JUDICIAL 

PROCEEDINGS 

PANEL

FINAL REPORT

October 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

Final Report

October 2017

5

FINAL REPORT

JUDICIAL PROCEEDINGS PANEL

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

 

October 16, 2017 

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 the final report of the Judicial Proceedings Since Fiscal Year

2012 Amendments Panel (JPP). This report is the culmination of three years of the Panel’s

review and assessment of issues involving judicial proceedings related to sexual assault in the

Armed Forces. To conduct its assessments, the JPP held 32 public meetings between August

2014 and July 2017 during which the members heard testimony from hundreds of witnesses,

including sexual assault survivors and victim advocacy organizations, military leaders, military

and civilian prosecutors, defense counsel and victims’ counsel, former judges, victim services

personnel, and numerous others. The Panel also received thousands of pages of documents

from the Department of Defense, the military Services, and other interested parties. 

Since February 2015, the JPP has issued 11 reports containing a total of 63 

recommendations to Congress, the Secretary of Defense, the military Services, and the Defense

Advisory Committee on Investigations, Prosecution, and Defense of Sexual Assault in the Armed

Forces, presenting its research and findings on the topics assigned to it by Congress, those 

recommended by its predecessor sexual assault advisory committee—the Response Systems

Panel—as well as on two related issues.

Elizabeth Holtzman

Chair

Barbara Jones

Victor Stone

Tom Taylor

Patricia Tracey
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FINAL REPORT

-2-

The JPP has observed and assessed many constructive and important changes addressing 

sexual assault in the military and support for victims over the past three years. The Panel 

applauds the efforts of Congress, the Department of Defense, the military Services, and advocacy 

organizations as they continue to focus attention on this important matter. 

The JPP conveys its gratitude to Congress for the opportunity to examine the issue of 

sexual assault in the military. The Panel would have not been able to complete its work 

without the support and assistance of the JPP Subcommittee, the military Services, the 

Department of Defense, and the hundreds of experts and witnesses who shared their 

experiences and perspectives with the Panel. The JPP expresses its appreciation to everyone 

who helped it fulfill its mission. 

Respectfully submitted, 

________________________________ 

Elizabeth Holtzman, Chair 

____________________________ ____________________________ 

Barbara S. Jones Victor Stone

____________________________ _____________________________ 

Thomas W. Taylor Patricia A. Tracey 
1

Contents

Content

I. INTRODUCTION AND TASKS ACCOMPLISHED. . . . . . . . . . . . . . . . . . . . . . . 3

A. Responsibilities and Methodology of the Judicial Proceedings Panel

B. Reports and Recommendations of the Judicial Proceedings Panel

C. Reports of the Judicial Proceedings Panel Subcommittee

II. ADDITIONAL ISSUES REVIEWED AND ASSESSED BY THE JUDICIAL

PROCEEDINGS PANEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

A. Department of Defense Initial Disposition Withholding Policy

B. Trial Counsel Training and Experience

C. Special Victim Investigation and Prosecution (SVIP) Capability Program

D. Military Rule of Evidence 412—Admission of Evidence of a Victim’s Sexual Behavior or

Predisposition

E. Disclosure and Admission of Mental Health Records Under Military Rule of Evidence 513

III. ISSUES NOT ASSESSED BY THE JUDICIAL PROCEEDINGS PANEL OWING

TO SUBSEQUENT REGULATORY AND LEGISLATIVE CHANGES. . . . . . . . 27

A. Mandatory Minimum Sentences

B. Department of Defense Safe Helpline Privilege

C. Depositions

D. Plea Bargaining

IV. RECOMMENDATIONS TO THE DEFENSE ADVISORY COMMITTEE

ON INVESTIGATION, PROSECUTION, AND DEFENSE OF SEXUAL

ASSAULT IN THE ARMED FORCES (DAC-IPAD). . . . . . . . . . . . . . . . . . . . . . 31

V. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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FINAL REPORT

APPENDICES:

A. Judicial Proceedings Panel Authorizing Statutes and Charter

B. Judicial Proceedings Panel Committee and Subcommittee Member Biographies

C. Judicial Proceedings Panel Tasks

D. Judicial Proceedings Panel and Subcommittee Meetings

E. Reports and Recommendations of the Judicial Proceedings Panel

F. Judicial Proceedings Panel Tasks, Recommendations, and Implementation Status

G. Judicial Proceedings Panel Staff Members and Designated Federal Officials

H. Acronyms and Abbreviations

I. Sources Consulted
3

Introduction and Tasks Accomplished I.

In section 576 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013, enacted 

on January 2, 2013, Congress directed the Secretary of Defense to establish the fifth congressionally 

mandated task force on sexual assault in the military created since 2003: the Judicial Proceedings Since 

Fiscal Year 2012 Amendments Panel (Judicial Proceedings Panel, or JPP).1 Its immediate predecessor 

was the Response Systems to Adult Sexual Assault Crimes Panel (Response Systems Panel, or RSP), 

which completed its work in June 2014.2

Congress instructed the JPP “to conduct an independent review and assessment of judicial proceedings 

conducted under the Uniform Code of Military Justice (UCMJ) involving adult sexual assault and 

related offenses . . . for the purpose of developing recommendations for improvements to such 

proceedings.”3 In June 2014 the Secretary of Defense appointed five members to the JPP, including two 

members who had previously served on the RSP.4

A. RESPONSIBILITIES AND METHODOLOGY OF THE JUDICIAL PROCEEDINGS

PANEL

In the National Defense Authorization Acts for Fiscal Years 2013, 2014, and 2015, Congress assigned 

to the JPP a total of 16 specific duties covering a wide array of topics related to sexual assault in the 

military.5

 The Response Systems Panel recommended four issues for review by the JPP.6 In accordance 

with its charter, the JPP examined two additional topics that came to the attention of the Panel as 

1 National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239 [hereinafter FY13 NDAA], § 576, 126 

Stat. 1632 (2013).

2 The three task forces preceding the RSP were (1) the Panel to Review Sexual Misconduct Allegations at the United States 

Air Force Academy, (2) the Defense Task Force on Sexual Harassment and Violence at the Military Service Academies, and 

(3) the Defense Task Force on Sexual Assault in the Military Services (DTF-SAMS).

3 FY13 NDAA, supra note 1, § 576. The Judicial Proceedings Panel authorizing statutes and charter are included as 

Appendix A.

4 The biographies of the Judicial Proceedings Panel and Subcommittee members are included as Appendix B. The Honorable 

Barbara S. Jones served as the Chair of the RSP, and the Honorable Elizabeth Holtzman served as a member.

5 FY13 NDAA, supra note 1, § 576; National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66 

[hereinafter FY14 NDAA], § 1731, 127 Stat. 672 (2014); National Defense Authorization Act for Fiscal Year 2015, Pub. 

L. No. 113-291 [hereinafter FY15 NDAA], § 545, 128 Stat. 3292 (2014). A list of the JPP’s statutory tasks is included as

Appendix C.

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

at http://responsesystemspanel.whs.mil/public/docs/Reports/00_Final/RSP_Report_Final_20140627.pdf. The RSP 

recommended the following tasks to the JPP:

1. RSP Recommendation 45—The Judicial Proceedings Panel and the Joint Services Committee should review and clarify

the extent of a victim’s right to access information that is relevant to the assertion of a particular right.

2. RSP Recommendation 113—The Judicial Proceedings Panel and Joint Service Committee consider whether to

recommend legislation that would either split sexual assault offenses under Article 120 of the UCMJ into different

articles that separate penetrative and contact offenses from other offenses or narrow the breadth of conduct currently

criminalized under Article 120.

3. RSP Recommendation 115—The Judicial Proceedings Panel assess the use of depositions in light of changes to the

Article 32 proceeding, and determine whether to recommend changes to the deposition process, including whether

military judges should serve as deposition officers.

4. RSP Recommendation 117—The Judicial Proceedings Panel study whether the military plea bargaining process should

be modified.
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FINAL REPORT

it conducted its statutory assessments: retaliation against victims of sexual assault and the appellate 

rights of victims in the military justice process.

To explore and assess these topics, the JPP held 32 public meetings between August 2014 and July 

2017.7

 Over the course of those meetings, the Panel heard from hundreds of witnesses, including 

military leaders, sexual assault victims, sexual assault advocacy groups, Department of Defense (DoD) 

and civilian victim services personnel, military and civilian prosecutors, defense counsel and victims’ 

counsel, academics and subject matter experts, members of the public, and members of Congress. 

The JPP also received and reviewed thousands of pages of documents provided by DoD, the military 

Services, victim advocacy organizations, and other interested parties. 

The JPP also tasked a subcommittee appointed by DoD to conduct its own review of certain issues.8

The JPP Subcommittee held multiple meetings between April 2015 and May 2017. In addition, 

between July and September 2016 members of the JPP Subcommittee conducted site visits to military 

installations in the United States and Asia, during which members spoke with panels of more than 280 

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

assault offenses. 

Congress required the JPP to submit its initial report to the Secretary of Defense and the Committees 

on Armed Services of the Senate and House of Representatives within 180 days of its first meeting and 

to issue subsequent reports annually thereafter through fiscal year 2017. The JPP issued its first report 

in 2015, followed by four reports in 2016 and six reports in 2017. These reports contain a total of 63 

recommendations, many of which have been implemented by Congress, DoD, and the Services.9

 The 

JPP’s reports and recommendations, along with ensuing legislative and regulatory changes made by 

Congress, DoD, and the Services, are discussed below.

B. REPORTS AND RECOMMENDATIONS OF THE JUDICIAL PROCEEDINGS

PANEL

1. Initial Report10

The JPP issued its initial report in February 2015. It summarized the JPP’s assessments from the first 

six months of its review, with a focus on the effects and implementation of the 2012 amendments 

to Article 120 of the UCMJ, the effects and implementation of special victims’ counsel programs 

instituted by DoD and the military Services, victim privacy issues in military sexual assault cases, and 

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

judicial process. The JPP made 11 recommendations relating to these topics.

The JPP referred 17 issues for additional consideration to the JPP Subcommittee. The first 11 of these 

issues related to definitions of terms and elements of offenses, defenses, and enumerated offenses 

under Article 120 of the UCMJ, the military’s sexual assault statute. The remaining six issues 

7 A list of the JPP’s public meetings and the JPP Subcommittee meetings is included as Appendix D.

8 The biographies of the Subcommittee members are included as Appendix B.

9 A list of the JPP’s recommendations is included as Appendix E. The status of these recommendations is included as 

Appendix F.

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

Public/docs/08-Panel_Reports/01_JPP_InitialReport_Final_20150204.pdf.
5

I. INTRODUCTION AND TASKS ACCOMPLISHED

related to how the military prosecutes crimes that involve coercive sexual relationships and abuse of 

authority, including relationships between trainers and trainees, recruiters and recruits, and senior and 

subordinate military members in the same chain of command.

A number of JPP recommendations contained in its initial report have been implemented by Congress 

and DoD.11 Following the JPP’s recommendation relating to the DoD and interagency review process, 

Congress enacted section 543 of the FY16 NDAA. This provision required the Secretary of Defense 

to examine the DoD process for implementing statutory changes to the UCMJ for the purpose of 

developing options to streamline that process and adopting procedures to ensure that legal guidance 

is published as soon as practicable whenever statutory changes to the UCMJ are implemented.12

The Deputy Secretary of Defense also approved this JPP recommendation in a September 2, 2016, 

memorandum to the Service Secretaries.13

Following the JPP’s recommendations relating to the special victims’ counsel/victims’ legal counsel 

(SVC/VLC) program, Congress enacted section 535 of the FY16 NDAA. This provision required 

the Secretary of Defense to establish guiding principles and standardize training for the SVC/VLC 

program, as well as ensure that SVCs/VLCs are assigned to locations that maximize their face-to-face 

contact with clients.14 DoD also approved, in whole or in part, the JPP’s recommendations to establish 

uniform policies concerning SVC/VLC participation in military justice proceedings, to impose more 

stringent criteria for selecting SVCs/VLCs, and to extend the eligibility for SVC/VLC representation to 

last as long as a victim’s rights are at issue.15

Following the release of the JPP’s initial report, Congress addressed the rights of victims through the 

judicial process in two pieces of legislation. First, Congress enacted section 531 of the FY16 NDAA, 

expanding a victim’s ability to petition an appellate court for a writ of mandamus if the victim believes 

that his or her rights have been violated.16 Second, consistent with the JPP’s recommendation on 

victims’ access to information, Congress enacted section 5504 of the FY17 NDAA, creating a new 

Article 140a, UCMJ (Case management; data collection and accessibility).17 This article requires 

the Secretary of Defense to prescribe uniform standards and criteria for improved access to docket 

information, filings, and records in the military justice system, using, so far as practicable, the best 

practices of federal and state courts. DoD also acted on the JPP recommendation, directing the Service 

Secretaries to develop guidance for their respective Departments to ensure that victims and their 

counsel have appropriate access to docketing information and case filings.18

11 A chart with the implementation status of JPP recommendations is included as Appendix F.

12 National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92 [hereinafter FY16 NDAA], § 543, 129 Stat. 

726 (2015).

13 U.S. Dep’t of Def., Memorandum from the Deputy Secretary of Defense on Recommendations of the Judicial Proceedings 

since Fiscal Year 2012 Amendments Panel (Sept. 2, 2016) [hereinafter DSD Memo on Recommendations], available 

at http://jpp.whs.mil/Public/docs/03_Topic-Areas/01-General_Information/24_DoD_Response_JPP_Initial_Report_

Recs_20160902.pdf.

14 FY16 NDAA, supra note 12, § 535. SVCs are victim attorneys in the Army, Air Force and Coast Guard. The Navy and 

Marine Corps victim attorneys are referred to as VLCs.

15 DSD Memo on Recommendations, supra note 13.

16 FY16 NDAA, supra note 12, § 531.

17 National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328 [hereinafter FY17 NDAA], § 5504, 130 

Stat. 2000 (2016).

18 DSD Memo on Recommendations, supra note 13.
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FINAL REPORT

In addition, consistent with the JPP’s recommendation on Military Rule of Evidence (M.R.E.) 412, the 

military’s rape shield law, the President signed Executive Order 13696 on June 17, 2015, eliminating 

the “constitutionally required” exception within M.R.E. 412 at Article 32 hearings.19

Finally, DoD approved in part the JPP’s recommendation on M.R.E. 513, directing the Joint Service 

Committee on Military Justice to recommend uniform guidance regarding release of mental health 

records to ensure an appropriate balance between the interests of law enforcement and the privacy 

interests of victims of an alleged sex-related offense.20

2. Report on Restitution and Compensation for Military Adult Sexual Assault Crimes21

After issuing its initial report, the Panel turned its attention to the specific task of examining restitution 

and compensation for victims of sexual assault in the military. In the FY14 NDAA, Congress instructed 

the Panel to analyze and assess the adequacy of the provision of compensation and restitution for 

victims of sexual assault crimes committed by military Service personnel, and specifically to evaluate 

three proposals for expanding such relief. In February 2016, the JPP released a report containing six 

recommendations to Congress and the Secretary of Defense to simplify and accelerate how restitution 

and compensation are provided to victims. 

The JPP concluded that to best meet the financial needs of sexual assault victims, a new uniform 

DoD compensation program should be established that would provide benefits to victims without 

regard to the physical location of the offense or the victim’s state of residence. At present, state victim 

compensation programs vary as to who and what is covered, in the length of coverage, and in the 

amounts provided. 

The JPP also encouraged the President to issue an executive order that would modify the Rules for 

Courts-Martial (R.C.M.) to provide victims with the right to be heard before a convening authority 

enters into a pretrial agreement, noting that the inclusion of restitution in a pretrial agreement is within 

the discretion of convening authorities. The Panel further recommended that the Services provide 

regular training to attorneys and victim assistance personnel on the availability and use of restitution in 

pretrial agreements. 

The JPP evaluated three proposals to amend the UCMJ that would allow victims to be compensated 

from the forfeited wages of incarcerated Service members, would include bodily harm among the 

injuries meriting compensation in a claim filed against the alleged offender under Article 139 of the 

UCMJ, and would add restitution as an authorized punishment that could be adjudged at courtsmartial. Ultimately, the Panel determined that the negative effects of these proposals would outweigh 

the benefits each sought to achieve and instead recommended that a new, uniform DoD compensation 

program be established for victims.

Consistent with one of the JPP’s recommendations, the President signed Executive Order 13730 

on May 20, 2016, amending R.C.M. 705(d)(3) to require consultation with the victim, whenever 

practicable, before the convening authority accepts a pretrial agreement.22

19 Exec. Order No. 13696, 80 Fed. Reg. 35,781 (June 17, 2015).

20 DSD Memo on Recommendations, supra note 13.

21 Judicial Proceedings Panel Report on Restitution and Compensation for Military Adult Sexual Assault Crimes (Feb. 

2016), available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/02_JPP_Rest_Comp_Report_Final_20160201.pdf.

22 Exec. Order No. 13730, 81 Fed. Reg. 33,331 (May 20, 2016).
7

I. INTRODUCTION AND TASKS ACCOMPLISHED

3. Report on Article 120 of the Uniform Code of Military Justice23

In February 2016 the JPP released its report on Article 120 of the UCMJ, the military’s statute 

for prosecuting sexual assault cases. The JPP’s report followed an in-depth review and analysis of 

Article 120 by the JPP Subcommittee. Over the course of nine meetings, the JPP Subcommittee heard 

perspectives and recommendations from more than 40 military justice practitioners and debated 

the issues directed to it by the JPP, including definitions of terms and elements of offenses, defenses, 

and enumerated offenses under Article 120. The Subcommittee also compared Article 120 to similar 

federal criminal law provisions under Title 18 of the United States Code and reviewed how the military 

currently prosecutes abuse of authority and coercive relationships.

On the basis of the Subcommittee’s findings and recommendations and of the JPP’s own deliberations, 

the JPP determined that the most recent version of Article 120, enacted by Congress in 2012, provides 

a reasonably effective statutory framework for the prosecution of sexual assault offenses in the 

military. However, the JPP found that some definitions and terms used in the statute are confusing 

or vague and could possibly obscure standards of conduct among Service members or hinder courtmartial prosecution of sexual assault offenses. To address these concerns, the JPP recommended that 

Congress amend five definitions in Article 120 and adopt a new theory of liability for coercive sexual 

acts or contacts in which a perpetrator used position, rank, or authority to secure compliance by the 

other person. 

The JPP also recommended that the President amend the Manual for Courts-Martial to specifically 

state that consent and mistake of fact as to consent may be raised in any case in which they are 

relevant.

Following these JPP recommendations, in the FY17 NDAA Congress amended the definition of 

“consent,” removed the definition and element of “bodily harm,” and amended the definitions of 

“sexual act” and “sexual contact” in Article 120.24 Congress also added a definition for “incapable 

of consenting,” as recommended by the JPP; however, Congress chose to use the definition contained 

in federal law rather than the one proposed by the JPP, which the JPP Subcommittee developed after 

determining that the federal definition was itself problematic.25

Congress did not enact the JPP’s recommendation to adopt a new theory of liability for coercive sex 

acts based on a perpetrator’s position, rank, or authority. Though it appeared in the Senate version 

of the FY17 NDAA, it was not included in the final conference report. The conferees noted that this 

conduct is prohibited under Article 93a, UCMJ (Maltreatment), as added by another provision in the 

FY17 NDAA.26

23 Judicial Proceedings Panel Report on Article 120 of the Uniform Code of Military Justice (Feb. 2016), available at

http://jpp.whs.mil/Public/docs/08-Panel_Reports/03_JPP_Art120_Report_Final_20160204.pdf.

24 FY17 NDAA, supra note 17, § 5430.

25 See Subcommittee Report to the Judicial Proceedings Panel on Article 120 of the Uniform Code of Military Justice 15 

(Dec. 2015) [hereinafter Subcommittee Report to the JPP on Article 120 of the UCMJ], available at http://jpp.whs.mil/

Public/docs/08-Panel_Reports/JPP_SubcommReport_Final_20151210.pdf.

26 H.R. Rep. No. 114-840, at 1535 (2016) (Conf. Rep.).
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FINAL REPORT

4. Report on Retaliation Related to Sexual Assault Offenses27

The JPP next examined the issue of retaliation related to sexual assault offenses, in a report released in 

February 2016. The issue of retaliation was brought to the JPP’s attention by a 2014 survey published 

by the RAND Corporation, which indicated that 62% of active duty women who reported unwanted 

sexual contact to a military authority in 2014 perceived some form of retaliation. This percentage was 

unchanged from a 2012 survey.28

The JPP made 13 recommendations to improve DoD’s response to retaliation against Service members 

who report sexual misconduct. At the heart of the JPP’s report was a concern over the fundamental 

lack of data about the prevalence and nature of reported incidents of retaliation and the steps taken 

to deal with it. The Panel stressed the critical importance of such data to understand and mitigate the 

effects of retaliation on individual Service members, unit cohesion, and military readiness. 

The JPP found little information on the prevalence of retaliation in the military, because workplace 

surveys are the only source of existing data about it. The JPP concluded that effective collection and 

tracking of actual incident data are necessary to understand the extent and nature of the problem of 

retaliation; such understanding, in turn, is necessary for Congress and DoD to craft more effective 

solutions and ensure the security and well-being of affected Service members. 

To meet this need, the Panel’s report recommended that DoD and the Services use a standardized 

reporting form for incidents of retaliation, similar to the form employed when a sexual assault is 

reported. The form should be linked to the underlying report of sexual assault. The JPP recommended 

that incident information should be collected and tracked uniformly for every victim and across each 

of the Services. 

The JPP further noted that there was no single person charged with monitoring what happens to 

a victim of retaliation. The JPP report recommended that the installation sexual assault response 

coordinators be tasked to consolidate retaliation reports, track and record retaliation data, and provide 

information to installation case management groups to monitor progress in resolving complaints. 

Congress enacted a number of the JPP’s recommendations on retaliation. For example, section 543 of 

the FY17 NDAA requires DoD to include in the annual Sexual Assault Prevention and Response Office 

(SAPRO) report to Congress detailed information on each claim of retaliation in connection with a 

report of sexual assault made by or against a Service member.29

Following another JPP recommendation in part, Congress enacted section 545 of the FY17 NDAA, 

which requires DoD SAPRO to establish metrics for evaluating the efforts of the Armed Forces to 

prevent and respond to retaliation in connection with sexual assault and to identify best practices to be 

used by the Military Departments as they seek to prevent and respond to retaliation.30

27 Judicial Proceedings Panel Report on Retaliation Related to Sexual Assault Offenses (Feb. 2016), available at http://jpp.

whs.mil/Public/docs/08-Panel_Reports/04_JPP_Retaliation_Report_Final_20160211.pdf.

28 Department of Defense Report to the President of the United States on Sexual Assault Prevention and Response 116–17 

(Nov. 25, 2014), available at http://www.sapr.mil/public/docs/reports/FY14_POTUS/FY14_DoD_Report_to_POTUS_

SAPRO_Report.pdf.

29 FY17 NDAA, supra note 17, § 543.

30 Id. § 545.
9

I. INTRODUCTION AND TASKS ACCOMPLISHED

Adopting another JPP recommendation, Congress also enacted section 546 of the FY17 NDAA, 

which requires DoD personnel who investigate claims of retaliation to “receive training on the nature 

and consequences of retaliation, and, in cases involving reports of sexual assault, the nature and 

consequences of sexual assault trauma.”31

In addition, following a JPP recommendation, Congress enacted section 547 of the FY17 NDAA, 

which directs the Secretary of Defense to develop regulations requiring a Service member who reports 

retaliation to “be informed in writing of the results of the investigation, including whether the 

complaint was substantiated, unsubstantiated, or dismissed.”32

Finally, citing the recommendations of the JPP, on July 28, 2016, the Department of Defense Office of 

Inspector General (DoD IG) announced that a newly created team of seven DoD IG investigators and a 

supervisor would directly handle all sexual assault reprisal cases across the Services rather than serving 

in an oversight capacity for investigations conducted at the branch level.33

5. Report on Statistical Data Regarding Military Adjudication of Sexual Assault Offenses34

In April 2016, the JPP released a report reviewing trends in the adjudication of adult sexual assault 

crimes in the military from fiscal years 2012 through 2014. 

In conducting its analysis, the JPP extracted data from court records, case documents, and other 

publicly available resources, reviewing court-martial documents from 1,761 sexual assault cases 

resolved in fiscal years 2012 through 2014. The JPP retained an expert consultant, the distinguished 

criminologist Dr. Cassia Spohn, to analyze the data and provide statistics on case characteristics and 

outcomes. These were used in developing the report and recommendations.

The JPP’s report made two specific recommendations. First, the JPP recommended that Congress and 

the Secretary of Defense collect and analyze case adjudication data using a standardized, documentbased collection model similar to systems used by the U.S. Sentencing Commission and developed by 

the JPP.35

Second, the JPP recommended that DoD change its policy that excludes from the annual SAPRO 

reports to Congress those adult-victim sexual assault cases handled by the DoD Family Advocacy 

Program (FAP). The JPP recommended that DoD include legal disposition information related to all 

reported adult sexual assault incidents in one annual DoD report. 

31 Id. § 546.

32 Id. § 547.

33 U.S. Department of Defense, Office of the Inspector General, “DoDIG Monthly Update–August 2016,” available at

http://www.dodig.mil/Eletter/eletter_view.cfm?id=7048; see also Dianna Cahn, New DOD Investigative Unit to Focus on 

Sexual Assault-Related Reprisals, Stars & Stripes, July 28, 2016, available at https://www.stripes.com/news/us/new-dodinvestigative-unit-to-focus-on-sexual-assault-related-reprisals-1.421464#.WZWGS6Iv-aw. 

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

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

Final_20160419.pdf.

35 Document-based case adjudication data collection is a best practice used and recommended by the U.S. Sentencing 

Commission. The JPP’s document-based approach to data collection involves obtaining relevant case documents from the 

military Services (e.g., charge sheet, report of results of trial) and recording the relevant case history data into a centralized 

database for analysis.
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FINAL REPORT

Consistent with the first recommendation, Congress enacted section 5504 of the Military Justice 

Act of 2016, which created a new Article 140a, UCMJ, on case management, data collection, and 

accessibility.36

Congress also enacted section 574 of the FY17 NDAA, requiring the FAP to produce an annual report 

that includes the number of intimate partner, spousal, and child physical and sexual abuse incidents 

reported and substantiated each year, along with analyses of types of abuse reported and characteristics 

of the victims and perpetrators.37 Another provision, section 544 of the FY17 NDAA, requires that the 

FAP and SAPRO annual reports be submitted together to Congress.38 However, the statute does not 

require intimate partner and spousal sexual assault case judicial and disciplinary data to be included in 

either the FAP or SAPRO annual reports, as the JPP recommended.

6. Report on Military Defense Counsel Resources and Experience in Sexual Assault Cases39

In April 2017, the JPP released a report identifying serious issues that affect the ability of defense 

counsel in military sexual assault cases to provide a robust defense and offering four recommendations 

to correct the problems. The report grew out of the site visits conducted from July to September 2016 

by members of the JPP Subcommittee, who visited military installations in the United States and Asia. 

The JPP Subcommittee met with panels of more than 280 individuals from 25 military installations 

and all of the military Services, including prosecutors, defense counsel, SVCs/VLCs, paralegals, 

commanders, investigators, and sexual assault response coordinators and other victim support 

personnel. These individuals spoke without attribution so that the JPP 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 received from the Subcommittee and its own deliberations, the JPP made 

four recommendations relating to defense counsel resources and experience in sexual assault cases. 

Several of the recommendations were—in some form—previously recommended by the RSP.

First, the JPP found that recent changes to the military justice system, such as substantial changes to 

the Article 32 pretrial hearing process, have reduced or eliminated the already limited ability of defense 

counsel to gain important information regarding the prosecution’s case. To help address this loss of 

information, the JPP recommended that military defense counsel, like their civilian counterparts, have 

access to independent defense investigators—access that now exists only in the Navy. 

Second, the JPP found that military defense offices, when compared to prosecution offices, are often 

understaffed and underfunded. The JPP therefore recommended that the military Services ensure that 

defense organizations are sufficiently staffed and have appropriate funding. 

Third, the JPP found that military defense counsel, unlike civilian public defenders, are required to 

request approval and funding of defense experts from convening authorities, who often deny these 

requests. Moreover, because defense counsel must send their requests through the prosecutor, they are 

36 FY17 NDAA, supra note 17, § 5504.

37 Id. § 574.

38 Id. § 544.

39 Judicial Proceedings Panel Report on Military Defense Counsel Resources and Experience in Sexual Assault Cases (Apr. 

2017) [hereinafter JPP Report on Defense Resources and Experience], available at http://jpp.whs.mil/Public/docs/08-Panel_

Reports/06_JPP_Defense_Resources_Experience_Report_Final_20170424.pdf.
11

I. INTRODUCTION AND TASKS ACCOMPLISHED

forced to prematurely reveal their defense strategies. To correct this problem, the JPP recommended 

that defense offices be given approval and funding authority for their own expert witnesses.

Fourth, the JPP found that defense counsel in sexual assault cases do not always have the experience 

required to defend clients in complex cases. Therefore, the JPP recommended that the military Services 

ensure that lead defense counsel in sexual assault cases have sufficient litigation experience and set a 

minimum tour length for defense counsel of two years.

7. Report on Victims’ Appellate Rights40

In June 2017, the JPP released a report that called for enhancing the rights of victims of sexual assault 

in the military justice system’s appellate process. The Panel made four recommendations to Congress, 

the Department of Defense, and the Services: (1) to provide victims, through legislation, with the 

ability to protect their rights in post-conviction appellate proceedings; (2) to grant, by legislation, the 

Court of Appeals for the Armed Forces (CAAF) specific jurisdiction to review victims’ appeals under 

Article 6b of the Uniform Code of Military Justice, the military victims’ rights statute; (3) to provide 

victims with an opportunity to be heard prior to appellate counsel review of certain sealed materials; 

and (4) to require that victims be provided with notice of significant appellate matters.

The Panel began its assessment of the protection of victims’ rights in the appellate process after hearing 

concerns expressed by the military Services’ SVC/VLC program managers at its public meeting in April 

2016. In response, the JPP Chair solicited from the program managers a legislative proposal addressing 

their concerns. The Panel held two public meetings to hear the perspectives of judges, practitioners, 

and experts—including a former chief judge of CAAF, former military appellate judges, military 

appellate defense and government counsel, civilian appellate defense counsel, an official from the 

Department of Justice Office of Victims of Crime, and attorneys from victims’ rights organizations—

about the proposed changes to the appellate process. The JPP also received written submissions from 

the DoD, current and former Service judge advocates, and victims’ rights organizations.

In May 2017, Congressman Mike Turner and Congresswoman Niki Tsongas introduced the BE 

HEARD (Building an Environment for Helpful, Effective, and Accessible Representation and Decisionmaking) Act. This bill, if enacted, would codify the JPP’s recommendation to grant CAAF jurisdiction 

to hear victims’ interlocutory appeals under Article 6b, UCMJ.41

8. Report on Sexual Assault Investigations in the Military

In September 2017, the JPP issued the Judicial Proceedings Panel Report on Sexual Assault 

Investigations in the Military. The report is available at http://jpp.whs.mil/Public/docs/08-Panel_

Reports/08_JPP_Report_Investigations_Final_20170907.pdf.

40 Judicial Proceedings Panel Report on Victims’ Appellate Rights (Jun. 2017) [hereinafter JPP Report on Appellate Rights],

available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/07_JPP_VictimsAppRights_Report_Final_20170602.pdf.

41 BE HEARD Act, H.R. 2739, 115th Cong. § 3 (2017).
12

FINAL REPORT

9. Report on Statistical Data Regarding Military Adjudication of Sexual Assault Offenses for Fiscal

Year 2015

In September 2017, the JPP issued the Judicial Proceedings Panel Report on Statistical Data Regarding 

Military Adjudication of Sexual Assault Offenses for Fiscal Year 2015. The report is available at http://

jpp.whs.mil/Public/docs/08-Panel_Reports/09_JPP_CourtMartial_Data_Report_Final_20170915.pdf.

10. Report on Panel Concerns Regarding the Fair Administration of Military Justice in Sexual Assault

Cases

In September 2017, the JPP issued the Judicial Proceedings Panel Report on Panel Concerns Regarding 

the Fair Administration of Military Justice in Sexual Assault Cases. The report is available at 

http://jpp.whs.mil/Public/docs/08-Panel_Reports/10_JPP_Concerns_Fair_MJ_Report_Final_20170915.pdf.

C. REPORTS OF THE JUDICIAL PROCEEDINGS PANEL SUBCOMMITTEE

In its February 2015 assessment of the 2012 version of Article 120 of the Uniform Code of Military 

Justice, the JPP recommended that 17 issues related to Article 120 be referred to a subcommittee for 

further evaluation. Following the JPP recommendation, the Secretary of Defense empaneled the JPP 

Subcommittee in April 2015.42 The JPP Subcommittee presented the following 4 reports and 3 short 

reports to the JPP.

1. Subcommittee Report on Article 120 of the Uniform Code of Military Justice

In December 2015, the JPP Subcommittee presented the Subcommittee Report to the Judicial 

Proceedings Panel on Article 120 of the Uniform Code of Military Justice. The report is available at 

http://jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_SubcommReport_Final_20151210.pdf.

2. Subcommittee Report on Military Defense Counsel Resources and Experience in Sexual Assault

Cases

In December 2016, the Subcommittee presented its Subcommittee of the Judicial Proceedings Panel 

Report on Military Defense Counsel Resources and Experience in Sexual Assault Cases. The report 

is available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_SubcommReport_DefResources_

Final_20161208.pdf. 

3. Subcommittee Report on Sexual Assault Investigations in the Military

In February 2017, the Subcommittee issued its Subcommittee of the Judicial Proceedings Panel Report 

on Sexual Assault Investigations in the Military. The report is available at http://jpp.whs.mil/Public/

docs/08-Panel_Reports/JPP_SubcommReport_Investigations_Final_20170224.pdf.

42 The biographies of the Subcommittee members are included as Appendix B.
13

I. INTRODUCTION AND TASKS ACCOMPLISHED

4. Subcommittee Short Reports on Department of Defense Initial Disposition Withholding Policy,43

Military Rules of Evidence 412 and 513,44 and the Training and Experience of Trial Counsel and 

Victims’ Counsel45

The JPP Subcommittee presented three short reports to the JPP in March 2017 on the topics of the 

DoD initial disposition withholding policy, Military Rules of Evidence 412 and 513, and the training 

and experience of trial counsel and SVCs/VLCs. The reports are available at http://jpp.whs.mil/Public/

docs/08-Panel_Reports/JPP_Subcomm_ShortReports_20170302_Final.pdf.

5. Subcommittee Report on Barriers to the Fair Administration of Military Justice in Sexual Assault 

Cases

In May 2017, the Subcommittee presented its final report to the JPP. The Subcommittee of the Judicial 

Proceedings Panel Report on Barriers to the Fair Administration of Military Justice in Sexual Assault 

Cases is available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_SubcommReport_Barriers_

Final_20170512.pdf.

43 Short Report from the Judicial Proceedings Panel Subcommittee on Initial Disposition Withholding Policy (Mar. 2, 

2017) [hereinafter Subcommittee Short Report on Withholding], available at http://jpp.whs.mil/Public/docs/08-Panel_

Reports/JPP_Subcomm_ShortReports_20170302_Final.pdf. The JPP Subcommittee Site Visit Reports are available at 

http://jpp.whs.mil/under Reports/Subcommittee Site Visits.

44 Short Report from the Judicial Proceedings Panel Subcommittee on Military Rules of Evidence 412 and 513 (Mar. 2, 

2017) [hereinafter Subcommittee Short Report on M.R.E.s 412 and 513], available at http://jpp.whs.mil/Public/docs/08-

Panel_Reports/JPP_Subcomm_ShortReports_20170302_Final.pdf. 

45 Short Report from the Judicial Proceedings Panel Subcommittee on Training and Experience of Trial Counsel and

Special Victims’ Counsel/Victims' Legal Counsel (Mar. 2, 2017) [hereinafter Subcommittee Short Report on Trial

Counsel Training], available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_Subcomm_ShortReports_20170302_

Final.pdf.
14

FINAL REPORT
15

Additional Issues Reviewed and Assessed by 

the Judicial Proceedings Panel II.

The JPP was directed by Congress to review and assess five issues that have not been fully addressed in 

previous JPP reports:

(1) Department of Defense initial disposition withholding policy;

(2) Trial counsel training and experience;

(3) Special Victim Investigation and Prosecution (SVIP) Capability Program;

(4) Military Rule of Evidence 412—admission of evidence of a victim’s sexual behavior or

predisposition; and

(5) Disclosure and admission of mental health records under Military Rule of Evidence 513.

The findings and assessments of the JPP regarding these issues are detailed below. 

A. DEPARTMENT OF DEFENSE INITIAL DISPOSITION WITHHOLDING POLICY

1. Statutory Task

In the FY13 NDAA, Congress directed the JPP to “[m]onitor 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.”46

In that memorandum, setting forth a policy effective June 28, 2012, the Secretary of Defense directed 

that “commanders within the Department of Defense who do not possess at least special court-martial 

convening authority and who are not in the grade of O-6 (i.e., colonel or Navy captain) or higher” 

may not determine the initial disposition of alleged offenses involving the following:

(i) rape, in violation of Article 120 of the UCMJ;

(ii) sexual assault, in violation of Article 120 of the UCMJ;

(iii) forcible sodomy, in violation of Article 125 of the UCMJ; and

(iv) all attempts to commit such offenses, in violation of Article 80 of the UCMJ.47

2. Assessment

The JPP monitored the implementation of the withholding policy in two ways. First, on February 3, 

2016, the JPP issued a request for information (RFI) to the Services and the DoD, asking whether they 

had problems with or concerns about the withholding policy. Second, the JPP Subcommittee asked 

46 FY13 NDAA, supra note 1, § 576(d)(2)(I). 

47 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) [hereinafter SecDef Withholding Memo], 

available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/09-Withholding_Authority/20160408/01_SecDef_Memo_

WithholdingAuthority_20120420.pdf.
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FINAL REPORT

Service members questions about the implementation of the withholding policy during the site visits 

conducted between July and September 2016. 

In response to the RFI, no entity other than the Marine Corps noted any reservations about the 

withholding policy.48 The Marine Corps expressed concern that in certain cases, minor misconduct, 

such as underage drinking or a barracks order violation, must be disposed of by a higher-level 

commander than would have previously handled the misconduct; this elevation occurs because 

the withholding policy applies to “all other alleged offenses arising from or relating to the same 

incident(s).”49

During the JPP Subcommittee’s site visits, counsel stated that the withholding policy had little, if any, 

negative impact on sexual assault case processing other than minor administrative delays attributed to 

scheduling difficulties inherent in meeting with a senior officer.50

On the other hand, site visit participants observed positive effects of the policy: an officer of an O-6 

rank typically has more military justice experience than a lower-level commander and the policy 

has improved the public perception of the military’s handling of sexual assault cases. In addition, 

lower-level commanders themselves “generally supported elevating the decision to a higher-level 

commander.”51

On the basis of the foregoing, the JPP does not recommend any changes to the current DoD 

withholding policy. 

B. TRIAL COUNSEL TRAINING AND EXPERIENCE

1. Statutory Task

The FY13 NDAA directed the JPP to assess trends in the training and experience levels of military 

trial counsel in adult sexual assault cases and the impact of those trends on the prosecution and 

adjudication of such cases.52

2. Assessment

In order to assess the training and experience of adult sexual assault prosecutors, the JPP issued RFIs 

to the Services in February and December 2016. The JPP also heard testimony on the training and 

experience of prosecutors at a public meeting on May 13, 2016, during which the Panel heard from 

leaders of the Service Judge Advocate General’s (JAG) schools and members of the JAG Corps who 

litigate adult sexual assault crimes.53 In addition, the JPP Subcommittee spoke with prosecutors about 

48 Service Responses to JPP Request for Information 106 (Mar. 31, 2016). 

49 Service Responses to JPP Request for Information 106 (Mar. 31, 2016); see also SecDef Withholding Memo, supra note 47. 

The JPP Requests for Information are available at http://jpp.whs.mil/ under “Requests for Information.”

50 Subcommittee Short Report on Withholding, supra note 43.

51 Id.

52 FY13 NDAA, supra note 1, § 576(d)(2)(G). The training and experience of military defense counsel were assessed in the 

JPP Report on Defense Resources and Experience, supra note 39.

53 See generally Transcript of JPP Public Meeting (May 13, 2016).
17

II. ADDITIONAL ISSUES REVIEWED AND ASSESSED BY THE JUDICIAL PROCEEDINGS PANEL

their training and experience during site visits conducted during the summer of 2016 and reported this 

information to the JPP at a public meeting on March 10, 2017.54

The Services collaborate extensively on training.55 In recent years, the number of specialized courses 

on sexual assault prosecutions has increased;56 moreover, information about trying sexual assault cases 

has been incorporated in the Services’ general advocacy courses.57 Each Service also provides attorneys 

with liberal access to the specialized training on sexual assault prosecutions available to federal and 

state prosecutors.58

During the site visits, the Subcommittee observed that training programs for trial counsel seemed to be 

operating well.59 However, the Subcommittee noted that while trial counsel are generally satisfied that 

they are receiving adequate and appropriate training, many remarked that the extensive training does 

not make up for their lack of in-court experience.60

Ms. Julia Hejazi, a highly qualified expert (HQE) and experienced civilian prosecutor for the Marine 

Corps, presented a different perspective regarding counsel training and experience at the May 2016 

JPP public meeting. She testified that on the basis of her 16 years of prosecution experience and her 

17 months as an HQE for the Marines, she believes that the military is successfully using training—

including the experience gained from practical training exercises—to bridge the experience gap 

between military and civilian sexual assault prosecutors.61

In addition to training, each Service has developed units dedicated to the prosecution of sexual 

assault, led by prosecutors with specialized training and experience.62 The organizational structures 

54 Transcript of JPP Public Meeting 177 (Mar. 10, 2017) (testimony of Brigadier General James Schwenk, JPP Subcommittee 

Member); see also Subcommittee Short Report on Trial Counsel Training, supra note 45. 

55 See Service Responses to JPP Request for Information 111, 112, 118, 121 (Mar. 31, 2016). 

56 See Service Responses to JPP Request for Information 112, 120 (Mar. 31, 2016). See generally Transcript of JPP Public 

Meeting 11–131 (May 13, 2016); see also Policy Memorandum 16-01, The Office of the Judge Advocate General, U.S. 

Army, subject: Special Victim Prosecution Program (Aug 8, 2016) [hereinafter TJAG Policy Memorandum 16-01].

57 See, e.g., Transcript of JPP Public Meeting 34 (May 13, 2016) (testimony of Lieutenant Colonel Hanorah Tyer-Witek, U.S. 

Marine Corps, Executive Officer, Naval Justice School); id. at 22–23 (testimony of Colonel Kirk Davies, U.S. Air Force, 

former Commandant, The Judge Advocate General’s School); id. at 113 (testimony of Lieutenant Colonel Bret Batdorff, 

U.S. Army, Chief, Trial Counsel Assistance Program). See also Service Responses to JPP Request for Information 111 (Mar. 

31, 2016).

58 See Service Responses to JPP Request for Information 111, 112 (Mar. 31, 2016); see also Navy Response to JPP Request 

for Information 160 (Dec. 29, 2016); see also Transcript of JPP Public Meeting 122, 126–28 (May 13, 2016) (testimony 

of Major Jesse Schweig, U.S. Marine Corps, Officer in Charge, Trial Counsel Assistance Program); id.at 96 (testimony 

of Colonel Katherine Oler, U.S. Air Force, Chief, Government Trial and Appellate Counsel Division); see also Army SVP, 

Information Paper (Feb. 24, 2016), available at http://jpp.whs.mil/Public/docs/07-RFI/Set_6/Responses/RFI_Attachment_

Q119_USA.pdf.

59 Transcript of JPP Public Meeting 185 (Mar. 10, 2017) (testimony of Brigadier General James Schwenk, JPP Subcommittee 

Member).

60 Subcommittee Short Report on Trial Counsel Training, supra note 45. 

61 Transcript of JPP Public Meeting 128, 135–36 (May 13, 2016) (testimony of Ms. Julia Hejazi, U.S. Marine Corps, HQE, 

Trial Counsel Assistance Program). 

62 See Service Responses to JPP Requests for Information 107-109, 111-112, 118-119 (Mar. 31, 2016); see also TJAG Policy 

Memorandum 16-01, supra note 56; see also Service Responses to JPP Request for Information 160(c) (Jan. 3, 2017); 

see also Service Responses to Response Systems Panel Request for Information 50 (Nov. 21, 2013); see also Transcript of 

JPP Public Meeting 99–106 (May 13, 2016) (testimony of Commander Michael Luken, U.S. Navy, Chief, Trial Counsel 

Assistance Program); id. at 111, 117-119, 147 (testimony of Lieutenant Colonel Bret Batdorff, U.S. Army, Chief Trial 
18

FINAL REPORT

have, in part, been designed and revised to help experienced prosecutors provide oversight and 

guidance to more junior prosecutors undertaking sexual assault cases, starting at the investigation 

stage.63 However, according to some site visit participants speaking to the Subcommittee, in practice 

senior counsel sometimes get involved in a case just a few days before trial, leaving much of the trial 

preparation to be performed by junior counsel.64

The Army, Navy, and Marine Corps also have HQEs who assist in sexual assault prosecutions, as well 

as Trial Counsel Assistance Programs (TCAPs) that provide specialized training, case consultation, 

and prosecutor augmentation.65 Lieutenant Colonel Bret Batdorff, former Chief of the Army’s TCAP, 

testified about the type of assistance provided by HQEs, noting that the Army’s civilian special victim 

litigation experts “are on the road, sitting behind the bar . . . helping [the military prosecutors] prep 

witnesses, interview witnesses, practice opening statements, and things like that.”66

A recently enacted NDAA provision specifically addresses counsel training and experience. Section 542 

of the FY17 NDAA requires the Service Secretaries to establish a system of military justice skill and 

experience identifiers to ensure that judge advocates with sufficient skills and experience in military 

justice are assigned to prosecute and defend cases and are assigned to develop less-experienced judge 

advocates.67 The provision also requires the Service Secretaries to carry out a five-year pilot program to 

assess the feasibility and advisability of establishing a deliberate process of professional development in 

military justice for judge advocates.68 The Army, Navy, and Marine Corps have implemented military 

Counsel Assistance Program); id. at 87-99 (testimony of Colonel Katherine Oler, U.S. Air Force, Government Trial and 

Appellate Counsel Division); see also Marine Corps Bulletin 5800, Military Justice Requirements and Implementation

Guidance (May 25, 2017) [hereinafter Marine Corps Bulletin 5800], available at http://www.marines.mil/Portals/59/

Publications/MCBUL%205800%20(Justice).pdf?ver=2017-05-30-131345-063; see also email from Stephen McCleary 

(Jun. 21, 2017, 09:49 EST) (on file with the JPP).

63 See TJAG Policy Memorandum 16-01, supra note 56; see also Air Force Response to JPP Request for Information 109, 

111, 113 (Mar. 31, 2016); see also Air Force and Navy Response to JPP Request for Information 160 (Dec. 29, 2016); see 

also Navy Response to Response Systems Panel Request for Information 50 (Nov. 21, 2013); see also Transcript of JPP 

Public Meeting 86–99 (May 13, 2016) (testimony of Colonel Katherine Oler, U.S. Air Force, Chief, Government Trial and 

Appellate Counsel Division); see also Transcript of JPP Public Meeting 275–83 (Apr. 8, 2016) (testimony of Lieutenant 

Commander Ryan Stormer, U.S. Navy, Deputy Chief, Trial Counsel Assistance Program); see also Marine Corps Bulletin

5800, supra note 62; see also email from Stephen McCleary (Jun. 21, 2017, 09:49 EST) (on file with the JPP).

64 Subcommittee Short Report on Trial Counsel Training, supra note 45. 

65 Marine Corps Bulletin 5800, supra note 62; see also Services Responses to JPP Request for Information 109, 121 (Mar. 

31, 2016); see also Transcript of JPP Public Meeting 305 (Apr. 8, 2016) (testimony of Lieutenant Commander Ryan 

Stormer, U.S. Navy, Deputy Chief, Trial Counsel Assistance Program); id. at 305 (testimony of Major Jesse Schweig, U.S. 

Marine Corps, Officer in Charge, Trial Counsel Assistance Program); id. at 305–06 (testimony of Lieutenant Colonel Bret 

Batdorff, U.S. Army, Chief, Trial Counsel Assistance Program); see also Transcript of JPP Public Meeting 128–34 (May 13, 

2016) (testimony of Ms. Julia Hejazi, U.S. Marine Corps, HQE, Trial Counsel Assistance Program); id. at 142 (testimony 

of Commander Michael Luken, U.S. Navy, Chief, Trial Counsel Assistance Program); id. at 147 (testimony of Lieutenant 

Colonel Bret Batdorff, U.S. Army, Chief, Trial Counsel Assistance Program). The Air Force does not have TCAP or HQE 

capabilities similar to the other Services for the prosecution of special victim cases. See Air Force Response to Requests for 

Information 119–21 (Mar. 31, 2016). Instead, the Air Force provides Senior Trial Counsel with reach-back capabilities to 

consult with the U.S. Air Force Government Trial and Appellate Counsel Division, consisting of experienced military and 

civilian litigators. Transcript of JPP Public Meeting 143–46 (May 13, 2016) (testimony of Colonel Katherine Oler, U.S. Air 

Force, Chief, Government Trial and Appellate Counsel Division). 

66 Transcript of JPP Public Meeting 109 (May 13, 2016) (testimony of Lieutenant Colonel Bret Batdorff, U.S. Army, Chief, 

Trial Counsel Assistance Program).

67 FY17 NDAA, supra note 17, § 542.

68 Id. § 542(c).
19

II. ADDITIONAL ISSUES REVIEWED AND ASSESSED BY THE JUDICIAL PROCEEDINGS PANEL

justice skill and experience identifier systems,69 and in all Services the selection of prosecutors to lead 

sexual assault prosecutions is based on demonstrated military justice skill and experience.70

In light of Congress’s actions, the JPP makes no further recommendations at this time.

C. SPECIAL VICTIM INVESTIGATION AND PROSECUTION (SVIP) CAPABILITY

PROGRAM

1. Statutory Task

In the FY13 NDAA, Congress tasked the JPP to “[m]onitor trends in the development, utilization 

and effectiveness of the special victim capability.”71 The term “special victim capability” is defined 

by Congress as a “distinct, recognizable group of appropriately skilled professionals who work 

collaboratively” to achieve the stated purposes of “(1) investigating and prosecuting allegations of 

child abuse, serious domestic violence, or sexual offenses; and (2) providing support for the victims of 

such offenses.”72 Congress required that this capability include specially trained and selected military 

investigators, judge advocates, victim witness assistance personnel, and administrative paralegal 

support personnel.73

In compliance with section 573, DoD published special victim investigation and prosecution (SVIP) 

capability guidance in 2014.74

69 Service Responses to Response Systems Panel Request for Information 76 (Nov. 21, 2013); see also Navy Response to RSP 

Request for Information 50 (Nov. 21, 2013); see also Transcript of JPP Public Meeting 17 (May 13, 2016) (testimony 

of Brigadier General Charles Pede, U.S. Army, Commander/Commandant, Judge Advocate General’s Legal Center and 

School); id. at 103 (testimony of Commander Michael Luken, U.S. Navy, Director, Trial Counsel Assistance Program); 

id. at 122 (testimony of Major Jesse Schweig, U.S. Marine Corps, Officer in Charge, Trial Counsel Assistance Program). 

While the Air Force does not have a military justice skill and experience identifier system, select litigators specialize in 

military justice litigation and acquire extensive experience. Transcript of JPP Public Meeting 53–54 (May 13, 2016) 

(testimony of Colonel Kirk Davies, U.S. Air Force, Commandant, The Judge Advocate General’s School). 

70 See Service Responses to JPP Requests for Information 107-109, 111-112, 118-119 (Mar. 31, 2016); see also TJAG Policy 

Memorandum 16-01, supra note 56; see also Service Responses to JPP Request for Information 160(c) (Jan. 3, 2017); 

see also Service Responses to Response Systems Panel Request for Information 50 (Nov. 21, 2013); see also Transcript of 

JPP Public Meeting 99–106 (May 13, 2016) (testimony of Commander Michael Luken, U.S. Navy, Chief, Trial Counsel 

Assistance Program); id. at 111, 117-119, 147 (testimony of Lieutenant Colonel Bret Batdorff, U.S. Army, Chief, Trial 

Counsel Assistance Program); id. at 87-99 (testimony of Colonel Katherine Oler, U.S. Air Force, Government Trial and 

Appellate Counsel Division); see also Marine Corps Bulletin 5800, supra note 62; see also email from Stephen McCleary 

(Jun. 21, 2017, 09:49 EST) (on file with the JPP).

71 FY13 NDAA, supra note 1, § 576.

72 Id. § 573.

73 Id. 

74 U.S. Dep’t of Def. Directive-Type Memorandum (DTM) 14-002, The Establishment of Special Victim Capability

(SVC) Within the Military Criminal Investigative Organizations (Feb. 11, 2014); U.S. Dep’t of Def. DirectiveType Memorandum (DTM) 14-003, DoD Implementation of Special Victim Capability (SVC) Prosecution and Legal

Support (Feb. 12, 2014) (Change 4, April 3, 2017). DTM 14-002 was superseded by U.S. Dep’t of Def. Instr. 5505.19, 

Establishment of Special Victim Investigation and Prosecution (SVIP) Capability Within the Military Criminal

Investigative Organizations (MCIOs) (Feb. 3, 2015) (Change 2, Mar. 23, 2017), and U.S. Dep’t of Def. Instr. 5505.18, 

Investigation of Adult Sexual Assault in the Department of Defense (Mar. 22, 2017). 
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FINAL REPORT

2. Assessment

In order to monitor trends in the development, utilization, and effectiveness of the SVIP capability, 

the JPP sent an RFI to the military Services in February 2016.75 The JPP also received testimony on 

the Services’ SVIP capability at a public meeting on April 8, 2016, during which the Panel heard from 

MCIO representatives, military prosecutors, and victim witness liaison (VWL) personnel from each 

Service.76 At another public meeting, on May 13, 2016, the JPP received additional testimony on the 

Services’ SVIP capability, specifically relating to the prosecution of sexual assault offenses.77

In addition, the JPP Subcommittee, at the direction of the JPP, spoke with investigators, prosecutors, 

and VWL personnel about SVIP capability during the site visits.78 Drawing on information received 

at the site visits, the JPP Subcommittee reported its findings to the JPP on trial counsel training and 

experience on March 10, 2017,79 and on sexual assault investigations in the military on February 24, 

2017.80

All Services have developed a capability that uses investigators specially trained in sexual assault 

offense investigations to investigate allegations of sexual assault and to collaborate with assigned 

SVIP personnel from other disciplines.81 As discussed above, all Services also have prosecutors who 

are trained and experienced in sexual assault prosecutions to assess and, if appropriate, prosecute 

allegations of sexual assault.82 In addition, the Services have specially selected and trained paralegals 

75 JPP Requests for Information 107–117 (Mar. 31, 2016). 

76 See generally Transcript of JPP Public Meeting 209–362 (Apr. 8, 2016). 

77 See generally Transcript of JPP Public Meeting 85–163 (May 13, 2016).

78 The JPP Subcommittee Site Visit Reports are available at http://jpp.whs.mil/ under “Reports/Subcommittee Site Visits.” 

79 Transcript of JPP Public Meeting 11–84 (March 10, 2017). See also Subcommittee Short Report on Trial Counsel

Training, supra note 45. 

80 Transcript of JPP Public Meeting 7–61 (Feb. 24, 2017) (testimony of Ms. Lisa Friel, JPP Subcommittee Member). See also

Subcommittee of the Judicial Proceedings Panel Report on Sexual Assault Investigations in the Military (Feb. 2017), 

[hereinafter JPP Subcommittee Report on Investigations], available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/

JPP_SubcommReport_Investigations_Final_20170224.pdf.

81 U.S. Dep’t of Def. Instr. 5505.19, Establishment of Special Victim Investigation and Prosecution (SVIP) Capability

Within the Military Criminal Investigative Organizations (MCIOs) (Feb. 3, 2015) (Change 2, Mar. 23, 2017); see also

Service Responses to JPP Request for Information 104, 107-109, 111 (Mar. 31, 2016); see also U.S. Coast Guard Response 

to JPP Request for Information 109 (Mar. 31, 2016) (noting that the Coast Guard is building proficiency and capability in 

the prosecution and investigation of sexual assault cases even though section 573 of the FY13 NDAA does not expressly 

apply to the Coast Guard or the Department of Homeland Security). 

82 See Service Responses to JPP Requests for Information 107-109, 111-112, 118-119 (Mar. 31, 2016); see also TJAG Policy 

Memorandum 16-01, supra note 56; see also Service Responses to JPP Request for Information 160(c) (Jan. 3, 2017); 

see also Service Responses to Response Systems Panel Request for Information 50 (Nov. 21, 2013); see also Transcript of 

JPP Public Meeting 99–106 (May 13, 2016) (testimony of Commander Michael Luken, U.S. Navy, Chief, Trial Counsel 

Assistance Program); id. at 111, 117-119, 147 (testimony of Lieutenant Colonel Bret Batdorff, U.S. Army, Chief, Trial 

Counsel Assistance Program); id. at 87-99 (testimony of Colonel Katherine Oler, U.S. Air Force, Government Trial and 

Appellate Counsel Division); see also Marine Corps Bulletin 5800, supra note 62; see also email from Stephen McCleary 

(Jun. 21, 2017, 09:49 EST) (on file with the JPP).
21

II. ADDITIONAL ISSUES REVIEWED AND ASSESSED BY THE JUDICIAL PROCEEDINGS PANEL

who provide support both to special victim prosecutors and to victims.83 To varying degrees, the 

Services also have specially trained victim witness liaisons to assist sexual assault victims.84

Lieutenant Colonel Batdorff spoke positively about the development of the SVIP capability, 

commending in particular the quality of the investigations. He noted that “[h]aving investigators 

dedicated solely to sexual assault cases has allowed the agents to hone their skills and do more 

complete quality work.”85

Several presenters at the JPP’s April 2016 meeting observed that the SVIP capability has improved 

communication and coordination between the investigators and the prosecution teams.86 During site 

visits, prosecutors and investigators similarly described improved working relationships and agreed 

that the prosecutors are involved in investigations earlier now than they had been in the past.87

However, both prosecutors and investigators expressed concern about issues that arise once a case 

has been closed by investigators but before the prosecutor has completed preparation for trial.88

Prosecutors asserted that the investigators often decline to follow up on important leads, while 

investigators asserted that the requested additional investigation is unnecessary or is difficult for an 

already overburdened and understaffed investigative unit to execute.89 The Marine Corps is the only 

Service that has added investigators to its Complex Trial Team to complete any additional investigation 

needed for the prosecution effort.90

Finally, the Services have developed specialized, collaborative training as part of the SVIP capability.91

The joint training of investigators, prosecutors, victim witness liaisons, and paralegals has played a 

critical role in building relationships among the SVIP capability team members.

83 Service Responses to JPP Request for Information 107, 111(c) (Mar. 31, 2016); see also Marine Corps Bulletin 5800, 

supra note 62; see also email from Stephen McCleary (Jun. 21, 2017, 09:49 EST) (on file with the JPP); see also U.S. Army 

Information Paper, Trial Counsel Assistance Program, subject: Army Special Victim Non-Commissioned Officer Paralegals 

(Mar. 15, 2016).

84 Service Responses to JPP Request for Information 107, 111 (Mar. 31, 2016); see also Marine Corps Bulletin 5800, supra

note 62; see also Marine Corps Order 5800.14, Victim-Witness Assistance Program (Mar. 15, 2013); see also Transcript 

of JPP Public Meeting 346 (April 8, 2016) (testimony of Ms. Christa Thompson, U.S. Army Special Victim Witness 

Liaison Program Manager); id. at 322–25; id. at 352; id. at 346, 355 (testimony of Mr. William Yables, U.S. Marine Corps 

Paralegal Specialist, Installation Victim Witness Liaison Officer); id. at 331-335 (testimony of Mr. John Hartsell, U.S. Air 

Force, Associate Chief, Military Justice Division).

85 Transcript of JPP Public Meeting 273 (Apr. 8, 2016) (testimony of Lieutenant Colonel Bret Batdorff, U.S. Army, Chief, 

Trial Counsel Assistance Program).

86 See generally Transcript of JPP Public Meeting 214 (Apr. 8, 2016) (testimony of Mr. Guy Surian, U.S. Army, Deputy 

Chief of Investigative Operations, Investigative Policy and Criminal Intelligence); id. at 216–17 (testimony of Mr. Jeremy 

Gauthier, U.S. Navy, Deputy Assistant Director, Criminal Investigations and Operations Directorate); id. at 271–75 

(testimony of Lieutenant Colonel Bret Batdorff, U.S. Army, Chief, Trial Counsel Assistance Program); see also Service 

Responses to JPP Requests for Information 108, 109, and 113 (Mar. 31, 2016).

87 JPP Subcommittee Site Visit Reports, supra note 78.

88 Id.

89 JPP Subcommittee Report on Investigations, supra note 80.

90 Transcript of JPP Public Meeting 285 (Apr. 8, 2016) (testimony of Major Jesse Schweig, U.S. Marine Corps, Officer in 

Charge, Trial Counsel Assistance Program). The Complex Trial Team consists of the special victim prosecutor (SVP), the 

regional trial investigator, the civilian HQEs, and specially trained legal administrative support specialists.

91 Transcript of JPP Public Meeting 279–80 (Apr. 8, 2016) (testimony of Lieutenant Commander Ryan Stormer, U.S. Navy, 

Deputy Chief, Trial Counsel Assistance Program); id. at 113–19 (testimony of Lieutenant Colonel Bret Batdorff, U.S. 

Army, Chief, Trial Counsel Assistance Program); id. at 101–06 (testimony of Commander Michael Luken, U.S. Navy, 

Director, Trial Counsel Assistance Program); id. at 124 (testimony of Major Jesse Schweig, U.S. Marine Corps, Officer 
22

FINAL REPORT

D. MILITARY RULE OF EVIDENCE 412—ADMISSION OF EVIDENCE OF A

VICTIM’S SEXUAL BEHAVIOR OR PREDISPOSITION

1. Statutory Tasks

The FY13 NDAA directed the JPP to carry out two tasks relating to M.R.E. 412. First, the Panel was 

asked to review and assess those instances in which prior sexual conduct of the alleged victim was 

considered in an Article 32 hearing, and any instances in which prior sexual conduct was determined 

to be inadmissible.92 Second, it was to review those instances in which evidence of prior sexual conduct 

of the alleged victim was introduced by the defense in courts-martial and assess what impact that 

evidence had on the case.93

M.R.E. 412, which was promulgated in March 1980 with an effective date of September 1, 1980,94

establishes a rape shield provision that generally bars a victim’s sexual behavior or predisposition

from being admitted as evidence. The rule contains three exceptions, including one that would allow

evidence to be admitted if the exclusion of such evidence would violate the constitutional rights of the

accused.95

In Executive Order 13696, effective June 17, 2015, the President amended R.C.M. 405, which governs 

Article 32 preliminary hearings, to prohibit application of the M.R.E. 412 “constitutionally required” 

evidence exception at preliminary hearings.96 However, the executive order did not amend the text 

of M.R.E. 412 itself, and the “constitutionally required” evidence exception continues to apply at 

courts-martial. 

In its Initial Report, released in February 2015, the JPP reviewed and assessed M.R.E. 412, but noted 

that the pending change to Article 32 practice, along with the application of M.R.E. 412 by military 

judges at courts-martial, should be monitored.97

2. Assessment

In order to assess the application of M.R.E. 412 by preliminary hearing officers (PHOs) at Article 32 

preliminary hearings and by military judges at courts-martial, the JPP received testimony from former 

trial judges, trial counsel, defense counsel, and SVCs/VLCs from each Service at a public meeting on 

in Charge, Trial Counsel Assistance Program); see also Service Responses to JPP Request for Information 111, 112, 113 

(Mar. 31, 2016).

92 FY13 NDAA, supra note 1, § 576(d)(2)(E).

93 Id. § 576(d)(2)(F).

94 Frederic I. Lederer, The Military Rules of Evidence: Origins and Judicial Implementation 11 n.20 (1990), available at 

http://scholarship.law.wm.edu/facpubs/638/.

95 The other two exceptions to M.R.E. 412 state that the following evidence is admissible: “evidence of specific instances 

of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, 

injury, or other physical evidence; [and] evidence of specific instances of sexual behavior by the alleged victim with respect 

to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution.” Manual

for Courts-Martial, United States (2016 ed.) [hereinafter 2016 MCM], M.R E. 412(b)(1)(A) and (B).

96 Exec. Order No. 13696, 80 Fed. Reg. 35,781 (June 17, 2015). 

97 JPP Initial Report, supra note 10, at 106–07. 
23

II. ADDITIONAL ISSUES REVIEWED AND ASSESSED BY THE JUDICIAL PROCEEDINGS PANEL

January 6, 2017.98 In addition, the JPP Subcommittee assessed litigation practice under M.R.E. 412 

during site visits and reported its findings to the JPP on March 10, 2017.99

These presenters provided insight into the status of preliminary hearing practice approximately 18 

months after the “constitutionally required” evidence exception to M.R.E. 412 at such hearings had 

been eliminated. They testified that the PHOs are well-trained and do not consider evidence that 

does not fit within the remaining two exceptions.100 While SVCs/VLCs praised the elimination of the 

“constitutionally required” exception as benefiting sexual assault victims, defense counsel expressed 

fear that the convening authority is no longer informed of valuable evidence regarding credibility that 

may be admitted at courts-martial and cannot be factored into a referral decision.101

The presenters were generally in agreement that military judges are well-trained in applying M.R.E. 

412 to the facts and narrowly tailor admissible evidence to the relevant purpose at courts-martial.102

The Subcommittee similarly observed that most counsel are satisfied with both the rule and the 

procedures used by the military judges.103

E. DISCLOSURE AND ADMISSION OF MENTAL HEALTH RECORDS UNDER

MILITARY RULE OF EVIDENCE 513

1. Statutory Task

The FY15 NDAA directed the JPP to review and assess the use by the accused of any mental health 

records of the victim of an offense under the UCMJ, both during the Article 32 preliminary hearing 

and during court-martial proceedings, as compared to the use of similar records in civilian criminal 

legal proceedings.104

The FY15 NDAA also significantly revised M.R.E. 513—the psychotherapist-patient privilege—in two 

major ways. First, the NDAA increased the burden on the party seeking the production or admission 

98 See generally Transcript of JPP Public Meeting (Jan. 6, 2017). 

99 Transcript of JPP Public Meeting 181 (Mar. 10, 2017) (testimony of Brigadier General James Schwenk, JPP Subcommittee 

Member). See also Subcommittee Short Report on M.R.E.s 412 and 513, supra note 44. See also JPP Subcommittee Site 

Visit Reports, supra note 78.

100 Transcript of JPP Public Meeting 294–95 (Jan. 6, 2017) (testimony of Lieutenant Commander Elizabeth Hutton, U.S. 

Coast Guard, Special Victims’ Counsel); id. at 159–60 (testimony of Major Ryan Reed, U.S. Air Force, Senior Trial 

Counsel, Special Victims’ Unit); id. at 202–03 (testimony of Major James Argentina Jr., U.S. Marine Corps, Senior Defense 

Counsel); id. at 106–08 (testimony of Major Adam Workman, U.S. Marine Corps, Legal Services Support Team).

101 Transcript of JPP Public Meeting 173–77 (Jan. 6, 2017) (testimony of Major Benjamin Henley, U.S. Air Force, Senior 

Defense Counsel); id. at 184–85 (testimony of Major Marcia Reyes-Steward, U.S. Army, Senior Defense Counsel); id. at 

202–03, 238 (testimony of Major James Argentina Jr., U.S. Marine Corps, Senior Defense Counsel); see also Subcommittee

Short Report on M.R.E.s 412 and 513, supra note 44. 

102 Transcript of JPP Public Meeting 283 (Jan. 6, 2017) (testimony of Major Aran Walsh, U.S. Marine Corps, Regional Victims’ 

Legal Counsel); id. at 307 (testimony of Lieutenant Commander James Toohey, U.S. Navy, Victims’ Legal Counsel); id. at 

94 (testimony of Lieutenant Commander Geralyn van de Krol, U.S. Coast Guard, Branch Chief, Trial Services, Coast Guard 

Legal Services Command); id. at 102–03 (testimony of Lieutenant Commander Ben Robertson, U.S. Navy, Senior Trial 

Counsel); id. at 109–10 (testimony of Major Adam Workman, U.S. Marine Corps, Legal Support Team).

103 Transcript of JPP Public Meeting 181 (Mar. 10, 2017) (testimony of Brigadier General James Schwenk, JPP Subcommittee 

Member).

104 FY15 NDAA, supra note 5, § 545.
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FINAL REPORT

of records protected by M.R.E. 513. Under the new test, a military judge may conduct an in camera

review of records or communications only if he or she finds by a preponderance of the evidence that 

the moving party has shown that (1) there exists “a specific factual basis demonstrating a reasonable 

likelihood that the records or communications would yield evidence admissible under an exception 

to the privilege,” (2) “the requested information meets one of the enumerated exceptions to the 

privilege,” (3) “the information sought is not merely cumulative of other information available,” and 

(4) “the party made reasonable efforts to obtain the same or substantially similar information through

non-privileged sources.”105 This change went into effect on June 17, 2015.106

Second, the FY15 NDAA eliminated the enumerated “constitutionally required” exception to M.R.E. 

513 at both the Article 32 hearing and at courts-martial.107

The JPP’s Initial Report, dated February 2015, reviewed the origins of the military psychotherapistpatient privilege and reviewed application of the rule then in effect. The JPP noted the extensive 

changes to M.R.E. 513 made in the FY15 NDAA and determined to monitor practice in light of those 

changes.108

2. Assessment

In order to assess the effect of the revised rules on mental health evidence, the JPP received testimony 

from former trial judges, trial counsel, defense counsel, and SVCs/VLCs from each Service at a 

public meeting in January 2017.109 These presenters provided insight into preliminary hearing and 

court-martial practice approximately 18 months after the June 2015 changes to M.R.E. 513 were 

implemented. In addition, during its site visits the JPP Subcommittee asked trial counsel, defense 

counsel, and SVCs/VLCs about Article 32 and courts-martial practice in light of the changes to M.R.E. 

513. The JPP Subcommittee reported its findings to the JPP on March 10, 2017.110

a. Admissibility of M.R.E. 513 Evidence

The presenters at the January 2017 JPP meeting generally agreed that under current practice, M.R.E. 

513 evidence is rarely admitted at either Article 32 hearings or courts-martial. First, the presenters 

observed that M.R.E. 513 evidence is infrequently sought at Article 32 hearings, because the PHO 

does not have the authority to order that mental health records be produced.111 Second, they agreed 

that while M.R.E. 513 evidence is frequently sought at courts-martial, mental health records are rarely 

produced for even an in camera review, because the requisite factual basis—a demonstration that the 

records are likely to contain admissible evidence—is difficult to meet.112 The Subcommittee heard 

105 Id. § 537. 

106 Exec. Order No. 13696, 80 Fed. Reg. 35,781 (June 17, 2015). 

107 FY15 NDAA, supra note 5, § 537.

108 JPP Initial Report, supra note 10, at 108–23.

109 See generally Transcript of JPP Public Meeting (Jan. 6, 2017).

110 Transcript of JPP Public Meeting 181 (Mar. 10, 2017) (testimony of Brigadier General James Schwenk, JPP Subcommittee 

Member). See also Subcommittee Short Report on M.R.E.s 412 and 513, supra note 44.

111 Transcript of JPP Public Meeting 308–09 (Jan. 6, 2017) (testimony of Lieutenant Commander James Toohey, U.S. Navy, 

Victims’ Legal Counsel); id. at 177 (testimony of Major Benjamin Henley, U.S. Air Force, Senior Defense Counsel); id. at 

318–19 (testimony of Captain September Foy, U.S. Air Force, Special Victims’ Counsel). 

112 Transcript of JPP Public Meeting 287–88 (Jan. 6, 2017) (testimony of Major Aran Walsh, U.S. Marine Corps, Regional 
25

II. ADDITIONAL ISSUES REVIEWED AND ASSESSED BY THE JUDICIAL PROCEEDINGS PANEL

similar comments from defense counsel about the difficulty of obtaining an in camera review of mental 

health records at courts-martial.113

However, the Subcommittee heard from many trial counsel and SVCs/VLCs who view the changes to 

M.R.E. 513 positively.114 They stated that “the rule now works as was intended—to keep mental health 

records out of the courtroom.”115 Previously, trial counsel would typically obtain mental health records 

prior to the military judge’s production order to facilitate the military judge’s anticipated, and almost 

routine, in camera review of the records.116

b. Elimination of the “Constitutionally Required” Exception

Several presenters at the January 2017 meeting also noted the lack of uniformity in how military judges 

are interpreting the elimination of the “constitutionally required” exception to M.R.E. 513. Since 

this change, judges have ruled inconsistently on whether the Constitution requires the admission of 

evidence bearing on credibility, perception, ability to recall, or motive.117 Counsel had previously used 

this enumerated exception to admit such evidence. Several former military judges asserted that some 

judges are ordering that evidence be produced but not identifying the particular enumerated exception 

on which such an order is based; some judges are citing constitutional due process or confrontation 

as a basis for production; and some are excluding any evidence that does not fit within an enumerated 

exception, without addressing constitutional implications.118

Trial counsel, defense counsel, and SVCs/VLCs on the site visits confirmed this observation, noting that 

following the removal of the “constitutionally required” exception, “trial judges have taken different 

positions on whether M.R.E. 513 must be read in light of the Constitution.” Faced with inconsistent 

judicial interpretations, counsel are waiting for appellate guidance on this issue.119 Though two Service 

Victims’ Legal Counsel); id. at 119–20 (testimony of Captain Brad Dixon, U.S. Army, Trial Counsel Assistance Program 

Training Officer); id. at 309–10 (testimony of Lieutenant Commander James Toohey, U.S. Navy, Victims’ Legal Counsel); 

id. at 20 (testimony of Lieutenant Colonel (Retired) Wendy Sherman, U.S. Air Force, former military judge); id. at 36–37 

(testimony of Lieutenant Colonel (Retired) Wade Faulkner, U.S. Army, former military trial judge).

113 Subcommittee Short Report on M.R.E.s 412 and 513, supra note 44.

114 Id.

115 Id.

116 Id. 

117 Transcript of JPP Public Meeting 271 (Jan. 6, 2017) (testimony of Lieutenant Commander Rachel Trest, U.S. Navy, 

Senior Defense Counsel, explaining that the ambiguity stems from removing the “constitutionally required” exception 

without explaining the intent behind the removal); id. at 119 (testimony of Captain Brad Dixon, U.S. Army, Trial Counsel 

Assistance Program Training Officer); id. at 161 (testimony of Major Ryan Reed, U.S. Air Force, Senior Trial Counsel, 

Special Victims’ Unit); id. at 228–29 (testimony of Major James Argentina Jr., U.S. Marine Corps, Senior Defense 

Counsel).

118 Transcript of JPP Public Meeting 36–38 (Jan. 6, 2017) (testimony of Lieutenant Colonel (Retired) Wade Faulkner) (stating 

“many of the judges have taken the newly written 513 and they are applying it in the same way as other well-established 

privileges like attorney-client and priest-penitent . . . there are some judges that are reluctant to treat the 513 privilege 

the same way . . . .”); id. at 64–65 (testimony of Commander Mike Luken, U.S. Navy, former military trial judge); id. at 

55 (testimony of Commander Cassie Kitchen, U.S. Coast Guard, former military trial judge); id. at 26–28 (testimony of 

Lieutenant Colonel (Retired) Wendy Sherman, U.S. Air Force, former military judge).

119 Subcommittee Short Report on M.R.E.s 412 and 513, supra note 44; see also Transcript of JPP Public Meeting 184 (Mar. 

10, 2017) (testimony of Brigadier General James Schwenk, JPP Subcommittee Member).
26

FINAL REPORT

Courts of Criminal Appeals have recently reviewed the effect of the removal of the “constitutionally 

required” exception from M.R.E. 513,120 CAAF has yet to rule on this issue.

c. Scope of M.R.E. 513 Privilege

Another issue raised by several presenters at the January public meeting concerned the scope of the 

M.R.E. 513 privilege. M.R.E. 513 protects “confidential communication made between the patient

and a psychotherapist or an assistant to the psychotherapist . . . if such communication was made

for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.”

However, the text of the rule does not address whether “confidential communication” includes the

psychiatric diagnosis, the medications prescribed and the duration of those prescriptions, the type of

therapies used, and the resolution of the diagnosed psychiatric condition.121 Several presenters noted

inconsistencies in the interpretation of what falls under the umbrella of “confidential communication;”

they recommended that the rule be clarified by Congress or the President.122

A recent Coast Guard case illustrates the uncertainty surrounding the scope of the M.R.E. 513 privilege. 

In H.V. v. Kitchen, the Coast Guard Court of Criminal Appeals (CGCCA) reversed a military judge’s 

order to disclose mental health information that the military judge determined was not privileged under 

M.R.E. 513, including dates treated, the identity of the provider, the psychiatric diagnosis, medications

prescribed and the duration of those prescriptions, the types of therapies used, and the resolution of the

diagnosed psychiatric condition. In a 2–1 decision, the CGCCA held that all the above mental health

information was privileged under M.R.E. 513, except for the dates of treatment, the duration of the

appointments, and the identity of the provider.123 Although the CGCCA opinion provides guidance to the

other military Services, it is not binding precedent on them.

120 J.M. v. Payton-O’Brien, 2017 CCA LEXIS 424 (N-M. Ct. Crim. App. June 28, 2017) (holding military judges cannot 

order production or release of M.R.E. 513 privileged communications unless an enumerated exception applies; however, 

military judges can protect the constitutional rights of an accused by ordering remedial measures necessary to “guarantee 

a meaningful opportunity to present a complete defense.”); L.K. v. Acosta, 76 M.J. 611 (A. Ct. Crim. App. May 24, 2017) 

(noting in dicta that regardless of the language of M.R.E. 513, “the reach of the constitutional exception is the same today 

as it was prior to the deletion of the constitutional exception pursuant to NDAA 2015. Under our constitutional hierarchy, 

a federal statute cannot bar the ‘admission or disclosure’ of a communication that is ‘constitutionally required.’”). 

121 2016 MCM, supra note 95, M.R.E. 513(a).

122 Transcript of JPP Public Meeting 48–49 (Jan. 6, 2017) (testimony of Lieutenant Colonel (Retired) Elizabeth Harvey, U.S. 

Marine Corps, former military trial judge); id. at 63 (testimony of Commander Mike Luken, U.S. Navy, former military 

trial judge); id. at 302–03 (testimony of Lieutenant Commander Elizabeth Hutton, U.S. Coast Guard, Special Victims’ 

Counsel); id. at 309, 312–14 (testimony of Lieutenant Commander James Toohey, U.S. Navy, Victims’ Legal Counsel); id.

at 195, 255 (testimony of Major James Argentina Jr., U.S. Marine Corps, Senior Defense Counsel).

123 H.V. v. Kitchen, 75 M.J. 717 (C.G. Ct. Crim. App. July 8, 2016) (Bruce, J., dissenting). The CAAF granted review, 

inter alia, of the issue concerning the scope of M.R.E. 513 but determined it lacked jurisdiction over the case; therefore, 

it did not rule on the scope of confidential communications. Randolph v. HV, 76 M.J. 27 (C.A.A.F. 2017). The JPP 

recommended that specific jurisdiction be granted to CAAF to hear a victim’s appeal if a Service Court of Criminal 

Appeals denies the victim’s petition for a writ of mandamus under Article 6b. Recommendation 46, JPP Report on

Appellate Rights, supra note 40.
27

Issues Not Assessed by the Judicial 

Proceedings Panel Owing to Subsequent 

Regulatory and Legislative Changes

III.

The JPP was assigned four issues—two by Congress, and two by its predecessor panel, the RSP—that it 

did not assess because of changes in regulations and legislation. Those four issues are discussed in this 

section.

A. MANDATORY MINIMUM SENTENCES

In Section 1731(b)(1)(C) of the FY14 NDAA, Congress directed the JPP to assess the implementation 

and effects of the mandatory minimum sentences established by Article 56(b) of the UCMJ, which 

requires that persons found guilty of certain sex offenses receive, at a minimum, dismissal or 

dishonorable discharge.124 Congress also tasked the JPP to assess the appropriateness of statutorily 

mandated minimum sentencing provisions for additional offenses under the UCMJ.125

In its 2015 report, the Military Justice Review Group (MJRG)—a working group established by the 

Secretary of Defense to conduct a comprehensive review of the UCMJ—recommended a revision to 

Article 56, UCMJ (Sentencing). The proposal would have replaced the current sentencing process 

with a system based on published standards developed by a new Military Sentencing Parameters and 

Criteria Board. That board would collect and analyze sentencing data, use those data to determine 

appropriate sentencing parameters and criteria for specific offenses, propose them for approval by the 

President, and issue other sentencing policy guidance.126

Under the MJRG proposal, once sentencing parameters and criteria took effect, they would replace 

the mandatory punitive discharge provisions in Article 56(b), eliminating “a current incongruity in the 

system” whereby designated sex offenses result in mandatory discharge, but other serious crimes such 

as murder do not.127

Congress amended Article 56, UCMJ (Sentencing). However, it did not adopt the MJRG’s proposal for 

determining sentencing parameters and criteria for all offenses, nor did it alter the current mandatory 

punitive discharge provisions for certain sexual assault offenses.128

In light of the MJRG’s recommendations and the subsequent action taken by Congress in the Military 

Justice Act of 2016, the JPP did not conduct an assessment of mandatory minimum sentences.

124 FY14 NDAA, supra note 5, §§ 1731(b)(1)(C), 1705.

125 Id. § 1731(b)(1)(C).

126 Report of the Military Justice Review Group, Part 1: UCMJ Recommendations 527 (Dec. 2015), available at 

http://ogc.osd.mil/images/report_part1.pdf.

127 Id. at 514.

128 See FY17 NDAA, supra note 17, § 5301.
28

FINAL REPORT

B. DEPARTMENT OF DEFENSE SAFE HELPLINE PRIVILEGE

Section 545(a)(2) of the FY15 NDAA tasked the JPP with reviewing and assessing the establishment of 

a privilege under the M.R.E.s against the disclosure of communications between (1) users of the DoD 

Safe Helpline and personnel staffing it and (2) users of the DoD Safe HelpRoom and personnel staffing 

it.129

On June 17, 2015, the President issued Executive Order 13696, which established a privilege for 

confidential communications with DoD Safe Helpline staff. The executive order amended M.R.E. 

514(a) to state: “A victim has a privilege to refuse to disclose and to prevent any other person from 

disclosing a confidential communication made between . . . the alleged victim and Department of 

Defense Safe Helpline staff, in a case arising under the UCMJ, if such communication was made for the 

purpose of facilitating advice or assistance to the alleged victim.”130

In light of the executive order, the JPP did not conduct a review and assessment or make 

recommendations on the Safe Helpline privilege. 

C. DEPOSITIONS

In its report issued in June 2014, the RSP recommended that the JPP assess the use of depositions in 

light of changes to the Article 32 proceeding, and determine what, if any, changes to the deposition 

process should be recommended, including whether military judges should serve as deposition 

officers.131

Congress subsequently enacted section 532 of the FY15 NDAA, requiring that a party requesting a 

deposition demonstrate that “due to exceptional circumstances, it is in the interest of justice” to take 

a deposition. Section 532 also provided that the convening authority may designate commissioned 

officers as counsel.132

In 2016, as part of the Military Justice Act of 2016, Congress amended Article 49, UCMJ 

(Depositions), to codify and expand the FY15 NDAA provision. The amendments included a 

requirement that deposition officers be judge advocates “whenever practicable.”133

In light of the provisions in the FY15 NDAA and the Military Justice Act of 2016, the JPP did not 

conduct further assessment nor make recommendations on the issue of depositions.

129 FY15 NDAA, supra note 5, § 545(a)(2).

130 Exec. Order No. 13696, 80 Fed. Reg. 35,781 (June 17, 2015).

131 RSP Report, supra note 6, at 48.

132 FY15 NDAA, supra note 5, § 532.

133 Id. § 5231.
29

III. ISSUES NOT ASSESSED BY THE JUDICIAL PROCEEDINGS PANEL OWING TO

SUBSEQUENT REGULATORY AND LEGISLATIVE CHANGES

D. PLEA BARGAINING

The RSP also recommended that the JPP study whether the military plea bargaining process should be 

modified.134

In the Military Justice Act of 2016, Congress enacted section 5237, creating a new Article 53a, UCMJ 

(Plea agreements). This article provided basic rules for (1) the construction and negotiation of plea 

agreements concerning the charges, the sentence, or both; (2) the military judge’s determination of 

whether to accept a proposed plea agreement; and (3) the entrance of the convening authority and the 

accused into binding agreements regarding the sentence that may be adjudged.135

In light of the provisions in the Military Justice Act of 2016, the JPP did not conduct a further 

assessment or make recommendations on the issue of plea bargaining.

134 RSP Report, supra note 6, at 49.

135 FY17 NDAA, supra note 17, § 5237.
30

FINAL REPORT
31

Recommendations to the Defense Advisory 

Committee on Investigation, Prosecution, 

and Defense of Sexual Assault in the Armed 

Forces (DAC-IPAD)

IV.

The JPP made the following eight recommendations to the DAC-IPAD:

• Judicial Proceedings Panel Report on Sexual Assault Investigations in the Military (September

2017)

Recommendation 47: “In order to ensure that MCIOs can focus investigative resources on the

most serious sexual assault cases, the advisory committee that follows the JPP, the DAC-IPAD,

monitor the effects of the DoD policy that allows Service law enforcement agencies to assist

the MCIOs with sexual assault investigations, and make findings and recommendations to the

Secretary of Defense as it deems appropriate.”136

• Judicial Proceedings Panel Report on Statistical Data Regarding Military Adjudication of

Sexual Assault Offenses for Fiscal Year 2015 (September 2017)

Recommendation 54: “The successor federal advisory committee to the JPP, the DAC-IPAD,

should consider continuing to analyze adult-victim sexual assault court-martial data on an

annual basis as the JPP has done, and should consider analyzing the following patterns that the

JPP discovered in its analysis of fiscal year 2015 court-martial data:

a. Cases involving military victims tend to have fewer punitive outcomes than cases involving

civilian victims; and

b. The conviction and acquittal rates for sexual assault offenses vary significantly among the

military Services.

c. If a Service member is charged with a sexual assault offense, and pleads not guilty, the

probability that he or she will be convicted of a sexual assault offense is 36%, and the

probability that he or she will be convicted of any offense (i.e., either a sex or a non-sex

offense) is 59%.”137

• Judicial Proceedings Panel Report on Panel Concerns Regarding the Fair Administration of

Military Justice in Sexual Assault Cases (September 2017)

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)

136 Judicial Proceedings Panel Report on Sexual Assault Investigations in the Military 5 (Sep. 2017), available at

http://jpp.whs.mil/Public/docs/08-Panel_Reports/08_JPP_Report_Investigations_Final_20170907.pdf.

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

Fiscal Year 2015 6 (Sep. 2017), available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/09_JPP_CourtMartial_Data_

Report_Final_20170915.pdf. 
32

FINAL REPORT

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.”138

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 courts-martial and on the acquittal rate in such cases.”139

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 court-martial. 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.”140

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.”141

Recommendation 62: “The Secretary of Defense and the DAC-IPAD monitor whether 

misperceptions regarding alcohol consumption and consent affect court-martial panel 

members.”142

Recommendation 63: “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.”143

138 Judicial Proceedings Panel Report on Panel Concerns Regarding the Fair Administration of Military Justice in Sexual

Assault Cases 7 (Sep. 2017), available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/10_JPP_Concerns_Fair_MJ_

Report_Final_20170915.pdf.

139 Id. at 9 (Recommendation 57).

140 Id. at 9 (Recommendation 58).

141 Id. at 11 (Recommendation 60).

142 Id. at 11 (Recommendation 62).

143 Id. at 12 (Recommendation 63).
33

Conclusion V.

The JPP is grateful to Congress for the opportunity to provide an independent review and assessment 

of judicial proceedings conducted under the UCMJ involving adult sexual assault and related offenses 

for the purpose of developing recommendations for improvements to such proceedings. We hope our 

work has made positive contributions to the military justice system. The JPP would have not been 

able to complete its work without the support and assistance of the JPP Subcommittee, the military 

Services, the Department of Defense, and the hundreds of experts and witnesses who shared their 

experiences and perspectives with the Panel. The JPP expresses its deep appreciation to its hardworking 

and dedicated staff and to all others who helped fulfill this important mission.
34

FINAL REPORT
35

APPENDIX A: 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.
36

FINAL REPORT

(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.
37

APPENDIX A: JUDICIAL PROCEEDINGS PANEL AUTHORIZING STATUTES AND CHARTER

(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.
38

FINAL REPORT

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.
39

APPENDIX A: JUDICIAL PROCEEDINGS PANEL AUTHORIZING STATUTES AND CHARTER

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”.
40

FINAL REPORT

CHARTER 

Judicial Proceedings Since Fiscal Year 2012 Amendments Panel 

1

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.
41

APPENDIX A: JUDICIAL PROCEEDINGS PANEL AUTHORIZING STATUTES AND CHARTER

CHARTER 

Judicial Proceedings Since Fiscal Year 2012 Amendments Panel 

2

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).
42

FINAL REPORT

CHARTER 

Judicial Proceedings Since Fiscal Year 2012 Amendments Panel 

3

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.
43

APPENDIX A: JUDICIAL PROCEEDINGS PANEL AUTHORIZING STATUTES AND CHARTER

CHARTER 

Judicial Proceedings Since Fiscal Year 2012 Amendments Panel 

4

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
44

FINAL REPORT

CHARTER 

Judicial Proceedings Since Fiscal Year 2012 Amendments Panel 

5

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
45

APPENDIX B: 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, 

he served as Special Counsel at the United States Department of Justice, including in the Appellate and 

General Litigation and Legal Advice Sections of the Criminal Division, U.S. Department of Justice; as 

Chief Counsel, FBI Foreign Terrorist Task Force; as an Assistant United States Attorney in Oregon and 

in the District of Columbia; as General Counsel to the D.C. Corrections Trustee; as a U.S. Immigration 

Judge; as a Special U.S. Parole Commissioner; as an expert at Council of Europe, United Nations, and 

Prison Rape Elimination Commission subcommittees, and as a DOJ member on the ABA Task Force 

updating Standards for Prisoner Rights. He also served as the Criminal Division’s legal advisor to the 

Federal Witness Security Program, and regarding federal victims’ rights compliance.
46

FINAL REPORT

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.
47

APPENDIX B: 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.
48

FINAL REPORT

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.
49

APPENDIX B: 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.
50

FINAL REPORT

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.
51

APPENDIX C: Judicial Proceedings Panel

Tasks

A. STATUTORY TASKS

1. 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 (Article 120 revision) of the National

Defense Authorization Act (NDAA) for Fiscal Year (FY) 2012 (Public Law 112-81; 125 Stat.

1404). (FY13 NDAA, § 576(d)(2)(A))

2. 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. (FY13 NDAA,

§ 576(d)(2)(B))

3. 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. (FY13 NDAA, § 576(d)(2)(C))

4. Review and evaluate court-martial convictions for sexual assault in the year covered by the

most-recent report required of the JPP 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. (FY13 NDAA, § 576(d)

(2)(D))

5. 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. (FY13 NDAA, § 576(d)(2)(E))

6. 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. (FY13 NDAA, § 576(d)(2)(F))

7. 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. (FY13 NDAA,

§ 576(d)(2)(G))

8. Monitor trends in the development, utilization and effectiveness of the special victims

capabilities required by section 573 of this Act. (FY13 NDAA, § 576(d)(2)(H))
52

FINAL REPORT

9. 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. (FY13 NDAA, § 576(d)(2)(I))

10. Consider such other matters and materials as the panel considers appropriate for purposes of

the reports. (FY13 NDAA, § 576(d)(2)(J))

11. 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. (FY14 NDAA, § 1731(b)(1)(A))

12. 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 as

the Judicial Proceedings Panel considers appropriate. (FY14 NDAA, § 1731(b)(1)(B))

13. 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). (FY14 NDAA, § 1731(b)(1)(C))

14. 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. (FY14 NDAA, 1731(b)(1)(D))

15. 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.

(FY15 NDAA, § 545(a)(1))
53

APPENDIX C: JUDICIAL PROCEEDINGS PANEL TASKS

16. Conduct a review and assessment regarding the establishment of a privilege under the M.R.E.

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 the Department of Defense Safe HelpRoom. (FY15 NDAA,

§ 545(a)(2))

B. TASKS ASSIGNED TO THE JUDICIAL PROCEEDINGS PANEL BY THE

RESPONSE SYSTEMS PANEL (RSP)

1. The Judicial Proceedings Panel and the Joint Services Committee should review and clarify the

extent of a victim’s right to access information that is relevant to the assertion of a particular

right. (RSP Recommendation 45)

2. The Judicial Proceedings Panel and Joint Service Committee consider whether to recommend

legislation that would either split sexual assault offenses under Article 120 of the UCMJ into

different articles that separate penetrative and contact offenses from other offenses or narrow

the breadth of conduct currently criminalized under Article 120. (RSP Recommendation 113)

3. The Judicial Proceedings Panel assess the use of depositions in light of changes to the Article 32

proceeding, and determine whether to recommend changes to the deposition process, including

whether military judges should serve as deposition officers. (RSP Recommendation 115)

4. The Judicial Proceedings Panel study whether the military plea bargaining process should be

modified. (RSP Recommendation 117)

C. TASKS UNDERTAKEN INDEPENDENTLY BY THE JUDICIAL PROCEEDINGS

PANEL

1. Assess the occurrence of retaliation related to sexual assault offenses. This task was undertaken

by the JPP in response to the May 2015 release of a DoD Sexual Assault Prevention and

Response Office report indicating that 62% of the victims who report being sexually assaulted

experience retaliation as a result of making the report.

2. Assess the protection of sexual assault victims’ appellate rights. This task was undertaken by

the JPP in response to concerns raised by the Service special victims’ counsel program managers

at the April 8, 2016, JPP public meeting.
54

FINAL REPORT
55

APPENDIX D: Judicial Proceedings Panel

and Subcommittee Meetings

MEETINGS PRESENTERS

August 7, 2014

Public Meeting of the JPP

The George Washington 

University Law School

Washington, DC

• Mr. William Cassara, Attorney-at-Law, Augusta, Georgia

• Colonel (Retired) Timothy Grammel, U.S. Army, former Trial

Judiciary Circuit Judge

• Colonel Gary Jackson, U.S. Air Force, Staff Judge Advocate,

Headquarters Air Force Global Strike Command

• Captain Christian Reismeier, U.S. Navy, Chief Judge of the Navy

• Professor Stephen Schulhofer, New York University School of Law,

American Law Institute (by telephone)

• Mr. Dwight Sullivan, Department of Defense, Office of the General

Counsel

• Ms. Carol Tracy, Women’s Law Project

• Ms. Charlene Whitman, Æquitas

• Mr. John Wilkinson, Æquitas
56

FINAL REPORT

MEETINGS PRESENTERS

September 19, 2014

Public Meeting of the JPP

Holiday Inn Arlington 

at Ballston 

Arlington, VA

• Captain Steven Andersen, U.S. Coast Guard, Commanding Officer,

Legal Services Command

• Colonel John Baker, U.S. Marine Corps, Deputy Director, Judge

Advocate Division, Military Justice & Community Development

• Captain Robert Crow, U.S. Navy, Director, Criminal Law Division

• Congresswoman Lois Frankel (D-22nd FL)

• Professor Victor Hansen, New England School of Law (by

telephone)

• Commander Jason Jones, U.S. Navy, Defense Service Office West

• Colonel Polly Kenny, U.S. Air Force, Staff Judge Advocate, Air

Education and Training Command

• Lieutenant Colonel John Kiel, U.S. Army, Criminal Law Division,

Office of the Judge Advocate General

• Major Frank Kostik, U.S. Army, Senior Defense Counsel

• Colonel Michael Lewis, U.S. Air Force, Chief, Military Justice

Division

• Major Melanie Mann, U.S. Marine Corps, Military Justice Officer

• Captain (Retired) Stephen McCleary, U.S. Coast Guard, former

Chief of Military Justice

• Ms. Elisha Morrow, former U.S. Coast Guard

• Mr. E. J. O’Brien, U.S. Army, Highly Qualified Expert, Trial Defense

Services

• Lieutenant Colonel Alex Pickands, U.S. Army, Trial Counsel

Assistance Program

• Lieutenant Colonel Julie Pitvorec, U.S. Air Force, Chief Senior

Defense Counsel

• Major Mark Rosenow, U.S. Air Force, Special Victims Unit, Chief

of Policy and Coordination

• Lieutenant Colonel Michael Sayegh, U.S. Marine Corps, Staff Judge

Advocate, Training Command

• Ms. Teresa Scalzo, U.S. Navy, Highly Qualified Expert, Trial

Counsel Assistance Program

• Congresswoman Jackie Speier (D-14th CA)

• Lieutenant Commander Ryan Stormer, U.S. Navy, Trial Counsel

Assistance Program

• Lieutenant Colonel Chris Thielemann, U.S. Marine Corps, Regional

Trial Counsel

• Professor Rachel VanLandingham, Southwestern Law School

• Lieutenant Colonel James Varley, U.S. Army, Government Appellate

Division

• Mr. Ronald White, former Highly Qualified Expert for the U.S.

Army Trial Defense Services

• Colonel Terri Zimmermann, U.S. Marine Corps, Officer-in-Charge

(Reserve), Defense Services Organization
57

APPENDIX D: JUDICIAL PROCEEDINGS PANEL AND SUBCOMMITTEE MEETINGS

MEETINGS PRESENTERS

October 10, 2014

Public Meeting of the JPP

Holiday Inn Arlington 

at Ballston 

Arlington, VA

• Colonel John Baker, U.S. Marine Corps, Deputy Director, Judge

Advocate Division, Military Justice & Community Development

• Mr. William Barto, U.S. Army, Director, Advocacy Training and

Programs, Criminal Law Division, Office of the Judge Advocate

General

• Major Rebecca DiMuro, U.S. Army, Special Victim Prosecutor

• Professor Clifford Fishman, Catholic University School of Law

• Mr. Ryan Guilds, Counsel, Arnold & Porter LLP

• Major Andrea Hall, U.S. Air Force, Senior Defense Counsel

• Major Pete Houtz, U.S. Marine Corps, Regional Trial Counsel

• Mr. Greg Jacob, Policy Director, Service Women’s Action Network

• Ms. Laurie Rose Kepros, Director of Sexual Litigation, Colorado

Office of the State Public Defender

• Ms. Viktoria Kristiansson, Attorney Advisor, Æquitas

• Ms. Jennifer Long, Director, Æquitas

• Ms. Miranda Petersen, Program & Policy Director, Protect Our

Defenders

• Major Matthew Powers, U.S. Marine Corps, Senior Defense

Counsel

• Ms. Patricia Powers, Senior Deputy Prosecuting Attorney, Yakima

County, Washington, Prosecuting Attorney’s Office

• Commander Stephen Reyes, U.S. Navy, Director, Defense Counsel

Assistance Program

• Major Shari Shugart, U.S. Army, Senior Defense Counsel

• Commander Jonathan Stephens, U.S. Navy, Senior Trial Counsel,

Region Legal Service Office Mid-Atlantic

• Lieutenant Colonel Brian Thompson, U.S. Air Force, Chief Senior

Trial Counsel, Government Trial and Appellate Counsel Division
58

FINAL REPORT

MEETINGS PRESENTERS

November 14, 2014

Public Meeting of the JPP

Holiday Inn Arlington 

at Ballston 

Arlington, VA

• Mr. Michael Andrews, Project Director and Managing Attorney,

District of Columbia Crime Victims’ Resource Center

• Major William Babor, U.S. Air Force, Senior Defense Counsel

• Lieutenant Jeffrey Barnum, U.S. Coast Guard, Trial Counsel

• Mr. James Boerner, Special Agent, Army Criminal Investigative

Command

• Lieutenant Colonel Andrea deCamara, U.S. Air Force, Chief,

Special Victims’ Counsel Division

• Mr. Mike DeFamio, Supervisory Special Agent, U.S. Naval Criminal

Investigative Service

• Captain Karen Fischer-Anderson, U.S. Navy, Chief of Staff, Victims’

Legal Counsel

• Commander Ted Fowles, U.S. Coast Guard, Chief, Office of Special

Victims’ Counsel

• Ms. Meg Garvin, Executive Director, National Crime Victims’ Law

Institute

• Lieutenant Commander Philip Hamon, U.S. Navy, Senior Trial

Counsel, Region Legal Service Office, Naval District Washington

• Major Douglas Hatch, U.S. Marine Corps, Senior Complex Trial

Counsel, Legal Support Section West

• Lieutenant Colonel Scott Hutmacher, U.S. Army, Special Victim

Prosecutor

• Captain Brent Jones, U.S. Air Force, Senior Trial Counsel, Air Force

Legal Operations Agency

• Colonel Carol Joyce, U.S. Marine Corps, Officer in Charge, Victims’

Legal Counsel Organization

• Major Kyle Kilian, U.S. Marine Corps, Senior Defense Counsel

• Captain Aaron Kirk, U.S. Air Force, Special Victims’ Counsel

• Colonel James Robert McKee, U.S. Army, Program Manager,

Special Victims’ Counsel Program

• Lieutenant Colonel Ryan Oakley, Deputy Director, Legal Policy,

Office of the Under Secretary of Defense for Personnel and

Readiness

• Captain Sarah Robbins, U.S. Army, Trial Defense Counsel

• Commander Colleen Shook, U.S. Navy, Officer in Charge, Victims’

Legal Program Mid-Atlantic

• Captain Jessie Sommer, U.S. Army, Chief, 82nd Airborne Division

Legal Assistance Office and Special Victims’ Counsel

• Mr. Victor Stone, JPP Member

Continued
59

APPENDIX D: JUDICIAL PROCEEDINGS PANEL AND SUBCOMMITTEE MEETINGS

MEETINGS PRESENTERS

November 14, 2014

Public Meeting of the JPP

Holiday Inn Arlington 

at Ballston 

Arlington, VA

Continued

• Major Marc Tilney, U.S. Marine Corps, Regional Victims’ Legal

Counsel

• Mr. Mark Walker, Sexual Assault Investigations and Operations

Consultant to the Sexual Assault Prevention and Response Office,

Air Force Office of Special Investigations

• Lieutenant Commander Kismet Wunder, U.S. Coast Guard, Special

Victims’ Counsel

December 12, 2014

Public Meeting of the JPP

Holiday Inn Arlington at 

Ballston 

Arlington, VA

• Ms. Gloria Arteaga, U.S. Navy, Sexual Assault Response

Coordinator

• Colonel John Baker, U.S. Marine Corps, Deputy Director, Judge

Advocate Division, Military Justice and Community Development

• Ms. Marie Brodie, U.S. Marine Corps Installation Sexual Assault

Response Coordinator

• Lieutenant General Christopher Burne, U.S. Air Force, The Judge

Advocate General

• Colonel (Retired) Don Christensen, U.S. Air Force, President,

Protect Our Defenders

• Lieutenant General Flora Darpino, U.S. Army, The Judge Advocate

General

• Lieutenant Kathryn DeAngelo, U.S. Navy, Victims’ Legal Counsel

and Airman V.T.

• Vice Admiral Nannette DeRenzi, U.S. Navy, Judge Advocate General

• Ms. Phylista Dudzinski, U.S. Air Force, Sexual Assault Response

Coordinator

• Ms. Simone Hall, U.S. Coast Guard, Sexual Assault Response

Coordinator

• Major William Ivins III, U.S. Marine Corps, Regional Victims’ Legal

Counsel-West, and Ms. J.B.

• Sergeant First Class Bridgett Joseph, U.S. Army, Sexual Assault

Response Coordinator

• Captain Christopher Mangels, U.S. Air Force, Special Victims’

Counsel, and Ms. R.S.

• Rear Admiral Steven Poulin, U.S. Coast Guard, Judge Advocate

General and Chief Counsel

• Lieutenant Commander Kelley Stevens, U.S. Coast Guard, Special

Victims’ Counsel and Petty Officer N.S.

• Captain Brian Stransky, U.S. Army, Operational Law Attorney and

Specialist A.S.
60

FINAL REPORT

MEETINGS PRESENTERS

January 16, 2015

Public Meeting of the JPP

U.S. District Court for 

the District of Columbia 

Washington, DC

• Panel Deliberations (no speakers)

January 30, 2015

Public Meeting of the JPP

One Liberty Center 

Arlington, VA

• Panel Deliberations (no speakers)
61

APPENDIX D: JUDICIAL PROCEEDINGS PANEL AND SUBCOMMITTEE MEETINGS

MEETINGS PRESENTERS

March 13, 2015

Public Meeting of the JPP

U.S. District Court for 

the District of Columbia 

Washington, DC

• Captain Joseph Ahlers, U.S. Air Force, Special Victims’ Counsel

• Colonel John Baker, U.S. Marine Corps, Chair, Joint Service

Committee on Military Justice

• Ms. Nikki Charles, Co-Executive Director, Network for Victim

Recovery of DC, and former Administrator of Victim Services,

Maryland Criminal Injuries Compensation Board

• Major Richard Cloninger, U.S. Marine Corps, Regional Victims’

Legal Counsel

• Mr. Charles Cosgrove, U.S. Army, Chief, Programs Branch,

Criminal Law Division, Office of the Judge Advocate General

• Mr. Dan Eddy, Executive Director, National Association of Crime

Victim Compensation Boards

• Professor Julie Goldscheid, the City University of New York School

of Law

• Ms. Bridgette Marie Harwood, Director of Legal Services, Network

for Victim Recovery of DC

• Ms. Susan Smith Howley, Director, Public Policy, National Center

for Victims of Crime

• Lieutenant Commander Patrick Korody, U.S. Navy, Supervising

Attorney, Victims’ Legal Counsel Program

• Professor Cortney Lollar, University of Kentucky College of Law

• Colonel Michael Mulligan, U.S. Army, Chief, Criminal Law

Division, Office of the Judge Advocate General

• Professor Njeri Mathis Rutledge, South Texas College of Law

• Mr. Gene McCleskey, Director, Texas Crime Victims’ Compensation

Program

• Ms. Kathy Nelson, U.S. Air Force, Victim Witness Assistance

Program (by telephone)

• Major Mary Ellen Payne, U.S. Air Force, Government Trial and

Appellate Counsel Division, Air Force Legal Operations Agency

• Ms. Laura Banks Reed, Director, DC Superior Court Crime Victims

Compensation Program

• Major Mark Sameit, U.S. Marine Corps, Officer in Charge, Trial

Counsel Assistance Program

• Ms. Teresa Scalzo, Deputy Director, U.S. Navy, Trial Counsel

Assistance Program

• Ms. Lindsey Silverberg, Advocacy and Outreach Supervisor,

Network for Victim Recovery of DC
62

FINAL REPORT

MEETINGS PRESENTERS

April 9, 2015

Meeting of the JPP 

Subcommittee 

One Liberty Center 

Arlington, VA

• Colonel (Retired) Tim Grammel, U.S. Army, former Military Judge

• Commander (Retired) John Maksym, U.S. Navy, former Military

Judge

• Colonel (Retired) William Orr, U.S. Air Force, former Military

Judge

• Professor Stephen Schulhofer, New York University School of Law

• Mr. Dwight Sullivan, Department of Defense, Office of General

Counsel

• Lieutenant Colonel (Retired) Quincy Ward, U.S. Marine Corps,

former Military Judge
63

APPENDIX D: JUDICIAL PROCEEDINGS PANEL AND SUBCOMMITTEE MEETINGS

MEETINGS PRESENTERS

April 10, 2015

Public Meeting of the JPP

U.S. District Court for 

the District of Columbia 

Washington, DC

• Mr. Jay Aanrud, U.S. Air Force, Deputy Director, Headquarters,

Sexual Assault Prevention and Response

• Ms. Julia Andrews, U.S. Coast Guard, Chair, Board for Correction

of Military Records

• Dr. Lilia Cortina, Professor, University of Michigan

• Ms. Monique Ferrell, Director, U.S. Army, Sexual Harassment/

Assault Response and Prevention

• Dr. Nathan Galbreath, Department of Defense, Senior Executive

Advisor, Sexual Assault Prevention and Response Office

• Mr. Patrick Gookin, Director, Department of Defense Inspector

General Hotline & Whistleblower Protection Ombudsman

• Dr. Patricia Harned, Chief Executive Officer, Ethics & Compliance

Initiative

• Mr. Douglas Huff, U.S. Army, Legal Advisor, Review Boards

Agency

• Colonel Scott Jensen, U.S. Marine Corps, Branch Head,

Headquarters, Sexual Assault Prevention and Response

• Dr. Vicki Magley, Professor, University of Connecticut

• Mr. Michael Noone, Professor, Columbus Law School, Catholic

University

• Mr. Jon Ruskin, Counsel, Board for Correction of Naval Records

• Major General Jeffrey Snow, Director, DoD Headquarters, Sexual

Assault Prevention and Response Office

• Rear Admiral Richard Snyder, Director, Twenty-First Century Sailor

Office

• Dr. Matthew Soulier, Professor, University of California, Davis

• Ms. Nilgun Tolek, Director, DoD Inspector General Whistleblower

Reprisal Investigations

• Mr. John Vallario, U.S. Air Force, Deputy Executive Director, Board

for Correction of Military Records

• Dr. Veronique Valliere, Valliere & Counseling Associates, Inc.
64

FINAL REPORT

MEETINGS PRESENTERS

May 7, 2015

Meeting of the JPP 

Subcommittee

Thurgood Marshall 

U.S. Courthouse

New York, NY

• Major Aimee Bateman, U.S. Army, The Judge Advocate General’s

Legal Center and School

• Colonel (Retired) Don Christensen, U.S. Air Force, President,

Protect Our Defenders

• Lieutenant Commander Richard Federico, U.S. Navy, Senior

Defense Counsel

• Colonel Mark Jamison, U.S. Marine Corps, Director, Navy-Marine

Corps Appellate Government Division

• Lieutenant Commander Stuart Kirkby, U.S. Navy, Staff Attorney,

Navy-Marine Corps Appellate Review Activity

• Major Frank Kostik, U.S. Army, Senior Defense Counsel

• Major Mary Ellen Payne, U.S. Air Force, Government Appellate

Division

• Lieutenant Colonel Alex Pickands, U.S. Army, Trial Counsel

Assistance Program

• Lieutenant Colonel Julie Pitvorec, U.S. Air Force, Chief Senior

Defense Counsel

• Major Mark Rosenow, U.S. Air Force, Special Victims Unit, Chief

of Policy and Coordination

• Major Thomas Smith, U.S. Air Force, Defense Appellate Division

• Mr. Zachary Spilman, Attorney at Law

• Major John Stephens, U.S. Marine Corps, Navy-Marine Corps

Appellate Defense Division

• Lieutenant Colonel Christopher Thielemann, U.S. Marine Corps,

Regional Trial Counsel

• Captain Jihan Walker, U.S. Army, Government Appellate Division

• Mr. John Wilkinson, Attorney Advisor, Æquitas

• Colonel Terri Zimmermann, U.S. Marine Corps, Chief Reserve

Defense Counsel of the Marine Corps
65

APPENDIX D: JUDICIAL PROCEEDINGS PANEL AND SUBCOMMITTEE MEETINGS

MEETINGS PRESENTERS

May 19, 2015

Public Meeting of the JPP

U.S. District Court for 

the District of Columbia 

Washington, DC

• Ms. Kim Agnew, U.S. Navy, Sexual Assault Response Coordinator

• Staff Sergeant E.A., U.S. Army

• Ms. Marie Brodie, U.S. Marine Corps, Sexual Assault Response

Coordinator

• Colonel Allen Broughton, U.S. Marine Corps, Chief of Staff,

Marine Corps Installations National Capital Region

• Ms. Susan Burke, Victim Counsel, Law Offices of Susan L. Burke

• Ms. C.B., former U.S. Air Force Enlisted Member

• 1st Lieutenant C.B., U.S. Army

• Ms. Sara Darehshori, Senior Counsel, Human Rights Watch,

U.S. Program

• Captain Heidi Fleming, U.S. Navy, Commanding Officer

• Colonel Brian Foley, U.S. Army, Garrison Commander

• Petty Officer First Class S.F., U.S. Coast Guard

• Command Master Chief Kevin Goodrich, U.S. Navy

• Mr. Magnus Graham, U.S. Coast Guard, Sexual Assault Response

Coordinator

• Command Master Chief Jason Griffin, U.S. Coast Guard

• Brigadier General David Harris, U.S. Air Force, Commander

• Ms. A.H., Spouse of U.S. Air Force Staff Sergeant

• Master Sergeant Michelle Johnson, U.S. Army

• Sergeant First Class Bridgett Joseph, U.S. Army, Sexual Assault

Response Coordinator

• Lance Corporal J.J., U.S. Marine Corps

• Staff Sergeant N.L., U.S. Air Force

• Retaliation video featuring First Sergeant Katrina Moerk,

U.S. Army

• Petty Officer Third Class D.M., U.S. Coast Guard

• Staff Sergeant LeeAnn Nelson, U.S. Marine Corps, Uniformed

Victim Advocate

• Command Chief Master Sergeant Craig Neri, U.S. Air Force

• Ms. A.N., former U.S. Navy Petty Officer Second Class

• Ms. Nancy Pike, U.S. Air Force, Sexual Assault Response

Coordinator

• Captain V.P. (Retired), U.S. Army

• Ms. Meghan Rhoad, Researcher, Human Rights Watch, Women’s

Rights Division

Continued
66

FINAL REPORT

MEETINGS PRESENTERS

May 19, 2015

Public Meeting of the JPP

U.S. District Court for 

the District of Columbia 

Washington, DC

Continued

• Mr. Michael Starkey, U.S. Air Force, Sexual Assault Prevention and

Response Victim Advocate

• Technical Sergeant J.S. (Retired), U.S. Air Force

• Master Sergeant T.S., U.S. Air Force

• Major K.V., U.S. Air Force

• Captain Jeffrey Westling, U.S. Coast Guard, Commander

June 18, 2015

Public Meeting of the JPP

George Washington 

University 

Washington, DC

• Mr. Dan Eddy, Executive Director, National Association of Crime

Victim Compensation Boards

• Mr. Kenneth Feinberg, Founder and Managing Partner, Feinberg

Rozen, LLP (by telephone)

• Major Chantell Higgins, U.S. Marine Corps, Victims’ Legal Counsel

• Ms. Mary Kaye Justis, Director, TRICARE Health Plan

• Dr. Cara J. Krulewitch, Certified Nurse-Midwife, Fellow of the

American College of Nurse Midwives, Director, Women’s Health,

Medical Ethics and Patient Advocacy

• Captain George “Rob” Lavine III, Senior Special Victims’ Counsel

• Ms. Stephanie Li, Chief, Regulations and Policy Staff,

Compensation Service, Veterans Benefits Administration

• Mr. R. Peter Masterton, U.S. Army, Chief, European Tort Claims

Division, U.S. Army Claims Service Europe

• Dr. Stacey Pollack, National Director of Program Policy

Implementation, Veterans Health Administration

• Ms. Jennifer Riley, Assistant General Counsel for Military and

Civilian Pay, Defense Finance and Accounting Services

• Captain Micah Smith, U.S. Air Force, Special Victims’ Counsel

• Lieutenant Commander James Toohey, U.S. Navy, Victims’ Legal

Counsel

• Ms. Diana M. Williard, Quality Assurance Officer, Compensation

Service, Veterans Benefits Administration

• Lieutenant Commander Kismet Wunder, U.S. Coast Guard, Special

Victims’ Counsel

• Ms. Donna Adams (public comment)
67

APPENDIX D: JUDICIAL PROCEEDINGS PANEL AND SUBCOMMITTEE MEETINGS

MEETINGS PRESENTERS

June 25, 2015

Meeting of the JPP 

Subcommittee

Moynihan Courthouse

New York, NY

• Lieutenant Colonel Christopher Kennebeck, U.S. Army, Deputy

Staff Judge Advocate

• Brigadier General Charles Pede, U.S. Army, Commander/

Commandant, The Judge Advocate General’s Legal Center and

School

• Mr. Dwight Sullivan, Department of Defense, Office of the General

Counsel

July 22, 2015

Meeting of the JPP 

Subcommittee

One Liberty Center 

Arlington, VA

• Major General Peggy Combs, U.S. Army, Commanding General,

U.S. Army Cadet Command and Fort Knox

• Major General Gina Grosso, U.S. Air Force, Director, Sexual

Assault Prevention and Response

• Brigadier General Austin Renforth, U.S. Marine Corps,

Commanding General, Training Command

• Major General (Retired) Robert Shadley, U.S. Army

• Rear Admiral Cari Thomas, U.S. Coast Guard, Assistant

Commandant for Human Resources

• Major General (Retired) Margaret Woodward, U.S. Air Force

August 6, 2015

Public Meeting of the JPP

George Washington 

University 

Washington, DC

• Panel Deliberations (no speakers)
68

FINAL REPORT

MEETINGS PRESENTERS

August 27, 2015

Meeting of the JPP 

Subcommittee

One Liberty Center 

Arlington, VA

• Mr. John Awtrey, Department of Defense, Director, Law

Enforcement Policy and Support

• Lieutenant Commander Paul Casey, U.S. Coast Guard, Staff Judge

Advocate

• Lieutenant Commander Benedict Gullo, U.S. Coast Guard, Deputy

Staff Judge Advocate

• Major Tyler Heimann, U.S. Army, former Special Victim Prosecutor

• Lieutenant Paul Hochmuth, U.S. Navy, Officer in Charge, Defense

Service Office Southeast

• Major Adam King, U.S. Marine Corps, Senior Trial Counsel

• Colonel David Mendelson, U.S. Army, Staff Judge Advocate

• Colonel Brynn Morgan, U.S. Air Force, Staff Judge Advocate

• Captain Charles Olson, U.S. Marine Corps, Defense Counsel

• Major Mary Ellen Payne, U.S. Air Force, Appellate Counsel,

Government Trial and Appellate Division

• Lieutenant Commander Ben Robertson, U.S. Navy, Senior Trial

Counsel

• Captain Lauren Shure, U.S. Air Force, Appellate Defense Counsel

• Major Ryan Wardle, U.S. Army, Senior Defense Counsel

• Lieutenant Colonel Brett Wilson, U.S. Marine Corps Reserves

September 17, 2015

Meeting of the JPP 

Subcommittee

One Liberty Center 

Arlington, VA

• Congresswoman Lois Frankel (D-22nd FL)

• Ms. Elisha Morrow, former U.S. Coast Guard
69

APPENDIX D: JUDICIAL PROCEEDINGS PANEL AND SUBCOMMITTEE MEETINGS

MEETINGS PRESENTERS

September 18, 2015

Public Meeting of the JPP

Holiday Inn Arlington at 

Ballston 

Arlington, VA

• Dr. Nathan Galbreath, Department of Defense, Senior Executive

Advisor, Sexual Assault Prevention and Response Office

• Dr. James Lynch, Professor and Chair, Department of Criminology

and Criminal Justice, University of Maryland

• Major General Camille Nichols, U.S. Army, Director, DoD Sexual

Assault Prevention and Response Office

• Mr. Glenn Schmitt, Director, Office of Research and Data at the

U.S. Sentencing Commission

• Dr. Howard Snyder, Deputy Director, Bureau of Justice Statistics,

U.S. Department of Justice

• Dr. Cassia Spohn, Foundation Professor and Director, Arizona State

University School of Criminology and Criminal Justice

October 9, 2015

Public Meeting of the JPP

Holiday Inn Arlington at 

Ballston 

Arlington, VA

• Mr. Thomas F. Fichter, Assistant Prosecutor, Monmouth County

Prosecutor’s Office and Director, Special Victim’s Unit

• Mr. Steven J. Grocki, Deputy Chief for Litigation, Child

Exploitation and Obscenity Section, Criminal Division, U.S.

Department of Justice

• Colonel Walter M. Hudson, U.S. Army, Chief, Criminal Law

Division, Office of the Judge Advocate General

• Lieutenant Commander Stuart Kirkby, U.S. Navy, Navy-Marine

Corps Appellate Review Activity

• Mr. Stephen P. McCleary, U.S. Coast Guard, Senior Military Justice

Counsel and Chief Prosecutor, Office of Military Justice, Office of

the Judge Advocate General

• Ms. Katherine E. Robertson, Family Advocacy Program Manager,

DoD Office of Family Readiness Policy

• Lieutenant Colonel Julie L. Rutherford, U.S. Air Force, Air Staff

Counsel, Air Force Sexual Assault Prevention and Response Office

• Ms. Darlene Sullivan, Defense Sexual Assault Incident Database

Program Manager, DoD Sexual Assault Prevention and Response

Office

• The Honorable Frank D. Whitney, United States Chief District

Judge, Western District of North Carolina (by telephone)

• Lieutenant Colonel Angela B. Wissman, U.S. Marine Corps, Branch

Head, Judge Advocate Division, Military Justice Branch

• Mr. Christopher Perry, Center for Prosecutor Integrity (public

comment)
70

FINAL REPORT

MEETINGS PRESENTERS

October 22, 2015

Meeting of the JPP 

Subcommittee

One Liberty Center 

Arlington, VA

• The Honorable Andrew Effron, former Chief Judge, U.S. Court of

Appeals for the Armed Forces, current Director, Military Justice

Review Group

November 6, 2015

Public Meeting of the JPP

Holiday Inn Arlington at 

Ballston 

Arlington, VA

• Dr. Nathan Galbreath, Department of Defense, Senior Executive

Advisor, Sexual Assault Prevention and Response Office

• Dr. Cassia Spohn, Foundation Professor and Director, Arizona State

University School of Criminology and Justice

• Mr. Howard Cooley, Jordan, Patrick & Cooley LLP, Attorneys at

Law (public comment)

• Mr. Christopher Perry, Program Director, Center for Prosecutor

Integrity (public comment)

November 19, 2015

Meeting (telephonic)

of the JPP Subcommittee

One Liberty Center 

Arlington, VA

• Subcommittee Deliberations (no speakers)

December 2, 2015

Meeting (telephonic)

of the JPP Subcommittee

One Liberty Center 

Arlington, VA

• Subcommittee Deliberations and Review of Draft Report

(no speakers)
71

APPENDIX D: JUDICIAL PROCEEDINGS PANEL AND SUBCOMMITTEE MEETINGS

MEETINGS PRESENTERS

December 11, 2015

Public Meeting of the JPP

Holiday Inn Arlington at 

Ballston 

Arlington, VA

• Dean Michelle Anderson, JPP Subcommittee Member

• Ms. Laurie Rose Kepros, JPP Subcommittee Member

• Dean Lisa Schenck, JPP Subcommittee Member

• Professor Stephen Schulhofer, JPP Subcommittee Member

• Brigadier General (Retired) James Schwenk, U.S. Marine Corps, JPP

Subcommittee Member

• Ms. Jill Wine-Banks, JPP Subcommittee Member

• Dr. E. Edward Bartlett, President, Center for Prosecutor Integrity

(public comment)

January 15, 2016

Public Meeting of the JPP

Holiday Inn Arlington at 

Ballston 

Arlington, VA

• Panel Deliberations (no speakers)

January 22, 2016

Public Meeting of the JPP

Holiday Inn Arlington at 

Ballston 

Arlington, VA

• Ms. Meghan Peters, JPP Staff Attorney

• Dr. Cassia Spohn, Foundation Professor and Director, Arizona State

University School of Criminology and Justice

March 11, 2016

Public Meeting of the JPP

Holiday Inn Arlington at 

Ballston 

Arlington, VA

• Panel Deliberations (no speakers)
72

FINAL REPORT

MEETINGS PRESENTERS

April 8, 2016

Public Meeting of the JPP

Holiday Inn Arlington at 

Ballston 

Arlington, VA

• Lieutenant Colonel Bret Batdorff, U.S. Army, Chief, Trial Counsel

Assistance Program

• Ms. Julie Carson, JPP Staff Attorney and Legislative Liaison

• Ms. Christa Cothrel, U.S. Coast Guard Special Victims’ Counsel

Program Manager

• Colonel Andrea deCamara, U.S. Air Force, Chief, Special Victims’

Counsel Division

• Captain Karen Fischer-Anderson, U.S. Navy, Chief of Staff, Navy

Victims’ Legal Counsel Program

• Special Agent Jeremy Gauthier, Deputy Assistant Director,

Criminal Investigations & Operations Directorate, Naval Criminal

Investigative Service Headquarters

• Mr. John Hartsell, U.S. Air Force, Associate Chief, Military Justice

Division

• Colonel Elizabeth Marotta, U.S. Army, Special Victims’ Counsel

Program Manager

• Colonel Katherine McDonald, U.S. Marine Corps, Officer in

Charge, Victim’s Legal Counsel Organization

• Captain Bradley Palmer, U.S. Air Force, Special Victims Unit, Senior

Trial Counsel

• Mr. Kevin Poorman, U.S. Air Force, Associate Director, Criminal

Headquarters, Air Force Office of Special Investigations

• Major Jesse Schweig, U.S. Marine Corps, Officer in Charge, Trial

Counsel Assistance Program

• Lieutenant Commander Ryan Stormer, U.S. Navy, Deputy Chief,

Trial Counsel Assistance Program

• Mr. Guy Surian, U.S. Army, Deputy Chief of Investigative

Operations, Investigative Policy and Criminal Intelligence

• Ms. Christa Thompson, U.S. Army, Special Victim Witness Liaison

Program Manager

• Ms. Beverly Vogel, Sex Crimes Program Manager, U.S. Coast Guard

Investigative Service

• Mr. William Yables, Jr., U.S. Marine Corps, Paralegal Specialist,

Installation Victim Witness Liaison Officer
73

APPENDIX D: JUDICIAL PROCEEDINGS PANEL AND SUBCOMMITTEE MEETINGS

MEETINGS PRESENTERS

May 13, 2016

Public Meeting of the JPP

The Judge Advocate 

General’s Legal Center and 

School 

Charlottesville, VA

• Lieutenant Colonel Bret Batdorff, U.S. Army, Chief, Trial Counsel

Assistance Program

• Colonel Daniel Brookhart, U.S. Army, Chief, Trial Defense Service

• Ms. Charlotte Cluverius, U.S. Navy, Deputy Chief of Staff, Victims’

Legal Counsel Program

• Colonel Kirk Davies, U.S. Air Force, Commandant, The Judge

Advocate General’s School

• Colonel Andrea deCamara, U.S. Air Force, Chief, Special Victims’

Counsel Division

• Ms. Julia Hejazi, U.S. Marine Corps, Highly Qualified Expert, Trial

Counsel Assistance Program

• Colonel Daniel Higgins, U.S. Air Force, Chief, Trial Defense

Division

• Lieutenant Colonel Christopher Kennebeck, U.S. Army, Chair and

Professor, Criminal Law Department

• Captain John Luce, U.S. Coast Guard, Chief, Legal Policy and

Program Development

• Commander Michael Luken, U.S. Navy, Chief, Trial Counsel

Assistance Program

• Colonel Katherine McDonald, U.S. Marine Corps, Officer in

Charge, Victim Legal Counsel Organization

• Colonel Katherine Oler, U.S. Air Force, Chief, Government Trial

and Appellate Counsel Division

• Brigadier General Charles Pede, U.S. Army, Commander/

Commandant, The Judge Advocate General’s Legal Center and

School

• Commander Stephen Reyes, U.S. Navy, Director, Defense Counsel

Assistance Program

• Major Jesse Schweig, U.S. Marine Corps, Officer-In-Charge, Trial

Counsel Assistance Program

• Lieutenant Colonel Hanorah Tyer-Witek, U.S. Marine Corps,

Executive Officer, Naval Justice School

• Colonel Terri Zimmermann, U.S. Marine Corps, Officer in Charge

(Reserve), Defense Services Agency
74

FINAL REPORT

MEETINGS PRESENTERS

September 23, 2016

Public Meeting of the JPP

One Liberty Center 

Arlington, VA

• Judge James Baker, former Chief Judge, United States Court of

Appeals for the Armed Forces

• Mr. Roger Bruce, U.S. Air Force, Senior Appellate Government

Counsel (by phone)

• Lieutenant Colonel Christopher Carrier, U.S. Army, Chief, Capital

and Complex Litigation Branch

• Captain Andrew House, U.S. Navy-Marine Corps, Director,

Appellate Defense Division

• Major Anne Hsieh, U.S. Army, Senior Appellate Government

Attorney and Branch Chief

• Mr. Brian Keller, U.S. Navy-Marine Corps, Supervisory Appellate

Counsel

• Colonel (Retired) Denise Lind, former Senior Judge, Army Court of

Criminal Appeals

• Lieutenant Commander Michael Meyer, U.S. Coast Guard, Chief,

Defense Services Division

• Lieutenant Robert Miller, U.S. Navy, Appellate Government

Counsel

• Mr. Brian Mizer, U.S. Air Force, Senior Appellate Defense Counsel

• Lieutenant Tereza Ohley, U.S. Coast Guard, Appellate Government

Counsel

• Colonel (Retired) William Orr, former Chief Judge, Air Force Court

of Criminal Appeals

• Rear Admiral (Retired) Christian Reismeier, former Chief Judge,

Navy-Marine Corps Court of Criminal Appeals

• Major Lauren Shure, U.S Air Force, Appellate Defense Counsel

• Major Meredith Steer, U.S. Air Force, Appellate Government

Counsel
75

APPENDIX D: JUDICIAL PROCEEDINGS PANEL AND SUBCOMMITTEE MEETINGS

MEETINGS PRESENTERS

October 14, 2016

Public Meeting of the JPP

Holiday Inn Arlington at 

Ballston 

Arlington, VA

• Colonel (Retired) Don Christensen, U.S. Air Force, President,

Protect Our Defenders

• Ms. Meg Garvin, Executive Director, National Crime Victim Law

Institute

• Mr. Ryan Guilds, Counsel, Arnold & Porter LLP

• Mr. Chris Johnson, Chief Appellate Defender for the State of New

Hampshire (by telephone)

• Mr. Jason Middleton, Supervising Deputy State Public Defender,

Appellate Division, Colorado State Public Defender

• Ms. Ann Vallandingham, Senior Policy Advisor to the Director,

Office for Victims of Crime, U.S. Department of Justice

November 18, 2016

Public Meeting of the JPP

One Liberty Center 

Arlington, VA

• Major Harlye Carlton, U.S. Marine Corps, Executive Secretary,

Joint Service Committee on Military Justice

• Captain Andrew House, U.S. Navy, Director, Navy-Marine Corps

Appellate Defense Division

• Mr. Stephen McCleary, Senior Military Justice Counsel, U.S. Coast

Guard

• Colonel (Retired) William Orr, Jr., U.S. Air Force, former Chief

Judge, U.S. Air Force Court of Criminal Appeals

• Colonel William Pigott, Jr., U.S. Marine Corps, Chair, Joint Service

Committee on Military Justice

• Lieutenant Colonel Mary Catherine Vergona, U.S. Army, Chief,

Policy Branch, Office of the Judge Advocate General

• Lieutenant Colonel Angela Wissman, U.S. Marine Corps Reserve,

Deputy Officer in Charge, Victims’ Legal Counsel Organization

December 9, 2016

Public Meeting of the JPP

Holiday Inn Arlington at 

Ballston 

Arlington, VA

• The Honorable Andrew Effron, Director, Military Justice Review

Group, Department of Defense

• Ms. Lisa Friel, JPP Subcommittee Member

• Ms. Laurie Kepros, JPP Subcommittee Member

• Dean Lisa Schenck, JPP Subcommittee Member

• Brigadier General (Retired) James Schwenk, U.S. Marine Corps,

JPP Subcommittee Member

• Mr. Dwight Sullivan, Department of Defense, Office of General

Counsel

• Ms. Jill Wine-Banks, JPP Subcommittee Member
76

FINAL REPORT

MEETINGS PRESENTERS

December 21, 2016

Meeting (telephonic)

of the JPP Subcommittee

One Liberty Center 

Arlington, VA

• Subcommittee Deliberations and Review of Draft Report

(no speakers)

January 5, 2017

Meeting of the JPP 

Subcommittee

One Liberty Center 

Arlington, VA

• Major Emilee Elbert, U.S. Army, Deputy Chief, Trial Counsel

Assistance Program

• Special Agent Diane Kelley, Department of Defense, Office of

Inspector General

• Colonel William R. Kern, U.S. Army, Professional Responsibility

Branch

• Commander Cassie Kitchen, U.S. Coast Guard, Chief, Military

Justice and Command Advice

• Mr. Steven Knight, Department of Defense, Office of Inspector

General

• Commander Michael Luken, U.S. Navy, Director, Trial Counsel

Assistance Program

• Lieutenant Colonel Nicholas Martz, U.S. Marine Corps, Military

Justice Branch Head

• Colonel Katherine Oler, U.S. Air Force, Chief, Government Trial

and Appellate Counsel Division

• Colonel (Retired) Kathryn Stone, U.S. Army, Attorney Advisor,

Professional Responsibility Branch Head
77

APPENDIX D: JUDICIAL PROCEEDINGS PANEL AND SUBCOMMITTEE MEETINGS

MEETINGS PRESENTERS

January 6, 2017

Public Meeting of the JPP

Holiday Inn Arlington at 

Ballston 

Arlington, VA

• Major James Argentina, Jr., U.S. Marine Corps, Senior Defense

Counsel

• Captain Brad Dixon, U.S. Army, Trial Counsel Assistance Program

Training Officer

• Captain Christopher Donlin, U.S. Army, Special Victims’ Counsel

• Lieutenant Colonel (Retired) Wade Faulkner, U.S. Army, former

Military Trial Judge

• Captain September Foy, U.S. Air Force, Special Victims’ Counsel

• Lieutenant Colonel (Retired) Elizabeth Harvey, U.S. Marine Corps,

former Military Trial Judge

• Major Benjamin Henley, U.S. Air Force, Senior Defense Counsel

• Lieutenant Commander Elizabeth Hutton, U.S. Coast Guard,

Special Victims’ Counsel

• Commander Cassie Kitchen, U.S. Coast Guard, former Military

Trial Judge

• Commander Mike Luken, U.S. Navy, former Military Trial Judge

• Major Ryan Reed, U.S. Air Force, Senior Trial Counsel, Special

Victims’ Unit

• Major Marcia Reyes-Steward, U.S. Army, Senior Defense Counsel

• Lieutenant Commander Ben Robertson, U.S. Navy, Senior Trial

Counsel

• Lieutenant Colonel (Retired) Wendy Sherman, U.S. Air Force,

former Military Trial Judge

• Lieutenant Commander James Toohey, U.S. Navy, Victims’ Legal

Counsel

• Lieutenant Commander Rachel Trest, U.S. Navy, Senior Defense

Counsel

• Lieutenant Commander Geralyn van de Krol, U.S. Coast Guard,

Branch Chief, Trial Services, Coast Guard Legal Service Command

• Major Aran Walsh, U.S. Marine Corps, Regional Victims’ Legal

Counsel – West

• Major Adam Workman, U.S. Marine Corps, Legal Services Support

Team

January 24, 2017

Meeting (telephonic)

of the JPP Subcommittee

One Liberty Center 

Arlington, VA

• Subcommittee Deliberations and Review of Draft Report

(no speakers)
78

FINAL REPORT

MEETINGS PRESENTERS

February 8, 2017

Meeting (telephonic)

of the JPP Subcommittee

One Liberty Center 

Arlington, VA

• Subcommittee Deliberations and Review of Draft Report

(no speakers)

February 23, 2017

Meeting of the JPP 

Subcommittee

One Liberty Center 

Arlington, VA

• Subcommittee Deliberations (no speakers)

February 24, 2017

Public Meeting of the JPP

Holiday Inn Arlington 

at Ballston 

Arlington, VA

• Lieutenant Colonel Deanna Daly, U.S. Air Force, Senior Special

Victims’ Counsel for Appellate and Outreach at the Special Victims’

Counsel Division

• Ms. Lisa Friel, JPP Subcommittee Member

• Captain Andrew House, U.S. Navy, Director, Navy-Marine Corps

Appellate Division

• Ms. Laurie Kepros, JPP Subcommittee Member

• Mr. Stephen McCleary, U.S. Coast Guard, Deputy Chief of Staff

and Deputy Managing Counsel, Department of Homeland Security

• Colonel Katherine Oler, U.S. Air Force, Chief Government Trial and

Appellate Counsel Division

• Colonel (Retired) William Orr, Jr., U.S. Air Force, Chief, Strategic

Military Justice Legislation and Policy

• Colonel Jeffrey G. “Jeff” Palomino, U.S. Air Force, Chief, Appellate

Defense Division, Air Force Legal Operations Agency

• Dean Lisa Schenck, JPP Subcommittee Member

• Lieutenant Colonel Mary Catherine Vergona, U.S. Army, Chief,

Policy Branch, Criminal Law Division

• Ms. Jill Wine-Banks, JPP Subcommittee Member
79

APPENDIX D: JUDICIAL PROCEEDINGS PANEL AND SUBCOMMITTEE MEETINGS

MEETINGS PRESENTERS

February 28, 2017

Meeting (telephonic)

of the JPP Subcommittee

One Liberty Center 

Arlington, VA

• Subcommittee Deliberations and Review of Draft Report

(no speakers)

March 10, 2017

Public Meeting of the JPP

One Liberty Center

Arlington, VA

• Ms. Laurie Kepros, JPP Subcommittee Member

• Mr. James Martinson, U.S. Navy, Highly Qualified Expert

• Mr. Stephen McCleary, U.S. Coast Guard, Deputy Chief of Staff

and Deputy Managing Counsel, Department of Homeland Security

• Colonel (Retired) William Orr, Jr., U.S. Air Force, Chief Strategic

Military Justice Legislation and Policy

• Brigadier General (Retired) James Schwenk, U.S. Marine Corps, JPP

Subcommittee Member

• Lieutenant Colonel Mary Catherine Vergona, U.S. Army, Chief,

Policy Branch, Criminal Law Division

• Ms. Jill Wine-Banks, JPP Subcommittee Member

April 4, 2017

Meeting of the JPP 

Subcommittee

Bracewell LLP

 New York, NY

• Subcommittee Deliberations (no speakers)

April 7, 2017

Public Meeting of the JPP

One Liberty Center

Arlington, VA

• Dr. Nathan Galbreath, Senior Executive Advisor, Department of

Defense Sexual Assault Prevention and Response Office

• Ms. Kathy Robertson, Family Advocacy Program Manager, Office

of the Deputy Assistant Secretary, Military Community and Family

Policy, Department of Defense

• Dr. Cassia Spohn, Foundation Professor and Director, School of

Criminology and Criminal Justice, Arizona State University
80

FINAL REPORT

MEETINGS PRESENTERS

April 26, 2017

Meeting (telephonic)

of the JPP Subcommittee

One Liberty Center 

Arlington, VA

• Subcommittee Deliberations and Review of Draft Report

(no speakers)

May 3, 2017

Meeting (telephonic)

of the JPP Subcommittee

One Liberty Center

Arlington, VA

• Subcommittee Deliberations and Review of Draft Report

(no speakers)

May 18, 2017

Meeting of the JPP 

Subcommittee

One Liberty Center

Arlington, VA

• Subcommittee Deliberations (no speakers)

May 19, 2017

Public Meeting of the JPP

Holiday Inn Arlington at 

Ballston 

Arlington, VA

• Ms. Laurie Kepros, JPP Subcommittee Member

• Dean Lisa Schenck, 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 (no speakers)
81

APPENDIX D: JUDICIAL PROCEEDINGS PANEL AND SUBCOMMITTEE MEETINGS

MEETINGS PRESENTERS

July 26–27, 2017

Public Meeting of the JPP

One Liberty Center

Arlington, VA

• Panel Deliberations (no speakers)
82

FINAL REPORT
83

APPENDIX E: Reports and

Recommendations of the 

Judicial Proceedings Panel 

A. JUDICIAL PROCEEDINGS PANEL INITIAL REPORT (FEBRUARY 2015)

1. Implementation Process for Amendments to the Uniform Code of Military Justice

Recommendation 1: The Secretary of Defense examine the DoD and interagency review process for 

establishing guidance for implementing statutory provisions of the UCMJ and explore options to 

streamline the procedures.

2. Special Victims’ Counsel Program

Recommendation 2: The Secretary of Defense direct the Services to implement additional selection 

criteria requiring that judge advocates have adequate criminal justice experience before they are 

assigned as special victims’ counsel.

Recommendation 3: The Department of Defense develop a policy to standardize both the time frame 

within which to receive SVC training and the substantive requirements of SVC training.

Recommendation 4: The Secretary of Defense direct the Services to perform regular evaluations to 

ensure SVCs’ assignment to locations that maximize the opportunity for face-to-face interactions 

between SVCs and clients, and to develop effective means for SVCs to communicate with clients when 

face-to-face communication is not possible.

Recommendation 5: The Secretary of Defense establish appropriate SVC program performance 

measures and standards, including evaluating, monitoring, and reporting on the SVC programs; 

establishing guiding principles for the Services; and ensuring centralized, standardized assessment of 

SVC program effectiveness and client satisfaction.

Recommendation 6: The Secretary of Defense direct the Services to ensure SVCs and victims have 

appropriate access to docketing information and case filings. In part, this could be accomplished by 

adopting an electronic system akin to the civilian PACER (Public Access to Court Electronic Records) 

service.

Recommendation 7: The Secretary of Defense direct the Services to establish uniform practices and 

procedures concerning SVCs’ participation for all military judicial proceedings.

3. Victims’ Rights

Recommendation 8: The Secretary of Defense consider establishing expedited procedures for victims to 

seek mandatory interlocutory review in the Service Courts of Criminal Appeals of any alleged violation 

of victims’ rights.
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Recommendation 9: The Secretary of Defense propose timely revisions to statutes, the Manual for 

Courts-Martial (MCM), and/or regulations to extend eligibility for SVC representation so long as a 

right of the victim exists and is at issue.

4. Military Rules of Evidence 412 (Past sexual behavior) and 513 (Psychotherapist-patient privilege)

Recommendation 10: The President sign an executive order eliminating the “constitutionally required” 

exception within M.R.E. 412 at Article 32 hearings.

Recommendation 11: The Secretary of Defense issue specific, uniform guidance to ensure that mental 

health records are neither sought from a medical treatment facility by investigators or military justice 

practitioners nor acknowledged or released by medical treatment facility personnel until a military 

judge or Article 32 hearing officer has ordered their production.

5. Article 120 of the Uniform Code of Military Justice

Non-Enumerated Recommendations: The JPP believes that bifurcating different types of sex offenses 

under the UCMJ is not necessary at this time and would create further confusion. The JPP recommends 

against this action and does not believe that further evaluation of this issue is warranted. 

The JPP recommends that a subcommittee conduct further evaluation and provide recommendations 

[on 17 specific questions related to Article 120, UCMJ, and coercive sexual relationships and situations 

involving abuse of authority].

B. JUDICIAL PROCEEDINGS PANEL REPORT ON RESTITUTION AND

COMPENSATION FOR MILITARY ADULT SEXUAL ASSAULT CRIMES

(FEBRUARY 2016)

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

compensation for unreimbursed out-of-pocket expenses of victims of sexual assault crimes committed 

by Service members.

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

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

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

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

government and the accused.

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

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

convening authority enters into a pretrial agreement.

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

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

of sexual assault crimes committed by Service members.

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

include bodily harm among the injuries meriting compensation for redress.
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APPENDIX E: REPORTS AND RECOMMENDATIONS OF THE JUDICIAL PROCEEDINGS PANEL 

C. JUDICIAL PROCEEDINGS PANEL REPORT ON ARTICLE 120 OF THE

UNIFORM CODE OF MILITARY JUSTICE (FEBRUARY 2016)

Recommendation 18: Congress should amend the definition of “consent” in Article 120(g)(8) of the 

Uniform Code of Military Justice.

Recommendation 19: The President should amend the Manual for Courts-Martial to specifically state 

that consent (as an attack on proof) and mistake of fact as to consent (as a clearly delineated defense) 

may be raised in any case in which they are relevant.

Recommendation 20: Congress should amend Article 120 of the Uniform Code of Military Justice to 

provide a definition of the term “incapable of consenting” for cases under Article 120(b) and (d), and 

the President should provide further executive guidance about the circumstances to consider when 

considering whether a victim was incapable of consenting.

Recommendation 21: Congress should amend and replace the reference in Article 120(b)(1)(B) of 

the Uniform Code of Military Justice to “causing bodily harm” and should remove the definition of 

“bodily harm” from Article 120(g)(3).

Recommendation 22: Congress should amend the definitions of “sexual act” and “sexual contact” in 

Article 120(g)(1)–(2) of the Uniform Code of Military Justice.

Recommendation 23: Congress should adopt a new theory of liability in Article 120(b)(1)(E) of the 

Uniform Code of Military Justice for coercive sexual acts or contact in which a perpetrator has used 

position, rank, or authority to obtain compliance by the other person.

D. JUDICIAL PROCEEDINGS PANEL REPORT ON RETALIATION RELATED TO

SEXUAL ASSAULT OFFENSES (FEBRUARY 2016)

Recommendation 24: In the Department of Defense’s strategy addressing retaliation related to sexual 

assault, the Secretary of Defense specify (1) processes for reporting and investigating retaliation, (2) 

responsibility for the collection and monitoring of reports, and (3) mechanisms for tracking retaliation 

complaints and outcomes.

Recommendation 25: The Secretary of Defense and Service Secretaries develop a standardized form for 

reporting retaliation. The standardized form should be linked to DD Form 2910 in the Defense Sexual 

Assault Incident Database to properly track retaliation allegations related to sexual assault offenses, 

should provide victims of retaliation with the option to file an informal or formal retaliation report, 

and should be updated throughout the investigative and judicial process to ensure that the retaliation 

allegation is monitored and resolved.

Recommendation 26: The Secretary of Defense and Service Secretaries continue to provide multiple 

channels for Service members to report retaliation. In addition, the Secretary of Defense and Service 

Secretaries formally task installation sexual assault response coordinators (SARCs) with consolidating 

information from reports on retaliation, recording information on retaliation reports in the Defense 

Sexual Assault Incident Database, and ensuring that information about the investigation and resolution 

of retaliation claims is properly and fully monitored.
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FINAL REPORT

Recommendation 27: Congress require the Secretary of Defense and Service Secretaries to track 

retaliation allegations related to sexual assault offenses and publish information regarding retaliation 

complaints, investigations, and final dispositions in the Department’s annual report to Congress on 

sexual assault prevention and response.

Recommendation 28: The Secretary of Defense establish a policy that requires the DoD Office of 

Inspector General to investigate all complaints of professional retaliation related to sexual assault. The 

Secretary of Defense ensure that these investigations are prioritized and conducted by personnel with 

specialized training. The Secretary of Defense require the inspectors general to report the status of the 

investigations to the installation sexual assault response coordinators (SARCs) prior to each monthly 

case management group meeting.

Recommendation 29: The Service Secretaries establish policies to ensure that personnel assigned by 

commanders to investigate retaliation complaints are properly trained on issues regarding retaliation 

relating to sexual assault.

Recommendation 30: The Secretary of Defense and Service Secretaries expand the expedited transfer 

program to include job retraining for Service members who belong to small specialty branches and 

to be made available, on a case-by-case basis, to bystanders and witnesses of sexual assault who 

experience retaliation.

Recommendation 31: The Secretary of Defense establish specific guidelines clarifying what information 

can be released to a person who files a retaliation complaint related to a sexual assault.

Recommendation 32: The Secretary of Defense begin tracking the Services’ implementation of the 

statutory requirement that general or flag officers review proposed involuntary separations of Service 

members who made unrestricted reports of sexual assault within the preceding year.

Recommendation 33: The Service Secretaries revise their regulatory definitions of maltreatment, which 

currently contain an overly narrow intent requirement.

Recommendation 34: Congress refrain from creating an enumerated offense prohibiting social 

retaliation in the Uniform Code of Military Justice.

Recommendation 35: The Secretary of Defense and Service Secretaries develop innovative and effective 

training on retaliation for commanders and all other Service members, including targeted training that 

may be used in response to problems of retaliation within an organization.

Recommendation 36: The Secretary of Defense revise the elements and burdens of proof for reprisal 

claims made under the Military Whistleblower Protection Act so that they parallel the elements and 

burdens of proof outlined in the Whistleblower Protection Act for DoD civilians.

E. JUDICIAL PROCEEDINGS PANEL REPORT ON STATISTICAL DATA

REGARDING MILITARY ADJUDICATION OF SEXUAL ASSAULT OFFENSES

(APRIL 2016)

Recommendation 37: The Department of Defense collect and analyze case adjudication data using a 

standardized, document-based collection model, similar to systems used by the Judicial Proceedings 

Panel or U.S. Sentencing Commission, that incorporates uniform definitions and categories across all of 

the military Services.
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APPENDIX E: REPORTS AND RECOMMENDATIONS OF THE JUDICIAL PROCEEDINGS PANEL 

Recommendation 38: The Department of Defense include legal disposition information related to all 

adult sexual assault complaints in one annual DoD report, changing its policy that excludes adultvictim cases that are handled by the Family Advocacy Program from Sexual Assault Prevention and 

Response Office reports.

F. JUDICIAL PROCEEDINGS PANEL REPORT ON MILITARY DEFENSE COUNSEL

RESOURCES AND EXPERIENCE IN SEXUAL ASSAULT CASES (APRIL 2017)

Recommendation 39: In order to ensure the fair administration of justice, all of the military Services 

provide independent and deployable defense investigators under their control in sufficient numbers so 

that every defense counsel has access to an investigator, as reasonably needed.

Recommendation 40: The military Services immediately review Service defense organizations’ 

staffing—defense counsel, paralegals, highly qualified experts, and administrative support personnel—

and augment current levels in order to alleviate the reported understaffing. The Secretary of Defense 

should direct an independent audit of defense staffing across all military Services to determine the 

optimal level of staffing for the Service defense organizations in the long term and authorize temporary 

details from one Service to another to ensure expeditious disposition of allegations. Organizations 

that have conducted similar kinds of assessments of public defender resources in various civilian 

jurisdictions may be of assistance in conducting this audit.

Recommendation 41: The Secretary of Defense direct the Joint Service Committee on Military Justice 

to draft appropriate rules and measures, as necessary, to vest defense expert approval authority and 

expenditure funding in the Service defense organizations.

Recommendation 42: The military Services permit only defense counsel with prior military justice 

or civilian criminal litigation experience to serve as lead defense counsel in sexual assault cases. The 

military Services should develop a formal process, using objective and subjective criteria, to determine 

when a defense counsel is qualified to serve as a lead defense counsel in a sexual assault case. In 

addition, the military Services should set assignment policies that provide defense counsel two or 

more consecutive years of experience in the role, to the maximum extent feasible at the same location. 

Exceptions to this policy should be personally approved, on a case-by-case basis, by the Service Judge 

Advocate General or Staff Judge Advocate to the Commandant of the Marine Corps.

G. JUDICIAL PROCEEDINGS PANEL REPORT ON VICTIMS’ APPELLATE RIGHTS

(JUNE 2017)

Recommendation 43: The Joint Service Committee on Military Justice revise its proposed amendment 

to Rule for Courts-Martial (R.C.M.) 1103A(b)(4)(B)(ii) to include the following language: “Prior to a 

decision to permit examination of material described in this subparagraph, notice and an opportunity 

to be heard shall be given to any person whose records are about to be examined and to appellate 

counsel.”

Recommendation 44: The Services formalize procedures to provide victims in sexual assault cases (1) 

with timely notice, unless declined, of significant appellate matters, including but not limited to the 

date and time of the filing of appellate pleadings and briefs, of any appellate courtroom proceedings, 

of the date when the case is taken under submission, and of the final decision and any opinion of 
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FINAL REPORT

any appellate court, and (2) with convenient access to any unsealed documents filed in the case, if 

requested.

Recommendation 45: Congress revise Section 547(a) of S. 2943, the Senate version of the Fiscal Year 

2017 National Defense Authorization Act, to state: 

SEC. 547. APPELLATE STANDING OF VICTIMS UNDER THE UNIFORM CODE OF MILITARY 

JUSTICE. 

(a) APPELLATE REVIEW.—Section 806b of title 10, United States Code (article 6b of the Uniform

Code of Military Justice), is amended by adding at the end the following new subsection:

“(f) APPELLATE REVIEW.—(1) If counsel for the accused or the Government files appellate pleadings 

under section 866 or 867 of this title (article 66 or 67) calling into question a prior judicial ruling in 

the case on an issue as to which a victim previously had standing and was heard, during appellate 

review that same victim may respond in the same manner as a party regarding that same issue, 

including through a Special Victims’ Counsel under section 1044e of this title.”

Recommendation 46: Congress amend Article 6b of the Uniform Code of Military Justice to grant the 

Court of Appeals for the Armed Forces (CAAF) jurisdiction to hear a victim’s appeal if a Service Court 

of Criminal Appeals denies the victim’s petition for a writ of mandamus under Article 6b.

H. JUDICIAL PROCEEDINGS PANEL REPORT ON SEXUAL ASSAULT

INVESTIGATIONS IN THE MILITARY (SEPTEMBER 2017)

Recommendation 47: In order to ensure that military criminal investigative organizations can focus 

investigative resources on the most serious sexual assault cases, the advisory committee that follows the 

JPP, the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in 

the Armed Forces, monitor the effects of the DoD policy that allows Service law enforcement agencies 

to assist the MCIOs with sexual assault investigations, and make findings and recommendations to the 

Secretary of Defense as it deems appropriate.

Recommendation 48: The Secretary of Defense take the necessary steps to ensure that special victims’ 

counsel and victims’ legal counsel (1) have the resources to schedule and attend the initial victim 

interview promptly after a report of sexual assault and (2) receive the training necessary to recognize 

the importance of a prompt initial victim interview by the MCIO to an effective and just prosecution.

Recommendation 49: The Secretary of Defense identify and remove barriers to thorough questioning 

of a sexual assault victim by the MCIOs or other law enforcement agencies.

Recommendation 50: The Secretary of Defense remove impediments to MCIOs’ obtaining tangible 

evidence from a sexual assault victim, particularly information contained on a cell phone or other 

digital devices, and develop appropriate remedies that address victims’ legitimate concerns about 

turning over this evidence to ensure that sexual assault investigations are complete and thorough.

Recommendation 51: The Secretary of Defense review the resources, staffing, procedures, and policies 

at forensic laboratories within the Department of Defense to ensure expeditious testing of evidence by 

forensic laboratories.
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APPENDIX E: REPORTS AND RECOMMENDATIONS OF THE JUDICIAL PROCEEDINGS PANEL 

I. JUDICIAL PROCEEDINGS PANEL REPORT ON STATISTICAL DATA

REGARDING MILITARY ADJUDICATION OF SEXUAL ASSAULT OFFENSES

FOR FISCAL YEAR 2015 (SEPTEMBER 2017)

Recommendation 52: The Secretary of Defense and the military Services use a standardized, documentbased collection model for collecting and analyzing case adjudication data in order to implement 

Article 140a, Uniform Code of Military Justice (Case Management; Data Collection and Accessibility).

Recommendation 53: The new military justice data collection system required to be developed 

pursuant to Article 140a, Uniform Code of Military Justice (Case Management; Data Collection 

and Accessibility), should be designed so as to become the exclusive source of sexual assault case 

adjudication data for DoD’s annual report to Congress on DoD’s sexual assault prevention and 

response initiatives.

Recommendation 54: The successor federal advisory committee to the JPP, the Defense Advisory 

Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, should 

consider continuing to analyze adult-victim sexual assault court-martial data on an annual basis as 

the JPP has done, and should consider analyzing the following patterns that the JPP discovered in its 

analysis of fiscal year 2015 court-martial data:

a. Cases involving military victims tend to have less punitive outcomes than cases involving

civilian victims; and

b. The conviction and acquittal rates for sexual assault offenses vary significantly among the

military Services.

c. If a Service member is charged with a sexual assault offense, and pleads not guilty, the

probability that he or she will be convicted of a sexual assault offense is 36%, and the

probability that he or she will be convicted of any offense (i.e., either a sex or a non-sex

offense) is 59%.

J. JUDICIAL PROCEEDINGS PANEL REPORT ON PANEL CONCERNS

REGARDING THE FAIR ADMINISTRATION OF MILITARY JUSTICE IN

SEXUAL ASSAULT CASES (SEPTEMBER 2017)

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

investigators.

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.

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 courts-martial and on the acquittal rate 

in such cases.

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 court-martial. 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.

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.

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.

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.
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APPENDIX E: REPORTS AND RECOMMENDATIONS OF THE JUDICIAL PROCEEDINGS PANEL 

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.

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.
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FINAL REPORT
93

APPENDIX F: Judicial Proceedings Panel

Tasks, Recommendations, 

and Implementation Status

ARTICLE 120, UCMJ

(RAPE AND SEXUAL ASSAULT GENERALLY)

Article 120 

Tasks

1. 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 (UCMJ) that were enacted by section 541 (Article 120 revision) of

the National Defense Authorization Act for Fiscal Year 2012 (Public Law

112–81; 125 Stat. 1404). (FY13 NDAA, § 576(d)(2)(A))

2. 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. (FY14 NDAA,

§ 1731(b)(1)(A))

3. Consider whether to recommend legislation that would either split sexual

assault offenses under Article 120 of the UCMJ into different articles that

separate penetrative and contact offenses from other offenses or narrow

the breadth of conduct currently criminalized under Article 120. (RSP

Recommendation 113 (June 2014))
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FINAL REPORT

ARTICLE 120, UCMJ

(RAPE AND SEXUAL ASSAULT GENERALLY)

Article 120 

JPP Reports and 

Recommendations

9 Recommendations (including 2 non-enumerated recommendations)

JPP Initial Report (February 2015)

R-1: The Secretary of Defense examine the DoD and interagency review

process for establishing implementation guidance for UCMJ provisions and

explore options to streamline the process.

Non-Enumerated Recommendations: (1) Article 120, UCMJ, not be bifurcated 

into separate penetrative and contact (non-penetrative) offenses; and (2) a 

subcommittee be formed to evaluate 17 specific issues related to Article 120, 

UCMJ, and coercive sexual relationships and situations involving abuse of 

authority.

JPP Report on Article 120 of the Uniform Code of Military Justice

(February 2016)

R-18: Congress should amend the definition of “consent” in Article 120(g)(8),

UCMJ.

R-19: The President should amend the Manual for Courts-Martial to

specifically state that consent (as an attack on proof) and mistake of fact as

to consent (as a clearly delineated defense) may be raised in any case in which

they are relevant.

R-20: Congress should amend Article 120, UCMJ, to provide a definition

of the term “incapable of consenting” for cases under Article 120(b) and

(d), and the President should provide further executive guidance about the

circumstances to consider when considering whether a victim was incapable of

consenting.

R-21: Congress should amend and replace the reference in Article 120(b)(1)

(B), UCMJ, to “causing bodily harm” and should remove the definition of

“bodily harm” from Article 120(g)(3), UCMJ.

R-22: Congress should amend the definitions of “sexual act” and “sexual

contact” in Article 120(g)(1)–(2), UCMJ.

R-23: Congress should adopt a new theory of liability in Article 120(b)(1)

(E), UCMJ, for coercive sexual acts or contact in which a perpetrator has used

position, rank, or authority to obtain compliance by another person.
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APPENDIX F: JUDICIAL PROCEEDINGS PANEL TASKS, RECOMMENDATIONS, AND 

IMPLEMENTATION STATUS

ARTICLE 120, UCMJ

(RAPE AND SEXUAL ASSAULT GENERALLY)

Article 120

Congressional 

and DoD 

Implementation

Subsequent to the JPP recommendations, Congress enacted FY16 NDAA, 

§ 543, requiring the Secretary of Defense to examine the DoD process for

implementing statutory changes to the UCMJ for the purpose of developing

options to streamline such a process. The Secretary is required to adopt

procedures to ensure that legal guidance is published as soon as practicable

whenever statutory changes to the UCMJ are implemented.

In the FY17 NDAA, § 5430, Congress amended the definition of “consent,” 

removed the definition and element of “bodily harm,” and amended the 

definitions of “sexual act” and “sexual contact” in Article 120, UCMJ. 

Congress also added a definition for “incapable of consent”; however, 

Congress chose to use the definition from the federal statute. 

Congress did not enact a new provision in Article 120, UCMJ, to add a 

theory of liability for coercive sex acts based on a perpetrator’s position, 

rank, or authority, but did enact Article 93a, UCMJ, in the FY 17 NDAA that 

prohibited activities with a military recruit or trainee by a person in a position 

of special trust.
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SPECIAL VICTIMS’ COUNSEL/VICTIMS’ LEGAL COUNSEL (SVC/VLC) PROGRAM 

SVC Program

Task

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 as the Judicial Proceedings 

Panel considers appropriate. (FY14 NDAA, § 1731(b)(1)(B))

SVC Program 

JPP Reports and 

Recommendations 

7 Recommendations

JPP Initial Report (February 2015)

R-2: The Secretary of Defense direct the Services to implement additional

selection criteria for SVCs/VLCs.

R-3: DoD develop a policy to standardize requirements for both content and

timing of SVC/VLC training.

R-4: The Secretary of Defense direct the Services to optimize SVC/VLC

assignments to maximize face-to-face contact with clients.

R-5: The Secretary of Defense establish SVC/VLC guiding principles and

performance measures.

R-7: The Secretary of Defense direct the Services to establish uniform SVC/

VLC participation policies for judicial proceedings.

R-9: The Secretary of Defense propose revisions to statutes, the Manual for

Courts-Martial (MCM), and/or regulations to extend eligibility for SVC/VLC

representation as long as a right of the victim is at issue.

JPP Report on Panel Concerns Regarding the Fair Administration of

Military Justice in Sexual Assault Cases (September 2017)

R-61: The Secretary of Defense ensure that 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.
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APPENDIX F: JUDICIAL PROCEEDINGS PANEL TASKS, RECOMMENDATIONS, AND 

IMPLEMENTATION STATUS

SPECIAL VICTIMS’ COUNSEL/VICTIMS’ LEGAL COUNSEL (SVC/VLC) PROGRAM 

SVC Program

Congressional 

and DoD 

Implementation

Subsequent to the JPP recommendations, Congress enacted FY16 NDAA, 

§§ 531 and 535 standardizing training, maximizing face-to-face contact

between SVCs/VLCs and clients, and establishing guiding principles.

DoD directed the Services to establish uniform participation policies, 

implement additional selection criteria for SVCs, and extend the eligibility 

for SVC/VLC representation for as long as a victim’s right is at issue. (Sept. 2, 

2016, DSD Memo) 

VICTIMS’ ACCESS TO INFORMATION 

Access to 

Information

Task

The Judicial Proceedings Panel and the Joint Service Committee should review 

and clarify the extent of a victim’s right to access information that is relevant 

to the assertion of a particular right. (RSP Recommendation 45)

Access to 

Information

JPP Reports and 

Recommendations

1 Recommendation

JPP Initial Report (February 2015)

R-6: The Secretary of Defense direct the Services to ensure SVCs and victims

have appropriate access to docketing information and case filings. In part, this

could be accomplished by adopting an electronic system akin to the civilian

Public Access to Court Electronic Records (PACER) service.

Access to 

Information

Congressional 

and DoD 

Implementation

Subsequent to the JPP recommendations, Congress enacted FY 17 NDAA, 

§ 5504, creating a new Article 140a, UCMJ (Case management; data collection

and accessibility), which requires the Secretary of Defense to prescribe uniform

standards and criteria for facilitating access to docket information, filings,

and records in the military justice system, using, so far as practicable, the best

practices of federal and state courts.

DoD directed the Service Secretaries to develop guidance for their respective 

Departments to ensure that victims and their counsel have appropriate access 

to docketing information and case filings. (Sept. 2, 2016, DSD Memo)
98

FINAL REPORT

VICTIM PRIVACY – MILITARY RULE OF EVIDENCE (M.R.E.) 412

 (SEX OFFENSE CASES: THE VICTIM’S SEXUAL BEHAVIOR OR PREDISPOSITION)

M.R.E. 412

Tasks

1. 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. (FY13 NDAA, § 576(d)(2)(E))

2. Review and assess those instances in which evidence of prior sexual

conduct of the alleged victim was introduced by the defense in a courtmartial and what impact that evidence had on the case. (FY13 NDAA,

§ 576(d)(2)(F))

M.R.E. 412

JPP Reports and 

Recommendations 

1 Recommendation

JPP Initial Report (February 2015)

R-10: The President sign an executive order eliminating the “constitutionally

required” exception within M.R.E. 412 at Article 32 hearings.

JPP Final Report (October 2017)

The JPP received additional testimony on this topic from 19 practitioners 

and former military judges at its January 6, 2017, public meeting devoted to 

military stakeholder perspectives on the application of M.R.E. 412 and 513 at 

Article 32 hearings and courts-martial. 

M.R.E. 412

Congressional 

and DoD 

Implementation

Subsequent to the JPP recommendations, Executive Order 13696, signed on 

June 17, 2015, eliminated the “constitutionally required” exception within 

M.R.E. 412 at Article 32 hearings.
99

APPENDIX F: JUDICIAL PROCEEDINGS PANEL TASKS, RECOMMENDATIONS, AND 

IMPLEMENTATION STATUS

VICTIM PRIVACY – M.R.E. 513 (PSYCHOTHERAPIST-PATIENT PRIVILEGE)

M.R.E. 513

Task

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. (FY15NDAA, § 545(a)(1))

M.R.E. 513

JPP Reports and 

Recommendations 

1 Recommendation

JPP Initial Report (February 2015)

R-11: The Secretary of Defense issue specific, uniform guidance to ensure that

mental health records are not sought from or released by medical treatment

facility personnel until a military judge or Article 32 hearing officer has

ordered their production.

JPP Final Report (October 2017)

The JPP received additional testimony on this topic from 19 practitioners 

and former military judges at its January 6, 2017, public meeting devoted to 

military stakeholder perspectives on the application of M.R.E. 412 and 513 at 

Article 32 hearings and courts-martial. 

M.R.E. 513

Congressional 

and DoD 

Implementation

In the FY15 NDAA, § 537, Congress set a much higher standard for in camera 

review and disclosure of mental health records.

DoD directed the Joint Service Committee on Military Justice to recommend 

uniform guidance regarding release of mental health records to ensure an 

appropriate balance between the interests of law enforcement and the privacy 

interests of victims of an alleged sex-related offense. (Sept. 2, 2016, DSD 

Memo)

Executive Order 13696, signed June 17, 2016, implemented sweeping 

legislative reforms to Article 32 hearings and prohibited Article 32 preliminary 

hearing officers from ordering production of communications covered by 

M.R.E. 513 and 514.
100

FINAL REPORT

VICTIM RESTITUTION AND COMPENSATION

Restitution and 

Compensation

Tasks

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. (FY14 NDAA, § 1731(b)(1)

(D))

Restitution and 

Compensation

JPP Reports and 

Recommendations 

6 Recommendations

JPP Report on Restitution and Compensation for Military Adult Sexual

Assault Crimes (February 2016)

R-12: DoD establish a program to provide sexual assault victims with

compensation for unreimbursed out-of-pocket expenses.

R-13: Congress not amend the UCMJ to add restitution as an authorized

punishment that may be adjudged at courts-martial.

R-14: The Services provide practitioners recurring training on the availability

and use of restitution in pretrial agreements.

R-15: The President enact an executive order to provide victims the right to be

heard before a convening authority enters into a pretrial agreement.

R-16: Congress not amend the UCMJ to allow the forfeited wages of

incarcerated Service members to be used to pay compensation to victims of

sexual assault crimes.

R-17: Congress not amend Article 139, UCMJ, to include bodily harm among

the injuries meriting compensation for redress.
101

APPENDIX F: JUDICIAL PROCEEDINGS PANEL TASKS, RECOMMENDATIONS, AND 

IMPLEMENTATION STATUS

VICTIM RESTITUTION AND COMPENSATION

Restitution and 

Compensation

Congressional 

and DoD 

Implementation

Subsequent to the JPP recommendations, Executive Order 13730 was signed 

on May 20, 2016, amending R.C.M. 705(d)(3) to require consultation with 

the victim, whenever practicable, before the convening authority accepts a 

pretrial agreement. 
102

FINAL REPORT

RETALIATION 

Retaliation 

Task

The issue of retaliation related to the reporting of sexual assault offenses 

came to the JPP’s attention when a 2014 survey published by the RAND 

Corporation indicated that 62% of active duty women who reported 

unwanted sexual contact to a military authority in 2014 perceived some form 

of retaliation. This statistic was unchanged from the 2012 survey. The Panel 

reviewed the issue pursuant to FY13 NDAA, § 576(d)(2)(J), which provides 

that the JPP may assess other issues it considers appropriate. 
103

APPENDIX F: JUDICIAL PROCEEDINGS PANEL TASKS, RECOMMENDATIONS, AND 

IMPLEMENTATION STATUS

RETALIATION 

Retaliation

JPP Reports and 

Recommendations

13 Recommendations

JPP Report on Retaliation Related to Sexual Assault Offenses (February 

2016)

R-24: The Secretary of Defense specify processes for reporting, investigating,

monitoring, and recording retaliation complaints and outcomes.

R-25: The Secretary of Defense and Service Secretaries develop a standardized

form to report retaliation, link it to a sexual assault report in the Defense

Sexual Assault Incident Database (DSAID), and provide victims with an option

to file an informal or formal complaint.

R-26: The Secretary of Defense and Service Secretaries continue to provide

multiple reporting channels and task sexual assault response coordinators

(SARCs) to enter and track retaliation complaints in DSAID.

R-27: Congress require the Secretary of Defense and Service Secretaries to

track retaliation incidents and publish statistics in the annual Sexual Assault

Prevention and Response Office (SAPRO) reports to Congress.

R-28: The Secretary of Defense establish a policy to require the DoD Inspector

General to investigate all complaints of professional retaliation related to

sexual assault reports, to receive specialized training, and to update SARCs on

investigations at monthly case review meetings.

R-29: Service Secretaries establish policies to ensure specialized training

of command personnel assigned to investigate retaliation related to sexual

assault.

R-30: The Secretary of Defense and Service Secretaries expand the expedited

transfer program to include job retraining for those in small specialty fields

and to be available for bystanders and witnesses experiencing retaliation (on a

case-by-case basis).

R-31: The Secretary of Defense establish specific guidelines on the release of

retaliation complaint disposition information to complainants.

R-32: The Secretary of Defense begin tracking the Services’ implementation of

the statutorily required general or flag officer review of involuntary separations

of sexual assault victims who made unrestricted reports in the previous year.

R-33: Service Secretaries revise Service regulatory definitions of maltreatment,

which currently contain an overly narrow intent requirement.

R-34: Congress not create a UCMJ offense prohibiting social retaliation.

R-35: The Secretary of Defense and Service Secretaries develop targeted

and innovative training on retaliation for commanders and all other Service

members.

R-36: The Secretary of Defense revise the Military Whistleblower Protection

Act elements and burdens of proof for reprisal claims to align with those in the

federal Whistleblower Protection Act.
104

FINAL REPORT

RETALIATION 

Retaliation

Congressional 

and DoD 

Implementation

Subsequent to the JPP recommendations, Congress enacted FY17 NDAA, 

§ 545, which requires DoD SAPRO to establish metrics to evaluate the efforts

of the Armed Forces to prevent and respond to retaliation in connection

with sexual assault and to identify best practices to be used by the Military

Departments in the prevention of and response to retaliation.

Congress enacted FY17 NDAA, § 543, which requires DoD to include in 

the annual SAPRO report to Congress detailed information on each claim of 

retaliation in connection with a report of sexual assault made by or against a 

Service member.

On July 28, 2016, the DoD Office of Inspector General (DoD IG) announced 

that a newly created team of seven DoD IG investigators and a supervisor 

would directly handle sexual assault reprisal cases from across the Services 

rather than overseeing investigations at the branch level.

Congress enacted FY17 NDAA, § 546, which requires DoD personnel 

who investigate claims of retaliation to receive training on the nature and 

consequences of retaliation and, in cases involving reports of sexual assault, on 

the nature and consequences of sexual assault trauma.

Congress enacted FY17 NDAA, § 547, which requires the Secretary of Defense 

to develop regulations requiring a Service member who reports retaliation to 

be informed in writing of the results of the investigation, including whether the 

complaint was substantiated, unsubstantiated, or dismissed.
105

APPENDIX F: JUDICIAL PROCEEDINGS PANEL TASKS, RECOMMENDATIONS, AND 

IMPLEMENTATION STATUS

SEXUAL ASSAULT ADJUDICATION TRENDS 

Adjudication 

Trends

Tasks

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. (FY13 NDAA, 

§ 576(d)(2)(B))

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. (FY13 NDAA, § 576(d)(2)(C))

Review and evaluate court-martial convictions for sexual assault in the year 

covered by the most-recent report required of the JPP 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. (FY13 NDAA, § 576(d)(2)(D))
106

FINAL REPORT

SEXUAL ASSAULT ADJUDICATION TRENDS 

Adjudication 

Trends

JPP Reports and 

Recommendations

6 Recommendations 

JPP Report on Statistical Data Regarding Military Adjudication of Sexual

Assault Offenses (April 2016)

R-37: DoD collect and analyze case adjudication data using a standardized,

document-based collection model, similar to those used by the JPP or U.S.

Sentencing Commission, that incorporates uniform definitions and categories

across all of the military Services.

R-38: DoD include legal disposition information related to all adult sexual

assault complaints in one annual DoD report, changing its policy that excludes

adult-victim cases that are handled by the Family Advocacy Program (FAP)

from the annual SAPRO reports to Congress.

JPP Report on Statistical Data Regarding Military Adjudication of Sexual

Assault Offenses for Fiscal Year 2015 (September 2017)

R-52: DoD and the military Services use a standardized, document-based

collection model for collecting and analyzing case adjudication data in order

to implement Article 140a, UCMJ, regarding case management and data

collection and accessibility.

R-53: The new military justice data collection system required to be developed

under Article 140a, UCMJ, should be designed so as to become the exclusive

source of sexual assault case adjudication data for DoD’s annual report to

Congress on DoD’s sexual assault prevention and response initiatives.

R-54: The Defense Advisory Committee on Investigation, Prosecution, and

Defense of Sexual Assault in the Armed Forces (DAC-IPAD) should consider

continuing to analyze adult-victim sexual assault court-martial data on an

annual basis as the JPP has done, including patterns that the JPP discovered in

its analysis of fiscal year 2015 court-martial data.

JPP Report on Panel Concerns Regarding the Fair Administration of

Military Justice in Sexual Assault Cases (September 2017)

R-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.
107

APPENDIX F: JUDICIAL PROCEEDINGS PANEL TASKS, RECOMMENDATIONS, AND 

IMPLEMENTATION STATUS

SEXUAL ASSAULT ADJUDICATION TRENDS 

Adjudication 

Trends

Congressional 

and DoD 

Implementation

Congress enacted FY 17 NDAA, § 5504, which created a new Article 140a, 

UCMJ (Case management; data collection and accessibility), requiring the 

Secretary of Defense to prescribe uniform standards and criteria using, insofar 

as practicable, the best practices of federal and state courts for collection and 

analysis of data concerning substantive offenses and procedural matters in 

a manner that facilitates case management and decision making within the 

military justice system. 

Congress enacted FY17 NDAA, § 574, requiring FAP to produce an annual 

report that includes the number of intimate partner, spousal, and child physical 

and sexual abuse incidents reported and substantiated each year, including 

analyses of types of abuse reported and characteristics of the victims and 

perpetrators. Another provision (§ 544) requires that the FAP and SAPRO 

annual reports be submitted together to Congress. However, the statute does 

not require intimate partner and spousal sexual assault case adjudication data 

to be included in either the FAP or SAPRO annual reports. 
108

FINAL REPORT

TRAINING AND EXPERIENCE OF MILITARY DEFENSE AND TRIAL COUNSEL

Counsel Training 

and Experience

Task

Building on the adjudication data compiled by the JPP, 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. (FY13 NDAA, § 576(d)(2)(G))

Counsel Training 

and Experience

JPP Reports and 

Recommendations

4 Recommendations

JPP Report on Military Defense Counsel Resources and Experience in Sexual

Assault Cases (April 2017)

R-39: The military Services provide defense counsel with access to independent

and deployable defense investigators.

R-40: The military Services immediately review Service defense organizations’

staffing and augment current levels in order to alleviate the reported

understaffing. The Secretary of Defense should direct an independent audit of

defense staffing across all military Services to determine the optimal level of

staffing for the Service defense organizations.

R-41: The Secretary of Defense direct that defense organizations be given

approval and funding authority for their own expert witnesses.

R-42: The military Services permit only defense counsel with prior military

justice or civilian criminal litigation experience to serve as lead defense

counsel in sexual assault cases, and defense counsel should have two or more

consecutive years of experience in the role.

JPP Final Report (October 2017)

The JPP submitted questions on this topic to DoD and the Services in its 

Request for Information Sets 6 and 9. The JPP also received testimony at its 

May 13, 2016, public meeting session titled “Overview of Judge Advocate 

Training Programs.” The JPP Subcommittee gathered information about trial 

and defense counsel training and experience in practice during site visits from 

July to September 2016. 
109

APPENDIX F: JUDICIAL PROCEEDINGS PANEL TASKS, RECOMMENDATIONS, AND 

IMPLEMENTATION STATUS

TRAINING AND EXPERIENCE OF MILITARY DEFENSE AND TRIAL COUNSEL

Counsel Training 

and Experience

Congressional 

and DoD 

Implementation

In the FY17 NDAA, § 542, Congress enacted a provision requiring the 

Service Secretaries to establish a system of military justice skill and experience 

identifiers to ensure that judge advocates with sufficient skills and experience 

in military justice are assigned to prosecute and defend cases and are assigned 

to develop less experienced judge advocates. The provision also requires 

the Service Secretaries to carry out a five-year pilot program to assess the 

feasibility and advisability of establishing a deliberate process of professional 

development in military justice for judge advocates. 
110

FINAL REPORT

VICTIMS’ APPELLATE RIGHTS 

Victims’ Appellate 

Rights

Task

Issues related to victims’ appellate rights came to the attention of the JPP 

during the testimony of the Services’ special victims’ counsel/victims’ legal 

counsel program managers at the April 8, 2016, JPP public meeting. The Panel 

reviewed this issue pursuant to FY13 NDAA, § 576(d)(2)(J), which provides 

that the JPP may review other issues it considers appropriate. 

Victims’ Appellate 

Rights

JPP Reports and 

Recommendations

5 Recommendations

JPP Initial Report (February 2015)

R-8: The Secretary of Defense consider establishing expedited procedures for

mandatory interlocutory review to Courts of Criminal Appeals for Article 6b

issues.

JPP Report on Victims’ Appellate Rights (June 2017)

R-43: The Joint Service Committee on Military Justice revise R.C.M. 1103A to

provide victims with notice and an opportunity to be heard prior to appellate

counsel review of certain sealed materials.

R-44: The Services formalize procedures to provide victims in sexual assault

cases with timely notice of significant appellate matters and with convenient

access to any unsealed documents filed in the case, if requested.

R-45: Congress revise Section 547(a) of S. 2943, the Senate version of the

FY17 NDAA, to provide victims with standing to protect their Article 6b

rights in post-conviction appellate proceedings for issues as to which a victim

previously had standing and was heard.

R-46: Congress amend Article 6b, UCMJ, to grant the Court of Appeals for

the Armed Forces (CAAF) jurisdiction to hear a victim’s appeal if a Service

Court of Criminal Appeals denies the victim’s petition for a writ of mandamus

under Article 6b.
111

APPENDIX F: JUDICIAL PROCEEDINGS PANEL TASKS, RECOMMENDATIONS, AND 

IMPLEMENTATION STATUS

VICTIMS’ APPELLATE RIGHTS 

Victims’ Appellate 

Rights

Congressional 

and DoD 

Implementation

Congress enacted FY15 NDAA, § 535, granting victims the right to petition 

the Courts of Criminal Appeals for a writ of mandamus for violations of 

victims’ rights afforded by Military Rules of Evidence 412 (Sex offense cases: 

The victim’s sexual behavior or predisposition) and 513 (Psychotherapist–

patient privilege), providing for expedited, but not mandatory, review. 

Congress expanded this right in the FY16 NDAA, § 531, to include additional 

protections under Article 6b, UCMJ; however, such interlocutory review 

remains discretionary.

The Senate version of the FY17 NDAA, S.2943, § 547, would have amended 

Article 6b, UCMJ, to provide for victim standing in post-conviction appellate 

proceedings and victim notice of appellate matters; however, this section was 

not passed in the final version of the FY17 NDAA. The conference committee 

report noted that the conferees would reconsider the issue after receipt of the 

JPP’s recommendations. 

The BE HEARD (Building an Environment for Helpful, Effective, and 

Accessible Representation and Decision-making) Act, introduced in the 

House of Representatives by Congressman Mike Turner (OH-10) and 

Congresswoman Niki Tsongas (MA-3) in May 2017, would grant CAAF 

jurisdiction to hear victims’ Article 6b appeals.
112

FINAL REPORT

SPECIAL VICTIM INVESTIGATION AND PROSECUTION (SVIP) CAPABILITIES 

SVIP Capabilities

Task

Monitor trends in the development, utilization and effectiveness of the special 

victims capabilities required by section 573 of this Act. (FY13 NDAA, 

§ 576(d)(2)(H))

SVIP Capabilities

JPP Reports and 

Recommendations

5 Recommendations 

JPP Report on Sexual Assault Investigations in the Military (September 

2017)

R-47: DAC-IPAD monitor the effects of the DoD policy that allows Service law

enforcement agencies to assist the military criminal investigative organizations

(MCIOs) with sexual assault investigations.

R-48: The Secretary of Defense take the necessary steps to ensure that special

victims’ counsel and victims’ legal counsel (1) have the resources to schedule

and attend the initial victim interview promptly after a report of sexual assault

and (2) receive the training necessary to recognize the importance of a prompt

initial victim interview by the MCIO to an effective and just prosecution.

R-49: The Secretary of Defense identify and remove barriers to thorough

questioning of a sexual assault victim by the MCIOs or other law enforcement

agencies.

R-50: The Secretary of Defense remove impediments to MCIOs’ obtaining

tangible evidence from a sexual assault victim, particularly information

contained on a cell phone or other digital devices, and develop appropriate

remedies that address victims’ legitimate concerns about turning over this

evidence to ensure that sexual assault investigations are complete and

thorough.

R-51: The Secretary of Defense review the resources, staffing, procedures, and

policies at forensic laboratories within the Department of Defense to ensure

expeditious testing of evidence by forensic laboratories.

JPP Final Report (October 2017)

The JPP submitted questions on this topic to DoD and the Services in its 

Request for Information Sets 2 and 6. The JPP also received testimony on 

SVIP at its April 8, 2016, public meeting session titled “MCIO Overview and 

Perspective of the SVIP Policies, Practices, and Procedures” and at its May 13, 

2016, public meeting session titled “Overview of Training and Experience of 

Attorneys Prosecuting Sexual Assault Cases.” The JPP Subcommittee gathered 

information about SVIP in practice during site visits from July to September 

2016.
113

APPENDIX F: JUDICIAL PROCEEDINGS PANEL TASKS, RECOMMENDATIONS, AND 

IMPLEMENTATION STATUS

SPECIAL VICTIM INVESTIGATION AND PROSECUTION (SVIP) CAPABILITIES 

SVIP Capabilities

Congressional 

and DoD 

Implementation

DoD issued a directive-type memorandum in February 2014 (DTM 14-003) 

establishing special victim capability prosecution and legal support; the 

memorandum was most recently updated in April 2017. In February 2015 

DoD issued an instruction establishing the SVIP capability within the MCIOs 

(DoDI 5505.19), which was most recently updated in March 2017. Also in 

March 2017, DoD reissued its instruction on the investigation of adult sexual 

assault (DoDI 5505.18) to incorporate SVIP requirements.

These policies require MCIO lead investigators to notify each SVIP member 

(judge advocates and victim assistance personnel) within 24 hours of receiving 

an allegation, collaborate with the SVIP members within 48 hours, and 

consult with respective SVIP members at least monthly to assess progress in 

the investigation or prosecution of a covered offense and to help ensure that 

all aspects of the victim’s needs are being met. They also require specialized 

training for all SVIP members and ensure integrated capability during all stages 

of the process. 
114

FINAL REPORT

SEXUAL ASSAULT DISPOSITION WITHHOLDING POLICY

Withholding

Task

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. (FY13 

NDAA, § 576(d)(2)(I))

Withholding

JPP Reports and 

Recommendations

JPP Final Report (October 2017)

The JPP submitted questions on this topic to DoD and the Services in its 

Request for Information Set 6. In addition, the JPP Subcommittee gathered 

information about how the withholding policy is working in practice during 

site visits from July to September 2016.

Withholding

Congressional 

and DoD 

Implementation

No further legislative action has been taken on this topic by Congress, and the 

JPP is not aware of any additional action taken by DoD. 
115

APPENDIX F: JUDICIAL PROCEEDINGS PANEL TASKS, RECOMMENDATIONS, AND 

IMPLEMENTATION STATUS

MANDATORY MINIMUM SENTENCING 

Mandatory 

Minimum 

Sentencing

Task

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). (FY14 NDAA, § 1731(b)(1)(C))

Mandatory 

Minimum 

Sentencing

JPP Reports and 

Recommendations

JPP Final Report (October 2017)

The JPP did not conduct further assessment or make recommendations on this 

issue in light of the Military Justice Review Group’s (MJRG) recommended 

revision to Article 56, UCMJ (Sentencing), which would have replaced broad 

sentencing authority with sentencing guided by predetermined parameters and 

criteria. 

Under the MJRG proposal, once sentencing parameters and criteria took 

effect, they would replace the mandatory punitive discharge provisions in 

Article 56(b), eliminating an incongruity in the system whereby designated 

sex offenses result in mandatory discharge, but other serious crimes such as 

murder do not.

Mandatory 

Minimum 

Sentencing

Congressional 

and DoD 

Implementation

In the Military Justice Act of 2016, Congress enacted § 5301, which amended 

Article 56, UCMJ (Sentencing), but did not adopt the MJRG’s proposed 

sentencing parameters and criteria for all offenses, or alter the current 

mandatory punitive discharge provisions for certain sexual assault offenses.
116

FINAL REPORT

ESTABLISHING PRIVILEGE FOR COMMUNICATIONS WITH DOD SAFE HELPLINE 

AND SAFE HELPROOM PERSONNEL 

Safe Helpline

Task

Conduct a review and assessment regarding the establishment of a privilege 

under the M.R.E. 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 the Department of Defense Safe HelpRoom.

(FY15 NDAA, § 545(a)(2))

Safe Helpline

JPP Reports and 

Recommendations

JPP Final Report (October 2017)

The JPP did not conduct further assessment or make recommendations on this 

issue in light of Executive Order 13696, which established such a privilege.

Safe Helpline

Congressional 

and DoD 

Implementation

Executive Order 13696, signed June 17, 2015, amended M.R.E. 514(a)–(c) to 

establish a privilege for confidential communications with DoD Safe Helpline 

staff.
117

APPENDIX F: JUDICIAL PROCEEDINGS PANEL TASKS, RECOMMENDATIONS, AND 

IMPLEMENTATION STATUS

DEPOSITIONS

Dispositions

Task

The Judicial Proceedings Panel assess the use of depositions in light of changes 

to the Article 32 proceeding, and determine whether to recommend changes 

to the deposition process, including whether military judges should serve as 

deposition officers. (RSP Recommendation 115)

Dispositions

JPP Reports and 

Recommendations

JPP Final Report (October 2017)

The JPP did not make further assessment or recommendations on this issue in 

light of the legislative provisions enacted in the FY15 NDAA and the Military 

Justice Act of 2016. 

Dispositions

Congressional 

and DoD 

Implementation

Congress enacted FY15 NDAA, § 532, which requires a party requesting a 

deposition to demonstrate that there are “exceptional circumstances” and that 

it is “in the interest of justice” to take a deposition. It also provided that the 

convening authority may designate commissioned officers as counsel.

In the Military Justice Act of 2016, Congress enacted § 5231, which amended 

Article 49, UCMJ (Depositions), to codify and expand on the FY15 NDAA 

provision, including a requirement that deposition officers be judge advocates 

“whenever practicable.”
118

FINAL REPORT

PLEA BARGAINING 

Plea Bargaining

Task

The Judicial Proceedings Panel study whether the military plea bargaining 

process should be modified. (RSP Recommendation 117)

Plea Bargaining

JPP Reports and 

Recommendations

JPP Final Report (October 2017)

The JPP did not make further assessment or recommendations on this issue in 

light of the legislative provisions enacted in the Military Justice Act of 2016.

Plea Bargaining

Congressional 

and DoD 

Implementation

In the Military Justice Act of 2016, Congress enacted § 5237, creating a new 

Article 53a, UCMJ (Plea agreements), that provides basic rules for (1) the 

construction and negotiation of plea agreements concerning the charges, the 

sentence, or both; (2) the military judge’s determination of whether to accept a 

proposed plea agreement; and (3) the operation of plea agreements containing 

sentence limitations with respect to the military judge’s sentencing authority.

Note 1: A list of all JPP recommendations in their entirety is provided in Appendix E to this report. 

Note 2: A list of all JPP tasks in their entirety is provided in Appendix C to this report.

Note 3: This chart does not include recommendations 55–59, 62–63 from the JPP Report on Panel Concerns Regarding the

Fair Administration of Military Justice in Sexual Assault Cases (September 2017), because these recommendations 

are based on information received by the JPP Subcommittee during site visits and were not directly related to 

a task assigned to the JPP. Since they were issued only weeks before this report, no report on the status of their 

implementation can yet be made.
119

APPENDIX G: 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

Lead Report Writer

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

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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121

APPENDIX H: Acronyms and Abbreviations

BE HEARD Building an Environment for Helpful, Effective, and Accessible Representation and 

Decision-making

CAAF United States Court of Appeals for the Armed Forces

CCA Court of Criminal Appeals

CGCCA Coast Guard Court of Criminal Appeals

DoD Department of Defense

DoD IG Department of Defense Office of Inspector General

DTF-SAMS Defense Task Force on Sexual Assault in the Military Services

DTM directive-type memorandum

FAP Family Advocacy Program

FY fiscal year

HQE highly qualified expert

JAG Judge Advocate General

JPP Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (Judicial Proceedings 

Panel)

MCIO military criminal investigative organization

MCM Manual for Courts-Martial

MJRG Military Justice Review Group

M.R.E. Military Rule of Evidence

NDAA National Defense Authorization Act

PHO preliminary hearing officer

R.C.M. Rules for Courts-Martial

RFI request for information

RSP Response Systems to Adult Sexual Assault Crimes Panel (Response Systems Panel)
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SAPRO Sexual Assault Prevention and Response Office

SVC special victims’ counsel

SVIP special victim investigation and prosecution capability

SVP special victim prosecutor

TCAP Trial Counsel Assistance Program

UCMJ Uniform Code of Military Justice

VLC victims’ legal counsel

VWL victim witness liaison
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APPENDIX I: 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 2013, Pub. L. No. 112-239, 126 Stat. 1632 (2013)

National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (2013)

National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, 128 Stat. 3292 (2014)

National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, 129 Stat. 726 (2015)

National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016)

b. Proposed Statutes

H.R. 2739, 115th Cong. (2017), BE HEARD Act

H.R. Rep. No. 114-840 (2016) (Conf. Rep.)

2. JUDICIAL DECISIONS

a. U.S. Court of Appeals for the Armed Forces

Randolph v. HV, 76 M.J. 27 (C.A.A.F. 2017)

b. Service Courts of Criminal Appeals

Wright v. United States, 75 M.J. 501 (A.F. Ct. Crim. App. Jan. 13, 2015)

United States v. Newlan, No. 201400409 (N-M. Ct. Crim. App. Sept. 13, 2016)

H.V. v. Kitchen, 75 M.J. 717 (C.G. Ct. Crim. App. July 8, 2016)

J.M. v. Payton-O’Brien, 2017 CCA LEXIS 424 (N-M. Ct. Crim. App. June 28, 2017)

L.K. v. Acosta, 76 M.J. 611 (A. Ct. Crim. App. May 24, 2017)

3. RULES AND REGULATIONS

a. Executive Orders

Exec. Order No. 13696, 80 Fed. Reg. 35,781 (June 17, 2015)

Exec. Order No. 13730, 81 Fed. Reg. 33,331 (May 20, 2016)

Manual for Courts-Martial, United States (2016), available at http://jsc.defense.gov/Portals/99/

Documents/MCM2016.pdf?ver=2016-12-08-181411-957
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b. Department of Defense

Dep’t of Def. Instr. 5505.18, Investigation of Adult Sexual Assault in the Department of Defense

(Mar. 22, 2017), available at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/

dodi/550518p.pdf

Dep’t of Def. Instr. 5505.19, Establishment of Special Victim Investigation and Prosecution (SVIP) 

Capability Within the Military Criminal Investigative Organizations (MCIOs) (Feb. 3, 2015) 

(Change 2, Mar. 23, 2017), available at http://www.esd.whs.mil/Portals/54/Documents/DD/

issuances/dodi/550519p.pdf

Dep’t of Def. Directive-Type Memorandum (DTM) 14-002, The Establishment of Special Victim

Capability (SVC) Within the Military Criminal Investigative Organizations (Feb. 11, 2014), 

available at http://www.sapr.mil/public/docs/directives/DTM_14-002_20140211.pdf

Dep’t of Def. Directive-Type Memorandum (DTM) 14-003, DoD Implementation of Special Victim

Capability (SVC) Prosecution and Legal Support (Feb. 12, 2014) (Change 4, Apr. 3, 2017), 

available at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dtm/DTM14003_2014.pdf

4. MEETINGS

a. Public Meetings of the Judicial Proceedings Panel 

Transcript of JPP Public Meeting (Apr. 8, 2016), available at 

http://jpp.whs.mil/Public/docs/05-Transcripts/20160408_Transcript_Final.pdf

Transcript of JPP Public Meeting (May 13, 2016), available at 

http://jpp.whs.mil/Public/docs/05-Transcripts/20160513_Transcript_Final.pdf

Transcript of JPP Public Meeting (Jan. 6, 2017), available at 

http://jpp.whs.mil/Public/docs/05-Transcripts/20170106_Transcript_Final.pdf

Transcript of JPP Public Meeting (Feb. 24, 2017), available at 

http://jpp.whs.mil/Public/docs/05-Transcripts/20170224_Transcript_Final.pdf

Transcript of JPP Public Meeting (Mar. 10, 2017), available at 

http://jpp.whs.mil/Public/docs/05-Transcripts/20170310_Transcript_Final.pdf

5. POLICY AND GUIDANCE

a. Department of Defense

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 Deputy Secretary of Defense on Recommendations of

the Judicial Proceedings since Fiscal Year 2012 Amendments Panel (Sept. 2, 2016), available at 

http://jpp.whs.mil/Public/docs/03_Topic-Areas/01-General_Information/24_DoD_Response_JPP_

Initial_Report_Recs_20160902.pdf
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APPENDIX I: SOURCES CONSULTED

b. Services

Marine Corps Bulletin 5800, Military Justice Requirements and Implementation Guidance (May 

25, 2017), available at http://www.marines.mil/Portals/59/Publications/MCBUL%205800%20

(Justice).pdf?ver=2017-05-30-131345-063

Marine Corps Order 5800.14, Victim-Witness Assistance Program (Mar. 15, 2013)

Policy Memorandum 16-01, The Office of the Judge Advocate General, U.S. Army, subject: Special 

Victim Prosecution Program (Aug 8, 2016)

U.S. Army Information Paper, subject: Special Victim Prosecutor (Feb. 24, 2016) attachment to 

response to JPP Request for Information 119, available at http://jpp.whs.mil/Public/docs/07-RFI/

Set_6/Responses/RFI_Attachment_Q119_USA.pdf 

U.S. Army Information Paper, Trial Counsel Assistance Program, subject: Army Special Victim NonCommissioned Officer Paralegals (Mar. 15, 2016)

6. 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://jpp.whs.mil/Public/docs/08-Panel_Reports/02_JPP_Rest_Comp_Report_Final_20160201.pdf 

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 Restitution and Compensation for Military Adult Sexual

Assault Crimes (Feb. 2016), available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/02_JPP_

Rest_Comp_Report_Final_20160201.pdf 

Judicial Proceedings Panel Report on Article 120 of the Uniform Code of Military Justice (Feb. 

2016), available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/03_JPP_Art120_Report_

Final_20160204.pdf 

Judicial Proceedings Panel Report on Retaliation Related to Sexual Assault Offenses (Feb. 2016), 

available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/04_JPP_Retaliation_Report_

Final_20160211.pdf 

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

Assault Offenses (Apr. 2016), available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/05_

JPP_StatData_MilAdjud_SexAsslt_Report_Final_20160419.pdf 

Judicial Proceedings Panel Report on Military Defense Counsel Resources and Experience in Sexual

Assault Cases (Apr. 2017), available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/06_JPP_

Defense_Resources_Experience_Report_Final_20170424.pdf 

Judicial Proceedings Panel Report on Victims’ Appellate Rights (Jun. 2017), available at http://jpp.

whs.mil/Public/docs/08-Panel_Reports/07_JPP_VictimsAppRights_Report_Final_20170602.pdf

Judicial Proceedings Panel Report on Sexual Assault Investigations in the Military (Sep. 2017),

available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/08_JPP_Report_Investigations_

Final_20170907.pdf
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Judicial Proceedings Panel Report on Statistical Data Regarding Military Adjudication of Sexual

Assault Offenses for Fiscal Year 2015 (Sep. 2017), available at http://jpp.whs.mil/Public/docs/08-

Panel_Reports/09_JPP_CourtMartial_Data_Report_Final_20170915.pdf

Judicial Proceedings Panel Report on Panel Concerns Regarding the Fair Administration of

Military Justice in Sexual Assault Cases (Sep. 2017), available at http://jpp.whs.mil/Public/

docs/08-Panel_Reports/10_JPP_Concerns_Fair_MJ_Report_Final_20170915.pdf

c. Reports of the Subcommittee of the Judicial Proceedings Since Fiscal Year 2012 Amendments Panel

Subcommittee Report to the Judicial Proceedings Panel on Article 120 of the Uniform Code of

Military Justice 15 (Dec. 2015), available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/

JPP_SubcommReport_Final_20151210.pdf

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 of the Judicial Proceedings Panel Report on Barriers to the Fair Administration

of Military Justice in Sexual Assault Cases (May 2017), available at http://jpp.whs.mil/Public/

docs/08-Panel_Reports/JPP_SubcommReport_Barriers_Final_20170512.pdf

Short Report from the Judicial Proceedings Panel Subcommittee on Initial Disposition Withholding

Policy (Mar. 2, 2017), available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_

Subcomm_ShortReports_20170302_Final.pdf

Short Report from the Judicial Proceedings Panel Subcommittee on Military Rules of Evidence

412 and 513 (Mar. 2, 2017), available at http://jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_

Subcomm_ShortReports_20170302_Final.pdf

Short Report from the Judicial Proceedings Panel Subcommittee on Training and Experience of Trial

Counsel and Special Victims’ Counsel/Victims’ Legal Counsel (Mar. 2, 2017), available at http://

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

Judicial Proceedings Panel Subcommittee Site Visit Reports A through J (2016), available at

http://jpp.whs.mil

d. Department of Defense Reports

Dep’t of Def. Report to the President of the United States on Sexual Assault Prevention and

Response (Nov. 25, 2014), available at http://www.sapr.mil/index.php/reports/sapro-reports

e. Other Reports

Report of the Military Justice Review Group, Part 1: UCMJ Recommendations (Dec. 2015), available 

at http://ogc.osd.mil/images/report_part1.pdf
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APPENDIX I: SOURCES CONSULTED

7. RESPONSES TO JUDICIAL PROCEEDINGS PANEL REQUESTS FOR 

INFORMATION

Navy Response to RSP Request for Information 50 (Nov. 21, 2013)

Services’ Responses to RSP Request for Information 76 (Nov. 21, 2013)

Services’ Responses to JPP Requests for Information 104–121 (Mar. 31, 2016)

Services’ Responses to JPP Request for Information 160 (Dec. 29, 2016)

8. ONLINE RESOURCES

a. Government Websites

U.S. Dep’t of Defense, Office of the Inspector General, “DoD IG Monthly Update – August 2016,” 

available at http://www.dodig.mil/ELetter/eletter_view.cfm?id=7048

9. OTHER SOURCES

a. Law Review Articles

Frederic I. Lederer, The Military Rules of Evidence: Origins and Judicial Implementation, 130 Military 

Law Review 5-39 (1990), available at http://scholarship.law.wm.edu/facpubs/638/

b. Letters and E-mails

Email from Mr. Stephen McCleary, Attorney, Headquarters, U.S. Coast Guard (Jun. 21, 2017, 

09:49 EST)(on file with the JPP)

c. News Articles

Dianna Cahn, New DOD Investigative Unit to Focus on Sexual Assault-Related Reprisals, Stars & 

Stripes, July 28, 2016, available at https://www.stripes.com/news/us/new-dod-investigative-unit-tofocus-on-sexual-assault-related-reprisals-1.421464#.WZWGS6Iv-aw
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