JUDICIAL 

PROCEEDINGS 

PANEL

REPORT ON 

PANEL CONCERNS REGARDING 

THE FAIR ADMINISTRATION OF 

MILITARY JUSTICE IN SEXUAL 

ASSAULT CASES

September 2017

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

Captain Tammy P. Tideswell, Judge Advocate General’s Corps, U.S. Navy

DEPUTY STAFF DIRECTOR

Lieutenant Colonel Patricia H. Lewis, Judge Advocate General’s Corps, 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

Panel Concerns Regarding 

the Fair Administration Of Military 

Justice In Sexual Assault Cases

September 2017

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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

 

 

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 James Mattis

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 panel concerns regarding the fair administration of 

military justice in sexual assault cases. This report includes nine recommendations on the 

topics of the Article 32 process, case disposition guidance for convening authorities and 

staff judge advocates, the staff judge advocate’s pretrial advice to the convening 

authority, access by prosecutors to sexual assault victims prior to trial, sexual assault 

prevention and response training, and expedited transfers of sexual assault victims.

To assess the effects of numerous changes in law and policy on sexual assault 

offenses in the military, the JPP tasked the JPP Subcommittee with conducting site visits 

to military installations in the United States and Asia. From June through September 

2016, members of the JPP Subcommittee heard from panels of more than 280 individuals 

from all of the military Services involved in the investigation, prosecution, and defense of 

sexual assault offenses. The JPP Subcommittee reviewed the information gathered from 

these site visits, as well as information on this topic received by it in Subcommittee 

meetings and received by the JPP in public meetings, and submitted its findings and 

recommendations to the JPP. After hearing testimony from JPP Subcommittee members 

who attended installation site visits, and deliberating on the Subcommittee’s report and 

recommendations, the JPP makes nine recommendations concerning the issues identified 

by the JPP Subcommittee. 

Elizabeth Holtzman

Chair

Barbara Jones

Victor Stone

Tom Taylor

Patricia Tracey

September 15, 2017
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

-2-

The JPP expresses its sincere appreciation to the members of the JPP 

Subcommittee and everyone who contributed to this report.

Respectfully submitted,

_______________________________

Elizabeth Holtzman, Chair

____________________________ _____________________________

Barbara S. Jones Victor Stone

___________________________ ____________________________

Thomas W. Taylor Patricia A. Tracey
1

Contents

Contents

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

JPP RECOMMENDATIONS ON PANEL CONCERNS REGARDING THE FAIR 

ADMINISTRATION OF MILITARY JUSTICE IN SEXUAL ASSAULT CASES . . . . . 7

APPENDICES:

A. Subcommittee of the Judicial Proceedings Panel Report on Barriers to the Fair Administration 

of Military Justice in Sexual Assault Cases

B. Judicial Proceedings Panel Authorizing Statutes and Charter

C. Judicial Proceedings Panel Committee and Subcommittee Member Biographies

D. Judicial Proceedings Panel Staff Members and Designated Federal Officials

E. Presenters on Panel Concerns Regarding the Fair Administration of Military Justice in 

Sexual Assault Cases at Judicial Proceedings Panel Public and Subcommittee Meetings

F. Acronyms and Abbreviations

G. Sources Consulted
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ASSAULT CASES
3

Executive Summary

INTRODUCTION

This report of the Judicial Proceedings Panel (JPP) focuses on some large-scale issues in the military’s 

handling of sexual assault cases that have come to light during the Panel’s ongoing assessment of 

sexual assault in the military. 

In the past several years, media reports and the work of a number of members of Congress have 

fostered a public perception that the military has failed in sexual assault cases to effectively prosecute 

the accused and treat sexual assault victims with dignity and compassion. To address these concerns, 

Congress, the Department of Defense, and the White House have all worked to change the military 

system so that victims of sexual assault will be treated with respect and not further victimized by the 

criminal justice process. Other changes have been put in place to counter the perception that sexual 

assault predators were being protected from prosecution by military commanders.

Many of these changes have been valuable. One possible sign that they are having an effect is the 

increase in the past few years of the number of sexual assault cases being reported and the decrease 

in the number of reports of unwanted sexual contact in biannual surveys.1 While the causes for those 

trends cannot be identified with certainty, many believe they indicate greater confidence that the 

criminal justice system will help the victim and will vigorously prosecute the accused. 

As constructive and important as these changes have been, they appear to have also produced an 

unintended negative consequence: as the JPP Subcommittee was repeatedly told on its site visits, they 

appear to have raised questions about the fundamental fairness of the military justice process when it 

comes to the treatment of the accused. 

It is vital for the military justice system to strike the right balance between the needs of the victim and 

the needs of the defendant. Both must be properly addressed if the system is to be fair and just, and 

perceived as such. The failure to maintain both the reality and perception among the military and the 

public of a just system can undermine morale, affect recruiting, and create a corrosive cynicism among 

military personnel. For that reason, the JPP believes it is important to share the criticisms it received 

with Congress, the Department of Defense, and the public.

METHODOLOGY

In order to assess the effects of numerous changes in law and policy on the investigation, prosecution, 

and defense of sexual assault offenses in the military, the Judicial Proceedings Panel tasked the 

Subcommittee of the JPP with conducting site visits to military installations to talk to the men and 

women who work in the military justice system. The JPP had previously received information on many 

1 According to sexual assault prevalence surveys conducted of active duty military members, about 14,900 Service members 

experienced some kind of sexual assault in 2016, compared with 20,300 in 2014. See U.S. Dep’t of Def., SAPRO, 

Department of Defense Annual Report on Sexual Assault in the Military: Fiscal Year 2016 at 14 (May 1, 2017), 

available at http://sapr.mil/public/docs/reports/FY16_Annual/FY16_SAPRO_Annual_Report.pdf.

Executive Summary
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REPORT ON PANEL CONCERNS REGARDING THE FAIR ADMINISTRATION OF MILITARY JUSTICE IN SEXUAL 

ASSAULT CASES

of the changes to law and policy, and wanted to determine how these changes were being carried 

out and perceived at military installations by investigators, prosecutors, defense counsel, and others 

involved in sexual assault investigation, litigation, or victim support.

From July through September 2016, members of the JPP Subcommittee visited military installations 

in the United States and Asia. They met with panels of more than 280 individuals from 25 military 

installations and all of the military Services, including prosecutors, defense counsel, special victims’ 

counsel/victims’ legal counsel, paralegals, commanders, investigators, and sexual assault response 

coordinators and other victim support personnel. These individuals spoke without attribution so that 

the Subcommittee could gain an unfiltered, candid assessment of how changes in sexual assault laws 

and policies have, in their view, affected the military justice system. 

On the basis of information from these site visits, the Subcommittee elected to issue reports on 

several topics. The Subcommittee issued its first report to the JPP in December 2016 on the subject 

of military defense counsel resources and experience in sexual assault cases and its second report in 

February 2017 on sexual assault investigations in the military. After receiving testimony from the 

Subcommittee members and deliberating on the information presented, the JPP issued two reports with 

recommendations on the topics identified by the Subcommittee. The JPP Subcommittee also issued 

three short reports—without recommendations—in March 2017 on the topics of the Department of 

Defense (DoD) initial disposition withholding policy, Military Rules of Evidence 412 and 513, and the 

training and experience of trial counsel and special victims’ counsel/victims’ legal counsel. 

The JPP Subcommittee issued its final report to the JPP in May 2017, relating concerns regarding the 

fair administration of military justice in sexual assault cases. The JPP deliberated on the information 

presented by the Subcommittee and had the opportunity to question the JPP Subcommittee members 

who attended the installation site visits. As a result of this deliberation and review of the Subcommittee 

report, included as Appendix A, the JPP issues nine recommendations. 

REPORT OF THE JUDICIAL PROCEEDINGS PANEL SUBCOMMITTEE

In its report, the JPP Subcommittee identified a number of issues with how the military justice system 

treats sexual assault offenses: 

(1) The revised Article 32 process provides less information to convening authorities and no longer 

serves as a discovery mechanism for the defense. 

(2) Convening authorities currently lack meaningful written guidelines to help them decide 

whether a case warrants referral to court-martial. 

(3) Because the staff judge advocate’s pretrial advice to the convening authority must be provided 

to the defense if the charges are referred to court, the staff judge advocate may be unwilling to 

provide a complete and candid written assessment of the evidence in the case. 

(4) Counsel perceive that convening authorities feel pressured to refer sexual assault cases, even 

when based on weak evidence, to trial. 

(5) Trial counsel sometimes lack the access that they believe sufficient to best prepare the victims 

for trial.
5

EXECUTIVE SUMMARY

(6) Military members who potentially may sit on court-martial panels receive sexual assault 

prevention and response training that may confuse them regarding the legal standard for 

consent when alcohol is involved in sexual assault cases. The frequency of this training is also 

causing “training fatigue” among some military members. 

(7) The current policy on the expedited transfer of sexual assault victims can make it difficult for 

investigators and prosecutors when victims have been transferred to faraway locations.

FINDINGS AND RECOMMENDATIONS OF THE JUDICIAL PROCEEDINGS PANEL

The JPP recognizes that the views of the individuals who participated in the site visits may depend in 

some measure on the military Service, location, and level of experience of the participants, and that the 

information provided was anecdotal. However, the views addressed in this report were brought to the 

Subcommittee’s attention during every installation site visit, were supported by specific examples, and 

were also contextualized by the Subcommittee’s subsequent research into related policies and statutes, 

as well as testimony before the JPP and the Subcommittee. Taken together, these considerations suggest 

that the issues could be systemic and should be addressed.

After receiving the presentation of the Subcommittee report, engaging in robust discussion with 

Subcommittee members at a public meeting on these issues, and deliberating as a panel, the JPP makes 

nine recommendations regarding the issues affecting the fair administration of military justice in sexual 

assault cases, addressing the Article 32 process, case disposition guidance for convening authorities and 

staff judge advocates, the staff judge advocate’s pretrial advice to the convening authority, access by 

prosecutors to sexual assault victims prior to trial, sexual assault prevention and response training, and 

expedited transfers of sexual assault victims.
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REPORT ON PANEL CONCERNS REGARDING THE FAIR ADMINISTRATION OF MILITARY JUSTICE IN SEXUAL 

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7

JPP Recommendations on Panel Concerns 

Regarding the Fair Administration of Military 

Justice in Sexual Assault Cases*

Recommendation 55: The Secretary of Defense and the Defense Advisory Committee on 

Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) 

continue the review of the new Article 32 preliminary hearing process, which, in the view of many 

counsel interviewed during military installation site visits and according to information presented 

to the JPP, no longer serves a useful discovery purpose. This review should look at whether 

preliminary hearing officers in sexual assault cases should be military judges or other senior judge 

advocates with military justice experience and whether a recommendation of such a preliminary 

hearing officer against referral, based on lack of probable cause, should be given more weight by 

the convening authority. This review should evaluate data on how often the recommendations of 

preliminary hearing officers regarding case disposition are followed by convening authorities and 

determine whether further analysis of, or changes to, the process are required.

In addition, because the Article 32 hearing no longer serves as a discovery mechanism for the 

defense, the JPP reiterates its recommendation—presented in its report on military defense counsel 

resources and experience in sexual assault cases—that the military Services provide the defense 

with independent investigators.

• The Fiscal Year 2014 National Defense Authorization Act (NDAA) made substantial changes to 

Article 32 of the Uniform Code of Military Justice (UCMJ), narrowing the scope of the pretrial 

hearing to a determination of whether probable cause exists to believe an offense was committed 

and the accused committed the offense. These changes also removed the ability of the Article 32 

hearing officer to compel a victim to appear and testify at the hearing. The Article 32 hearing is 

no longer a discovery mechanism for the defense.

• According to site visit information from trial and defense counsel provided to the JPP 

Subcommittee, the new Article 32 preliminary hearing is not a meaningful process for evaluating 

the strength of the case. 

* 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. JPP Recommendations 12–17 are 

included in the Judicial Proceedings Panel Report on Restitution and Compensation for Military Adult Sexual Assault

Crimes 5 (Feb. 2016), available at jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_Rest_Comp_Report_Final_20160201_

Web.pdf. JPP Recommendations 18–23 are included in the Judicial Proceedings Panel Report on Article 120 of the

Uniform Code of Military Justice 5–7 (Feb. 2016), available at jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_Art120_

Report_Final_20160204_Web.pdf. JPP Recommendations 24–36 are included in the Judicial Proceedings Panel Report

on Retaliation Related to Sexual Assault Offenses 5–10 (Feb. 2016), available at jpp.whs.mil/Public/docs/08-Panel_

Reports/04_JPP_Retaliation_Report_Final_20160211.pdf. JPP Recommendations 37–38 are included in the Judicial

Proceedings Panel Report on Statistical Data Regarding Military Adjudication of Sexual Assault Offenses 5–6 (Apr. 

2016), available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/05_JPP_StatData_MilAdjud_SexAsslt_Report_

Final_20160419.pdf. JPP Recommendations 39–42 are included in the Judicial Proceedings Panel Report on Military

Defense Counsel Resources and Experience in Sexual Assault Cases 5–6 (Feb. 2017), available at http://jpp.whs.mil/

Public/docs/08-Panel_Reports/06_JPP_Defense_Resources_Experience_Report_Final_20170424.pdf. JPP Recommendations 

43–46 are included in the Judicial Proceedings Panel Report on Victims’ Appellate Rights 3–4 (June 2017), available at

http://jpp.whs.mil. JPP Recommendations 47–51 are included in the Judicial Proceedings Panel Report On Sexual Assault

Investigations in the Military 3–4 (Sep. 2017), available at http://jpp.whs.mil. JPP Recommendations 52–54 are included 

in the Judicial Proceedings Panel Report on Statistical Data Regarding Military Adjudication of Sexual Assault

Offenses for Fiscal Year 2015 3–4 (Sep. 2017), available at http://jpp.whs.mil.
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REPORT ON PANEL CONCERNS REGARDING THE FAIR ADMINISTRATION OF MILITARY JUSTICE IN SEXUAL 

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• According to information presented to the JPP by former military judges, trial counsel, and 

defense counsel, Article 32 hearings are now “paper drills,” often with no witnesses testifying and 

only documentary evidence submitted.

• Counsel who spoke to the Subcommittee during site visits, as well as counsel who provided 

information to the JPP, stated that convening authorities sometimes refer charges in sexual assault 

cases even when the Article 32 preliminary hearing officers recommend charges not be referred.

• The JPP believes that Article 32 data should be examined to determine whether the seniority or 

experience level of the Article 32 preliminary hearing officer is a factor in the frequency with 

which convening authorities follow his or her advice. 

• Because the statutory changes to Article 32, UCMJ, have only recently been included in the 

court-martial case data reviewed by the JPP, the Secretary of Defense and the DAC-IPAD should 

continue monitoring court-martial data to evaluate the effect of the statutory changes.

Recommendation 56: Article 33, UCMJ, nonbinding case disposition guidance for convening 

authorities and staff judge advocates should require that the following standard be considered for 

referral to court-martial: the charges are supported by probable cause and there is a reasonable 

likelihood of proving the elements of each offense beyond a reasonable doubt using only evidence 

likely to be found admissible at trial.

The nonbinding disposition guidance should require the staff judge advocate and convening 

authority to consider all the prescribed guideline factors in making a disposition determination, 

though they should retain discretion regarding the weight they assign each factor.

• The Fiscal Year 2017 NDAA created a new Article 33 of the UCMJ that directed the Secretary of 

Defense to issue nonbinding guidance regarding factors that convening authorities and staff judge 

advocates should consider when exercising their duties with respect to the disposition of charges. 

The new Article 33 states that this guidance should take into account the “principles contained 

in official guidance of the Attorney General to attorneys for the Government with respect to 

disposition of Federal criminal cases.”2

• On July 11, 2017, the Joint Service Committee on Military Justice published for public comment 

proposed disposition guidance under Article 33, UCMJ. The JPP reviewed Sections 2.1 and 2.3 of 

the proposed guidance and notes that Section 2.1(h) is generally consistent with the JPP proposed 

standard.

• The “official guidance of the Attorney General” mentioned in Article 33 refers to the U.S. 

Attorneys’ Manual. This manual specifies that probable cause is a threshold consideration that, if 

met, does not automatically warrant prosecution. The manual provides that an attorney should 

commence prosecution if “the admissible evidence will probably be sufficient to obtain and 

sustain a conviction.”

• The American Bar Association’s Criminal Justice Standards for the Prosecution Function state 

that a prosecutor should file and maintain criminal charges only when the charges are supported 

by probable cause, when “admissible evidence will be sufficient to support conviction beyond a 

reasonable doubt, and [when] the decision to charge is in the interests of justice.”

2 National Defense Authorization Act for Fiscal Year 2017, Pub. L. 114-328, § 5204.
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SUMMARY OF PANEL RECOMMENDATIONS

• Counsel interviewed by the JPP Subcommittee on site visits believe that the standard in the 

military for referral of charges, which is probable cause, is too low and that convening authorities 

should take into account other factors in making disposition decisions, such as the likelihood of 

obtaining a conviction at trial.

Recommendation 57: After case disposition guidance under Article 33, UCMJ, is promulgated, 

the Secretary of Defense and DAC-IPAD conduct both military installation site visits and further 

research to determine whether convening authorities and staff judge advocates are making 

effective use of this guidance in deciding case dispositions. They should also determine what 

effect, if any, this guidance has had on the number of sexual assault cases being referred to courtsmartial and on the acquittal rate in such cases.

• Counsel who spoke to the Subcommittee during site visits, as well as counsel who provided 

information to the JPP, perceived considerable pressure on convening authorities to refer sexual 

assault allegations to court-martial, even when based on weak evidence. The result, they believe, 

is a high acquittal rate in sexual assault cases.

• Case documents provided by the Services for sexual assault cases tried by court-martial in fiscal 

year 2015 show that for cases in which the most serious offense tried was a penetrative offense, 

39% resulted in convictions for a sexual assault offense, 31% resulted in convictions for a nonsex offense only, and 30% resulted in acquittal of all charges. For cases in which the most serious 

sex offense tried was a sexual contact offense, 25% resulted in convictions for a sexual contact 

offense, 57% resulted in convictions for a non-sex offense only, and 18% resulted in acquittal of 

all charges.3

Recommendation 58: The Secretary of Defense and the DAC-IPAD review whether Article 34 

of the UCMJ and Rule for Court-Martial 406 should be amended to remove the requirement 

that the staff judge advocate’s pretrial advice to the convening authority (except for exculpatory 

information contained in that advice) be released to the defense upon referral of charges to courtmartial. This review should determine whether any memo from trial counsel that is appended 

should also be shielded from disclosure to the defense. This review should also consider whether 

such a change would encourage the staff judge advocate to provide more fully developed and 

candid written advice to the convening authority regarding the strengths and weaknesses of the 

charges so that the convening authority can make a better-informed disposition decision.

• Rule for Court-Martial 404 states that the staff judge advocate must provide written pretrial 

advice to the convening authority prior to referral of charges to a general court-martial, including 

a conclusion as to whether each specification states an offense under the UCMJ, whether the 

allegations are warranted by the evidence in the Article 32 preliminary hearing report, and 

whether a court-martial would have jurisdiction over the accused and offense, as well as a 

recommendation for action by the convening authority. A copy of the pretrial advice must be 

provided to the defense if the convening authority refers the case to court-martial.

• Counsel in some Services provide a prosecution merits memo with the trial counsel’s opinion on 

the evidence and the likelihood of conviction at trial. Counsel from other Services say they have 

3 Judicial Proceedings Panel Report on Statistical Data Regarding Military Adjudication of Sexual Assault Offenses for

Fiscal Year 2015 (Sep. 2017), Appendix A: Adjudication of Sexual Offenses Reported to the Military Services in 2015,

Cassia Spohn, PhD, School of Criminology and Criminal Justice, Arizona State University.
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ASSAULT CASES

similar processes. Under Rule for Court-Martial 404, if appended to the staff judge advocate’s 

pretrial advice, this memo would also have to be provided to the defense if charges are referred to 

court-martial.

Recommendation 59: Congress review and consider revising provisions in the National Defense 

Authorization Act for Fiscal Year 2014 and Fiscal Year 2015, sections 1744 and 541 respectively, 

that require non-referral decisions in certain sexual assault cases to be forwarded for review 

and decision to a higher general court-martial convening authority or to the Service Secretary, 

because these provisions appear to have created a perception of undue pressure on convening 

authorities to refer such cases. The Secretary of Defense should develop procedures to mitigate 

this perception.

• The Fiscal Year 2014 and Fiscal Year 2015 NDAAs contain provisions requiring that a convening 

authority’s decision not to refer certain sexual assault cases be forwarded for review and decision 

either to a higher general court-martial convening authority or to the Service Secretary. While 

well-intentioned, these NDAA provisions appear to have created the perception of undue pressure 

on convening authorities to refer sexual assault cases to courts-martial, which negatively affects 

the military justice system.

• Data provided by the Services on review of disposition decisions since these NDAA provisions 

were enacted reflect no instances in which secretarial review of a convening authority’s decision 

has been required. In some instances in each Service, a convening authority’s decision not to 

refer a sexual assault case has been reviewed by a higher-level convening authority. In all but 

one of those instances, the higher-level convening authority also declined to refer the case to 

court-martial.

• Trial and defense counsel on site visits perceived there to be pressure on convening authorities 

to refer sexual assault cases to trial, even when based on weak evidence. They perceive that 

commanders would rather refer cases to trial than deal with the potential adverse effects of not 

referring the cases, such as career setbacks, media scrutiny, and elevated review of non-referral 

decisions.

• The JPP notes media coverage of two sexual assault court-martial appellate cases, both of which 

came to light following the Subcommittee’s issuance of its report, that underscores the JPP’s 

concerns related to perceived pressure on convening authorities. 

° In the first case, United States v. Barry,4

 a declaration of the convening authority was submitted 

to the court that states: “I perceived that if I were to disapprove the findings in the [sexual 

assault] case, it would adversely affect the Navy.” The convening authority further stated: 

“Even though I was convinced then, and am convinced now, that I should have disapproved 

the findings, my consideration of the Navy’s interest in avoiding the perception that military 

leaders were sweeping sexual assaults under the rug outweighed that conviction at the time.”5

4 United States v. Barry, 76 M.J. 269 (Apr. 27, 2017); remanded, United States v. Barry, No. 2017 CAAF LEXIS 703 

(C.A.A.F., June 19, 2017).

5 Declaration of RADM Patrick J. Lorge, USN (Ret.), May 5, 2017.
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SUMMARY OF PANEL RECOMMENDATIONS

° In the second case, United States v. Boyce,6

 the Court of Appeals for the Armed Forces 

overturned a sexual assault case on the basis of an appearance of unlawful command 

influence.7 This was primarily due to senior civilian and military leaders reportedly giving the 

convening authority an ultimatum to retire or be removed from his position for his failure to 

refer a prior sexual assault case to court-martial.

Recommendation 60: The Secretary of Defense and the DAC-IPAD continue to gather data and 

other evidence on disposition decisions and conviction rates of sexual assault courts-martial to 

supplement information provided to the JPP Subcommittee during military installation site visits 

and to determine future recommendations for improvements to the military justice system.

• Counsel on site visits reported high acquittal rates in sexual assault cases due to a less robust 

Article 32 process, the standard of probable cause for referral of charges, and pressure on 

convening authorities to refer cases to trial even when based on weak evidence.

• Case documents provided by the Services for sexual assault cases tried by court-martial in fiscal 

year 2015 show that for cases in which the most serious offense tried was a penetrative offense, 

39% resulted in convictions of a sexual assault offense, 31% resulted in convictions of a non-sex 

offense only, and 30% resulted in acquittal of all charges. For cases in which the most serious 

sex offense tried was a sexual contact offense, 25% resulted in convictions of a sexual contact 

offense, 57% resulted in convictions of a non-sex offense only, and 18% resulted in acquittal of 

all charges.8

Recommendation 61: The Secretary of Defense ensure that special victims’ counsel/victims’ legal 

counsel (SVCs/VLCs) receive the necessary training on the importance of allowing reasonable 

access by prosecutors to sexual assault victims prior to courts-martial. Such training will ensure 

that SVCs/VLCs are considering the value of an effective relationship between the prosecutor and 

the victim in the advice they provide their victim-clients, with the goal of assisting the prosecutor 

in fully preparing for trial.

• A number of trial counsel on site visits told the Subcommittee that while SVCs/VLCs are a 

valuable asset, they sometimes restrict the ability of trial counsel to conduct subsequent interviews 

with victims. 

Recommendation 62: The Department of Defense Sexual Assault Prevention and Response 

Office ensure that sexual assault training conducted by the military Services provide accurate 

information to military members regarding a person’s ability to consent to sexual contact after 

consuming alcohol and regarding the legal definition of “impairment” in this context and that 

training be timed and conducted so as to avoid “training fatigue.”

The Secretary of Defense and the DAC-IPAD monitor whether misperceptions regarding alcohol 

consumption and consent affect court-martial panel members.

6 The case was returned to the convening authority allowing for a retrial. United States v. Boyce, 76 M.J. 242 (May 22, 

2017), available at http://www.armfor.uscourts.gov/newcaaf/opinions/2016OctTerm/160546.pdf.

7 The court found in fact that there was no actual unlawful command influence. Id.

8 Judicial Proceedings Panel Report on Statistical Data Regarding Military Adjudication of Sexual Assault Offenses for

Fiscal Year 2015 (Sep. 2017), Appendix A, supra note 3.
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ASSAULT CASES

• Commanders who spoke to the Subcommittee expressed concerns about the frequency of 

mandatory sexual assault prevention and response (SAPR) training, describing it as timeconsuming and potentially counterproductive because of perceived “training fatigue.”

• Counsel on site visits indicated that they still hear misperceptions about alcohol use and 

impairment from court-martial panel members, even though sexual assault response coordinators 

and others who conduct SAPR training told Subcommittee members they do not train military 

members that “one beer means no consent,” or use variations of that slogan.

• A September 2016 Navy-Marine Corps Court of Criminal Appeals decision—United States v. 

Newlan9—involved an erroneous jury instruction on the definition of “impairment” in a sexual 

assault case. The court noted that many members of the jury pool received training from SAPR 

personnel that led them to believe that “if someone ingested any alcohol, that individual was no 

longer able to legally consent. [footnote omitted]”10

Recommendation 63: The Secretary of Defense review the policy on expedited transfer of sexual 

assault victims and consider whether it should be modified to require commanders to determine, 

in each case, whether a sexual assault victim could be transferred to another unit on the same 

installation or to a nearby installation without sacrificing the vital interests of the victim. The 

intent of this change would be to strike a balance between ensuring that prosecutors have access 

to victims in preparing for courts-martial and satisfying the need to separate the victim from the 

accused, while maintaining the victim’s access to support systems. Commanders and SVCs/VLCs 

should receive training in how relocating victims from less desirable to more desirable locations 

can be used by defense counsel to suggest victims’ abuse of this system and to cast doubt on their 

credibility, possibly leading to more acquittals at courts-martial. The Secretary of Defense should 

develop procedures to minimize this problem.

The Secretary of Defense and the DAC-IPAD collect data on expedited transfers to determine the 

locations from which and to which victims are requesting expedited transfers and to review their 

stated reasons.

• Some counsel on site visits reported that once victims receive expedited transfers to faraway 

locations, they are less likely to cooperate with the prosecution. Some counsel and commanders 

felt that expedited transfers are abused by victims and perceive that commanders are afraid to say 

no to victims for fear that doing so will be seen as retaliation.

• Counsel perceive that transfers are rarely requested by victims in desirable locations, but they 

are frequently requested by victims in less desirable locations. Defense counsel may use this 

perception to challenge the victim’s motives during a court-martial, causing panel members to 

question the victim’s credibility.

• According to statistics from the Department of Defense Sexual Assault Prevention and Response 

Office, the number of expedited transfer requests has risen steadily from 218 requests in fiscal 

9 United States v. Newlan, 2016 CCA LEXIS 540 (N-M.C.C.A. Sep. 13, 2016), available at http://www.jag.navy.mil/courts/

documents/archive/2016/NEWLAN-201400409-UNPUB.pdf.

10 Id. at 7.
13

SUMMARY OF PANEL RECOMMENDATIONS

year 2012—when the policy was implemented—to 746 requests in fiscal year 2016. The 

percentage of requests approved each year has been more than 97%.11

11 See U.S. Dep’t of Def., SAPRO, Department of Defense Annual Report on Sexual Assault in the Military: Fiscal Year

2016, Appendix B: Statistical Data on Sexual Assault at 36 (May 1, 2017), available at http://sapr.mil/public/docs/reports/

FY16_Annual/Appendix_B_Statistical_Section.pdf.
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15

APPENDIX A: Subcommittee of the Judicial 

Proceedings Panel Report 

on Barriers to the Fair 

Administration of Military 

Justice in Sexual Assault Cases

SUBCOMMITTEE OF 

THE JUDICIAL PROCEEDINGS PANEL

REPORT ON

BARRIERS TO THE FAIR 

ADMINISTRATION OF 

MILITARY JUSTICE IN 

SEXUAL ASSAULT CASES

May 2017
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ASSAULT CASES
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APPENDIX A: SUBCOMMITTEE OF THE JUDICIAL PROCEEDINGS PANEL REPORT ON BARRIERS TO 

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SUBCOMMITTEE TO THE 

JUDICIAL PROCEEDINGS PANEL

CHAIR

The Honorable Barbara S. Jones

MEMBERS

Ms. Lisa Friel

The Honorable Elizabeth Holtzman

Ms. Laurie Kepros

Dean Lisa Schenck, Colonel (Retired), U.S. Army

Professor Lee Schinasi, Colonel (Retired), U.S. Army

Brigadier General James Schwenk, U.S. Marine Corps, Retired

Ms. Jill Wine-Banks

STAFF DIRECTOR

Captain Tammy P. Tideswell, JAGC, U.S. Navy

DEPUTY STAFF DIRECTOR

Lieutenant Colonel Patricia H. Lewis, Deputy Staff Director, U.S. Army

CHIEF OF STAFF

Mr. Dale L. Trexler

DESIGNATED FEDERAL OFFICIAL

Ms. Maria Fried
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APPENDIX A: SUBCOMMITTEE OF THE JUDICIAL PROCEEDINGS PANEL REPORT ON BARRIERS TO 

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This report is prepared by the JPP Subcommittee, and the observations and recommendations

herein are those of the Subcommittee. The contents of the Subcommittee report have not yet

been considered or deliberated on by members of the JPP.
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APPENDIX A: SUBCOMMITTEE OF THE JUDICIAL PROCEEDINGS PANEL REPORT ON BARRIERS TO 

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1

Executive Summary

SUBCOMMITTEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL ON 

BARRIERS TO THE FAIR ADMINISTRATION OF MILITARY JUSTICE IN 

SEXUAL ASSAULT CASES

From July through September 2016, members of the Judicial Proceedings Panel (JPP) Subcommittee, at 

the request of the JPP, spoke to more than 280 individuals—all involved in the military justice process, 

from 25 military installations in the United States and Asia—about the investigation, prosecution, and 

defense of sexual assault offenses. 

On the basis of information received at the site visits, the Subcommittee identified several topics to 

present to the JPP, some of which required additional research. Therefore, the Subcommittee decided 

to issue separate reports on each of the identified subjects. The Subcommittee issued its first report in 

December 2016 on the subject of military defense counsel resources and experience in sexual assault 

cases, its second report in February 2017 on sexual assault investigations in the military, and three 

short reports in March 2017 on the topics of the Department of Defense (DoD) initial disposition 

withholding policy, Military Rules of Evidence 412 and 513, and the training and experience of trial 

counsel and special victims’ counsel/victims’ legal counsel.

This final Subcommittee report focuses on some large-scale issues in the military’s handling of sexual 

assault cases that came to light during the site visits and subsequent research. In the past several years, 

there has been a huge public outcry about the problem of sexual assault in the military. Media reports, 

the documentary film Invisible War, and the work of a number of women members of the U.S. House 

and Senate have fostered a public perception that sexual assault is rampant in the military and that the 

military has swept the problem under the rug both by failing to effectively prosecute the accused and 

by failing to treat the victims with dignity and compassion. To address these concerns, Congress, the 

Department of Defense, and the White House have all worked to change the military system so that 

victims of sexual assault are treated with respect and are not further victimized by the criminal justice 

process. Other changes have been put in place to counter the perception that sexual assault predators 

were being protected from prosecution by military commanders.

Many of these changes have been valuable. One possible sign that they are having an effect is the 

increase in the past few years of the number of sexual assault cases being reported. While its cause 

cannot be identified with certainty, many believe that it indicates greater confidence that the criminal 

justice system will help the victim and vigorously prosecute the accused.

As constructive and important as these changes have been, they have also produced an unintended 

negative consequence: they have, as the Subcommittee was repeatedly told on its site visits, raised 

serious questions about the fundamental fairness of the military justice process when it comes to the 

treatment of the accused. 

It is vital for the military justice system to strike the right balance between the needs of the victim 

and the needs of the defendant. Both must be properly addressed if the system is to be seen as fair 

and just. The failure to create the perception and the reality of a just system can undermine morale, 

Executive Summary
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affect recruiting, and create a corrosive cynicism among military personnel. For that reason, the 

Subcommittee believed it was important to share the information it received with the JPP.

The Subcommittee identified a number of problems with how the military justice system treats sexual 

assault offenses: 

1. The revised Article 32 process provides less information to convening authorities and no longer 

serves as a discovery mechanism for the defense; 

2. Because convening authorities currently lack meaningful written guidelines to help them decide 

whether a case warrants referral to court-martial, such as the likelihood of securing a conviction at 

trial, they may be referring sexual assault charges to trial on the basis of weak evidence; 

3. Because the staff judge advocate’s pretrial advice to the convening authority must be provided to 

the defense, the staff judge advocate may be unwilling to provide a complete and candid written 

assessment of the evidence in the case; 

4. Counsel perceive that convening authorities feel public pressure to refer sexual assault cases to trial; 

5. Some trial counsel complained they no longer have the access to sexual assault victims that they 

need in order to properly prepare those victims for trial; 

6. Military members who potentially may sit on court-martial panels receive sexual assault prevention 

and response training that may confuse them regarding the legal standard for consent in sexual 

assault cases. The frequency of this training is also causing “training fatigue” among military 

members; and

7. The current policy on expedited transfer of sexual assault victims can make it difficult for 

investigators and prosecutors to adequately consult with victims prior to trial when victims have 

been transferred to faraway locations.

In this report, the Subcommittee makes nine recommendations:

Recommendation 1: The JPP Subcommittee recommends that the Defense Advisory Committee 

on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) 

continue the review of the new Article 32 preliminary hearing process, which in the view of many 

counsel interviewed during military installation site visits and according to information presented 

to the JPP no longer serves a useful purpose. Such a review should look at whether preliminary 

hearing officers in sexual assault cases should be military judges or other senior judge advocates 

with military justice experience and whether a recommendation of the preliminary hearing officer 

against referral, based on lack of probable cause, should be binding on the convening authority. 

This review should evaluate data on how often the recommendations of preliminary hearing 

officers regarding case disposition are followed by convening authorities and determine whether 

further changes to the process are required.

In addition, because the Article 32 hearing no longer serves as a discovery mechanism for the 

defense, the JPP Subcommittee reiterates its recommendation— presented in its report on military 

defense counsel resources and experience in sexual assault cases, and adopted by the JPP—that 

the defense be provided with independent investigators.
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3

Recommendation 2: The JPP Subcommittee recommends that Article 33, UCMJ, case disposition 

guidance for convening authorities and staff judge advocates require the following standard for 

referral to court-martial: the charges are supported by probable cause and there is a reasonable 

likelihood of proving the elements of each offense beyond a reasonable doubt using only evidence 

likely to be found admissible at trial. 

The JPP Subcommittee further recommends that the disposition guidance require the staff judge 

advocate and convening authority to consider all the prescribed guideline factors in making a 

disposition determination, though they should retain discretion regarding the weight they assign 

each factor. These factors should be considered in their totality, with no single factor determining 

the outcome.

Recommendation 3: The JPP Subcommittee recommends that after case disposition guidance 

under Article 33, UCMJ, is promulgated, the DAC-IPAD conduct both military installation site 

visits and further research to determine whether convening authorities and staff judge advocates 

are making effective use of this guidance in deciding case dispositions. They should also 

determine what effect, if any, this guidance has had on the number of sexual assault cases being 

referred to courts-martial and on the acquittal rate in such cases.

Recommendation 4: The JPP Subcommittee recommends that the DAC-IPAD review whether 

Article 34 of the UCMJ and Rule for Court-Martial 406 should be amended to remove the 

requirement that the staff judge advocate’s pretrial advice to the convening authority (except 

for exculpatory information contained in that advice) be released to the defense upon referral 

of charges to court-martial. The DAC-IPAD should determine whether any memo from trial 

counsel that is appended should also be shielded from disclosure to the defense. This review 

should consider whether such a change would allow the staff judge advocate to provide more 

fully developed, candid written advice to the convening authority regarding the strengths and 

weaknesses of the charges so that the convening authority can make a better-informed disposition 

decision.

Recommendation 5: The JPP Subcommittee recommends that Congress repeal provisions from 

the National Defense Authorization Act for Fiscal Year 2014 and Fiscal Year 2015, sections 

1744 and 541 respectively, that require non-referral decisions in certain sexual assault cases to 

be forwarded to a higher general court-martial convening authority or to the Service Secretary. 

The perception of pressure on convening authorities to refer sexual assault cases to courts-martial 

created by these provisions and the consequent negative effects on the military justice system are 

more harmful than the problems that such provisions were originally intended to address.

Recommendation 6: The JPP Subcommittee recommends that the DAC-IPAD continue to gather 

data and other evidence on disposition decisions and conviction rates of sexual assault courtsmartial to supplement information provided to the JPP Subcommittee during military installation 

site visits and to determine future recommendations for improvements to the military justice 

system.
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Recommendation 7: The JPP Subcommittee recommends that the Secretary of Defense ensure 

that SVCs/VLCs receive the necessary training on the importance of allowing full access by 

prosecutors to sexual assault victims prior to courts-martial. Such training will ensure that SVCs/

VLCs are considering the value of a meaningful victim-prosecutor relationship in the advice they 

provide their victim-clients and assist prosecutors in sufficiently developing the rapport with the 

victim needed to fully prepare for trial.

Recommendation 8: The JPP Subcommittee recommends that the Department of Defense Sexual 

Assault Prevention and Response Office ensure that sexual assault training conducted by the 

military Services provide accurate information to military members regarding a person’s ability to 

consent to sexual contact after consuming alcohol and the legal definition of “impairment” in this 

context and that training be timed and conducted so as to avoid “training fatigue.”

The JPP Subcommittee further recommends that the DAC-IPAD monitor whether misperceptions 

regarding alcohol consumption and consent continue to affect court-martial panel members.

Recommendation 9: The JPP Subcommittee recommends that the Secretary of Defense review 

the policy on expedited transfer of sexual assault victims and consider whether it should be 

changed to state that when possible, sexual assault victims should be transferred to another unit 

on the same installation or to a nearby installation. This change will help ensure that prosecutors 

have access to victims in preparing for courts-martial, will satisfy the need to separate the victim 

from the accused, and will maintain the victim’s access to support systems while combating the 

perception that the ability to ask for these transfers has encouraged fraudulent claims of sexual 

assault. Commanders and SVCs/VLCs should all receive training in how relocating victims from 

less desirable to more desirable locations can foster the perception among military members that 

the expedited transfer system is being abused and in how such transfers can be used by defense 

counsel to cast doubt on the victim’s credibility, possibly leading to more acquittals at courtsmartial.

The JPP Subcommittee further recommends that the DAC-IPAD review data on expedited 

transfers to determine the locations from which and to which victims are requesting expedited 

transfers and to review their stated reasons.
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1

Barriers to the Fair Administration of 

Military Justice in Sexual Assault Cases

From July through September 2016, members of the Judicial Proceedings Panel (JPP) Subcommittee, 

at the request of the JPP, spoke to more than 280 individuals from 25 military installations in the 

United States and Asia involved in the military justice process; these conversations focused on the 

investigation, prosecution, and defense of sexual assault offenses.1

 Discussions were held without 

attribution so that Subcommittee members could hear candid perceptions of the military’s handling 

of sexual assault cases from the men and women who are investigating and litigating those cases. 

The Subcommittee spoke to groups of military prosecutors, defense counsel, special victims’ counsel/

victims’ legal counsel, paralegals, and investigators, as well as commanders, sexual assault response 

coordinators, victim advocates, and victim-witness liaisons from all military Services. 

During the site visits, the Subcommittee identified a number of possible barriers to the fair 

administration of military justice in sexual assault cases. The Subcommittee determined that it would 

have to analyze, discuss, and develop the information gathered and conduct further research into 

some of the issues identified. Therefore, the Subcommittee held 13 meetings or teleconferences from 

September 2016 through May 2017. Drawing on the site visit data and the Subcommittee’s additional 

discussion and research—including information regarding ethics rules and prosecutorial discretion, 

provided by representatives of the Services at a Subcommittee meeting held in January 2017—the 

Subcommittee made recommendations on several of these points in two previous reports to the JPP: 

one on military defense counsel resources and experience in sexual assault cases, issued in December 

2016, and one on sexual assault investigations in the military, issued in February 2017.2

 In addition, 

the Subcommittee provided brief reports to the JPP in March 2017 on the topics of the Department 

of Defense (DoD) initial disposition withholding policy, Military Rules of Evidence 412 and 513, and 

training and experience of trial counsel and special victims’ counsel/victims’ legal counsel.3 This final 

report summarizes site visit comments and the Subcommittee’s research into additional barriers to the 

fair administration of military justice in sexual assault cases. 

I. BACKGROUND

Historically, sexual assault in the military has at times garnered the public’s attention. In recent years, 

however, public demands for accountability and justice have grown louder and more persistent, 

following complaints by sexual assault victims about the military’s handling of their allegations and 

how they are treated. As a result, the procedures for dealing with such cases have been changed. 

1 A list of the installations visited and Subcommittee members participating in each site visit is enclosed with this report.

2 See Subcommittee of the Judicial ProceedingS Panel rePort on military defenSe counSel reSourceS and exPerience in

Sexual aSSault caSeS (Dec. 2016), available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_SubcommReport_

DefResources_Final_20161208.pdf; Subcommittee of the Judicial ProceedingS Panel rePort on Sexual aSSault

inveStigationS in the military (Feb. 2017), available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_

SubcommReport_Investigations_Final_20170224.pdf.

3 See Subcommittee Papers on initial diSPoSition Withholding authority; military ruleS of evidence 412 and 513; and 

training and exPerience of trial counSel and SPecial victimS’ counSel/victimS’ legal counSel (Mar. 2017), available at 

http://jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_Subcomm_ShortReports_20170302_Final.pdf.

II. Obtaining Information Regarding Adjudication of Sexual Assault Offenses
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Many victims complained that commanders dismissed their sexual assault allegations without further 

investigation or action. In response, several DoD or congressionally appointed panels reviewed 

the state of sexual assault prevention, victim care, investigation, and prosecution in the military 

and issued reports and recommendations on those topics.4

 Congress and DoD responded to these 

recommendations and to military sexual assault victims’ complaints by adopting more than 100 

statutory reforms and numerous policy changes in the area of military sexual assault. The majority of 

these statutory reforms and policy changes have been instituted since 2012, and many have sought to 

address the treatment of sexual assault victims.

Statutes creating the Special Victims’ Counsel Program and expanding victims’ rights have profoundly 

changed the treatment of sexual assault victims. The statute creating the Special Victims’ Counsel 

Program provides that every military member who reports being sexually assaulted is entitled to have a 

military attorney appointed to advise him or her of legal issues surrounding the case and other matters. 

This attorney is authorized to represent the victim, including at the Article 32 hearing and courtmartial, at all pretrial stages of the case, and at trial. Since its inception as an Air Force pilot program 

in 2013, the Special Victims’ Counsel/Victims’ Legal Counsel5

 (SVC/VLC) Program has evolved to the 

point that an SVC/VLC right to argue victim privacy issues in court is now recognized.6

 The ability 

to have an SVC/VLC present during investigative interviews has also helped increase victims’ comfort 

level with the investigative and military justice processes.

The recent passage of legislation allowing victims to decline to testify at Article 32 preliminary hearings 

has also been perceived positively by sexual assault victims.

These military justice reforms were prompted by past failures to properly address sexual assault 

allegations. They have empowered sexual assault victims and provided them a voice in how their 

sexual assault allegations are handled. Yet these reforms have also had unintended and, at times, 

negative consequences. In the view of trial counsel, defense counsel, investigators, and other military 

personnel involved in the military criminal justice system who were interviewed by the Subcommittee 

members during installation site visits, the military justice system is placing the rights and preferences 

of sexual assault victims over the due process rights of those accused of these offenses. Many of those 

interviewed sense that in an effort to respond to public criticism and right past wrongs, commanders 

now feel pressure to resolve greater numbers of sexual assault allegations at courts-martial, regardless 

of the relative merits of the case or the likelihood of conviction. The result, counsel asserted, has been a 

dramatic increase in acquittals in these cases. Several counsel went so far as to state that these changes 

in the military justice system have placed justice and the perception of a fair system at risk. 

4 Among these reports are the defenSe taSk force rePort on care for victimS of Sexual aSSault (Apr. 2004), available at 

http://www.sapr.mil/public/docs/reports/task-force-report-for-care-of-victims-of-sa-2004.pdf; rePort of the defenSe

taSk force on Sexual haraSSment and violence at the military Service academieS (Jun. 2005), available at

http://www.dtic.mil/dtfs/doc_recd/High_GPO_RRC_tx.pdf; rePort of the defenSe taSk force on Sexual aSSault

in the military ServiceS (Dec. 2009), available at http://www.sapr.mil/public/docs/research/DTFSAMS-Rept_Dec09.pdf; 

rePort of the reSPonSe SyStemS to adult Sexual aSSault crimeS Panel (Jun. 2014), available at

http://responsesystemspanel.whs.mil/Public/docs/Reports/00_Final/RSP_Report_Final_20140627.pdf; 

and numerous reports of the Judicial Proceedings Panel, available at http://jpp.whs.mil/. 

5 The Navy and Marine Corps refers to victims’ lawyers as victims’ legal counsel, while the other Services refer to them as 

special victims’ counsel.

6 See Judicial ProceedingS Panel initial rePort (Feb. 2015) [hereinafter JPP initial rePort], Section III, for a full 

discussion of the SVC/VLC programs. This report is available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/

01_JPP_InitialReport_Final_20150204.pdf.
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3

This report discusses some of the changes made to the military justice process in recent years, as well 

as the perceived pressure on convening authorities and judge advocates to refer sexual assault cases to 

trial, regardless of the likelihood of conviction. Further, this report highlights some of the long-term 

negative consequences identified as resulting from the recent reforms. It builds on the observations 

and conclusions found in two earlier and related Subcommittee reports written following the 

installation site visits: the Subcommittee Report to the Judicial Proceedings Panel on Military Defense 

Counsel Resources and Experience in Sexual Assault Cases, the Subcommittee Report to the Judicial 

Proceedings Panel on Sexual Assault Investigations in the Military, and the Subcommittee papers on 

Initial Disposition Withholding Authority, Military Rules of Evidence 412 and 513, and Training and 

Experience of Trial Counsel and Special Victims’ Counsel/Victims’ Legal Counsel.

7

II. REFERRING SEXUAL ASSAULT CASES TO COURT-MARTIAL

A. Early Stages of Case Processing 

Before the convening authority can refer charges to a court-martial, several events must take place. 

While there are some important differences in the treatment of sexual assault offenses, many of the 

steps in the military justice process are the same regardless of the offense.

If a victim reports a sexual assault to certain identified personnel, he or she has the ability to file either 

a restricted or unrestricted report.8

 If the victim chooses to file an unrestricted report of a sexual assault 

offense, the Services’ military criminal investigative organizations (MCIOs) investigate the offense.9

When the investigation is completed or near completion, military prosecutors discuss the case with the 

appropriate commander, who determines whether to prefer charges or take some other disciplinary 

action against the alleged perpetrator.10

Rule for Court-Martial (R.C.M.) 306(b) provides guidance for judge advocates and convening 

authorities on this decision, stating that “[a]llegations of offenses should be disposed of in a timely 

manner at the lowest appropriate level.”11 Further guidance is contained in nonbinding discussion 

accompanying R.C.M. 306(b):

The disposition decision is one of the most important and difficult decisions facing a 

commander. Many factors must be taken into consideration and balanced, including, 

7 The JPP adopted the Subcommittee’s report on defense counsel resources and experience and its recommendations, with 

some modifications. The Subcommittee’s report on sexual assault investigations is still pending before the JPP. The three 

Subcommittee papers were presented to the JPP for informational purposes.

8 Restricted reports of adult sexual assault may be only made to sexual assault response coordinators, SAPR victim 

advocates, and healthcare personnel. u.S. deP’t of def. inStr. [hereinafter DoDI] 6495.02, Sexual aSSault Prevention and

reSPonSe (SaPr) Program ProcedureS, Encl. 4 (Mar. 28, 2013, incorporating Change 2, effective Jul. 7, 2015).

9 The Subcommittee discussed problems associated with MCIO investigations of sexual assault offenses more fully in the

Subcommittee of the Judicial ProceedingS Panel rePort on Sexual aSSault inveStigationS in the military, supra note 2.

10 Only commanders who hold at least special court-martial convening authority and who are in the grade of O-6 (i.e., 

colonel or Navy captain) or higher can hold initial disposition authority in sexual assault cases. See u.S. deP’t of defenSe, 

memorandum from the Secretary of defenSe on Withholding initial diSPoSition authority under the uniform code of

military JuStice in certain Sexual aSSault caSeS (Apr. 20, 2012).

11 manual for courtS-martial, united StateS (2016 ed.) [hereinafter 2016 mcm], Rule for Court-Martial [hereinafter 

R.C.M.] 306(b). R.C.M. 306(c) discusses potential dispositions of allegations: no punishment, administrative action, 

nonjudicial punishment, or disposition through courts-martial.
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to the extent practicable, the nature of the offenses, any mitigating or extenuating 

circumstances, the views of the victim as to disposition, any recommendations made by 

subordinate commanders, the interest of justice, military exigencies, and the effect of 

the decision on the accused and the command. The goal should be a disposition that is 

warranted, appropriate, and fair.

In deciding how an offense should be disposed of, factors the commander should 

consider, to the extent they are known, include:

(A) the nature of and circumstances surrounding the offense and the extent of the harm 

caused by the offense, including the offense’s effect on morale, health, safety, welfare, and 

discipline; 

(B) when applicable, the views of the victim as to disposition; 

(C) existence of jurisdiction over the accused and the offense; 

(D) availability and admissibility of evidence; 

(E) the willingness of the victim or others to testify; 

(F) cooperation of the accused in the apprehension or prosecution of another accused; 

(G) possible improper motives or biases of the person(s) making the allegation(s); 

(H) availability and likelihood of prosecution of the same or similar and related charges against 

the accused by another jurisdiction; and

(I) appropriateness of the authorized punishment to the particular accused or offense.12

For sex-related offenses committed in the United States, R.C.M. 306 provides for the victim to express 

his or her views as to whether the offense should be prosecuted by court-martial or in a civilian court 

with jurisdiction over the offense. The convening authority must consider the victim’s views as to 

disposition, if available, before making a decision to prefer charges or take some other disciplinary 

action.13

If charges are preferred and the special court-martial convening authority (SPCMCA) deems a general 

court-martial appropriate, he or she must direct the case to a preliminary hearing under Article 32 of 

the UCMJ.14

12 2016 mcm, supra note 11, R.C.M. 306(b) discussion.

13 2016 mcm, supra note 11, R.C.M. 306(e)(2). R.C.M. 306(e)(1) defines “sex-related” offense as any alleged violation of 

Article 120—Rape and sexual assault generally, 120a—Stalking, 120b—Rape and sexual assault of a child, 120c—Other 

sexual misconduct, 125—Forcible sodomy; bestiality, or any attempt thereof under Article 80, Uniform Code of Military 

Justice.

14 2016 mcm, supra note 11, R.C.M. 404(b)(5).
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B. The Evolution of the Article 32 Process

1. Statutory Changes. Before charges may be referred to a general court-martial, Article 32 of the 

UCMJ requires a preliminary hearing, unless the accused waives the hearing.15 In the National Defense 

Authorization Act for Fiscal Year 2014 (FY14 NDAA), Congress made substantial changes to Article 

32. The impetus for these changes was a widely reported Article 32 investigation at the U.S. Naval 

Academy in which counsel questioned a Naval Academy midshipman who had reported being sexually 

assaulted for “more than 30 hours” and subjected her to “humiliating and abusive questions.”16 The 

legislative changes to Article 32 were also intended to align the procedures with civilian preliminary 

hearing proceedings, which are used to determine if there is probable cause and if a case should go to 

trial; during them, victims are often not called to testify.17

Prior to these statutory changes, the Article 32 hearing was intended to be a “thorough and impartial 

investigation” by an investigating officer into the truth and form of the charges.18 The Article 32 

hearing also served as a mechanism for pretrial discovery for the defense.19 Military witnesses, 

including sexual assault victims, could be compelled to appear and testify at the Article 32 hearing.20

The FY14 NDAA changes to Article 32 applied to Article 32 hearings conducted on or after 

December 26, 2014.21 These changes, which restyled the Article 32 from a pretrial investigation into a 

preliminary hearing, limited the purpose of the hearing to determining whether probable cause exists 

to believe an offense was committed and whether the accused in the case committed the offense.22

Under the December 2014 Article 32 format, preliminary hearing officers (PHOs) are still required 

to determine whether the convening authority has court-martial jurisdiction over the accused and the 

offense, to consider the form of the charges, and to make recommendations to the convening authority 

as to disposition.23 In an effort to limit the scope of Article 32, these statutory changes also removed 

the ability of a PHO to compel a military victim to appear and testify at the hearing if the victim was 

found “reasonably available,” but allowed the PHO to consider alternatives to testimony for the victim 

and any other witnesses, regardless of their availability.24

15 10 U.S.C. § 832 (UCMJ, Art. 32).

16 See 159 Cong. Rec. H7059 (Congresswoman Speier (D-CA) introduced the reforms to Article 32), available at 

https://www.gpo.gov/fdsys/pkg/CREC-2013-11-14/pdf/CREC-2013-11-14-pt1-PgH7059.pdf.

17 Id. But see infra notes 26-28 and accompanying text.

18 10 U.S.C. § 832 (UCMJ, Art. 32); 2016 mcm, supra note 11, R.C.M. 405.

19 manual for courtS-martial, united StateS (2012 ed.) [hereinafter 2012 mcm], R.C.M. 405 discussion.

20 Id.

21 National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66 [hereinafter FY14 NDAA], 

§ 1702(a), 127 Stat. 672 (2013); National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291 

[hereinafter FY15 NDAA], § 531(g), 128 Stat. 3292 (2014).

22 Another change to the Article 32 process requires that judge advocates be used as preliminary hearing officers “whenever 

practicable.” 2016 MCM, supra note 11, R.C.M. 405(d)(1). While this had previously been the practice in the Navy, 

Marine Corps, and Air Force, the Army traditionally used line officers in this role, with a judge advocate appointed to 

advise the Article 32 investigating officer on legal matters. In addition, the updated R.C.M. 405 requires the preliminary 

hearing officer to be equal to or senior in grade to the military prosecutor and military defense counsel representing the 

accused, “when practicable.” 2016 MCM, supra note 11, R.C.M. 405(d)(1). Navy and Air Force counsel stated that they 

often use active duty and reserve military judges as Article 32 preliminary hearing officers in sexual assault cases.

23 2016 MCM, supra note 11, R.C.M. 405(a).

24 Id.; see also Major Christopher J. Goewert and Captain Nichole M. Torres, Old Wine into New Bottles: The Article 32 

Process after the National Defense Authorization Act of 2014, 232 A.F. L. Rev. Vol. 72 (2015).
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As observed above, while the Article 32 hearing had previously served as a means of discovery for the 

defense, the new R.C.M. 405, reflecting the statutory changes to Article 32, specifically states that the 

Article 32 hearing is “not intended to serve as a means of discovery.”25 This change is significant, as 

the U.S. Court of Military Appeals (now the U.S. Court of Appeals for the Armed Forces, or CAAF) 

previously emphasized the value of the Article 32 investigation as a discovery tool. In the case of 

Hutson v. United States, CAAF even relied on the Article 32 hearing to uphold a judge’s refusal to 

grant the defense’s request for appointment of an investigator.26 While acknowledging that investigative 

assistance is provided for indigent defendants in federal courts, CAAF held that the federal statute used 

to grant such assistance in federal court was not available to military defendants, stating: “[I]t should 

be noted that the pretrial investigation to which these charges have been referred is the accused’s only 

practicable means of discovering the case against him.”27 In light of the changes to the Article 32 

process, this CAAF decision provides further support for the Subcommittee’s recent recommendation, 

which the JPP adopted, that independent investigators be provided to the defense.28

A provision in the National Defense Authorization Act for Fiscal Year 2017 (FY17 NDAA) removes 

the provision in Article 32 permitting the accused to present additional evidence at the Article 32 

hearing “in defense and mitigation, relevant to the limited purposes of the hearing,” and replaces it 

with language stating that the accused may present additional evidence “that is relevant to the issues 

[of whether there is probable cause to believe the accused committed the offense and the PHO’s 

recommendation as to disposition of the case].”29 It is too early to determine how PHOs will interpret 

this change and what effect, if any, it will have on the defense’s ability to present additional evidence in 

defense and mitigation at the Article 32 hearing.

2. Site Visit Information. During installation site visits the Subcommittee spoke with trial counsel, 

defense counsel, and SVCs/VLCs, most of whom were familiar with both the pre-December 2014 

and the new Article 32 proceedings. The consensus among them was that unlike the pre-December 

2014 Article 32 investigation, the new Article 32 preliminary hearing is not a meaningful process 

for evaluating the strength of the case or for any other purpose. Sexual assault victims are no longer 

required to testify at Article 32 hearings, and frequently do not. Trial counsel stated that often the first 

time a victim provides testimony and is subject to cross-examination by defense counsel is at the courtmartial. Beyond Article 32 issues, several trial counsel told Subcommittee members that some SVCs/

VLCs limit trial counsel access to the victim, thereby preventing trial counsel from building sufficient 

rapport with the victim and having the repeated interviews that they feel are necessary to prepare for 

trial. Several counsel stated that this combination of factors has led to victims being unprepared for 

trial and testifying poorly on the stand.

Frequently, no witnesses appear at the Article 32 preliminary hearing, which simply involves trial counsel 

submitting documentary evidence for consideration. Many trial and defense counsel with whom the 

Subcommittee spoke referred to the Article 32 preliminary hearing as a “paper drill” or “rubber stamp.” 

While many defense counsel noted that they have begun waiving the hearing, some stated that they have 

continued to assert the accused’s right to an Article 32 hearing even if they no longer get a chance to 

question the victim or receive additional information about the government’s case. 

25 Id. 

26 Hutson v. United States, 42 C.M.R. 39, 40 (1970).

27 Id.

28 See Judicial ProceedingS Panel rePort on military defenSe counSel reSourceS and exPerience in Sexual aSSault caSeS 3 

(Mar. 2017).

29 National Defense Authorization Act for Fiscal Year 2017, Pub. L. 114-328 [hereinafter FY17 NDAA], § 5203(b).
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Counsel universally observed that pre-December 2014 Article 32 investigations were used to identify 

weak cases and prevent them from going to court-martial, but the new Article 32 hearing no longer 

serves this function. The pre-December 2014 Article 32 investigation and investigating officer’s 

recommendation as to whether the evidence supported the charges and whether the charges should 

be sent forward to court-martial (and to what type of court-martial) helped test the strength of the 

prosecution’s case. According to many trial and defense counsel who spoke with the Subcommittee, the 

limited scope of the present preliminary hearing and the removal of the requirement for victim testimony 

are the primary reasons why counsel do not believe the current Article 32 format is a useful tool for 

vetting cases. Several trial counsel acknowledged that prosecutors should be confident that probable 

cause exists and that they have sufficient evidence to prevail at trial before charges are even preferred. 

Article 32 PHOs’ recommendations on whether the case should proceed to trial remain nonbinding, 

and some trial and defense counsel noted that often staff judge advocates and convening authorities 

do not abide by the recommendations.30 Such disregard occurs even when the PHO finds no probable 

cause to support a charge or an extremely low likelihood of conviction, recommending that the 

case should be dismissed outright or resolved through disciplinary action at some lower level. 

Counsel complained that because of the changes to the Article 32 process and because the PHO’s 

recommendations are nonbinding, too many cases are referred to court-martial in which there is little 

chance of securing a conviction. 

3. JPP Public Meeting Commentary on the Effects of the Changes to the Article 32 Hearing. Senior trial 

and defense counsel and former military judges, speaking to the JPP at a public meeting in January 2017, 

reinforced the comments of counsel on site visits that Article 32 hearings in sexual assault cases have 

become “paper drills” at which neither the victim nor other witnesses testify.31 A senior trial counsel told 

the JPP that since Article 32 and R.C.M. 405 were modified, the trial counsel has “a lot more control 

over the presentation of evidence” at the Article 32 preliminary hearing, and can often establish probable 

cause with only a copy of the victim’s statement and portions of the investigation report.32

Some counsel and former judges noted that they are seeing more Article 32 waivers from defense 

counsel since the new Article 32 preliminary hearing took effect, though some defense counsel said that 

they continue to go forward with these hearings to obtain what information they can.33 A former judge 

told the JPP that in pre-December 2014 Article 32 proceedings, it was rare for the defense to submit 

an Article 32 waiver in a sexual assault case.34 According to a senior trial counsel, the pre-December 

2014 Article 32 investigation was used as a “litmus test” to determine the strength of the case and to 

see how the victim comes across while testifying. He further stated that given the limited scope of the 

new Article 32 preliminary hearing, he believes more cases are now being referred to court-martial 

than would have been under the more robust pre-December 2014 Article 32 investigation.35 Another 

senior trial counsel elaborated that some convening authorities who still want to use the Article 32 

30 Article 32 investigating officers’ recommendations under the pre-December Article 32 process were also nonbinding.

31 Transcript of JPP Public Meeting 22 (Jan. 6, 2017) (testimony of Lt Col (ret.) Wendy Sherman, U.S. Air Force, former 

military trial judge); 104 (testimony of Maj Adam Workman, U.S. Marine Corps, Legal Services Support Team); 233 

(testimony of Maj James Argentina, Jr., U.S. Marine Corps, Senior Defense Counsel); 278 (testimony of Maj Aran Walsh, 

Regional Victims’ Legal Counsel).

32 Transcript of JPP Public Meeting 104 (Jan. 6, 2017) (testimony of Maj Workman).

33 Transcript of JPP Public Meeting 31 (Jan. 6, 2017) (testimony of LTC (ret.) Wade Faulkner, U.S. Army, former military 

trial judge); 114 (testimony of CPT Brad Dixon, U.S. Army, Trial Counsel Assistance Program Training Officer).

34 Transcript of JPP Public Meeting 31 (Jan. 6, 2017) (testimony of LTC (ret.) Faulkner).

35 Transcript of JPP Public Meeting 150 (Jan. 6, 2017) (testimony of CPT Dixon).
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preliminary hearing to “test the evidence” in a sexual assault case are frustrated that they can no 

longer do that effectively under the new Article 32 process.36 A senior defense counsel also questioned 

whether the new Article 32 preliminary hearing serves any meaningful purpose.37

A number of counsel expressed the concern that the more superficial process mandated by the 

current Article 32 is leading convening authorities to make court-martial referral decisions with less 

information than was available to them in the past. These counsel corroborated the perception of 

counsel interviewed by the Subcommittee during site visits that the reforms to Article 32 have made 

the hearings less meaningful, and as a result more sexual assault cases are referred despite weak 

evidence and little chance of conviction at trial.38 One senior trial counsel expressed the opinion that 

an experienced trial counsel should be able to distill the evidence, research case law, and provide a 

well-supported recommendation to the convening authority. In his view, the Article 32 should become 

more like the civilian grand jury system.39 A Marine Corps VLC concurred, stating that the Marine 

Corps has implemented a prosecution merits memo in which the trial counsel “writes a complete and 

informed opinion” of the evidence in the case and the likelihood of achieving a conviction at trial.40

Prosecutors from the other Services indicated that they draft similar memos or have similar procedures 

for informing staff judge advocates and convening authorities about the evidence in such cases. 

Conversely, the Marine Corps VLC stated his view that it is not necessary for victims to testify in the 

Article 32 hearing. He added that it is traumatic for them and slows the process down.41

Several counsel pointed out that the recommendation of the Article 32 PHO is nonbinding on the 

convening authority, and the Article 32 hearing is now less effective at identifying cases that are likely 

to result in a conviction at court-martial. Practitioners who testified before the JPP in January 2017 

stated they were aware of cases in which Article 32 PHOs either found no probable cause for a charge 

or recommended against sending the charge to trial, but their advice was not followed by the staff 

judge advocate and convening authority.42 In addition, a senior defense counsel told the JPP that as a 

prosecutor, he has seen situations in which there was almost no probability of winning at trial, and 

when this information was presented to the convening authority, the convening authority still elected 

to refer the charges to court-martial.43 He added that sending fatally weak cases on to court-martial 

was very demoralizing to the trial counsel.44

4. Data on Article 32 Recommendations and Convening Authority Referral Decisions. The Services 

provided case information and documents showing that out of 416 sexual assault cases that went to 

general court-martial in fiscal year 2015, 54 cases involved an Article 32 investigating officer or PHO 

36 Transcript of JPP Public Meeting 151 (Jan. 6, 2017) (testimony of Maj Workman).

37 Transcript of JPP Public Meeting 186 (Jan. 6, 2017) (testimony of Maj Marcia Reyes-Steward, U.S. Army, Senior Defense 

Counsel).

38 Transcript of JPP Public Meeting 174 (Jan. 6, 2017) (testimony of Maj Benjamin Henley, U.S. Air Force, Senior Defense 

Counsel); 210 (testimony of LCDR Rachel Trest, U.S. Navy, Senior Defense Counsel); 239 (testimony of Maj Argentina).

39 Transcript of JPP Public Meeting 153 (Jan. 6, 2017) (testimony of LCDR Ben Robertson, U.S. Navy, Senior Trial 

Counsel).

40 Transcript of JPP Public Meeting 290 (Jan. 6, 2017) (testimony of Maj Walsh).

41 Id. at 291.

42 Transcript of JPP Public Meeting 155 (Jan. 6, 2017) (testimony of LCDR Geralyn Van De Krol, U.S. Coast Guard, Branch 

Chief, Trial Services); 222 (testimony of LCDR Trest); 224 (testimony of Maj Argentina).

43 Transcript of JPP Public Meeting (Jan. 6, 2017) 224 (testimony of Maj Argentina).

44 Id.
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recommending against referring one or more sexual offense charges to court-martial and the convening 

authority electing to refer the charge(s) to a general court-martial despite that recommendation.45 In 

all these cases, the staff judge advocate’s pretrial advice to the convening authority was to refer these 

charges to general court-martial.46

In 45 of the 54 cases in which the Article 32 investigating officer or PHO recommended against 

referring one or more sexual offenses to trial, the accused was ultimately acquitted of those offenses, 

though the accused may have been convicted of other offenses.47

C. Referral and Prosecutorial Discretion

Following the Article 32 preliminary hearing, the PHO’s report, along with the case file and SPCMCA 

disposition recommendation, is forwarded to the general court-martial convening authority (GCMCA) 

for disposition.48 The staff judge advocate then provides written pretrial advice to the convening 

authority, including a conclusion as to whether each specification states an offense under the UCMJ, 

whether the allegations are warranted by the evidence in the Article 32 preliminary hearing report, 

and whether a court-martial would have jurisdiction over the accused and offense, as well as a 

recommendation of what action should be taken by the convening authority.49 A copy of the pretrial 

advice must be provided to the defense if the convening authority refers the case to court-martial; this 

is not a document covered by attorney-client privilege.50 The GCMCA must then decide whether to 

refer some or all of the charges to a general court-martial.51

1. Rules Governing Referral of Charges. R.C.M. 601 sets forth the basis for the referral of charges to 

court-martial:

If the convening authority finds or is advised by a judge advocate that there are 

reasonable grounds to believe that an offense triable by a court-martial has been 

committed and that the accused committed it, and that the specification alleges an 

offense, the convening authority may refer it. The finding may be based on hearsay in 

whole or in part. The convening authority or judge advocate may consider information 

from any source[.]52

45 While all of the cases went to trial in fiscal year 2015, some went to Article 32 hearings prior to the Dec. 26, 2014, change 

to the Article 32 preliminary hearing and some took place after. These numbers do not reflect the total number of sexual 

assault cases from all of the Services that went to general court-martial in fiscal year 2015: those cases for which the JPP 

staff did not receive all case file documents were not included in the total.

46 The pretrial advice in 5 of the 54 case files was not available.

47 The reasons the Article 32 investigating officer or PHO stated they recommended against referral of a sexual offense 

specification to trial were because he or she determined there were no reasonable grounds to believe the accused 

committed the offenses/there was no probable cause, or because the prosecution was unlikely to prevail at trial. Under the 

pre-December 2014 Article 32, the investigating officer’s conclusion regarding whether reasonable grounds exist to believe 

that the accused committed the offenses alleged must be included in his or her report. 2012 MCM, supra note 19, R.C.M 

405(j)(2)(H). The new Article 32 process requires the PHO to determine whether there is probable cause to believe that the 

accused committed the offenses alleged. 10 U.S.C. § 832 (UCMJ, Art. 32).

48 2016 mcm, supra note 11, R.C.M. 404(e).

49 2016 mcm, supra note 11, R.C.M. 406(a)–(b).

50 2016 mcm, supra note 11, R.C.M. 406(c).

51 2016 mcm, supra note 11, R.C.M. 407.

52 2016 mcm, supra note 11, R.C.M. 601(d)(1).
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“Information from any source” may include hearsay and information not previously presented at the 

Article 32 hearing or to the SPCMCA. This rule states that the convening authority or judge advocate 

is not required to resolve legal issues, “including objections to evidence,” prior to referral.53 The 

written discussion for R.C.M. 601(d)(1) refers back to disposition factors from R.C.M. 306, previously 

discussed in the “Early Stages of Case Processing” section of this report, that the convening authority 

should consider in deciding whether to refer the case to court-martial.54

2. Legislation and U.S. Attorneys’ Manual. The FY17 NDAA created a new Article 33 under the 

UCMJ, which directs the Secretary of Defense to issue nonbinding guidance to be considered by 

convening authorities and judge advocates when exercising their duties with respect to the disposition 

of charges.55 The new Article 33 states that this guidance should take into account the “principles 

contained in official guidance of the Attorney General to attorneys for the Government with respect to 

disposition of Federal criminal cases.”56

The official guidance of the Attorney General mentioned in the new Article 33 refers to the U.S. 

Attorneys’ Manual, which specifies a probable cause standard for prosecutors in determining whether 

to commence or recommend prosecution or some other disposition.57 Within this section, however, 

probable cause is only a threshold consideration that, if met, does not automatically warrant 

prosecution.58 The manual further provides that the attorney should commence prosecution if he or she 

believes that the conduct constitutes a federal offense and “that the admissible evidence will probably 

be sufficient to obtain and sustain a conviction”; nevertheless, prosecution should be declined when 

there is no substantial federal interest in prosecution, the person is subject to prosecution in another 

state, or there is an adequate non-criminal alternative.59 The discussion to this section states that 

“both as a matter of fundamental fairness and in the interest of efficient administration of justice, 

no prosecution should be initiated against any person unless the government believes that the person 

probably will be found guilty by an unbiased trier of fact.”60

3. The American Bar Association’s Criminal Justice Standards. Similarly, according to the American 

Bar Association’s (ABA) Criminal Justice Standards for the Prosecution Function, a prosecutor should 

file and maintain criminal charges only when the charges are supported by probable cause, when 

“admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and [when] 

the decision to charge is in the interests of justice.”61 These standards also state that a prosecutor may 

file and maintain charges “even if juries in the jurisdiction have tended to acquit persons accused of the 

particular kind of criminal act in question.”62

53 2016 mcm, supra note 11, R.C.M. 601(d)(1).

54 2016 mcm, supra note 11, R.C.M. 601(d)(1) discussion.

55 FY17 NDAA, supra note 29, § 5204.

56 Id.

57 u.S. deP’t of JuStice, united StateS attorneyS’ manual, Section 9-27.200 (1997, updated Jan. 2017).

58 Id.

59 u.S. deP’t of JuStice, united StateS attorneyS’ manual, Section 9-27.220 (1997, updated Jan. 2017).

60 Id.

61 criminal JuStice StandardS for the ProSecution function, Standard 3-4.3 (am. bar aSS’n, Fourth Ed.).

62 Id.
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The Air Force has implemented, in modified form, the ABA Criminal Justice Standards. In its standard 

for charging decisions, the Air Force rule states that charges must be supported by probable cause and 

that a “trial counsel should not institute or permit the continued pendency of criminal charges in the 

absence of admissible evidence to support a conviction.”63 The other Services have not implemented 

the ABA standard, though representatives from the Coast Guard and Navy noted they informally use a 

version of it.64

4. Review of Disposition Decisions. The National Defense Authorization Act for Fiscal Year 2014 

(FY14 NDAA) contained a provision requiring that a convening authority’s decision not to refer 

certain sexual assault cases be reviewed, either by a higher general court-martial convening authority 

or by the Service Secretary, depending on the circumstances.65 This provision, which applies only to 

cases in which charges have been preferred and for which the staff judge advocate has provided the 

convening authority with pretrial advice under Article 34 of the UCMJ, was further modified in the 

FY15 NDAA to require that a convening authority’s decision not to refer certain sexual assault cases 

be reviewed by the Service Secretary when the chief prosecutor of the Service requests such review.66

Figure. Elevated Review of Convening Authority Decisions at Referral

SJA 

Recommends 

Referral

CA Does Not

Refer

Review by

Service 

Secretary

Service 

Secretary Can 

Refer as the 

GCMCA

SJA Does Not 

Recommend 

Referral

CA Does Not

Refer

Review by

Higher GCMCA

Higher GCMCA 

Will Either 

Refer or Dismiss 

the Case

“In Any Case” Where 

the SJA Recommends 

or Does Not 

Recommend Referral

CA Does Not Refer 

and Trial Counsel 

Requests Chief 

Prosecutor Review

Chief Prosecutor 

Requests Review 

by Service 

Secretary

Service 

Secretary Can 

Refer as the 

GCMCA

63 u.S. deP’t of the air force, air force guidance memo. to air force inStruction 51-110, ProfeSSional reSPonSibility

Program (Jul. 7, 2016), Standard for Criminal Justice 3-3.9. Discretion in the Charging Decision.

64 Transcript of JPP Public Meeting 263 (Jan. 6, 2017) (testimony of CDR Cassie Kitchen, U.S. Coast Guard, former military 

trial judge); 212, 264 (testimony of CDR Mike Luken, U.S. Navy, former military trial judge).

65 FY14 NDAA, supra note 21, § 1744 requires review of decisions not to refer cases involving charges of rape, sexual 

assault, forcible sodomy, or attempts to commit such acts.

66 FY15 NDAA, supra note 21, § 541.
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Responding to the JPP Subcommittee’s request for information on the number of times that these 

elevated review provisions have been invoked, the Services provided the following:67

• All of the Services reported that since December 26, 2013,68 there have been zero instances in which 

a Service Secretary reviewed a convening authority’s decision not to refer a qualifying sex-related 

offense to court-martial.

• All of the Services reported that since December 19, 2014,69 there have been zero instances in which 

their chief prosecutor requested that the Service Secretary review a convening authority’s decision 

not to refer a qualifying sex-related offense to court-martial.

• Since December 26, 2013, the Services reported the following instances in which a case involving a 

qualifying sex-related offense was forwarded for review to the next superior commander after the 

general court-martial convening authority decided not to refer the case to court-martial. 

» Army: 8 cases. Of these 8 cases, there was one instance in which the next superior commander 

decided to refer the charge(s) to court-martial.

» Air Force: 21 cases.70 Of these 21 cases, there were zero instances in which the next superior 

commander decided to refer the charge(s) to court-martial.

» Navy: 11 cases. Of these 11 cases, there were zero instances in which the next superior 

commander decided to refer the charge(s) to court-martial.

» Marine Corps: 11 cases. Of these 11 cases, there were zero instances in which the next superior 

commander decided to refer the charge(s) to court-martial.

» Coast Guard: 8 cases. Of these 8 cases, there were zero instances in which the next superior 

commander decided to refer the charge(s) to court-martial.

5. Possible Pressure on Convening Authorities to Refer Sexual Assault Cases to Courts-Martial. As 

noted, many trial and defense counsel interviewed by the Subcommittee during site visits mentioned 

their perception that convening authorities feel pressure to refer sexual assault cases to courts-martial, 

in part owing to public and congressional interest in this issue. Several examples illustrate this pressure.

In late 2013, in a well-publicized case involving sexual assault allegations, a U.S. Air Force convening 

authority, Lieutenant General Craig Franklin, following a pretrial hearing, agreed with legal advisors 

that the evidence was not sufficient to proceed to court-martial and dismissed the charges.71 The acting 

Secretary of the Air Force then transferred the case for action to a different convening authority, 

67 See Services’ Responses to JPP Subcommittee Request for Information 166 (Apr. 5, 2017).

68 This was the effective date of § 1744 of the FY14 NDAA, supra note 21.

69 This was the effective date of § 541 of the FY15 NDAA, supra note 21.

70 The Secretary of the Air Force served as the superior GCMCA in one of the 21 cases. The Secretary reviewed the case 

not because it met criteria for secretarial review under the provisions of FY14 NDAA § 1744 or FY15 NDAA § 541, but 

because she was the next superior GCMCA.

71 David Alexander, Rape case removed from U.S. Air Force general who made controversial ruling, chic. trib., Dec. 19, 

2013, available at http://articles.chicagotribune.com/2013-12-19/news/sns-rt-usa-militarysexassault-20131219_1_generalcraig-franklin-u-s-air-force-wright-case. The convening authority, Lieutenant General Craig Franklin, had earlier that 

year overturned an officer’s sexual assault conviction, an act that angered many and led to legislation severely limiting a 

convening authority’s ability to grant post-trial clemency relief in sexual assault cases.
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who referred the case to a general court-martial.72 Senator Claire McCaskill (D-MO) then called for 

Lieutenant General Franklin’s removal from command, declaring: “Lieutenant General Franklin should 

not be allowed to fulfill the responsibilities of military command because he has repeatedly shown 

he lacks sound judgment.”73 The case eventually went to trial, and the accused was acquitted of all 

charges.74 During the trial, the defense raised an unlawful command influence motion and introduced 

evidence that following Lieutenant General Franklin’s dismissal of charges, the Air Force Judge 

Advocate General told Lieutenant General Franklin’s staff judge advocate that failure to refer the case 

to trial would “place the Air Force in a difficult position with Congress” and that “absent a ‘smoking 

gun,’ victims are to be believed and their cases referred to trial.”75 Shortly thereafter, Lieutenant 

General Franklin announced that he would retire from the Air Force.

Also in 2013, Senator McCaskill blocked the confirmation of an Air Force convening authority, 

Lieutenant General Susan Helms, to the position of Air Force Space Command vice commander 

because she had overturned the sexual assault conviction of a member of her command.76 Senator 

McCaskill expressed concerns about Lieutenant General Helms’ decision, noting that it was against 

the advice of the staff judge advocate, who recommended that Lieutenant General Helms affirm the 

conviction. Senator McCaskill stated, “At a time when the military is facing a crisis of sexual assault, 

making a decision that sends a message which dissuades reporting of sexual assaults, supplants the 

finding of a jury, contradicts the advice of counsel, and further victimizes a survivor of sexual assault is 

unacceptable.”77

Another source of perceived pressure came from the military’s commander in chief, President Barack 

Obama. In May 2013, during a press conference, President Obama told reporters that those who 

commit sexual assault in the military should be “prosecuted, stripped of their positions, courtmartialed, fired, dishonorably discharged.”78 These remarks led to defense counsel filing unlawful 

command influence motions in numerous courts-martial, on the grounds that the President’s remarks 

could be interpreted by panel members as an attempt to influence the outcomes of courts-martial in 

sexual assault cases.79 Lawyers argued that the President’s comments could be considered unlawful 

command influence because they directed specific outcomes in sexual assault cases and were in conflict 

with the expectation that commanders exercise discretion in making disposition decisions. In an effort 

to blunt the negative effects of the President’s remarks, the Secretary of Defense issued a memorandum 

reiterating his and the President’s expectations that those involved in the military justice process base 

their decisions on their independent judgment of the facts of each case, and not consider “personal 

72 Jeff Schogol, Airman acquitted of sexual assault charge, uSa today, Oct. 29, 2015, available at

https://www.usatoday.com/story/military/2015/10/29/airman-acquitted-sexual-assault-charges/74792760/.

73 Press release, McCaskill Calls for Removal of Lt. Gen. Craig Franklin from Command (Dec. 18, 2013), available at

https://www.mccaskill.senate.gov/media-center/news-releases/mccaskill-calls-for-removal-of-lt-gen-craig-franklin-fromcommand.

74 Jeff Schogol, Airman acquitted of sexual assault charge, uSa today, supra note 79.

75 See Wright v. United States, __M.J. ___ (A.F.C.C.A. Jan. 13, 2015) (The language in quotations is quoted from the 

appellate opinion and is not intended to reflect the verbatim words used by the Air Force Judge Advocate General.).

76 See 159 Cong. Rec. S4020 (Jun. 7, 2013) available at https://www.gpo.gov/fdsys/pkg/CREC-2013-06-07/pdf/CREC-2013-

06-07-pt1-PgS4020-3.pdf#page=1.

77 Id.

78 Jennifer Steinhauer, Remark by Obama Complicates Military Sexual Assault Trials, n.y. timeS, Jul. 13, 2013, available at 

http://www.nytimes.com/2013/07/14/us/obama-remark-is-complicating-military-trials.html.

79 Id.
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interests, career advancement, or an effort to produce what is thought to be the outcome desired by 

senior officials, military or civilian.”80

6. Site Visit Information. Counsel discussed the standard to refer a case to court-martial, which is 

probable cause—lower than the standard typically applied in state and federal prosecutions. Trial and 

defense counsel alike believe that the probable cause standard is too low and that convening authorities 

should be allowed to take into account other factors, such as the credibility of the victim and the 

likelihood of obtaining a conviction at trial. Judge advocates must hold a license with a state bar to 

practice law. Because the codes of ethics required by many state bars include standards for prosecution 

comparable to the United States Attorney’s Manual and ABA Standards discussed above, several 

counsel expressed concern that they may be violating their state bar ethical rules by prosecuting cases 

in which they feel the charges are not supported by probable cause or in which there is no reasonable 

likelihood of proving the charges at trial.

Judge advocates overwhelmingly reported a perception of pressure on convening authorities to refer 

sexual assault cases to court-martial, regardless of merit. According to many of the judge advocates 

interviewed on site visits, this pressure extends to weak cases that civilian jurisdictions would not 

prosecute and, in some cases, have already declined to prosecute. The vast majority of prosecutors 

and defense counsel who spoke with the Subcommittee have the impression that this pressure causes 

convening authorities to favor referral to court-martial rather than deal with the potential adverse 

ramifications of not referring a sexual assault case, such as career setbacks, media scrutiny, the 

possibility of their non-referral decisions being subjected to elevated review, or questions about why 

the case was not referred. These lawyers suspect that commanders may feel that the act of sending 

a case to trial, regardless of merit, is perceived as “safe” and harmless with respect to the parties 

involved and the justice system as a whole. 

A commander (O-6) interviewed on a site visit told the Subcommittee that he forwards every sexual 

assault case to the next general officer in the chain of command for disposition decision, “because I 

would not want to get it wrong and have someone get away, so I send it forward to let the system sort 

it out.” When asked what, if any, pressure is on commanders to handle sexual assault cases a certain 

way, one commander replied that he felt the need to “do something immediately” or face harm to 

his career. Another commander felt that there was pressure to be transparent throughout the process, 

rather than pressure to send every case to court-martial. 

The discussion to R.C.M. 306(b) states that one of the factors a commander should consider when 

disposing of a case is the views of the victim regarding disposition.81 Many counsel conveyed their 

perception that the merits of the case have become less important than the victim’s preference regarding 

disposition. The rationale for referring some cases to court-martial provided by some prosecutors 

and commanders is that the court-martial process allows the victim to have his or her “day in court,” 

which was described as a laudable end in itself, regardless of outcome. One commander acknowledged 

that there is pressure to go to trial if the victim wants to go to trial, regardless of the case’s merits.

In addition, trial and defense counsel explained that in their experience guilty plea agreements, in 

which the defendant agrees to plead guilty to some or all charges in exchange for a lesser sentence, will 

not be approved by commanders if the victim does not support it. Likewise, the common perception 

among judge advocates is that a victim has veto power over whether the commander prefers to dispose 

80 u.S. deP’t of defenSe, memorandum from the Secretary of defenSe on integrity of the military JuStice ProceSS (Aug. 6, 

2013).

81 2016 MCM, supra note 11, R.C.M. 306(b) discussion.
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of a case in an alternate forum, such as through administrative separation proceedings or nonjudicial 

punishment. 

7. Information Presented to the JPP and Subcommittee. Reflecting the same view that the 

Subcommittee members heard during site visits, counsel speaking at a JPP public hearing also 

expressed concern about the low threshold of probable cause required to refer a case to court-martial. 

In the view of a senior defense counsel, the changes to the Article 32, combined with this low threshold 

to refer cases, result in sexual assault cases being referred when there is no chance for conviction, 

an outcome that causes both the accused and victim to suffer needlessly.82 He further compared 

the military justice system to the civilian justice system, in which experienced prosecutors have the 

discretion to bring a case to trial, or not, based on the state of the evidence.83 Another senior defense 

counsel similarly suggested that prosecutors and convening authorities in the military should exercise 

more discretion in referring cases to trial, much as state and federal prosecutors do, and refer cases to 

trial only when the evidence is sufficient to secure a conviction.84

A senior defense counsel told the JPP that the pressure on convening authorities to refer sexual assault 

cases to courts-martial is very high. No convening authority wants to fail to refer a sexual assault case 

to court only to have it determined later that there was additional evidence and the case should have 

been tried by court-martial.85

In January 2017, the JPP Subcommittee held a hearing on the standards currently applied by military 

prosecutors and heard from ethics officials and senior prosecutors from the Services. Participants 

highlighted the differences between the military and civilian justice systems, noting that the goal of 

the military system is not only to promote justice but also to maintain good order and discipline. In 

the military justice system, prosecutorial discretion is vested in convening authorities, rather than 

prosecutors.86 However, all the Services have adopted some version of ABA Model Rule of Professional 

Conduct 3.8, which states that prosecutors have an ethical obligation to ensure that all charges are 

supported by probable cause.87 If the situation arises in which a prosecutor believes a charge is not 

supported by probable cause, but his or her supervising attorney disagrees, ethical rules allow the 

junior attorney to rely on the supervising attorney’s “reasonable resolution of an arguable question 

of professional duty.”88 One presenter noted that in the previous seven years, his Service’s ethics office 

had yet to have a trial counsel call with concerns about prosecuting a case without probable cause—an 

indication, he believes, that the counsel are working this out with their supervisors.89

One counsel described a dilemma in which prosecutors can find themselves when dealing with 

some sexual assault cases, giving the example of a sexual assault that occurs when the victim is too 

intoxicated to consent to sexual activity. If the offense is charged under the theory that the victim is 

82 Transcript of JPP Public Meeting 235 (Jan. 6, 2017) (testimony of Maj Argentina).

83 Id. at 237.

84 Transcript of JPP Public Meeting 262 (Jan. 6, 2017) (testimony of LCDR Trest).

85 Transcript of JPP Public Meeting 225 (Jan. 6, 2017) (testimony of Maj Argentina).

86 Transcript of JPP Subcommittee Meeting 183 (Jan. 5, 2017) (testimony of Col Kate Oler, U.S. Air Force, Chief, 

Government Trial and Appellate Counsel Division).

87 model ruleS of ProfeSSional conduct, r. 3.8 (am. bar aSS’n 2016).

88 model ruleS of ProfeSSional conduct, r. 5.2 (am. bar aSS’n 2016).

89 Transcript of JPP Subcommittee Meeting 259 (Jan. 5, 2017) (testimony of COL William Kern, U.S. Army, Professional 

Responsibility Branch).
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incapable of consenting due to intoxication, guilt may be difficult to prove when there is evidence 

that the victim was walking, talking, texting, and performing other activities close in time to when the 

alleged assault occurred. On the other hand, if the offense is charged under the “bodily harm” theory 

of sexual assault, prosecutors will have problems when the victim does not recall what happened 

because of his or her intoxication, making it difficult to prove that the touching was offensive. In this 

situation, it can be difficult to establish probable cause.90 In such cases, he explained, sometimes the 

prosecutor cannot establish probable cause, but the victim believes she was sexually assaulted and 

tells the convening authority that she wants the case to go to trial.91 In these situations, they rely on 

the prosecution merit review of the case, using the R.C.M. 306 factors listed above, to persuade the 

convening authority that the evidence is not supported by probable cause.92 In addition, Article 34, 

UCMJ, states that the convening authority cannot refer a charge to a general court-martial if advised in 

writing by the staff judge advocate that the specification is not warranted by the evidence.93 According 

to the counsel, Navy prosecutors look not only at whether there is probable cause but at whether 

there is a reasonable probability of success at trial.94 He told the Subcommittee that they have been 

successful in convincing convening authorities to use this higher standard in deciding whether to refer 

cases.95

Another counsel told the Subcommittee that once probable cause is established, counsel are compelled 

to go forward with a case even when they do not believe there is reasonable likelihood of success at 

trial.96 Several counsel emphasized that there are cases in which conviction at trial seems unlikely, but 

they go forward to trial because “it is the right thing to do.”97

8. Data on Referral Decisions. The JPP staff collected sexual assault courts-martial information and 

case documents from fiscal year 2015 from the Services and entered this information into an electronic 

database. The data from fiscal year 2015 encompassed 738 cases, all of which involved at least one 

preferred charge of a sexual offense. Dr. Cassia Spohn, Foundation Professor and Director, School of 

Criminology and Criminal Justice, Arizona State University, then analyzed these data, producing the 

following statistical information.98

According to the FY 2015 data, for sexual assault cases that went to courts-martial, 79% were referred 

to a general court-martial, 13% were referred to a special court-martial, and 7% were referred to 

a summary court-martial. In 52% of the cases referred to courts-martial, a military judge was the 

factfinder; 40% went to a panel of members; and 7% went to a summary court-martial officer.99

90 Transcript of JPP Subcommittee Meeting 206 (Jan. 5, 2017) (testimony of CDR Mike Luken).

91 Id. at 207.

92 Id. at 207.

93 10 U.S.C. § 834 (UCMJ, Art. 34).

94 Id. at 212.

95 Id. at 244.

96 Transcript of JPP Subcommittee Meeting 217 (Jan. 5, 2017) (testimony of LtCol Nicholas Martz, U.S. Marine Corps, 

Military Justice Branch Head).

97 Transcript of JPP Subcommittee Meeting 250 (Jan. 5, 2017) (testimony of CDR Luken); 253 (testimony of Col Oler).

98 adJudication of Sexual aSSault offenSeS rePorted to the military ServiceS in 2015, Cassia Spohn, PhD, School of 

Criminology and Criminal Justice, Arizona State University (Apr. 2017), available at http://jpp.whs.mil/Public/docs/03_

Topic-Areas/07-CM_Trends_Analysis/20170407/20170407_Spohn_NarrativeReport_FY15Cases.pdf.

99 This data was rounded to the nearest whole number and does not add up to 100 percent.
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For cases in which the accused was charged with at least one penetrative offense (rape, aggravated 

sexual assault, sexual assault, forcible sodomy, and attempts to commit these offenses), 28% were 

convicted of a sexual assault offense,100 22% were convicted of a non-sex offense only, and 21% were 

acquitted of all charges. Another 14% of cases received an alternate disposition,101 and 15% had all 

charges dismissed prior to trial.102

For cases in which the accused was charged with at least one sexual contact offense (aggravated sexual 

contact, abusive sexual contact, wrongful sexual contact, and attempts to commit these offenses), 18% 

were convicted of a sexual contact offense, 41% were convicted of a non-sex offense only, and 13% 

were acquitted of all charges. Another 22% of cases received an alternate disposition, and 6% had all 

charges dismissed prior to trial. 

FY15 – Case Outcomes by Most Serious Sexual Assault Offense Preferred

Penetrative offense (530 cases) Number Percent (%)

Convicted of a sexual offense 150 28%

Convicted of a non-sex offense 114 22%

Acquitted of all charges 113 21%

Alternate disposition/dismissal 153 29%

Contact offense (208 cases)

Convicted of a contact offense 37 18%

Convicted of a non-sex offense 85 41%

Acquitted of all charges 27 13%

Alternate disposition/dismissal 59 28%

Dr. Spohn also calculated conviction and acquittal rates for sexual assault cases that were tried at 

court-martial (excluding cases that went to alternate disposition or had charges dismissed prior to 

trial). For cases in which the most serious offense tried was a penetrative offense, 40% resulted in 

convictions of a sexual assault offense, 30% resulted in convictions of a non-sex offense only, and 30% 

resulted in acquittal of all charges.

For cases in which the most serious sex offense tried at court-martial was a sexual contact offense, 

25% resulted in convictions of a sexual contact offense, 57% resulted in convictions of a non-sex 

offense only, and 18% resulted in acquittal of all charges.

100 The vast majority of these cases were convicted of a penetrative offense.

101 Alternate dispositions primarily consist of resignation or administrative discharge in lieu of trial by court-martial. These 

resignations or discharges usually include an adverse service characterization.

102 For this “all charges dismissed prior to trial” category, the JPP staff does not have information on whether these cases 

resulted in the accused receiving nonjudicial punishment, administrative action, or no punishment.
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REPORT ON BARRIERS TO THE FAIR ADMINISTRATION OF MILITARY JUSTICE IN SEXUAL ASSAULT CASES

FY15 – Case Outcomes of Trial by Court-Martial

Penetrative offense (377 cases) Number Percent (%)

Convicted of a sexual offense 150 40%

Convicted of a non-sex offense 114 30%

Acquitted of all charges 113 30%

Contact offense (149 cases)

Convicted of a contact offense 37 25%

Convicted of a non-sex offense 85 57%

Acquitted of all charges 27 18%

Annual reports from the Service Judge Advocates General to the Code Committee provide some courtsmartial data, though they do not provide specific information on sexual assault courts-martial. In the 

Fiscal Year 2015 Annual Report, the Army and Navy indicated that while their courts-martial caseload 

had declined from previous years, the percentage of contested cases remained constant or increased.103

In that report, the Marine Corps stated that between 2012 and 2014, the number of contested sexual 

assault cases more than tripled. Their number of contested sexual assault cases in fiscal year 2015 was 

below that of fiscal year 2013 and 2014, but it was more than twice that of fiscal year 2012.104

III. ADDITIONAL ISSUES

A. Prosecutors’ Lack of Access to the Victim. Victims with appointed SVCs/VLCs are likely to permit 

fewer interviews with prosecutors (and investigators) than victims without counsel.105 Furthermore, 

when victims do agree to meet with prosecutors, the interviews are often in the presence of a SVC/

VLC, who sometimes object to various questions and prevent those interviews from being as probing 

as they might otherwise be. Investigators also pointed out that few victims grant investigators access 

to their personal cell phones, which typically contain a wealth of evidence. SVCs/VLCs consistently 

reported that they do advise victims against sharing information from their phones or social media 

accounts with investigators. No prosecutors who acknowledged being denied access to the victim’s 

cell phone during interviews indicated that they had considered not prosecuting the case. Prosecutors 

frequently lamented the loss of rapport-building opportunities because victims now are represented by 

SVCs/VLCs, even though they appreciated that victims’ counsel provide valuable advice and guidance 

and relieve trial counsel of some of the time burden of helping victims navigate the legal system.

103 annual rePort for Fiscal Year 2015, rePort of the Judge advocate general of the army, Section 3, 38; rePort of

the Judge advocate general of the navy and the annual military JuStice rePort of the marine corPS, Section 4, 67, 

available at http://www.armfor.uscourts.gov/newcaaf/annual/FY15AnnualReport.pdf.

104 annual rePort for Fiscal Year 2015, rePort of the Judge advocate general of the navy and the annual military

JuStice rePort of the marine corPS, Section 4, 95-6.

105 Lack of access to victims by investigators is discussed in greater depth in the Subcommittee of the Judicial ProceedingS

Panel rePort on Sexual aSSault inveStigationS in the military, supra note 2. Defense counsel access to victims is 

discussed in the Subcommittee of the Judicial ProceedingS Panel rePort on military defenSe counSel reSourceS and

exPerience in Sexual aSSault caSeS, supra note 2.
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B. Sexual Assault Prevention and Response (SAPR) Training. Most sexual assault response 

coordinators and victim advocates who spoke with Subcommittee members acknowledged that 

misperceptions persist throughout the military regarding the consumption of alcohol and lack of 

consent, specifically that the consumption of any amount of alcohol makes a person incapable of 

consenting to sexual activity. Sexual assault response coordinators (SARCs) and victim advocates (VAs) 

stated they do not currently instruct Service members that “one beer means a person cannot consent.” 

Instead, they emphasize to their audiences that having sex with an intoxicated person has risks and 

that determining intoxication can be difficult. At some installations, judge advocates stated they review 

the training materials or assist with the SAPR training to ensure information on this topic is relayed 

correctly. The Subcommittee viewed this as a positive development.

Commanders who spoke to the Subcommittee consistently expressed concerns about the frequency of 

mandatory SAPR training, describing it as time-consuming and potentially counterproductive because 

of perceived “training fatigue.” One worried that the Sexual Harassment and Assault Response and 

Prevention (SHARP) classes and safety briefings are so repetitive that Service members may “tune out” 

the message. 

In the view of some practitioners, SAPR training has become so pervasive that it affects the judgment 

and selection of potential panel members.106 Counsel in the Army pointed out that every battalionsized unit designates a noncommissioned officer (NCO) as the unit’s VA, a collateral responsibility 

that requires specialized training on the topic of sexual assault from a victim-centric perspective. 

These senior NCOs, along with the other officer or enlisted members on a court-martial panel, have 

been instructed about the behavior that constitutes sexual assault so many times in SHARP briefings 

that they have strong opinions about the law. Consequently, counsel find it difficult to correct 

misperceptions and educate members on the nuances of the law and the burden of proof required at 

courts-martial.

A defense counsel providing information to the JPP at the January 2017 public meeting stated that 

in her experience, court-martial panel members, after years of SAPRO training, are “predisposed to 

believe the victims and misinterpret the legal definition of consent and mistake of fact as to consent.”107

The perception persists, in her view, that if a person is drinking, he or she cannot consent to sexual 

contact. She further noted that the voir dire process at trial does not completely expose the biases of 

potential panel members.108

Bolstering this point, in a September 2016 Navy-Marine Corps Court of Criminal Appeals decision 

involving an erroneous jury instruction on the definition of “impairment” in a sexual assault case,109

106 See rePort of the reSPonSe SyStemS to adult Sexual aSSault crimeS Panel 37, supra note 4 (“Response System Panel

Recommendation 80: The Secretary of Defense and Service Secretaries ensure prevention programs address concerns about 

unlawful command influence. In particular, commanders and leaders must ensure sexual assault prevention and response 

training programs and other initiatives do not create perceptions among those who may serve as panel members at courtsmartial that commanders expect particular findings and/or sentences at trials or compromise an accused Service member’s 

presumption of innocence, right to fair investigation and disposition, and access to witnesses or evidence. Judge advocates 

with knowledge and expertise in criminal law should review sexual assault prevention training materials to ensure the 

materials neither taint potential panel members (military jurors) nor present inaccurate legal information.”).

107 Transcript of JPP Public Meeting 210–11 (Jan. 6, 2017) (testimony of LCDR Trest).

108 Id. at 251.

109 United States v. Newlan, No. 201400409 at 23 (N.M. Ct. Crim. App. Sep. 13, 2016). The Court set forth a definition for 

“impairment” in such cases: “‘Impairment’ is the state of being damaged, weakened or diminished. Impairment rendering 

someone ‘incapable of consenting’ is that level of impairment which is sufficient to deprive him or her of the cognitive 

ability to appreciate the nature of the conduct in question or the physical or mental ability to make or to communicate a 
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the court found that many members of the panel received training from SAPR personnel that “if 

someone ingested any alcohol, that individual was no longer able to legally consent.”110 The court 

stated:

We first note that the erroneous definition of “impairment” may have compounded 

the legally-inaccurate proposition—that “one drink means you can’t consent”—that 

some members received while attending mandatory SAPR training. While likely 

well-intentioned, these statements made during training generated a significant risk 

of skewing the panel’s understanding of legal consent. Though these members were 

generally instructed to “not use [or discuss] anything you learned during SAPR 

training . . . in evaluating the evidence or the credibility of the witnesses in this case,” 

a more tightly tailored and prompt statement of the law would have ameliorated any 

prejudicial impact generated by the legally-erroneous SAPR training. Since such a 

statement was not provided, we are not convinced that any confusion created by the 

SAPR training was wholly eradicated and that it did not contribute to the subsequent 

prejudice resulting from the incorrect definition of “impairment.”111

C. Expedited Transfers. A Department of Defense policy familiar to all site visit participants provides 

sexual assault victims who file an unrestricted report of sexual assault the opportunity to receive 

an expedited transfer to another installation or to another unit within the same installation, on 

request.112 One goal of this policy is to move the victim to a new location where no one knows of 

the sexual assault and where the victim need not confront the perpetrator on a regular basis and will 

have adequate support of family, friends, or counseling.113 SVCs/VLCs draft the requests on behalf of 

victims, and send them to commanders. The victims often are able to select the location to which they 

will transfer. DoD policy also allows a commander to transfer the alleged offender, rather than the 

victim.114 No participants discussed whether this option amounted to unlawful pretrial punishment in 

the context of a pending court-martial, but a Subcommittee member raised the issue. Commanders and 

a few victims’ counsel indicated that commanders approve even questionable transfer requests to avoid 

accusations of reprisal against or mistreatment of a victim. 

Some commanders, victims’ counsel, and defense counsel believe that the expedited transfer policy is 

being abused by some individuals who make sexual assault allegations to obtain favorable transfers. 

Some participants have observed victims on very large installations of more than 50,000 Service 

members refuse to transfer to other units on the installation, preferring instead to request transfer to 

what are considered more favorable locations, such as Hawaii or San Diego. At another installation 

decision regarding that conduct to another person.”

110 Id. at 7. The Court noted that some of the comments from the venire included the following: “If you did have any form 

of impairment, that [sic] you can’t have consent. You may—the person would not be in the proper frame of mind to 

provide that consent.”; “When a person is impaired, they are unable to give consent, regardless of what they say at the 

time.”; I viewed that as part of the training . . . that for someone to consent] they just should not be impaired.”; “A person 

impaired by alcohol use is incapable of giving sexual consent.”; “You need sober consent, per the brief.”; “If there is 

alcohol involved, then there is no consent.”; “if a person was under the influence of alcohol, even one drink, that person 

is not able to give consent to any sexual act.”; “If a person has one drink of alcohol, they may be considered impaired, 

therefore, they may not be able to give consent.”; “once the victim has had one drink, there is no longer a legal consent.”

111 Id. at 33–34.

112 See dodi 6495.02, supra note 8, encl. 5 (a sexual assault victim may request a temporary or permanent expedited transfer 

to a different location within their assigned command or installation). 

113 Id.

114 Id.
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considered to be a “good” location, with an appealing climate and with metropolitan areas nearby, 

counsel noted that they see relatively few requests for expedited transfers. Expedited transfers by 

victims to more favorable locations may lead to defense counsel challenging the victim’s motives during 

a court-martial, arguing to the panel that the victim made a false allegation of sexual assault to receive 

a transfer to a more desirable location. Such cross-examination, in turn, may cause panel members to 

question the victim’s credibility and possibly acquit the accused.

IV. CONSEQUENCES

A. Site Visit Information. At all the site visits, most trial and defense counsel questioned whether justice 

is being served by the panoply of reforms in place. Many of them believe that fundamental rights of 

due process have been undermined. In their view, convening authorities feel pressure to refer sexual 

assault cases to court-martial, regardless of the likelihood of securing a conviction. Many also feel 

that the military’s emphasis on prosecuting sexual assault has led to criminalizing behavior that may 

be offensive and inappropriate, but would not be considered criminal in a civilian context. They also 

expressed concern that minor offenses are now being referred to court-martial that could be more 

appropriately resolved through nonjudicial punishment or administrative action. There is widespread 

consensus among prosecutors and defense counsel that the victim’s wish regarding disposition of a 

case is the primary factor determining whether the case will go to court, and that evidentiary concerns, 

including the credibility of the victim, are given less consideration. Defense counsel perceive that 

false accusations are now more likely to make it through the system and, as a result, innocent people 

face allegations that could ruin their lives. To illustrate this point, one defense counsel described 

how several of his clients, under the immense psychological pressure of facing court-martial for 

sexual assault, submitted a request for discharge in lieu of trial, even though they claimed they were 

innocent—and even though a request for discharge in lieu of trial requires an acknowledgment of guilt 

and stigmatizing notations in their discharge paperwork.

Site visit participants identified a number of negative consequences of what they perceive as too many 

sexual assault allegations being referred to trial:

1. Practitioners universally described the acquittal rate in their jurisdiction as “high,” in part due 

to the referral to court-martial of cases that lack merit. The acquittal percentages offered at 

one installation ranged from about 50% to 100%, significantly higher than the sexual offense 

acquittal rates seen in civilian jurisdictions. 

2. Prosecutors and investigators must devote significant time to prosecuting less meritorious cases, 

which divert resources away from more serious and well-supported allegations.

3. Some prosecutors feel that they face a potential ethical quandary in trying cases in which they 

see no reasonable likelihood of conviction.

4. The low conviction rate tends to discredit the entire military justice system in the eyes of 

Service members and the general public.

5. As more cases flood the system, the time needed to take each case to trial increases.

6. When weak cases linger in the system pending trial, the accused’s and the victim’s careers and 

lives remain on hold until the case is resolved.
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considered to be a “good” location, with an appealing climate and with metropolitan areas nearby, 

counsel noted that they see relatively few requests for expedited transfers. Expedited transfers by 

victims to more favorable locations may lead to defense counsel challenging the victim’s motives during 

a court-martial, arguing to the panel that the victim made a false allegation of sexual assault to receive 

a transfer to a more desirable location. Such cross-examination, in turn, may cause panel members to 

question the victim’s credibility and possibly acquit the accused.

IV. CONSEQUENCES

A. Site Visit Information. At all the site visits, most trial and defense counsel questioned whether justice 

is being served by the panoply of reforms in place. Many of them believe that fundamental rights of 

due process have been undermined. In their view, convening authorities feel pressure to refer sexual 

assault cases to court-martial, regardless of the likelihood of securing a conviction. Many also feel 

that the military’s emphasis on prosecuting sexual assault has led to criminalizing behavior that may 

be offensive and inappropriate, but would not be considered criminal in a civilian context. They also 

expressed concern that minor offenses are now being referred to court-martial that could be more 

appropriately resolved through nonjudicial punishment or administrative action. There is widespread 

consensus among prosecutors and defense counsel that the victim’s wish regarding disposition of a 

case is the primary factor determining whether the case will go to court, and that evidentiary concerns, 

including the credibility of the victim, are given less consideration. Defense counsel perceive that 

false accusations are now more likely to make it through the system and, as a result, innocent people 

face allegations that could ruin their lives. To illustrate this point, one defense counsel described 

how several of his clients, under the immense psychological pressure of facing court-martial for 

sexual assault, submitted a request for discharge in lieu of trial, even though they claimed they were 

innocent—and even though a request for discharge in lieu of trial requires an acknowledgment of guilt 

and stigmatizing notations in their discharge paperwork.

Site visit participants identified a number of negative consequences of what they perceive as too many 

sexual assault allegations being referred to trial:

1. Practitioners universally described the acquittal rate in their jurisdiction as “high,” in part due 

to the referral to court-martial of cases that lack merit. The acquittal percentages offered at 

one installation ranged from about 50% to 100%, significantly higher than the sexual offense 

acquittal rates seen in civilian jurisdictions. 

2. Prosecutors and investigators must devote significant time to prosecuting less meritorious cases, 

which divert resources away from more serious and well-supported allegations.

3. Some prosecutors feel that they face a potential ethical quandary in trying cases in which they 

see no reasonable likelihood of conviction.

4. The low conviction rate tends to discredit the entire military justice system in the eyes of 

Service members and the general public.

5. As more cases flood the system, the time needed to take each case to trial increases.

6. When weak cases linger in the system pending trial, the accused’s and the victim’s careers and 

lives remain on hold until the case is resolved.
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B. Information Presented to the JPP. One senior defense counsel told the JPP, “The lack of a thorough 

pre-trial investigation and prosecutorial discretion combined with the nature of acquaintance sexual 

assaults and the new incentives to fabricate [allegations] are a recipe for wrongful convictions.”115 She 

stated that despite changes to the system that favor victims and the prosecution, defense counsel are 

achieving more acquittals than ever before in sexual assault cases. She further observed, however, that 

the high acquittal rate demonstrates that many of the cases being “pushed through the system” should 

not be at court-martial and that, although the accused in these cases is often found not guilty, the trial 

process incurs “a real cost to the accused’s life, reputation, family and career.”116 In her view, “the 

sands have shifted in favor of the victim at the expense of the accused.”117 Another defense counsel 

expressed his opinion that because of the changes in the military justice system, the rights of the 

accused to due process and a speedy trial are being eroded.118 He noted that cases are lingering for as 

long as two years from report until the case goes to trial, putting the accused’s and victim’s life on hold 

for a significant period of time.119

V. CONCLUSIONS AND RECOMMENDATIONS

It appears that recent sexual assault legislation and policy changes that have benefited sexual assault 

victims and made the military justice system less intimidating to them have also had some negative 

consequences that must be addressed. These changes have affected the perceived legitimacy of the 

justice system. While legislative changes have substantially reduced the number of victims who testify 

at Article 32 hearings and have clarified that this hearing is not intended to be a discovery mechanism 

for the defense, there has been no corresponding new legislation or policy to provide defense counsel 

access to important case information.120 In addition, changes in the military justice system, such as 

the addition of SVCs/VLCs, have greatly benefitted sexual assault victims and given them a muchneeded voice in the system. Some defense counsel, however, feel this unfairly tips the scales of justice 

against the defendant. Also, when SVC/VLC limit a prosecutor’s access to the victim, it may adversely 

affect case outcomes. SVC/VLC must understand that in spite of their laudable intentions, they may 

inadvertently harm a victim’s goals or interests by weakening the criminal case, thereby increasing the 

chances of an acquittal at trial.

The consensus among counsel interviewed during the installation site visits was that the combination 

of a less robust Article 32 process, pressure on convening authorities to refer sexual assault cases to 

courts-martial, and the low standard of probable cause for referring cases to courts-martial has led to 

cases being referred to courts-martial in which there is little chance for a conviction. Many counsel felt 

that the result has been a high acquittal rate in sexual assault cases, which, in turn, has caused military 

115 Transcript of JPP Public Meeting 211 (Jan. 6, 2017) (testimony of LCDR Trest).

116 Id. at 212–13.

117 Id. at 252.

118 Transcript of JPP Public Meeting 250 (Jan. 6, 2017) (testimony of Maj Argentina).

119 Id. at 249.

120 The Subcommittee of the Judicial ProceedingS Panel rePort on military defenSe counSel reSourceS and exPerience

in Sexual aSSault caSeS, supra note 2, highlights significant due process issues regarding defense counsel and makes 

four recommendations, including that defense counsel be provided with independent investigators, that defense offices 

be appropriately staffed and resourced, and that expert witness approval and funding be vested in Service defense 

organizations. The Subcommittee’s report and recommendations were approved, with modifications, by the JPP. The 

Judicial ProceedingS Panel rePort on military defenSe counSel reSourceS and exPerience in Sexual aSSault caSeS

is available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/06_JPP_Defense_Resources_Experience_Report_ 

Final_20170424.pdf.
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members to question the fairness of the military justice system. In addition, some counsel worried that 

when the word gets around that sexual assault cases are going to courts-martial supported only by 

weak evidence, military juries may be much more skeptical of the charges and the prosecution and thus 

may be more likely to acquit. Perhaps inevitably, as Service members become aware of weak cases and 

high acquittal rates, victims may become more reluctant to make unrestricted reports.

Even when Article 32 officers have recommended against the referral of charges, those 

recommendations are not always followed by convening authorities. A substantial sampling of sexual 

assault cases tried in fiscal year 2015 reveal 54 cases in which the convening authority referred charges 

despite Article 32 investigating officers or PHOs finding that there was no probable cause or advising 

against the referral of sexual assault charges. In 45 of those cases, the accused was acquitted of the 

charges at trial, a number suggesting that perhaps the staff judge advocates and convening authorities 

should have paid more attention to the Article 32 officers’ recommendations. 

While most counsel now view the Article 32 process as having little value for scrutinizing the evidence 

in a sexual assault case, there has yet to emerge a formal written process for ensuring that the 

convening authority is made fully aware of the strengths and weaknesses of a case and has guidance 

for deciding an appropriate disposition. There are often good reasons, such as maintaining good order 

and discipline and respecting a belief that the assault took place, to refer a case to court-martial even 

when the likelihood of acquittal is high. But a convening authority should not be forced to make the 

critical decision about referral, with its life-changing impact on both the victim and the defendant, 

without clear guidelines and a better sense of the evidence’s strength. Convening authorities must 

be corrected if they erroneously believe that a decision to refer a case to court-martial will have few 

consequences for the accused, the victim, or the public’s perception of the military justice system. An 

accused facing court-martial is exposed to numerous adverse career and personal consequences, such 

as loss of promotion and career advancement opportunities, ostracism by peers, and the ongoing stress 

of knowing that a federal conviction, confinement, and sex offender registration are possible. Even if 

ultimately acquitted, the accused often suffers the enduring social and professional stigma of simply 

having been accused of these reprehensible offenses.

Recent legislation directing the Secretary of Defense to issue nonbinding guidance to be considered by 

convening authorities and staff judge advocates in determining an appropriate case disposition may 

help meet this need. Such formal case disposition guidance, in written form, should provide convening 

authorities with additional considerations, beyond whether the charges are supported by probable 

cause, as they decide whether to refer a case to court-martial or to resolve it through disposition at 

some lower level. 

Several prosecutors discussed their practice in sexual assault cases of producing a prosecution merits 

memo to lay out the strengths and weaknesses of the evidence and the likelihood of a conviction 

at trial, thereby aiding the staff judge advocate and convening authority in making an appropriate 

decision on disposition. While this seems like a useful tool to fill the void left when a more robust 

Article 32 process was replaced, it is worth noting that under Article 34 of the UCMJ and under 

R.C.M. 406, the staff judge advocate’s pretrial advice to the convening authority and accompanying 

documents must be provided to the defense if charges are referred to trial. A prosecution merits memo 

detailing evidentiary problems can go to the staff judge advocate without also being given to the 

defense, but any information provided in writing to the convening authority with the pretrial advice 

presumably must then be provided to the defense if charges are referred. This legal requirement may 

make staff judge advocates and prosecutors reluctant to write such candid memos to the convening 

authority for fear of disclosing a case’s evidentiary problems to the defense. There is no such parallel 

in civilian jurisdictions, where information provided by a prosecutor to his or her superiors would not 
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have to be provided to the defense counsel unless it revealed potentially exculpatory evidence (as also 

must be done by military prosecutors). More research and thought should be devoted to enabling the 

convening authority in the military justice system to be given enough information to make a proper 

decision, since the convening authority, like prosecutors in civilian jurisdictions, are responsible for 

determining which cases are prosecuted and which are not.

On site visits, counsel also discussed their perception that convening authorities feel pressure to refer 

sexual assault cases to courts-martial regardless of their merits. Counsel are concerned that cases are 

being sent to courts-martial even when the evidence is weak or the allegations involve less serious 

conduct, such as an attempted kiss or slap on the buttocks, that could be resolved through nonjudicial 

punishment or administrative action. The Subcommittee notes, however, that in the fiscal year 2015 

case data collected from the Services, convening authorities either dismissed charges prior to trial or 

disposed of cases by alternative means in almost 30% of all cases in which charges were preferred. 

Without knowing the facts of these cases, we cannot draw conclusions about why they were not 

referred to trial. But these data do reveal that while convening authorities may be experiencing pressure 

to refer sexual assault cases to court-martial, they are declining to do so almost 30% of the time. In 

addition, it may be that convening authorities are referring more sexual assault cases to courts-martial 

not because of outside pressure but because they now take sexual assault cases more seriously than 

they had done in the past and feel that disposition by courts-martial is the most appropriate way to 

resolve these grave allegations. So long as statutory language requires elevated review of a convening 

authority’s decision not to refer a sexual assault case to court-martial, however, convening authorities 

will always feel some pressure to refer cases to trial against their better judgment.

Counsels’ perceptions of a high acquittal rate for sexual assault offenses are borne out by the data. 

Among cases referred to courts-martial in fiscal year 2015, only 40% of the cases involving a 

penetrative sexual assault offense resulted in a conviction of any type of sexual assault offense. Just 

25% of sexual contact cases resulted in conviction for any sexual offense. While the conviction rate is 

higher when convictions for non-sex offenses are included, the acquittal rate for sexual assault offenses 

is significant. 

Although the JPP Subcommittee does not have the time to continue investigating the potential causes 

of this high acquittal rate, this issue must be explored further. The Subcommittee notes that the 

authorizing legislation for the JPP’s successor panel, the Defense Advisory Committee on Investigation, 

Prosecution, and Defense of Sexual Assault in the Armed Forces, requires the panel to conduct an 

ongoing review of cases involving sexual misconduct allegations.121

The inherent difficulties in evaluating sexual assault case evidence, combined with the widespread 

perception that convening authorities are referring weak cases, have led to the belief by many of the 

Subcommittee’s interviewees that the military justice system is weighted against the accused in sexual 

assault cases. Such one-sidedness is particularly serious in light of the potentially catastrophic effects of 

being accused of a sexual crime. The high rate of acquittal in military sexual assault cases can feed into 

this perception and lead to a general mistrust of the military justice system, which may lead Service 

members to acquit when they serve on panels in sexual assault courts-martial. 

The public may view the high acquittal rate as a result not of the more aggressive approach to sexual 

offense prosecution described in the site visits but of the military’s indifference to sexual assault. Public 

loss of confidence in the military and the military justice system has the potential to harm military 

enlistment and officer accession rates, as well as retention rates. In short, there must be a balance—a 

121 FY15 NDAA, supra note 21, § 546.
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system that treats sexual assault victims fairly and compassionately and that also provides defendants 

with procedures that are perceived to be, and are, fair. It is not the accused alone who suffers when a 

sexual assault case for which there is little chance of winning a conviction is referred to court-martial—

the victim is also forced to endure a lengthy, difficult process at whose end the accused is very likely to 

be found not guilty. 
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RECOMMENDATIONS:

Recommendation 1: The JPP Subcommittee recommends that the Defense Advisory Committee 

on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) 

continue the review of the new Article 32 preliminary hearing process, which in the view of many 

counsel interviewed during military installation site visits and according to information presented 

to the JPP no longer serves a useful purpose. Such a review should look at whether preliminary 

hearing officers in sexual assault cases should be military judges or other senior judge advocates 

with military justice experience and whether a recommendation of the preliminary hearing officer 

against referral, based on lack of probable cause, should be binding on the convening authority. 

This review should evaluate data on how often the recommendations of preliminary hearing 

officers regarding case disposition are followed by convening authorities and determine whether 

further changes to the process are required.

In addition, because the Article 32 hearing no longer serves as a discovery mechanism for the 

defense, the JPP Subcommittee reiterates its recommendation— presented in its report on military 

defense counsel resources and experience in sexual assault cases, and adopted by the JPP—that 

the defense be provided with independent investigators.

Recommendation 2: The JPP Subcommittee recommends that Article 33, UCMJ, case disposition 

guidance for convening authorities and staff judge advocates require the following standard for 

referral to court-martial: the charges are supported by probable cause and there is a reasonable 

likelihood of proving the elements of each offense beyond a reasonable doubt using only evidence 

likely to be found admissible at trial. 

The JPP Subcommittee further recommends that the disposition guidance require the staff judge 

advocate and convening authority to consider all the prescribed guideline factors in making a 

disposition determination, though they should retain discretion regarding the weight they assign 

each factor. These factors should be considered in their totality, with no single factor determining 

the outcome.

Recommendation 3: The JPP Subcommittee recommends that after case disposition guidance 

under Article 33, UCMJ, is promulgated, the DAC-IPAD conduct both military installation site 

visits and further research to determine whether convening authorities and staff judge advocates 

are making effective use of this guidance in deciding case dispositions. They should also 

determine what effect, if any, this guidance has had on the number of sexual assault cases being 

referred to courts-martial and on the acquittal rate in such cases.

Recommendation 4: The JPP Subcommittee recommends that the DAC-IPAD review whether 

Article 34 of the UCMJ and Rule for Court-Martial 406 should be amended to remove the 

requirement that the staff judge advocate’s pretrial advice to the convening authority (except 

for exculpatory information contained in that advice) be released to the defense upon referral 

of charges to court-martial. The DAC-IPAD should determine whether any memo from trial 

counsel that is appended should also be shielded from disclosure to the defense. This review 

should consider whether such a change would allow the staff judge advocate to provide more 

fully developed, candid written advice to the convening authority regarding the strengths and 

weaknesses of the charges so that the convening authority can make a better-informed disposition 

decision.
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Recommendation 5: The JPP Subcommittee recommends that Congress repeal provisions from 

the National Defense Authorization Act for Fiscal Year 2014 and Fiscal Year 2015, sections 

1744 and 541 respectively, that require non-referral decisions in certain sexual assault cases to 

be forwarded to a higher general court-martial convening authority or to the Service Secretary. 

The perception of pressure on convening authorities to refer sexual assault cases to courts-martial 

created by these provisions and the consequent negative effects on the military justice system are 

more harmful than the problems that such provisions were originally intended to address.

Recommendation 6: The JPP Subcommittee recommends that the DAC-IPAD continue to gather 

data and other evidence on disposition decisions and conviction rates of sexual assault courtsmartial to supplement information provided to the JPP Subcommittee during military installation 

site visits and to determine future recommendations for improvements to the military justice 

system.

Recommendation 7: The JPP Subcommittee recommends that the Secretary of Defense ensure 

that SVCs/VLCs receive the necessary training on the importance of allowing full access by 

prosecutors to sexual assault victims prior to courts-martial. Such training will ensure that SVCs/

VLCs are considering the value of a meaningful victim-prosecutor relationship in the advice they 

provide their victim-clients and assist prosecutors in sufficiently developing the rapport with the 

victim needed to fully prepare for trial.

Recommendation 8: The JPP Subcommittee recommends that the Department of Defense Sexual 

Assault Prevention and Response Office ensure that sexual assault training conducted by the 

military Services provide accurate information to military members regarding a person’s ability to 

consent to sexual contact after consuming alcohol and the legal definition of “impairment” in this 

context and that training be timed and conducted so as to avoid “training fatigue.”

The JPP Subcommittee further recommends that the DAC-IPAD monitor whether misperceptions 

regarding alcohol consumption and consent continue to affect court-martial panel members.

Recommendation 9: The JPP Subcommittee recommends that the Secretary of Defense review 

the policy on expedited transfer of sexual assault victims and consider whether it should be 

changed to state that when possible, sexual assault victims should be transferred to another unit 

on the same installation or to a nearby installation. This change will help ensure that prosecutors 

have access to victims in preparing for courts-martial, will satisfy the need to separate the victim 

from the accused, and will maintain the victim’s access to support systems while combating the 

perception that the ability to ask for these transfers has encouraged fraudulent claims of sexual 

assault. Commanders and SVCs/VLCs should all receive training in how relocating victims from 

less desirable to more desirable locations can foster the perception among military members that 

the expedited transfer system is being abused and in how such transfers can be used by defense 

counsel to cast doubt on the victim’s credibility, possibly leading to more acquittals at courtsmartial.

The JPP Subcommittee further recommends that the DAC-IPAD review data on expedited 

transfers to determine the locations from which and to which victims are requesting expedited 

transfers and to review their stated reasons.
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Sexual Assault Investigations 

in the Military

Dates Installations Represented Subcommittee Members

July 11–12, 2016 Naval Station Norfolk, VA122

Joint Base Langley-Eustis, VA

Hon. Elizabeth Holtzman

Dean Lisa Schenck

BGen (R) James Schwenk

July 27–28, 2016 Fort Carson, CO

Peterson Air Force Base, CO

Schriever Air Force Base, CO

U.S. Air Force Academy, CO

Ms. Lisa Friel

Ms. Laurie Kepros

Professor Lee Schinasi

Ms. Jill Wine-Banks

August 1–2, 2016 Fort Bragg, NC

Camp Lejeune, NC

Ms. Laurie Kepros

Professor Lee Schinasi

BGen (R) James Schwenk

August 8–9, 2016 Naval Station San Diego, CA

Marine Corps Recruiting Depot San 

Diego, CA

Marine Corps Air Station Miramar, CA

Camp Pendleton, CA

Hon. Barbara Jones

Ms. Laurie Kepros

Ms. Jill Wine-Banks

August 22–23, 2016 Marine Corps Base Quantico, VA

Joint Base Andrews, MD

U.S. Naval Academy, MD

Navy Yard, Washington, DC

Dean Lisa Schenck

BGen (R) James Schwenk

Ms. Jill Wine-Banks

September 12–14, 2016 Osan Air Base, South Korea

Camp Humphreys, South Korea

Camp Red Cloud, South Korea

Camp Casey, South Korea

U.S. Army Garrison Yongsan, 

South Korea

Camp Butler, Japan

Camp Zama, Japan

Kadena Air Base, Japan

Yokota Air Base, Japan

Hon. Elizabeth Holtzman

Ms. Jill Wine-Banks

42

122 Installations in bold type are the actual meeting locations for the site visits.

ENCLOSURE: Installation Site Visits Attended by Members of the JPP Subcommittee

ENCLOSURE Installation Site Visits 

Attended by Members of 

the JPP Subcommittee
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APPENDIX B: Judicial Proceedings Panel 

Authorizing Statutes and 

Charter

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.
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(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.
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(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.
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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.
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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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1. Committee’s Official Designation: The committee shall be known as the Judicial

Proceedings Since Fiscal Year 2012 Amendments Panel (“the Judicial Proceedings 

Panel”). 

2. Authority: The Secretary of Defense, as required by section 576(a)(2) of the National 

Defense Authorization Act for Fiscal Year 2013 (“the FY 2013 NDAA”) (Public Law 

112-239), as modified by section 1731(b) of the National Defense Authorization Act for 

Fiscal Year 2014 (“the FY 2014 NDAA”) (Public Law 113-66), and in accordance with 

the Federal Advisory Committee Act of 1972 (FACA) (5 U.S.C., Appendix, as amended) 

and 41 C.F.R. § 102-3.50(a), established the Judicial Proceedings Panel. 

3. Objectives and Scope of Activities: The Judicial Proceedings Panel will 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 

the amendments made to the UCMJ by section 541 of the National Defense Authorization 

Act for Fiscal Year 2012 (“the FY 2012 NDAA”) (Public Law 112-81) for the purpose of 

developing recommendations for improvements to such proceedings. 

4. Description of Duties: Section 576(d)(2) directs the Judicial Proceedings Panel to perform 

the following duties, with additional duties as added by section 1731(b)(1) of the FY 2014 

NDAA: 

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 UCMJ that were enacted by section 541 of the FY 2012 NDAA. 

b. Review and evaluate current trends in response to sexual assault crimes whether by 

courts-martial 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 of the Judicial Proceedings Panel 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 UCMJ), and any instances in which prior sexual conduct was 

determined to be inadmissible.
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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 the assessment conducted by the 

Response Systems to Adult Sexual Assault Crimes Panel (“the Response Systems 

Panel”), a Federal advisory committee established pursuant to section 576(a)(1) of the 

FY 2013 NDAA and in accordance with FACA, of the training level of military 

defense and trial counsel, 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 the FY 2013 NDAA. 

i. Monitor the implementation of the April 20, 2012, Secretary of Defense policy 

memorandum regarding withholding initial disposition authority under the UCMJ in 

certain sexual assault cases. 

j. Assess 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 UCMJ), to 

expressly cover a situation in which a person subject to the UCMJ 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.

k. Assess the implementation and effect of the Special Victim’s Counsel for victims of 

sex-related offenses established by the Secretary of Defense on August 14, 2013 and 

codified in Section 1044e of title 10, United States Code, by the enactment of Section 

1716 of the FY 2014 NDAA on December 26, 2013. The panel shall make such 

recommendations for modifications of section 1044e as the Judicial Proceedings 

Panel considers appropriate.

l. Assess 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 

UCMJ), as added by section 1705 of the FY 2014 NDAA, which requires at a 

minimum, that upon a finding of guilt for the offenses of rape, sexual assault, rape 

and sexual assault of a child, forcible sodomy, and attempts to commit such acts, the 

punishment include dismissal or dishonorable discharge, except as provided for by 

Article 60 of the UCMJ, and the appropriateness of statutorily mandated minimum 

sentencing provisions for additional offenses under chapter 47 of title 10, United 

States Code (the UCMJ). 

m. Assess the adequacy of the provision of compensation and restitution for victims of 

offenses under chapter 47 of title 10, United States Code (the UCMJ), 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

UCMJ). 
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iii. Requiring restitution by members of the Armed Forces to victims of their

offenses upon the direction of a court-martial.

n. Consider such other matters and materials as the Judicial Proceedings Panel considers 

appropriate for purposes of the reports. 

In conducting reviews and assessments and preparing reports, the Judicial Proceedings 

Panel may review, and incorporate as appropriate, the data and findings of applicable 

ongoing and completed studies. The Judicial Proceedings Panel may hold such hearings, 

sit and act at such times and places, take such testimony, and receive such evidence as it

considers appropriate to carry out its duties. Upon request by the Chair of the Judicial 

Proceedings Panel, a department or agency of the Federal Government shall provide 

information that the Judicial Proceedings Panel considers necessary to carry out its duties. 

5. Agency or Official to Whom the Committee Reports: The Judicial Proceedings Panel

shall provide its first report, including any proposals for legislative or administrative 

changes it considers appropriate, to the Secretary of Defense through the Department of 

Defense (DoD) General Counsel (GC), and the Committees on Armed Services of the 

Senate and the House of Representatives, not later than 180 days after its first meeting. 

The Judicial Proceedings Panel shall submit subsequent reports during fiscal years 2014 

through 2017. 

6. Support: The DoD, through the DoD Office of General Counsel (DoD OGC), the 

Washington Headquarters Services, and the Office of the Under Secretary of Defense for 

Personnel and Readiness, shall provide staffing and resources as deemed necessary for the 

performance of the Judicial Proceedings Panel’s functions, and shall ensure compliance 

with the requirements of the FACA, the Government in the Sunshine Act of 1976 (“the 

Sunshine Act”) (5 U.S.C. § 552b, as amended), governing federal statutes and regulations,

and established DoD policies and procedures. Primary responsibility for such staffing and 

resourcing may not be assigned to the Sexual Assault Prevention and Response Office. 

7. Estimated Annual Operating Costs and Staff Years: The estimated annual operating cost, 

to include travel, meetings, and contract support, is approximately $4,000,000 and 15 fulltime equivalents.

8. Designated Federal Officer: The Designated Federal Officer (DFO), pursuant to DoD 

policy, shall be a full-time or permanent part-time DoD employee, and shall be appointed 

in accordance with governing DoD policies and procedures. 

In addition, the Judicial Proceedings Panel’s DFO is required to be in attendance at all

meetings of the Panel and its subcommittees for the entire duration of each and every 

meeting. However, in the absence of the DFO, the Alternate DFO, duly appointed to the

Judicial Proceedings Panel according to DoD policies and procedures, shall attend the 

entire duration of the Judicial Proceedings Panel and any subcommittee meetings.
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The DFO, or the Alternate DFO, shall approve all of the meetings of the Judicial 

Proceedings Panel as called by the Chair; shall call all meetings of its subcommittees, in 

coordination with the Chair; prepare and approve all meeting agendas for the Judicial 

Proceedings Panel and any subcommittees; and adjourn any meeting when the DFO or the 

Alternate DFO determines adjournment to be in the public’s interest or required by 

governing regulations or DoD policies and procedures.

9. Estimated Number and Frequency of Meetings: Consistent with sections 576(b)(6) and 

(7) of the FY 2013 NDAA, the Judicial Proceedings Panel shall meet at the call of the 

Chair, and the Chair shall call the first meeting of the Judicial Proceedings Panel not later 

than 60 days after the date of the appointment of all the members of the Judicial 

Proceedings Panel. The Judicial Proceedings Panel shall meet at a minimum once per 

year. 

10. Duration: The Judicial Proceedings Panel shall remain in effect until terminated, as 

provided for and as required by section 576(c)(2)(C) of the FY 2013 NDAA; however, the 

charter is subject to renewal every two years.

11. Termination: According to section 576(c)(2)(C) of the FY 2013 NDAA, the Judicial 

Proceedings Panel shall terminate on September 30, 2017. 

12. Membership and Designation: Pursuant to sections 576(b)(1)(B) and (b)(2), the Judicial 

Proceedings Panel shall be appointed by the Secretary of Defense and consist of five 

members, two of whom must have served on the Response Systems Panel. 

The members 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 Force, 

and offenses relating to rape, sexual assault, and other adult sexual assault crimes. The 

Chair shall be appointed by the Secretary of Defense from among the members of the 

Judicial Proceedings Panel. 

Members shall be appointed for the life of the Judicial Proceedings Panel, subject to 

annual renewals. Any vacancy on the Judicial Proceedings Panel shall be filled in the 

same manner as the original appointment. Panel members shall be appointed as experts or 

consultants pursuant to 5 U.S.C. § 3109 to serve as special government employee (SGE) 

members. With the exception of reimbursement of official travel and per diem, Judicial 

Proceedings Panel members shall serve without compensation. 

The DoD GC, according to DoD policies and procedures, may select experts and 

consultants as subject matter experts under the authority of 5 U.S.C. § 3109 to advise the 

Judicial Proceedings Panel or its subcommittees; these individuals do not count toward the 

Judicial Proceedings Panel’s total membership nor do they have voting privileges. In 

addition, these subject matter experts shall not participate in any deliberations dealing with 
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the substantive matters before the Judicial Proceedings Panel or its subcommittees nor 

shall they participate in any voting.

13. Subcommittees: The Department, when necessary and consistent with the Judicial 

Proceedings Panel’s mission and DoD policies and procedures, may establish 

subcommittees, task groups, or working groups to support the Judicial Proceedings Panel. 

Establishment of subcommittees will be based upon a written determination, to include 

terms of reference, by the Secretary of Defense, the Deputy Secretary of Defense, or the 

DoD GC. 

These subcommittees shall not work independently of the Judicial Proceedings Panel and 

shall report all of their recommendations and advice to the Judicial Proceedings Panel for 

full deliberation and discussion. Subcommittees have no authority to make decisions and 

recommendations, verbally or in writing, on behalf of the Judicial Proceedings Panel. No

subcommittee or any of its members may update or report directly to the DoD or any 

Federal officers or employees. 

The Secretary of Defense shall appoint subcommittee members even if the member in 

question is already a member of the Judicial Proceedings Panel. All subcommittee 

appointments shall be subject to annual renewal. Such individuals, if not full-time or parttime government personnel, shall be appointed as experts or consultants pursuant to 5 

U.S.C. § 3109 to serve as SGE members. Those individuals who are full-time or 

permanent part-time Federal employees shall be appointed pursuant to 41 C.F.R. § 102-

3.130(a) as RGE members. Subcommittee members shall serve for the life of the 

subcommittee. With the exception of reimbursement of official travel and per diem, 

subcommittee members shall serve without compensation.

All subcommittees operate pursuant to the provisions of FACA, the Sunshine Act, 

governing Federal statutes and regulations, and established DoD policies and procedures.

14. Recordkeeping: The records of the Judicial Proceedings Panel and its subcommittees 

shall be handled according to section 2, General Records Schedule 26, and appropriate 

Department of Defense policies and procedures. These records shall be available for 

public inspection and copying, subject to the Freedom of Information Act of 1966 (5 

U.S.C. § 552, as amended).

15. Filing Date: June 24, 2014
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APPENDIX C: Judicial Proceedings Panel 

Committee and Subcommittee 

Member Biographies

JUDICIAL PROCEEDINGS PANEL MEMBERS

THE HONORABLE ELIZABETH HOLTZMAN — CHAIR OF THE JPP

Elizabeth 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.

THE HONORABLE BARBARA S. JONES 

Barbara Jones is a partner at the law firm Bracewell, LLP. She served as a judge in the U.S. District 

Court for the Southern District of New York for 16 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, handled 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 40 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 victims’ 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.
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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 27-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 was most recently the Vice President of Homeland Security and Defense for Hewlett 

Packard Enterprise Services, U.S. Public Sector, developing dynamic strategies and providing support to 

various 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. She completed a distinguished 34-year naval 

career in 2004, retiring as a vice admiral and the most senior woman officer in the history of the U.S. 

Navy. As chief of the Navy’s $5 billion global education and training enterprise, Admiral Tracey led 

a successful revolution in training technology to improve the quality, access, effectiveness, and cost of 

Navy training. She 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.
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APPENDIX C: JUDICIAL PROCEEDINGS PANEL COMMITTEE AND SUBCOMMITTEE MEMBER BIOGRAPHIES

JUDICIAL PROCEEDINGS PANEL SUBCOMMITTEE MEMBERS

THE HONORABLE BARBARA S. JONES — CHAIR OF THE JPP SUBCOMMITTEE

Barbara Jones is a partner at the law firm Bracewell, LLP. She served as a judge in the U.S. District 

Court for the Southern District of New York for 16 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, handled 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.

THE HONORABLE ELIZABETH HOLTZMAN — CHAIR OF THE JPP

Elizabeth Holtzman, who took office as the youngest woman ever elected to Congress, served in the 

House of Representatives from 1973 to 1981, representing New York’s 16th Congressional District. 

While in Congress, she served on the House Judiciary and Budget Committees and chaired the 

Immigration and Refugees Subcommittee. She co-founded the Congressional Women’s Caucus and 

was elected its first Democratic chair. She subsequently was elected Brooklyn District Attorney (where 

she pioneered new strategies for the prosecution of rape cases)—the only woman ever elected DA in 

New York City. She was then elected New York City Comptroller, the only woman ever to hold that 

position. Ms. Holtzman was appointed by President Bill Clinton to the Interagency Working Group 

(on declassifying secret Nazi war crimes files), and by Secretary Hagel to the Response Systems to 

Adult Sexual Assault Crimes Panel. She has also been appointed to the Department of Homeland 

Security Advisory Committee. Ms. Holtzman is a graduate of Harvard Law School and Harvard 

University’s Radcliffe College, magna cum laude. She practices law in New York City with the firm 

Herrick, Feinstein, LLP.
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MS. LISA FRIEL

Lisa Friel is an internationally recognized expert on sexual assault. Ms. Friel has investigated and 

supervised complex cases involving sexual assault and harassment, human trafficking, workplace 

violence, child pornography, Internet predators, unlawful surveillance, theft, and fraud. Ms. Friel 

began her professional career at the New York County District Attorney’s Office, specializing in 

sexual assault cases. She was the Chief of the Sex Crimes Prosecution Unit for nearly a decade and the 

Deputy Chief for 11 years. Supervising more than 40 assistant district attorneys, support staff, and 

investigators, she typically managed 300 cases and investigations at any one time. 

Ms. Friel has directed thousands of investigations into allegations of sexual assault and other 

misconduct and has trained hundreds of law enforcement personnel throughout the world. In 

October 2011, following a distinguished 28-year career as a Manhattan prosecutor, Ms. Friel joined 

T&M Protection Resources as Vice President of the Sexual Misconduct Consulting & Investigations 

division. Ms. Friel and her staff developed policies and procedures, provided training workshops, and 

conducted sensitive investigations into a myriad of issues, including sexual misconduct (both sexual 

assault and sexual harassment) and domestic violence. In September 2014, Ms. Friel was appointed as 

T&M’s Special Advisor to the NFL Commissioner, consulting on domestic violence, child abuse, and 

sexual assault within the National Football League. In April 2015, Ms. Friel accepted a permanent 

position with the NFL: an appointment by Commissioner Goodell as the NFL’s Special Counsel for 

Investigations, where she is responsible for all investigations related to possible violations of the NFL’s 

Personal Conduct Policy.

MS. LAURIE ROSE KEPROS 

Laurie Rose Kepros is the Director of Sexual Litigation for the Colorado Office of the State Public 

Defender, where she trains and advises more than 700 lawyers and other staff statewide in their 

representation of adults and juveniles accused or convicted of sexual crimes. Ms. Kepros has personally 

represented thousands of criminal defendants, including many victims of sexual assault. She has tried 

and consulted on thousands of sexual offense cases across the state of Colorado. She has served on 

dozens of subcommittees of the Colorado Sex Offender Management Board and as a member of both 

the Sex Offense Task Force and the Sex Offense Working Group of the Sentencing Task Force of the 

Colorado Commission on Criminal and Juvenile Justice. Ms. Kepros was on the Board of Directors of 

the Colorado Criminal Defense Bar for 10 years and currently serves on the board of the CCDB’s sister 

policy organization, the Colorado Criminal Defense Institute. She is a member of the Association for 

the Treatment of Sexual Abusers and an adjunct professor at the University of Denver School of Law. 

She has repeatedly testified before the Colorado legislature as a subject matter expert in sexual crime 

law and as an expert witness in Colorado sex offense law in federal district court. In 2012, the CCDB 

awarded her the Gideon Award for upholding and preserving the principles captured by Gideon v. 

Wainwright.
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APPENDIX C: JUDICIAL PROCEEDINGS PANEL COMMITTEE AND SUBCOMMITTEE MEMBER BIOGRAPHIES

DEAN LISA SCHENCK (COLONEL, U.S. ARMY, RETIRED)

Lisa Schenck became Associate Dean for Academic Affairs at the George Washington University Law 

School in 2009 after serving in the Army’s Judge Advocate General’s Corps for more than 25 years. She 

also has served as a judge, lawyer, and educator. While in the military, she was an appellate military 

judge on the U.S. Army Court of Criminal Appeals in 2002 and received the 2003 Judge Advocates 

Association Outstanding Career Armed Services Attorney Award (Army). In 2005, Dean Schenck was 

the first woman appointed as a Senior Judge on that court, where she served until she retired. In 2007, 

the Secretary of Defense also appointed her to serve concurrently as Associate Judge on the U.S. Court 

of Military Commission Review. After retiring from the military as a colonel in 2008, Dean Schenck 

served as Senior Advisor to the Defense Task Force on Sexual Assault in Military Services.

PROFESSOR LEE SCHINASI (COLONEL, U.S. ARMY, RETIRED)

Lee Schinasi began his legal career as a trial attorney for the Office of Economic Opportunity before 

starting a 23-year career in the Army’s Judge Advocate General’s Corps. His final assignment was 

as Dean of Academics and Vice Dean of the Army’s JAGC School. Professor Schinasi attended the 

resident Command and General Staff College and the resident Army War College. He has served as 

military legal advisor to the Army’s Chief of Staff for Intelligence and as Staff Judge Advocate of the 

3rd Infantry Division (in Germany) and United States Army South (in Panama). Professor Schinasi 

is co-author of several books on evidence and litigation, including The Military Rules of Evidence 

Manual, Military Evidentiary Foundations, The Florida Evidence Code Trial Book, Florida Evidentiary 

Foundations, Evidence in Florida, Emerging Problems under the Federal Rules of Evidence, and 

Lawyers Cooperative Practice Guide: Florida Evidence. He received a bachelor’s degree in economics 

and a J.D. degree from the University of Toledo. Before joining the Barry Law faculty, Professor 

Schinasi taught at the University of Miami School of Law. He currently teaches evidence, torts, civil 

procedure, and national security law.
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BRIGADIER GENERAL JAMES SCHWENK, U.S. MARINE CORPS (RETIRED)

James Schwenk retired from the Marine Corps in 2000 and from civil service in 2014, after 49 years 

of federal service. As a Marine Corps judge advocate, he served as a trial counsel, defense counsel, 

Deputy Staff Judge Advocate, Staff Judge Advocate, Special Assistant to the General Counsel of the 

Navy, Head of Operational Law Branch at Headquarters Marine Corps, Deputy Director of Legal 

and Legislative Policy for the Office of the Assistant Secretary of Defense for Force Management and 

Policy, Assistant Judge Advocate General of the Navy for Military Law, and Military Assistant to the 

DoD General Counsel. Upon retiring from active duty, BGen Schwenk served for 14 years in the Office 

of the General Counsel of the Department of Defense as Senior Associate Deputy General Counsel, 

specializing in personnel policy, military justice, and civil support. He was the principal legal advisor 

for the repeal of “don’t ask, don’t tell” and the provision of benefits to same-sex spouses of military 

personnel. In addition, he was the principal legal advisor to numerous DoD working groups in the area 

of military personnel policy, working extensively with the White House and Congress. BGen Schwenk 

attended the Washington College of Law, American University, earning his J.D. in 1977. 

MS. JILL WINE-BANKS 

Jill Wine-Banks has a background as a corporate executive in manufacturing and telecommunications 

and as an attorney and not-for-profit and government leader. Ms. Wine-Banks started her career at 

the Department of Justice prosecuting organized crime and labor racketeering cases and then played 

a crucial role as an assistant special prosecutor investigating and trying the Watergate obstruction of 

justice case. Ms. Wine-Banks also served as the General Counsel of the United States Army. In that 

position, Ms. Wine-Banks dealt with environmental, procurement, Panama Canal, intelligence, military 

justice, and political issues, including the integration of women into basic training and West Point. 

After leaving the Pentagon, she was a litigation partner at Jenner and Block, the Solicitor General and 

Deputy Attorney General of Illinois, and later the Executive Vice President and Chief Operating Officer 

of the American Bar Association, the world’s largest legal publisher and professional association 

with almost 400,000 members. That experience led to her becoming a senior corporate executive at 

Motorola and then Maytag, handling international business development, global operations, alliance 

creation and management, and government relations in Pakistan, China, Ukraine, Russia, France, 

Germany, Japan, and Singapore. Recently, Ms. Wine-Banks was head of career and technical education 

for the Chicago Public Schools and a business consultant. Ms. Wine-Banks is currently writing a book 

about her life and career, with a special focus on her experiences during Watergate.
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APPENDIX D: Judicial Proceedings 

Panel Staff Members and 

Designated Federal Officials

JUDICIAL PROCEEDINGS PANEL 

STAFF

Captain Tammy P. Tideswell, 

Judge Advocate General’s Corps,

U.S. Navy, Staff Director

Lieutenant Colonel Patricia H. Lewis, 

Judge Advocate General’s Corps,

U.S. Army, Deputy Staff Director

Mr. Dale Trexler, Chief of Staff

Ms. Julie Carson, Attorney

Dr. Janice Chayt, Investigator

Dr. Alice Falk, Editor

Ms. Theresa Gallagher, Attorney

Ms. Nalini Gupta, Attorney

Ms. Amanda Hagy, Senior Paralegal

Ms. Laurel Prucha Moran, Graphic Designer

Ms. Meghan Peters, Attorney

Ms. Stayce Rozell, Senior Paralegal

Ms. Terri A. Saunders, 

Attorney and Lead Report Writer

Ms. Tiffany M. Williams, 

Supervising Paralegal

DESIGNATED FEDERAL OFFICIALS

Ms. Maria Fried, 

Associate Deputy General Counsel (Personnel 

and Health Policy),

U.S. Department of Defense, 

Designated Federal Official

Mr. William Sprance, 

Associate Deputy General Counsel (Personnel 

and Health Policy), 

U.S. Department of Defense,

Alternate Designated Federal Official

Lieutenant Colonel Jacqueline M. Stingl, 

Judge Advocate General’s Corps, 

U.S. Air Force, Associate Deputy General 

Counsel (Personnel and Health Policy),

U.S. Department of Defense,

Alternate Designated Federal Official

Mr. Dwight Sullivan, 

Senior Associate Deputy General Counsel 

(Military Justice and Personnel Policy), 

U.S. Department of Defense,

Alternate Designated Federal Official
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APPENDIX E: Presenters on Panel 

Concerns Regarding the Fair 

Administration of Military 

Justice in Sexual Assault Cases 

at Judicial Proceedings Panel 

Public and Subcommittee 

Meetings

JUDICIAL 

PROCEEDINGS PANEL

PUBLIC 

MEETINGS

PRESENTERS

May 19, 2017

Public Meeting of 

the JPP

Holiday Inn Arlington 

at Ballston

Arlington, VA

• Ms. Laurie Kepros, JPP Subcommittee Member

• Dean Lisa Schenck, Colonel, U.S. Army, Retired, JPP Subcommittee 

Member

• Ms. Jill Wine-Banks, JPP Subcommittee Member

June 16, 2017

Public Meeting of 

the JPP

One Liberty Center 

Arlington, VA

• Panel deliberations

July 26–27, 2017

Public Meeting of 

the JPP

One Liberty Center 

Arlington, VA

• Panel deliberations and approval of the report and recommendations
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JUDICIAL 

PROCEEDINGS PANEL

SUBCOMMITTEE 

MEETINGS

PRESENTERS

October 14, 2016

JPP Subcommittee 

Meeting

One Liberty Center

Arlington, VA

• Subcommittee deliberations

December 8, 2016

JPP Subcommittee 

Meeting

One Liberty Center

Arlington, VA

• Subcommittee deliberations

January 5, 2017

JPP Subcommittee 

Meeting

One Liberty Center

Arlington, VA

• Colonel Katherine Oler, U.S. Air Force, Chief, Government Trial and 

Appellate Counsel Division

• Colonel William R. Kern, U.S. Army, Professional Responsibility 

Branch, Office of the Judge Advocate General

• Colonel Kathryn Stone, U.S. Army, Retired, Attorney Advisor, 

Professional Responsibility Branch Head, Office of the Judge Advocate 

General

• Major Emilee Elbert, U.S. Army, Deputy Chief, Trial Counsel 

Assistance Program

• Commander Cassie Kitchen, U.S. Coast Guard, Chief, Military Justice 

and Command Advice

• Commander Michael Luken, U.S. Navy, Director, Trial Counsel 

Assistance Program

• Lieutenant Colonel Nicholas Martz, U.S. Marine Corps, Military 

Justice Branch Head, Judge Advocate Division

February 23, 2017

JPP Subcommittee 

Meeting

One Liberty Center

Arlington, VA

• Subcommittee deliberations and review of draft report
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APPENDIX E: PRESENTER ON PANEL CONCERNS REGARDING THE FAIR ADMINISTRATION OF 

MILITARY JUSTICE IN SEXUAL ASSAULT CASES AT JUDICIAL PROCEEDINGS PANEL PUBLIC AND 

SUBCOMMITTEE MEETINGS

JUDICIAL 

PROCEEDINGS PANEL

SUBCOMMITTEE 

MEETINGS

PRESENTERS

April 4, 2017

JPP Subcommittee 

Meeting

Bracewell LLP

New York, NY

• Subcommittee deliberations and review of draft report

April 26, 2017

JPP Subcommittee 

Meeting 

Telephonic

• Subcommittee deliberations and review of draft report

May 3, 2017

JPP Subcommittee 

Meeting

Telephonic

• Subcommittee deliberations and review of draft report

May 18, 2017

JPP Subcommittee 

Meeting

One Liberty Center

Arlington, VA

• Subcommittee discussion on presentation of Subcommittee report to 

JPP
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APPENDIX F: Acronyms and Abbreviations

ABA American Bar Association

CAAF Court of Appeals for the Armed Forces

DAC-IPAD Defense Advisory Committee on Investigation, Prosecution, and 

Defense of Sexual Assault in the Armed Forces

DoD Department of Defense

DoDI Department of Defense Instruction

FY fiscal year

GCMCA general court-martial convening authority

JPP Judicial Proceedings Since Fiscal Year 2012 Amendments Panel 

(Judicial Proceedings Panel)

MCIO military criminal investigative organization

MCM Manual for Courts-Martial

NCO noncommissioned officer

NDAA National Defense Authorization Act

PHO preliminary hearing officer

R.C.M. Rule for Court-Martial

SAPR sexual assault prevention and response

SARC sexual assault response coordinator

SHARP sexual harassment and assault response and prevention

SJA staff judge advocate

SPCMCA special court-martial convening authority

SVC special victims’ counsel

UCMJ Uniform Code of Military Justice

U.S.C. United States Code

VA victim advocate

VLC victims’ legal counsel
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APPENDIX G: Sources Consulted

1. LEGISLATIVE SOURCES

a. Enacted Statutes

10 U.S.C. §§ 801-946 (Uniform Code of Military Justice)

National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (2013)

National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, 128 Stat. 3292 (2014)

National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016)

b. Congressional Record

159 Cong. Rec. H7059, available at https://www.gpo.gov/fdsys/pkg/CREC-2013-11-14/pdf/CREC2013-11-14-pt1-PgH7059.pdf

159 Cong. Rec. S4020, available at https://www.gpo.gov/fdsys/pkg/CREC-2013-06-07/pdf/CREC2013-06-07-pt1-PgS4020-3.pdf#page=1

2. JUDICIAL DECISIONS

a. U.S. Court of Appeals for the Armed Forces

Hutson v. United States, 42 C.M.R. 39 (1970)

United States v. Barry, No. 17-0162/NA (Jun. 19, 2017)

United States. v. Boyce, 76 M.J. 242 (May 22, 2017)

b. Service Courts of Criminal Appeals

Wright v. United States, 75 M.J. 501 (A.F.C.C.A. Jan. 13, 2015)

United States v. Newlan, No. 201400409 (N.M. Ct. Crim. App. Sept. 13, 2016)

3. JUDICIAL FILINGS

a. U.S. Court of Appeals for the Armed Forces

Declaration of RADM Patrick J. Lorge, USN (Ret.), May 5, 2017

Declaration of LCDR Leah A. O’Brien, JAGC, USN, May 4, 2017
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4. RULES AND REGULATIONS

a. Executive Orders

Manual for Courts-Martial, United States (2012), available at http://jsc.defense.gov/Portals/99/

Documents/MCM2012.pdf

Manual for Courts-Martial, United States (2016), available at http://jsc.defense.gov/Portals/99/

Documents/MCM2016.pdf?ver=2016-12-08-181411-957

b. Department of Defense

Dep’t of Def. Instruction 6495.02, Sexual Assault Prevention and Response (SAPR) Program

Procedures (Mar. 28, 2013) (Incorporating Change 2, Effective July 7, 2015), available at

http://dtic.mil/whs/directives/corres/pdf/649502p.pdf

c. Service Regulations

U.S. Dep’t of the Air Force, Air Force Guidance Memo. to Air Force Instruction 51-110, 

Professional Responsibility Program (July 7, 2016)

5. MEETINGS

a. Public Meetings of the Judicial Proceedings Panel 

Transcript of JPP Public Meeting (Jan. 6, 2017), available at 

http://jpp.whs.mil/Public/docs/05-Transcripts/20170106_Transcript_Final.pdf

b. Meetings of the Judicial Proceedings Panel Subcommittee

Transcript of JPP Subcommittee Meeting (Jan. 5, 2017)

6. OFFICIAL POLICY STATEMENTS

U.S. Dep’t of Def., Memorandum from the Secretary of Defense on Withholding Initial Disposition

Authority under the Uniform Code of Military Justice in Certain Sexual Assault Cases

(Apr. 20, 2012), available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/09-Withholding_

Authority/20160408/01_SecDef_Memo_WithholdingAuthority_20120420.pdf 

U.S. Dep’t of Def., Memorandum from the Secretary of Defense on Integrity of the Military Justice

Process (Aug. 6, 2013)

7. OFFICIAL REPORTS

a. Report of the Response Systems to Adult Sexual Assault Crimes Panel 

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
85

 APPENDIX G: SOURCES CONSULTED

b. Report of the Judicial Proceedings Since Fiscal Year 2012 Amendments Panel

Judicial Proceedings Panel Initial Report (Feb. 2015), available at http://jpp.whs.mil/Public/docs/08-

Panel_Reports/01_JPP_InitialReport_Final_20150204.pdf

Judicial Proceedings Panel Report on Military Defense Counsel Resources and Experience in Sexual

Assault Cases (Mar. 2017), available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/06_JPP_

Defense_Resources_Experience_Report_Final_20170424.pdf

c. Reports of the Subcommittee of the Judicial Proceedings Since Fiscal Year 2012 Amendments Panel

Subcommittee of the Judicial Proceedings Panel Report on Military Defense Counsel Resources and

Experience in Sexual Assault Cases (Dec. 2016), available at http://jpp.whs.mil/Public/docs/08-

Panel_Reports/JPP_SubcommReport_DefResources_Final_20161208.pdf

Subcommittee of the Judicial Proceedings Panel Report on Sexual Assault Investigations in

the Military (Feb. 2017), available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_

SubcommReport_Investigations_Final_20170224.pdf

Subcommittee Papers on Initial Disposition Withholding Authority; Military Rules of Evidence 412 

and 513; and Training and Experience of Trial Counsel and Special Victims’ Counsel/Victims’ 

Legal Counsel (Mar. 2017), available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_

Subcomm_ShortReports_20170302_Final.pdf

d. Department of Defense Reports

Defense Task Force Report on Care for Victims of Sexual Assault (Apr. 2004), available at

http://www.sapr.mil/public/docs/reports/task-force-report-for-care-of-victims-of-sa-2004.pdf

Report of the Defense Task Force on Sexual Harassment and Violence at the Military Service

Academies (June 2005), available at http://www.dtic.mil/dtfs/doc_recd/High_GPO_RRC_tx.pdf

Report of the Defense Task Force on Sexual Assault in the Military Services (Dec. 2009), available at 

http://www.sapr.mil/public/docs/research/DTFSAMS-Rept_Dec09.pdf

Dep’t of Def. Annual Report on Sexual Assault in the Military: Fiscal Year 2016 (May 1, 2017), 

available at http://sapr.mil/public/docs/reports/FY16_Annual/FY16_SAPRO_Annual_Report.pdf

8. OTHER REPORTS

Cassia Spohn, PhD, Adjudication of Sexual Offenses Reported to the Military Services in 2015 (May 

2017), available at http://jpp.whs.mil/Public/docs/10-Reading_Room/20170519.pdf

Annual Report for Fiscal Year 2015, Report of the Judge Advocate General of the Army; Report of

the Judge Advocate General of the Navy and the Annual Military Justice Report of the Marine

Corps, available at http://www.armfor.uscourts.gov/newcaaf/annual/FY15AnnualReport.pdf

9. RESPONSES TO JUDICIAL PROCEEDINGS PANEL REQUESTS FOR 

INFORMATION

Military Services’ Responses to JPP Request for Information 166 (Apr. 5, 2017)
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ASSAULT CASES

10. MEMORANDA

U.S. Dep’t of Def., Memorandum from the Secretary of Defense on Implementation of the

Recommendations of the Response Systems to Adult Sexual Assault Crimes Panel (Dec. 15, 2014)

11. OTHER SOURCES

a. Manuals

U.S. Dep’t of Justice, United States Attorneys’ Manual (1997, updated Jan. 2017)

b. American Bar Association Publications

Criminal Justice Standards for the Prosecution Function (Am. Bar Ass’n, 4th ed.)

Model Rules of Professional Conduct (Am. Bar Ass’n 2016)

c. Law Review Articles

Major Christopher J. Goewert and Captain Nichole M. Torres, Old Wine into New Bottles: 

The Article 32 Process after the National Defense Authorization Act of 2014, 72 A.F. L. Rev. 232 

(2015)

d. News Articles

David Alexander, Rape Case Removed from U.S. Air Force General Who Made Controversial Ruling, 

Chic. Trib., Dec. 19, 2013, available at http://articles.chicagotribune.com/2013-12-19/news/

sns-rt-usa-militarysexassault-20131219_1_generalcraig-franklin-u-s-air-force-wright-case

Jeff Schogol, Airman Acquitted of Sexual Assault Charge, USA Today, Oct. 29, 2015, available at

https://www.usatoday.com/story/military/2015/10/29/airman-acquitted-sexual-assault-charges/

74792760/

Press release, McCaskill Calls for Removal of Lt. Gen. Craig Franklin from Command (Dec. 18, 

2013), available at https://www.mccaskill.senate.gov/media-center/news-releases/

mccaskill-calls-for-removal-of-lt-gen-craig-franklin-fromcommand

Jennifer Steinhauer, Remark by Obama Complicates Military Sexual Assault Trials, N.Y. Times, July 

13, 2013, available at http://www.nytimes.com/2013/07/14/us/obama-remark-is-complicatingmilitary-trials.html