boston 2013, “Final Protocol” 1–2 (May 2013) (prioritizing 

among various categories of eligible claimants), available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/05-Comp_

Rest/20150618/17_OneFund_Boston_Protocol.pdf.

346 Transcript of JPP Public Meeting 160–62 (June 18, 2015) (testimony of Mr. Kenneth R. Feinberg, Founder and Managing 

Partner, Feinberg Rozen, LLP) (emphasizing benefits, in terms of avoiding costs, inefficiency, and divisiveness, of 

“standalone” compensation programs that are independent of other sources of compensation).

347 Transcript of JPP Public Meeting 143–44 (June 18, 2015) (testimony of Mr. Kenneth R. Feinberg, Founder and Managing 

Partner, Feinberg Rozen, LLP); id. at 179–80 (testimony of Mr. Dan Eddy, Executive Director, National Association of 

Crime Victim Compensation Boards).

348 Transcript of JPP Public Meeting 166–67 (June 18, 2015) (testimony of Mr. Kenneth R. Feinberg, Founder and Managing 

Partner, Feinberg Rozen, LLP).

349 Transcript of JPP Public Meeting 143 (June 18, 2015) (testimony of Mr. Kenneth R. Feinberg, Founder and Managing 

Partner, Feinberg Rozen, LLP).

350 Transcript of JPP Public Meeting 144–48 (June 18, 2015) (testimony of Mr. Kenneth R. Feinberg, Founder and Managing 

Partner, Feinberg Rozen, LLP); Written Statement of Mr. Dan Eddy, Executive Director, National Association of Crime 

Victim Compensation Boards, to JPP 4 (June 18, 2015).
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

H. JPP ASSESSMENT AND RECOMMENDATIONS REGARDING A UNIFORM 

DOD COMPENSATION PROGRAM

Soldiers, Sailors, Airmen, and Marines are employees of DoD who have been trained and assigned to 

missions and locations around the world, and DoD bears significant responsibility for the actions of 

Service members. DoD bears particular responsibility for victims who are Service members, given that 

the military is a closed system in which victims often cannot easily avoid interactions with those who 

assaulted them.

Moreover, there appear to be significant gaps in financial coverage for dependent and civilian victims 

of sexual assault offenses committed by Service members. Victims of crimes committed by those who 

are subject to the UCMJ should not be relegated to a patchwork of state systems with varied eligibility 

requirements, some of which seemingly ignore best practices in the handling of sexual assault cases. 

Instead, all victims of sexual assault crimes committed by military members should have convenient 

access to a fair and efficient compensation system, providing uniform benefits regardless of the location 

of the offense or the victim’s state of residence.

For these reasons, the Panel concludes that some victims of sexual assault crimes committed by Service 

members currently lack adequate access to compensation. Accordingly, the Panel recommends that 

DoD establish and administer a uniform compensation program for such victims.351 Consistent with 

its mandate, the Panel’s recommendation is restricted to cases of sexual assault. The Panel makes no 

recommendation as to whether victims of other crimes should have access to DoD compensation funds.

The Panel’s determination that a distinct DoD program should be created arose from its recognition 

not only of deficiencies in some state CVC programs but also of the lack of uniformity in 

state programs’ approaches to coverage and eligibility. Indeed, as described below, the Panel’s 

recommendations regarding the scope of coverage and eligibility rules for a DoD compensation 

program largely reflect the best practices of the state CVC programs. Generally, where the Panel’s 

recommendations depart from the states’ usual approach, such variations are intended to conform to 

existing policies specific to DoD (e.g., the restricted reporting option).

The Panel makes the following recommendations regarding the fundamental issues that structure every 

crime victim compensation program:

• Funding.

Cost of the program. The cost of a DoD compensation program would depend on which 

types of crime victims are eligible. The Panel’s recommendation regarding a DoD program 

is restricted to sexual assault cases, but the cost remains difficult to estimate since it is 

impossible to predict how many victims would file claims. 

351 Members of the Coast Guard are employees of the Department of Homeland Security rather than DoD, but the 

recommended DoD compensation program should be available to victims of sexual assault crimes committed by Coast 

Guard personnel. Given the Coast Guard’s small size, separate administration of its own compensation program would 

be inefficient and unnecessary. DoD does not bear the same level of responsibility for members of the Coast Guard as it 

does for members of the other Services, but sexual assault crimes committed by Coast Guard personnel are UCMJ offenses 

whose victims are entitled to expect equal, uniform adjudication of their claims for compensation.
59

V. MEANS FOR PROVIDING CARE AND COMPENSATION TO SEXUAL ASSAULT VICTIMS

In fiscal year 2014, the Services reported 6,660 total reports of sexual assault, of which 

776 were reports by civilians.352 In 2012, the most recent year available, state CVC 

programs paid an average of $1,220 per claim to victims in sexual assault cases.353 If 

all civilian victims in 2014 received the state CVC average payment of $1,220, the total 

program cost would be about $950,000. 

Currently, the most common maximum amount of compensation available in state CVC 

programs is $25,000. If the DoD program adopts this $25,000 cap and received claims 

from all civilian victims in 2014, the maximum annual compensation that the program 

might be expected to award would be $19.4 million.

These are rough estimates based on the Panel’s general conclusion that civilian victims 

are saddled with far greater out-of-pocket expenses than Service member and dependent 

victims, and are therefore most likely to apply for compensation. The estimates do not 

take into account potential claims from Service members and dependents, and they do 

not include the costs of administering the program. On the other hand, they also do not 

take into account the likely continuation of the trend of increasing collateral sources of 

compensation resulting from a growth in health care coverage under the Affordable Care 

Act and Medicaid.

Sources of funding. The Panel defers to DoD and Congress to identify sources of funding 

for the program.

Cap on compensation. The Panel recommends that Congress adopt $25,000 as the overall 

maximum amount in losses that a DoD compensation program may reimburse, consistent 

with the plurality of state CVC programs. However, Congress should periodically review 

the appropriateness of this cap and make adjustments as necessary to account for changes 

in health care costs and other factors.

• Eligibility.

The Panel recommends that a DoD compensation program should be made available to all 

victims of sexual assault crimes committed by Service members regardless of the military 

status of those victims, including Service members, dependents, civilian DoD employees, 

and civilians without any DoD affiliation. Like the state CVC programs, the DoD program 

should be available to victims of crimes that do not result in a conviction, including 

crimes initially charged but later “pleaded down” to lesser offenses such as simple assault 

and those in which charges result in acquittal. Even where the government cannot prove 

beyond a reasonable doubt that the accused sexually assaulted the victim, the victim 

may still be able to prove by a preponderance of the evidence—the standard of proof 

that would apply in civil proceedings—that he or she was sexually assaulted by a Service 

member and is therefore entitled to compensation.

352 U.S. Dep’t of Def., SAPRO, Report to the President of the United States on Sexual Assault Prevention and Response, 

encl. 5 (2014); U.S. Dep’t of Def., SAPRO, Department of Defense Annual Report on Sexual Assault in the Military: 

Fiscal Year 2013, encls. 1–3 (Apr. 15, 2014).

353 U.S. Dep’t of Justice, Office for Victims of Crime, “2012 Victims of Crime Act Performance Report” (June 4, 2013), 

available at http://ojp.gov/ovc/grants/vocanpr_vc12.html.
60

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

The Panel remains mindful of DoD’s restricted reporting option, which since October 2005 

has allowed victims to report a sexual assault and receive support and health care without 

triggering an investigation or informing the victim’s chain of command of his or her 

identity.354 The Panel recommends that a DoD compensation program should not require 

that claimants cooperate with law enforcement. Victims who choose DoD’s restricted 

reporting option should be eligible for compensation in the same way as victims who 

choose to file an unrestricted report.

The Panel further recommends that a DoD program not impose a rule requiring the 

claimant to have reported the sexual assault within any particular period of time after 

the incident. Reporting time requirements exist in most state CVC programs, but these 

programs—unlike the program that the Panel is proposing for DoD—cover many varied 

types of crimes. The Panel’s recommendation reflects the growing trend among the states 

to waive reporting time requirements in sexual assault cases or to allow a SAFE exam to 

substitute for a report.

• Methodology. A DoD compensation program for sexual assault victims should cover out-ofpocket losses of the following types: medical and mental health expenses, both past and future; 

lost income; travel expenses; relocation costs; and personal property damage or loss.

The Panel considered whether compensation should be awarded for pain and suffering, and 

it recommends that the program should be limited (at least initially) to out-of-pocket losses, 

consistent with the current practice of all state CVC programs except Tennessee and Hawaii. 

Because it is particularly difficult to assess the impact of a sexual assault crime in monetary 

terms, this question may be revisited in the future to assess the adequacy of compensation 

based on easily measured out-of-pocket losses.355

Like state CVC programs, a DoD compensation program should be a compensation source of 

last resort. Thus, if a victim of a sexual assault committed by a Service member first applies for 

compensation from a state CVC program, the victim’s eligibility for DoD compensation should 

be reduced by the amount of his or her state CVC program payment. Likewise, a victim’s 

eligibility should be reduced by any amounts received from other collateral sources such as 

health insurance.

Any payments made under Article 139 for a claim of property loss resulting from a sexual 

assault offense also qualify as a collateral source that would reduce a victim’s eligibility 

for DoD compensation funds. However, failure to file an Article 139 claim for property 

loss resulting from a sexual assault offense should not disqualify a victim from seeking 

compensation from the recommended DoD compensation program.

• Proof Requirements.

Nature of evidence required. Claimants should be required to submit sufficient 

documentation that the sexual assault occurred and that they experienced out-of-pocket 

financial losses as a result. Consistent with DoD’s restricted reporting option, however, this 

354 See RSP Report, supra note 11, at 64, 100–01.

355 The Panel highlights, for future consideration, Hawaii’s “acknowledgment award,” which is symbolic in nature and not 

intended to quantify physical or emotional harm.
61

V. MEANS FOR PROVIDING CARE AND COMPENSATION TO SEXUAL ASSAULT VICTIMS

may simply be medical records: a police report should not be required. Documentation 

should otherwise be similar to that required by state CVC programs.

Jurisdictional deadline. The Panel recommends that a DoD program consider claims 

for incidents that have occurred since October 2005, which is when DoD adopted its 

restricted reporting option. Using this date as a starting point for eligibility ensures access 

for military and dependent victims who chose not to cooperate with law enforcement 

but did confidentially report the incident. This date also strikes a balance between 

providing compensation to the greatest possible number of victims and ensuring adequate 

documentation of claims.

Victims whose claims arose prior to initiation of the new DoD program should have two 

years after the program is implemented to file their claims. For incidents that occur after 

the program is implemented, victims should have one year to file a claim. Congress or DoD 

should periodically reexamine these filing limitations to ensure that they are appropriate.

• Due Process. The Panel makes the following recommendations, which are consistent with the 

prevailing approach taken by state CVC programs:

A DoD compensation program should provide claimants the opportunity to request a 

hearing regarding their compensation claim, but claimants should not be required to 

appear.

DoD claim adjudicators should apply the civil standard of proof—preponderance of the 

evidence—to determine whether to award compensation and to determine compensation 

amounts.

While deferring to DoD regarding the most appropriate adjudication structure and 

personnel, the Panel suggests that DoD consider the relevant competence and experience of 

the Services’ claims offices in adjudicating tort claims filed under the Foreign Claims Act by 

non-U.S. victims against Service members stationed overseas.

A DoD program should allow, but not require, claimants to be represented by legal 

counsel, including SVCs. The Services should train victim assistance personnel on 

informing victims about the DoD program, advising victims of their potential eligibility for 

compensation, and assisting them in applying for such compensation.

A DoD program should provide a mechanism for claimants to appeal claim adjudicator 

decisions. The JPP defers to DoD on how to structure this mechanism.

Claimants who receive compensation from a DoD program should not be required to 

waive their right to file a lawsuit (e.g., under the Federal Tort Claims Act). However, 

claimants who receive compensation for property losses from the DoD program should be 

informed that they may not subsequently seek compensation for the same losses through 

another federal mechanism such as Article 139 of the UCMJ or the Military Personnel and 

Civilian Employees Claims Act (PCA).
62

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES
63

APPENDIX A: Judicial Proceedings Panel 

Authorizing Statutes

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2013

SECTION 576. INDEPENDENT REVIEWS AND ASSESSMENTS OF UNIFORM 

CODE OF MILITARY JUSTICE AND JUDICIAL PROCEEDINGS OF SEXUAL 

ASSAULT CASES.

(a) INDEPENDENT REVIEWS AND ASSESSMENTS REQUIRED.—

(2) JUDICIAL PROCEEDINGS SINCE FISCAL YEAR 2012 AMENDMENTS.—The Secretary 

of Defense shall establish a panel to conduct an independent review and assessment of judicial 

proceedings conducted under the Uniform Code of Military Justice involving adult sexual 

assault and related offenses since the amendments made to the Uniform Code of Military Justice 

by section 541 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 

112–81; 125 Stat. 1404) for the purpose of developing recommendations for improvements to 

such proceedings.

(b) ESTABLISHMENT OF INDEPENDENT REVIEW PANELS. 

(1) COMPOSITION.

(B)JUDICIAL PROCEEDINGS PANEL.—The panel required by subsection (a)(2) shall be 

appointed by the Secretary of Defense and consist of five members, two of whom must have 

also served on the panel established under subsection (a)(1).

(2) QUALIFICATIONS.—The members of each panel shall be selected from among private United 

States citizens who collectively possess expertise in military law, civilian law, the investigation, 

prosecution, and adjudication of sexual assaults in State and Federal criminal courts, victim 

advocacy, treatment for victims, military justice, the organization and missions of the Armed 

Forces, and offenses relating to rape, sexual assault, and other adult sexual assault crimes.

(3) CHAIR.—The chair of each panel shall be appointed by the Secretary of Defense from among 

the members of the panel.

(4) PERIOD OF APPOINTMENT; VACANCIES.—Members shall be appointed for the life of the 

panel. Any vacancy in a panel shall be filled in the same manner as the original appointment.

(5) DEADLINE FOR APPOINTMENTS.—

(B)JUDICIAL PROCEEDINGS PANEL.—All original appointments to the panel required by 

subsection (a)(2) shall be made before the termination date of the panel established under 

subsection (a)(1), but no later than 30 days before the termination date.

(6) MEETINGS.—A panel shall meet at the call of the chair.

A. Judicial Proceedings Panel Authorizing Statutes
64

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

(7) FIRST MEETING.—The chair shall call the first meeting of a panel not later than 60 days after 

the date of the appointment of all the members of the panel.

(c) REPORTS AND DURATION.—

(2) JUDICIAL PROCEEDINGS PANEL.—

(A)FIRST REPORT.—The panel established under subsection (a)(2) shall submit a first report, 

including any proposals for legislative or administrative changes the panel considers 

appropriate, to the Secretary of Defense and the Committees on Armed Services of the 

Senate and the House of Representatives not later than 180 days after the first meeting of 

the panel.

(B) SUBSEQUENT REPORTS.—The panel established under subsection (a)(2) shall submit 

subsequent reports during fiscal years 2014 through 2017.

(C)TERMINATION.—The panel established under subsection (a)(2) shall terminate on 

September 30, 2017.

(d) DUTIES OF PANELS.—

(2) JUDICIAL PROCEEDINGS PANEL.—The panel required by subsection (a)(2) shall perform 

the following duties:

(A)Assess and make recommendations for improvements in the implementation of the reforms 

to the offenses relating to rape, sexual assault, and other sexual misconduct under the 

Uniform Code of Military Justice that were enacted by section 541 of the National Defense 

Authorization Act for Fiscal Year 2012 (Public Law 112– 81; 125 Stat. 1404).

(B) Review and evaluate current trends in response to sexual assault crimes whether by courtsmartial proceedings, non-judicial punishment and administrative actions, including the 

number of punishments by type, and the consistency and appropriateness of the decisions, 

punishments, and administrative actions based on the facts of individual cases.

(C)Identify any trends in punishments rendered by military courts, including general, special, 

and summary courts-martial, in response to sexual assault, including the number of 

punishments by type, and the consistency of the punishments, based on the facts of each 

case compared with the punishments rendered by Federal and State criminal courts.

(D)Review and evaluate court-martial convictions for sexual assault in the year covered by 

the most-recent report required by subsection (c)(2) and the number and description of 

instances when punishments were reduced or set aside upon appeal and the instances in 

which the defendant appealed following a plea agreement, if such information is available.

(E) Review and assess those instances in which prior sexual conduct of the alleged victim was 

considered in a proceeding under section 832 of title 10, United States Code (article 32 of 

the Uniform Code of Military Justice),and any instances in which prior sexual conduct was 

determined to be inadmissible.
65

APPENDIX A: JUDICIAL PROCEEDINGS PANEL AUTHORIZING STATUTES

(F) Review and assess those instances in which evidence of prior sexual conduct of the alleged 

victim was introduced by the defense in a court-martial and what impact that evidence had 

on the case.

(G)Building on the data compiled as a result of paragraph (1)(D), assess the trends in the 

training and experience levels of military defense and trial counsel in adult sexual assault 

cases and the impact of those trends in the prosecution and adjudication of such cases.

(H)Monitor trends in the development, utilization and effectiveness of the special victims 

capabilities required by section 573 of this Act.

(I) Monitor the implementation of the April 20, 2012, Secretary of Defense policy 

memorandum regarding withholding initial disposition authority under the Uniform Code 

of Military Justice in certain sexual assault cases.

(J) Consider such other matters and materials as the panel considers appropriate for purposes 

of the reports.

(3) UTILIZATION OF OTHER STUDIES.—In conducting reviews and assessments and preparing 

reports, a panel may review, and incorporate as appropriate, the data and findings of applicable 

ongoing and completed studies.

(e) AUTHORITY OF PANELS.—

(1) HEARINGS.—A panel may hold such hearings, sit and act at such times and places, take such 

testimony, and receive such evidence as the panel considers appropriate to carry out its duties 

under this section.

(2) INFORMATION FROM FEDERAL AGENCIES.—Upon request by the chair of a panel, a 

department or agency of the Federal Government shall provide information that the panel 

considers necessary to carry out its duties under this section.

(f) PERSONNEL MATTERS.—

(1) PAY OF MEMBERS.—Members of a panel shall serve without pay by reason of their work on 

the panel.

(2) TRAVEL EXPENSES.—The members of a panel shall be allowed travel expenses, including per 

diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I 

of chapter 57 of title 5, United States Code, while away from their homes or regular places of 

business in the performance or services for the panel.

(3) STAFFING AND RESOURCES.—The Secretary of Defense shall provide staffing and resources 

to support the panels, except that the Secretary may not assign primary responsibility for such 

staffing and resources to the Sexual Assault Prevention and Response Office.
66

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2014

SEC. 1731. INDEPENDENT REVIEWS AND ASSESSMENTS OF UNIFORM CODE 

OF MILITARY JUSTICE AND JUDICIAL PROCEEDINGS OF SEXUAL ASSAULT 

CASES.

(b) ADDITIONAL DUTIES FOR JUDICIAL PROCEEDINGS PANEL.—

(1) ADDITIONAL ASSESSMENTS SPECIFIED.—The independent panel established by 

the Secretary of Defense under subsection (a)(2) of section 576 of the National Defense 

Authorization Act for Fiscal Year 2013 (Public Law 112–239; 126 Stat. 1758), known as the 

“judicial proceedings panel”, shall conduct the following:

(A)An assessment of the likely consequences of amending the definition of rape and sexual 

assault under section 920 of title 10, United States Code (article 120 of the Uniform Code 

of Military Justice), to expressly cover a situation in which a person subject to chapter 47 

of title 10, United States Code (the Uniform Code of Military Justice), commits a sexual act 

upon another person by abusing one’s position in the chain of command of the other person 

to gain access to or coerce the other person.

(B) An assessment of the implementation and effect of section 1044e of title 10, United States 

Code, as added by section 1716, and make such recommendations for modification of such 

section 1044e as the judicial proceedings panel considers appropriate.

(C)An assessment of the implementation and effect of the mandatory minimum sentences 

established by section 856(b) of title 10, United States Code (article 56(b) of the Uniform 

Code of Military Justice), as added by section 1705, and the appropriateness of statutorily 

mandated minimum sentencing provisions for additional offenses under chapter 47 of title 

10, United States Code (the Uniform Code of Military Justice).

(D)An assessment of the adequacy of the provision of compensation and restitution for victims 

of offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military 

Justice), and develop recommendations on expanding such compensation and restitution, 

including consideration of the options as follows:

(i) Providing the forfeited wages of incarcerated members of the Armed Forces to victims of 

offenses as compensation.

(ii) Including bodily harm among the injuries meriting compensation for redress under 

section 939 of title 10, United States Code (article 139 of the Uniform Code of Military 

Justice).

(iii) Requiring restitution by members of the Armed Forces to victims of their offenses upon 

the direction of a court-martial.

(2) SUBMISSION OF RESULTS.—The judicial proceedings panel shall include the results of the 

assessments required by paragraph (1) in one of the reports required by subsection (c)(2)(B) of 

section 576 of the National Defense Authorization Act for Fiscal Year 2013.
67

APPENDIX A: JUDICIAL PROCEEDINGS PANEL AUTHORIZING STATUTES

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2015

SEC. 545. ADDITIONAL DUTIES FOR JUDICIAL PROCEEDINGS PANEL.

(a) ADDITIONAL DUTIES IMPOSED.—The independent panel established by the Secretary of 

Defense under section 576(a)(2) of the National Defense Authorization Act for Fiscal Year 2013 

(Public Law 112–239; 126 Stat. 1758), known as the ‘‘judicial proceedings panel’’, shall perform 

the following additional duties:

(1) Conduct a review and assessment regarding the impact of the use of any mental health records 

of the victim of an offense under chapter 47 of title 10, United States Code (the Uniform Code 

of Military Justice), by the accused during the preliminary hearing conducted under section 

832 of such title (article 32 of the Uniform Code of Military Justice), and during court-martial 

proceedings, as compared to the use of similar records in civilian criminal legal proceedings.

(2) Conduct a review and assessment regarding the establishment of a privilege under the Military 

Rules of Evidence against the disclosure of communications between—

(A)users of and personnel staffing the Department of Defense Safe Helpline; and

(B) users of and personnel staffing of the 26 Department of Defense Safe Help Room.

(b) SUBMISSION OF RESULTS.—The judicial proceedings panel shall include the results of the 

reviews and assessments conducted under subsection (a) in one of the reports required by section 

576(c)(2)(B) of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112–239; 

126 Stat. 1760).

SEC. 546. DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, 

PROSECUTION, AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

(f) DUE DATE FOR ANNUAL REPORT OF JUDICIAL PROCEEDINGS PANEL – Section 576(c)(2)

(B) of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239; 126 Stat. 

1760) is amended by inserting “annually” thereafter” after “reports”.
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES
69

APPENDIX B: Judicial Proceedings 

Panel Members

HONORABLE ELIZABETH HOLTZMAN – JPP CHAIR

Ms. Holtzman is counsel with the law firm Herrick, Feinstein LLP. Ms. Holtzman served for eight 

years as a U.S. representative (D-NY, 1973–81). While in office, she authored the Rape Privacy Act. 

She then served for eight years as District Attorney of Kings County, New York (Brooklyn), the fourthlargest DA’s office in the country, where she helped change rape laws, improve standards and methods 

for prosecution, and develop programs to train police and medical personnel. In 1989 Ms. Holtzman 

became the only woman ever elected Comptroller of New York City. Ms. Holtzman graduated from 

Radcliffe College, magna cum laude, and received her law degree from Harvard Law School.

HONORABLE BARBARA S. JONES, U.S. DISTRICT COURT FOR THE SOUTHERN 

DISTRICT OF NEW YORK (RETIRED) 

Judge Jones is a partner at the law firm Zuckerman Spaeder LLP. She served as a judge in the U.S. 

District Court for the Southern District of New York for sixteen years, and heard a wide range of cases 

relating to accounting and securities fraud, antitrust, fraud and corruption involving city contracts 

and federal loan programs, labor racketeering, and terrorism. Before being nominated to the bench in 

1995, Judge Jones was the Chief Assistant to Robert M. Morgenthau, then the District Attorney of 

New York County (Manhattan). In that role she supervised community affairs, public information, 

and oversaw the work of the Homicide Investigation Unit. In addition to her judicial service, she 

spent more than two decades as a prosecutor. Judge Jones was a special attorney of the United States 

Department of Justice (DOJ) Organized Crime & Racketeering, Criminal Division, and the Manhattan 

Strike Force Against Organized Crime and Racketeering. Previously, Judge Jones served as an Assistant 

U.S. Attorney, as chief of the General Crimes Unit, and as chief of the Organized Crime Unit in the 

Southern District of New York.

MR. VICTOR STONE

Victor Stone represents crime victims at the Maryland Crime Victims Resource Center, Inc. Previously, 

Mr. Stone served as Special Counsel at the United States Department of Justice. He spent forty years 

with the Department of Justice in numerous positions, including as Chief Counsel, FBI Foreign 

Terrorist Task Force, and as Assistant U.S. Attorney in Oregon and the District of Columbia. He 

has experience working on victim and prisoners’ rights, serving on committees that resulted in the 

enactment of the Crime Victims’ Rights Act and updates to the ABA Standards for Prisoner Rights. 

After graduating from Harvard Law School, he clerked on the United States Court of Appeals for the 

Ninth Circuit.

B. Judicial Proceedings Panel Members
70

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

PROFESSOR THOMAS W. TAYLOR

Tom Taylor teaches graduate courses at Duke University’s Sanford School of Public Policy. Previously, 

he served as a decorated and distinguished Army officer, civil servant, and member of the Senior 

Executive Service. During a twenty-seven-year career in the Pentagon, he advised seven secretaries and 

seven Chiefs of Staff of the Army, and as the senior leader of the Army legal community he worked on 

a wide variety of operational, personnel, and intelligence issues. He graduated with high honors from 

Guilford College, Greensboro, N.C., and with honors from the University of North Carolina at Chapel 

Hill law school, where he was a Morehead Fellow, a member of the law review, and a member of the 

Order of the Coif.

VICE ADMIRAL PATRICIA A. TRACEY, U.S. NAVY (RETIRED) 

Pat Tracey is the Vice President of Homeland Security and Defense for HP Enterprise Services, U.S. 

Public Sector, developing dynamic strategies and providing support to various government agencies, 

including the U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of 

State, and U.S. Department of Defense. In 2006, after thirty-four years in the U.S. Navy, she retired as 

the first female vice admiral. As Chief of the Navy’s $5 billion global education and training enterprise, 

she led a successful revolution in training technology to improve the quality, access, and effectiveness 

of Navy training while lowering its cost. Admiral Tracey graduated from the College of New Rochelle 

and the Naval Postgraduate School, with distinction, and completed a fellowship with the Chief of 

Naval Operations’ Strategic Studies Group.
71

APPENDIX C: Staff Members and 

Designated Federal Officials

JUDICIAL PROCEEDINGS 

PANEL STAFF

Colonel Kyle Green, U.S. Air Force, 

Staff Director

Lieutenant Colonel Kelly McGovern, 

U.S. Army, Deputy Staff Director

Mr. Dale Trexler, Chief of Staff

Mr. Roger Capretta, Supervising Paralegal 

(June 2014 - July 2015)

Ms. Julie Carson, Attorney and 

Legislative Analyst

Ms. Janice Chayt, Investigator

Ms. Alice Falk, Editor

Ms. Nalini Gupta, Attorney

Lieutenant Colonel Glen Hines, 

U.S. Marine Corps, Attorney

Mr. Kirtland Marsh, Attorney

Ms. Laurel Prucha Moran, Graphic Designer

Mr. Douglas Nelson, Attorney 

(June 2014 - October 2015)

Mr. Matt Osborn, Attorney 

(August 2014 - October 2015)

Ms. Meghan Peters, Attorney 

Ms. Terri Saunders, Attorney

Ms. Meghan Tokash, Attorney 

(December 2014 - October 2015)

Ms. Stayce Rozell, Senior Paralegal

Ms. Tiffany Williams, Supervising Paralegal

Ms. Sharon Zahn, Senior Paralegal

DESIGNATED FEDERAL OFFICIALS

Ms. Maria Fried, Designated Federal Official

Mr. William Sprance, 

Alternate Designated Federal Official

Major Jacqueline M. Stingl, 

Alternate Designated Federal Official

Mr. Dwight Sullivan, 

Alternate Designated Federal Official

C. Staff Members and Designated Federal 

Officials
72

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES
73

APPENDIX D: Judicial Proceedings Panel Public 

Meetings Addressing Victim 

Restitution and Compensation

JPP PUBLIC 

MEETING

PRESENTERS AND DELIBERATIONS

on Compensation and Restitution

March 13, 2015

Public Meeting 

of the JPP

at the

U.S. District Court 

for the District 

of Columbia, 

Washington, D.C.

• Colonel John G. Baker, U.S. Marine Corps, Chair, Joint Service 

Committee on Military Justice

• Professor Julie Goldscheid, CUNY Law School

• Professor Njeri Mathis Rutledge, South Texas College of Law

• Professor Cortney E. Lollar, University of Kentucky College of Law

• Mr. Dan Eddy, Executive Director, National Association of Crime Victim 

Compensation Boards

• Ms. Laura Banks Reed, Director, D.C. Superior Court Crime Victims 

Compensation Program

• Mr. Gene McCleskey, Director, Texas Crime Victims’ Compensation 

Program

• Ms. Lindsey E. Silverberg, Advocacy and Outreach Supervisor, Network 

for Victim Recovery of DC (NVRDC)

• Ms. Nikki S. Charles, NVRDC, former Administrator of Victim Services, 

Maryland Criminal Injuries Compensation Board

• Mr. Charles A. Cosgrove, Chief, Programs Branch, Criminal Law 

Division, Office of The Judge Advocate General, U.S. Army

• Major Mark D. Sameit, U.S. Marine Corps, Officer In Charge, Trial 

Counsel Assistance Program

• Lieutenant Commander Patrick K. Korody, U.S. Navy, Supervising 

Attorney, Victims’ Legal Counsel Program

• Ms. Kathy Nelson, Victim Witness Assistance Program, U.S. Air Force 

[by telephone]

• Captain Joseph B. Ahlers, U.S. Air Force, Special Victims’ Counsel

• Ms. Susan Smith Howley, Director, Public Policy, National Center for 

Victims of Crime

• Ms. Bridgette Marie Harwood, Director of Legal Services, NVRDC

• Colonel Michael Mulligan, U.S. Army, Chief, Criminal Law Division, 

Office of The Judge Advocate General

• Ms. Teresa P. Scalzo, Deputy Director, U.S. Navy Trial Counsel 

Assistance Program

• Major Richard M. Cloninger, U.S. Marine Corps, Regional Victims’ 

Legal Counsel

• Major Mary Ellen Payne, U.S. Air Force, Government Trial and 

Appellate Counsel Division, Air Force Legal Operations Agency

D. Judicial Proceedings Panel Public Meetings 

Addressing Victim Restitution and Compensation
74

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

JPP PUBLIC 

MEETING

PRESENTERS AND DELIBERATIONS

on Compensation and Restitution

April 10, 2015

Public Meeting 

of the JPP

at the

U.S. District Court 

for the District 

of Columbia, 

Washington, D.C.

• Panel deliberations (no speakers)

June 18, 2015

Public Meeting 

of the JPP

at the

The George 

Washington University 

Law School, 

Washington, D.C.

• Ms. Mary Kaye Justis, Director, TRICARE Health Plan

• Dr. Cara J. Krulewitch, CNM, Ph.D., FACNM, Director, Women’s 

Health, Medical Ethics and Patient Advocacy, Clinical and Policy 

Programs, Office of the Secretary of Defense

• Dr. Stacey Pollack, Ph.D., National Director of Program Policy 

Implementation, Veterans Health Administration

• Ms. Diana M. Williard, Quality Assurance Officer, Compensation 

Service, Veterans Benefits Administration

• Ms. Stephanie Li, Chief, Regulations and Policy Staff, Compensation 

Service, Veterans Benefits Administration

• Mr. R. Peter Masterton, Chief, European Tort Claims Division, U.S. 

Army Claims Service Europe

• Ms. Jennifer Riley, Assistant Counsel for Military and Civilian Pay, 

Defense Finance and Accounting Service

• Mr. Kenneth R. Feinberg, Founder and Managing Partner, Feinberg 

Rozen, LLP [by telephone]

• Mr. Dan Eddy, Executive Director, National Association of Crime Victim 

Compensation Boards

August 6, 2015

Public Meeting 

of the JPP

at the

The George 

Washington University 

Law School, 

Washington, D.C.

• Panel deliberations (no speakers)
75

APPENDIX D: JUDICIAL PROCEEDINGS PANEL PUBLIC MEETINGS 

ADDRESSING VICTIM RESTITUTION AND COMPENSATION

JPP PUBLIC 

MEETING

PRESENTERS AND DELIBERATIONS

on Compensation and Restitution

September 18, 2015

Public Meeting 

of the JPP

at the

Holiday Inn Ballston 

at Arlington, VA

• Panel deliberations (no speakers)

October 9, 2015

Public Meeting 

of the JPP

at the

Holiday Inn Ballston 

at Arlington, VA

• Panel deliberations (no speakers)

December 11, 2015

Public Meeting 

of the JPP

at the

Holiday Inn Ballston 

at Arlington, VA

• Panel deliberations & review of draft report (no speakers)

January 22, 2016

Public Meeting

of the JPP 

at the 

Holiday Inn Ballston 

at Arlington, VA

• Panel deliberations & report approval (no speakers)
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77

APPENDIX E: Acronyms and 

Abbreviations

CAAF: United States Court of Appeals for 

the Armed Services

CVC: Crime Victim Compensation

CVRA: Crime Victims’ Rights Act

DD Form: Department of Defense Form

DFAS: Defense Finance and Accounting 

Service

DoD: Department of Defense

DoDD: Department of Defense Directive

DoDI: Department of Defense Instruction

FCA: Foreign Claims Act

FTCA: Federal Tort Claims Act

FY: fiscal year

GAO: Government Accountability Office

ITVERP: International Terrorism Victim 

Expense Reimbursement Program 

JPP: Judicial Proceedings Panel

MCA: Military Claims Act

MCIO: military criminal investigative 

organization

MCM: Manual for Courts-Martial

MST: military sexual trauma

MVRA: Mandatory Victim Restitution Act

NACVCB: National Association of Crime 

Victim Compensation Boards

NCVLI: National Crime Victim Law 

Institute

NDAA: National Defense Appropriations 

Act

NVRDC: Network for Victim Recovery 

of DC

OVC: Office for Victims of Crime

PCA: Personnel and Civilian Employees 

Claims Act

PTA: pretrial agreement

PTSD: post-traumatic stress disorder

RCM: Rules for Courts-Martial

RSP: Response Systems to Adult Sexual 

Assault Crimes Panel

SAFE: sexual assault forensic exam

SAPR: Sexual Assault Prevention and 

Response

SAPRO: Sexual Assault Prevention and 

Response Office

SARC: sexual assault response coordinator

SASC: Senate Armed Services Committee

STI: sexually transmitted infection

SVC: special victims’ counsel

SWAN: Service Women’s Action Network

TCAD: Transitional Compensation for 

Abused Dependents

E. Acronyms and Abbreviations
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UCMJ: Uniform Code of Military Justice

USC: United States Code

VA: Veterans Affairs

VAWA: Violence Against Women Act

VLC: victim legal counsel

VOCA: Victims of Crime Act pf 1984

VWAP: Victim Witness Assistance Program

WPA: Whistleblower Protection Act
79

APPENDIX F: Sources Consulted

1. LEGISLATIVE SOURCES

a. Enacted Federal Statutes

5 U.S.C. App. 2 (Federal Advisory Committee Act)

10 U.S.C. §§ 801-946 (Uniform Code of Military Justice)

10 U.S.C. § 2733 (Military Claims Act)

10 U.S.C. § 2734 (Foreign Claims Act)

10 U.S.C. § 2772 (Share of fines and forfeitures to benefit Armed Forces Retirement Home)

18 U.S.C. § 3614 (Resentencing upon failure to pay a fine or restitution)

18 U.S.C. § 3663A (Mandatory Victim Restitution Act)

18 U.S.C. § 3664 (Procedure for issuance and enforcement of order of restitution)

18 U.S.C. § 3771 (Crime Victims’ Rights Act)

24 U.S.C. § 419 (Armed Forces Retirement Home Trust Fund)

28 U.S.C. §§ 2671-2680 (Federal Tort Claims Act)

31 U.S.C. § 3721 (Military Personnel and Civilian Employees Claims Act)

38 U.S.C. § 1720D (Counseling and treatment for sexual trauma)

42 U.S.C. § 3796 (Violence Against Women Act)

42 U.S.C. § 10602 (Victims of Crime Act)

Federal Advisory Committee Management, 41 C.F.R. § 102-3.50 (2011)

Victims of Crime Act Victim Compensation Grant Program, 66 Fed. Reg. 95, 27158-65 

(May 16, 2001)

National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, 126 Stat. 1632 (2013)

National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (2013)

b. Proposed Federal Statutes

H.R. 1607, 114th Cong., Ruth Moore Act of 2015 (2015)

S. 865, 114th Cong., Ruth Moore Act of 2015 (2015)

c. Enacted State Statutes

2014 Cal. Legis. Serv. 506 (A.B. 2545) (2014) (amending Cal. Gov’t Code § 13956)

2015 Tex. Sess. Law. Serv. 924 (West)

F. Sources Consulted
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2. JUDICIAL DECISIONS

a. U.S. Court of Appeals

United States v. Caruth, 418 F.3d 900 (8th Cir. 2005)

b. U.S. Court of Appeals for the Armed Forces

United States v. Williams, 60 M.J. 360 (C.A.A.F. 2004)

c. U.S. Army Court of Criminal Appeals

United States v. Delagarza, No. 20080891 (A. Ct. Crim. App. 2010) (unpublished)

3. RULES AND REGULATIONS

a. Executive Orders

Manual for Courts-Martial; Proposed Amendments , 80 Fed. Reg. 63,204 (Oct. 19, 2015), available at

http://www.gpo.gov/fdsys/pkg/FR-2015-10-19/pdf/2015-26485.pdf

Manual for Courts-Martial, United States (2012), available at http://www.loc.gov/rr/frd/Military_

Law/pdf/MCM-2012.pdf 

b. Department of Veterans Affairs

U.S. Dep’t of Veterans Affairs, VHA Dir. 2010-033, Military Sexual Trauma (MST) Programming

(July 14, 2010)

c. Department of Defense

U.S. Dep’t of Defense, Directive 1030.1, Victim and Witness Assistance (Apr. 23, 2004)

U.S. Dep’t of Defense, Instructive 1342.24, Transitional Compensation for Abused Dependents

(Jan. 16, 1997), available at http://www.cac.mil/docs/DODI-1342.24.pdf

U.S. Dep’t of Defense, DD Form 2701, Initial Information for Victims and Witnesses of Crime

(Aug. 2013), available at http://www.dtic.mil/whs/directives/forms/eforms/dd2701.pdf

U.S. Dep’t of Defense, Directive 6495.01, Sexual Assault Prevention and Response (SAPR) Program

(Jan. 20, 2015), available at http://www.dtic.mil/whs/directives/corres/pdf/649501p.pdf

U.S. Dep’t of Defense, Instruction 6495.02, Sexual Assault Prevention and Response (SAPR) 

Program Procedures (July 7, 2015), available at http://www.dtic.mil/whs/directives/corres/

pdf/649502p.pdf

U.S. Dep’t of Defense, Financial Management Reg. 7000.14-R, vol. 7B (Feb. 2015), available at

http://comptroller.defense.gov/Portals/45/documents/fmr/Combined_Volume1-15.pdf

d. Services

U.S. Dep’t of Army, Regulation 27-10, Military Justice (Oct. 3, 2011), available at 

http://www.apd.army.mil/pdffiles/r27_10.pdf
81

APPENDIX F: SOURCES CONSULTED

U.S. Dep’t of Army, Regulation 27-20, Claims (Feb. 8, 2008), available at

http://www.apd.army.mil/pdffiles/r27_20.pdf

4. MEETING AND HEARINGS

a. Public Meetings of the Judicial Proceedings Panel

Transcript of JPP Public Meeting (Mar. 13, 2015)

Transcript of JPP Public Meeting (June 18, 2015)

b. Congress 

Invisible Wounds: Examining the Disability Compensation Benefits Process for Victims of Military 

Sexual Trauma: Hearing Before the Subcommittee on Disability Assistance and Memorial Affairs 

of the House Committee on Veterans’ Affairs, 112th Cong. 1 (2012)

The Relationships Between Military Sexual Assault, Post-Traumatic Stress Disorder and Suicide, 

and on Department of Defense and Department of Veterans Affairs Medical Treatment and 

Management of Victims of Sexual Trauma, Hearing Before the Senate Armed Services Personnel 

Subcommittee, 113th Cong. 1 (2014)

5. OFFICIAL POLICY STATEMENTS

U.S. Dep’t of Justice, Office on Violence Against Women, A National Protocol For Sexual Assault

Medical Forensic Examinations: Adults/Adolescents (Apr. 2013), available at https://www.ncjrs.

gov/pdffiles1/ovw/241903.pdf

6. OFFICIAL REPORTS

a. DoD Agencies

Armed Forces Retirement Home, Congressional Budget Justification: Fiscal Year 2016, available at 

https://www.afrh.gov/afrh/docs/AFRH_CBJ_2016.pdf

Armed Forces Retirement Home, FY14 Performance and Accountability Report, available at

https://www.afrh.gov/afrh/about/par/afrhentirepar14.pdf

U.S. Dep’t of Def., SAPRO, Report to the President of the United States on Sexual Assault

Prevention and Response, (Nov. 25, 2014), available at http://www.sapr.mil/public/docs/reports/

FY14_POTUS/FY14_DoD_Report_to_POTUS_SAPRO_Report.pdf

U.S. Dep’t of Def., SAPRO, Department of Defense Annual Report on Sexual Assault in the

Military: Fiscal Year 2013 (Apr. 15, 2014), available at http://www.sapr.mil/public/docs/reports/

FY13_DoD_SAPRO_Annual_Report_on_Sexual_Assault.pdf

b. Reports of the Response Systems Panel and Judicial Proceedings Panel

Judicial Proceedings Panel, Initial Report (Feb. 2015), available at http://jpp.whs.mil/Public/docs/08-

Panel_Reports/JPP_InitialReport_Final_20150204.pdf
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Report of the Response Systems to Adult Sexual Assault Crimes Panel (June 2014), available at http://

responsesystemspanel.whs.mil/Public/docs/Reports/00_Final/RSP_Report_Final_20140627.pdf

c. Other Government Reports

U.S. Government Accountability Office, Military Sexual Trauma: Improvements Made, But VA Can

Do More to Track and Improve the Consistency of Disability Claim Decisions (June 2014)

7. DOD’S AND SERVICES’ RESPONSES TO REQUESTS FOR INFORMATION OF 

THE RESPONSE SYSTEMS PANEL AND THE JUDICIAL PROCEEDINGS PANEL

Services’ Responses to RSP Request for Information 68 (Nov. 21, 2013)

DoD’s and Services’ Responses to JPP Requests for Information 53-60 (Nov. 6, 2014)

8. JOURNAL ARTICLES

Major John W. Brooker, U.S. Army, et al., Beyond “T.B.D.”: Understanding VA’s Evaluation of a 

Former Servicemember’s Benefit Eligibility Following Involuntary or Punitive Discharge from the 

Armed Forces, 214 Mil. L. Rev. 1 (Winter 2014)

Julie Dickerson, A Compensation System for Military Victims of Sexual Assault and Harassment, 

222 Mil. L. Rev. 211 (Winter 2014)

Kenneth R. Feinberg, Unconventional Responses to Unique Catastrophes, 45 Akron L. Rev. 575 

(2011–12)

Julie Goldscheid, Crime Victim Compensation in a Post-9/11 World, 79 Tul. L. Rev. 167 (2004)

Lieutenant Colonel David M. Jones, Making the Accused Pay for His Crime: A Proposal to Add 

Restitution as an Authorized Punishment under Rule for Courts-Martial 1003(B), 52 Naval L. 

Rev. 1 (2005)

Cortney E. Lollar, What is Criminal Restitution?, 100 Iowa L. Rev. 93, 100 (2014)

Colonel R. Peter Masterton, U.S. Army, Claims Office Management, 2011-SEP Army Law. 48 

(Sept. 2011)

R. Peter Masterton, Unique Aspects of Article 139 Claims Overseas, 2015-SEP Army Law. 33 

(Sept. 2015)

Paula B. McCarron, After the Gavel Falls: An Introduction to the Department of Defense Clemency 

and Parole Process, 27 Fed. Sent’g. Rep. 173 (Feb. 2015)

Linda S. Mullenix, Designing Compensatory Funds: In Search of First Principles, 3 Stan. J. Complex. 

Litig. 1 (Winter 2015)

National Crime Victim Law Institute (NCVLI), Fundamentals of Victims’ Rights: A Victim’s Right to 

Restitution, Victim Law Bull., Nov. 2011

Njeri Mathis Rutledge, Looking a Gift Horse in the Mouth – The Underutilization of Crime Victim 

Compensation Funds by Domestic Violence Victims, 19 Duke J. Gender L. & Pol’y 223(2011)
83

APPENDIX F: SOURCES CONSULTED

9. WRITTEN STATEMENTS

Written Statement of Colonel John G. Baker, U.S. Marine Corps, Chair, Joint Service Committee on 

Military Justice, to JPP (Mar. 20, 2015)

Written Statement of Mr. Dan Eddy, Executive Director, National Association of Crime Victim 

Compensation Boards, to JPP (June 18, 2015)

Written Statement of Professor Julie Goldscheid, CUNY School of Law, to JPP (Mar. 18, 2015)

Written Statement of Mr. Gene McCleskey, Director, Texas Crime Victims’ Compensation Program, to 

JPP (submitted Mar. 11, 2015)

Written Statement of Professor Njeri Mathis Rutledge, South Texas College of Law, to JPP (submitted 

Mar. 11, 2015)

Written Statement of Greg Jacobs, Policy Director, Service Women’s Action Network (SWAN) to JPP 

(submitted Mar. 11, 2015)

10. ONLINE RESOURCES 

a. Government Websites

Judicial Proceedings Panel, “JPP Staff Minutes of 2015 VOCA National Training Conference” (Aug. 

24-27, 2015) at http://jpp.whs.mil/Public/docs/03_Topic-Areas/05-Comp_Rest/20150918/02_

Minutes_Compensation_Conference.pdf.

State of Hawaii Crime Victim Compensation Commission, “Benefits,” at http://dps.hawaii.gov/cvcc/

benefits/.

U.S. Dep’t of Defense, Defense Health Agency, “Continued Health Care Benefit Program,” at

http://www.tricare.mil/chcbp

U.S. Dep’t of Defense, Defense Health Agency, “Psychotherapy,” at http://www.tricare.mil/

CoveredServices/IsItCovered/Psychotherapy.aspx

U.S. Dep’t of Defense, Defense Health Agency, “TRICARE Choices in the United States: At a Glance” 

(Aug. 2015), at http://www.tricare.mil/~/media/Files/TRICARE/Publications/BrochuresFlyers/

Choices_Glance_BR.pdf

U.S. Dep’t of Justice, Office for Victims of Crime, “2012 Victims of Crime Act Performance Report,” 

at http://ojp.gov/ovc/grants/vocanpr_vc12.html

U.S. Dep’t of Justice, Office for Victims of Crime, “Victims of Crime Act: Rebuilding Lives through 

Assistance and Compensation,” at http://www.ovc.gov/images/VOCA_Chart.jpg

U.S. Dep’t of Justice, Office for Victims of Crime, “OVC Fact Sheet,” at http://ojp.gov/ovc/pubs/

crimevictimsfundfs/intro.html

U.S. Dep’t of Veterans Affairs, “Disability Compensation for Conditions Related to Military Sexual 

Trauma (MST)” (Apr. 2015), available at http://www.benefits.va.gov/BENEFITS/factsheets/

serviceconnected/MST.pdf

U.S. Dep’t of Veterans Affairs, “Information for Servicemembers about Military Sexual Trauma” (Dec. 

2014), available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/05-Comp_Rest/20150618/21_

VA_MST_Separation_Handout.pdf
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U.S. Dep’t of Veterans Affairs, “Military Sexual Trauma” (Oct. 2014), at http://www.mentalhealth.

va.gov/docs/mst_general_factsheet.pdf

U.S. Dep’t of Veterans Affairs, “Quick Facts About VA’s Health Care Services for Military Sexual 

Trauma (MST)” (Apr. 2015), available at http://www.mentalhealth.va.gov/docs/VAHCS_MST_

April2015.pdf

b. Other Websites

Humana Military, “Continued Health Care Benefit Program” (Oct. 2014), at http://go.usa.gov/2P5F

National Association of Crime Victim Compensation Boards, “Basic Program Information,” available 

at http://www.nacvcb.org/index.asp?sid=7

National Association of Crime Victim Compensation Boards, “Compensation for Crime Victims,” 

available at http://www.nacvcb.org/NACVCB/files/ccLibraryFiles/Filename/000000000120/

BrochureCVC1.pdf 

National Association of Crime Victim Compensation Boards, “Compensation Funding Sources,” 

available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/05-Comp_Rest/20150918/08_

NACVCB_CompFundingSources_Info.pdf.

National Association of Crime Victim Compensation Boards, “Contributory Conduct Requires Causal 

Connection, Kansas Court Rules” (provided to JPP June 22, 2015), available at http://jpp.whs.mil/

Public/docs/03_Topic-Areas/05-Comp_Rest/20150618/19_NACVCB_Kansas_Contrib_Conduct_

Case_Synopsis.pdf

National Association of Crime Victim Compensation Boards, “Crime Victim Compensation: 

Resources for Recovery,” available at http://www.nacvcb.org/NACVCB/files/ccLibraryFiles/

Filename/000000000243/Fact%20sheet2014.doc

The One Fund Boston 2013, “Final Protocol” (May 2013), available at http://jpp.whs.mil/Public/

docs/03_Topic-Areas/05-Comp_Rest/20150618/17_OneFund_Boston_Protocol.pdf