Military Justice Improvement and Increasing Prevention Act of 2021
Bill: S.1520 | Sponsor: Sen. Gillibrand, Kirsten E. (D-NY)
Policy area: Armed Forces and National Security

Summary:
Military Justice Improvement and Increasing Prevention Act of 2021
This bill modifies the process and policy related to the disposition of charges and convening of courts-martial for certain sexual assault cases and other specified offenses under the Uniform Code of Military Justice (UCMJ).
Among other elements, the bill provides that the determinations on the preferral, disposition, and referral of charges for specified offenses under the UCMJ must be made by a commissioned officer of the Armed Forces who is designated as a court-martial convening authority (in grade O-6 or higher) and who is available for detail as trial counsel, has significant trial experience, and is outside the chain of command of the member subject to the charges.

To reform the disposition of charges and convening of courts-martial 
  for certain offenses under the Uniform Code of Military Justice and 
  increase the prevention of sexual assaults and other crimes in the 
                               military.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Military Justice Improvement and 
Increasing Prevention Act of 2021''.

SEC. 2. IMPROVEMENT OF DETERMINATIONS ON DISPOSITION OF CHARGES FOR 
              CERTAIN OFFENSES UNDER UCMJ WITH AUTHORIZED MAXIMUM 
              SENTENCE OF CONFINEMENT OF MORE THAN ONE YEAR.

    (a) Improvement of Determinations.--
            (1) Military departments.--With respect to charges under 
        chapter 47 of title 10, United States Code (the Uniform Code of 
        Military Justice), that allege an offense specified in 
        subsection (b) and not excluded under subsection (c), the 
        Secretary of Defense shall require the Secretaries of the 
        military departments to provide as described in subsection (d) 
        for the determinations as follows:
                    (A) Determinations under section 830 of such 
                chapter (article 30 of the Uniform Code of Military 
                Justice) on the preferral of charges.
                    (B) Determinations under section 830 of such 
                chapter (article 30 of the Uniform Code of Military 
                Justice) on the disposition of charges.
                    (C) Determinations under section 834 of such 
                chapter (article 34 of the Uniform Code of Military 
                Justice) on the referral of charges.
            (2) Homeland security.--With respect to charges under 
        chapter 47 of title 10, United States Code (the Uniform Code of 
        Military Justice), that allege an offense specified in 
        subsection (b) and not excluded under subsection (c) against a 
        member of the Coast Guard (when it is not operating as a 
        service in the Navy), the Secretary of Homeland Security shall 
        provide as described in subsection (d) for the determinations 
        as follows:
                    (A) Determinations under section 830 of such 
                chapter (article 30 of the Uniform Code of Military 
                Justice) on the preferral of charges.
                    (B) Determinations under section 830 of such 
                chapter (article 30 of the Uniform Code of Military 
                Justice) on the disposition of charges.
                    (C) Determinations under section 834 of such 
                chapter (article 34 of the Uniform Code of Military 
                Justice) on the referral of charges.
            (3) Rule of construction.--This section shall not be 
        construed to terminate or otherwise alter the authorities 
        enumerated in any articles of the Uniform Code of Military 
        Justice other than articles 30 and 34 (10 U.S.C. 830, 834).
    (b) Covered Offenses.--An offense specified in this subsection is 
an offense as follows:
            (1)(A) Offenses under the following sections of chapter 47 
        of title 10, United States Code (the Uniform Code of Military 
        Justice), for which the maximum punishment authorized under 
        that chapter includes confinement for more than one year: 
        sections 893a, 917a, 918, 919, 919a, 919b, 920, 920a, 920b, 
        920c, 921, 921a, 921b, 922, 924, 924a, 924b, 925, 926, 927, 
        928(b) and (c), 928a, 928b, 930, 931, 931a, 931b, 931c, 931d, 
        931e, 931f, 931g, and 932 (articles 93a, 117a, 118, 119, 119a, 
        119b, 120, 120a, 120b, 120c, 121, 121a, 121b, 122, 124, 124a, 
        124b, 125, 126, 127, 128(b) and (c), 128a, 128b, 1230, 131, 
        131a, 131b, 131c, 131d, 131e, 131f, 131g, and 132, 
        respectively, of the Uniform Code of Military Justice).
            (B) The offenses of child pornography, negligent homicide, 
        indecent conduct, indecent language communicated to any child 
        under the age of 16 years, and pandering and prostitution, as 
        punishable under the general punitive article in 934 of such 
        title (article 134 of the Uniform Code of Military Justice).
            (2) A conspiracy to commit an offense specified in 
        paragraph (1) as punishable under section 881 of title 10, 
        United States Code (article 81 of the Uniform Code of Military 
        Justice).
            (3) A solicitation to commit an offense specified in 
        paragraph (1) as punishable under section 882 of title 10, 
        United States Code (article 82 of the Uniform Code of Military 
        Justice).
            (4) An attempt to commit an offense specified in paragraph 
        (1) as punishable under section 880 of title 10, United States 
        Code (article 80 of the Uniform Code of Military Justice).
    (c) Excluded Offenses.--Subsection (a) does not apply to an offense 
as follows:
            (1) An offense under sections 883 through 917 of title 10, 
        United States Code (articles 83 through 117 of the Uniform Code 
        of Military Justice), but not an offense under section 893a of 
        such title (article 93a of the Uniform Code of Military 
        Justice).
            (2) An offense under section 922a, 923, 923a, or 928(a) of 
        title 10, United States Code (articles 122a, 123, 123a, and 
        128(a) of the Uniform Code of Military Justice).
            (3) An offense under section 933 or 934 of title 10, United 
        States Code (articles 133 and 134 of the Uniform Code of 
        Military Justice), but not the offense of child pornography, 
        negligent homicide, indecent conduct, indecent language 
        communicated to any child under the age of 16 years, or 
        pandering and prostitution as punishable under the general 
        punitive article in section 934 of such title (article 134 of 
        the Uniform Code of Military Justice).
            (4) A conspiracy to commit an offense specified in 
        paragraphs (1) through (3) as punishable under section 881 of 
        title 10, United States Code (article 81 of the Uniform Code of 
        Military Justice).
            (5) A solicitation to commit an offense specified in 
        paragraphs (1) through (3) as punishable under section 882 of 
        title 10, United States Code (article 82 of the Uniform Code of 
        Military Justice).
            (6) An attempt to commit an offense specified in paragraphs 
        (1) through (3) as punishable under section 880 of title 10, 
        United States Code (article 80 of the Uniform Code of Military 
        Justice).
    (d) Requirements and Limitations.--The disposition of charges 
covered by subsection (a) shall be subject to the following:
            (1) The determination whether to cause charges to be 
        preferred or refer such charges to a court-martial for trial, 
        as applicable, shall be made by a commissioned officer of the 
        Armed Forces designated as a court-martial convening authority 
        in accordance with regulations prescribed for purposes of this 
        subsection from among commissioned officers of the Armed Forces 
        in grade O-6 or higher who--
                    (A) are available for detail as trial counsel under 
                section 827 of title 10, United States Code (article 27 
                of the Uniform Code of Military Justice);
                    (B) have significant experience in trials by 
                general or special court-martial; and
                    (C) are outside the chain of command of the member 
                subject to such charges.
            (2) Upon a determination under paragraph (1) to refer 
        charges to a court-martial for trial, the officer making that 
        determination shall determine whether to refer such charges for 
        trial by a general court-martial convened under section 822 of 
        title 10, United States Code (article 22 of the Uniform Code of 
        Military Justice), or a special court-martial convened under 
        section 823 of title 10, United States Code (article 23 of the 
        Uniform Code of Military Justice).
            (3) A determination under paragraph (1) to cause charges to 
        be preferred or refer charges to a court-martial for trial, as 
        applicable, shall cover all known offenses, including lesser 
        included offenses.
            (4) The determination to cause charges to be preferred or 
        refer charges to a court-martial for trial, as applicable, 
        under paragraph (1), and the type of court-martial to which to 
        refer under paragraph (2), shall be binding on any applicable 
        convening authority for the referral of such charges.
            (5) The actions of an officer described in paragraph (1) in 
        determining under that paragraph whether or not to cause 
        charges to be preferred or refer charges to a court-martial for 
        trial, as applicable, shall be free of unlawful or unauthorized 
        influence or coercion.
            (6) The determination under paragraph (1) not to refer 
        charges to a general or special court-martial for trial shall 
        not operate to terminate or otherwise alter the authority of 
        commanding officers to refer charges for trial by special 
        court-martial under section 823 of title 10, United States Code 
        (article 23 of the Uniform Code of Military Justice) or summary 
        court-martial convened under section 824 of title 10, United 
        States Code (article 24 of the Uniform Code of Military 
        Justice), or to impose non-judicial punishment in connection 
        with the conduct covered by such charges as authorized by 
        section 815 of title 10, United States Code (article 15 of the 
        Uniform Code of Military Justice).
            (7) The determination under paragraph (1) to refer charges 
        to a general or special court-martial shall not be subject to 
        section 834 of title 10, United States Code (article 34 of the 
        Uniform Code of Military Justice), provided that the officer 
        making the determination determines that--
                    (A) the specification alleges an offense under the 
                Uniform Code of Military Justice;
                    (B) there is probable cause to believe that the 
                accused committed the offense charged; and
                    (C) a court-martial would have jurisdiction over 
                the accused and the offense.
    (e) Construction With Charges on Other Offenses.--Nothing in this 
section shall be construed to alter or affect the preferral, 
disposition, or referral authority of charges under chapter 47 of title 
10, United States Code (the Uniform Code of Military Justice), that 
allege an offense for which the maximum punishment authorized under 
that chapter includes confinement for one year or less, except for the 
offenses of child pornography, negligent homicide, indecent conduct, 
indecent language communicated to any child under the age of 16 years, 
and pandering and prostitution as punishable under the general punitive 
article in section 934 of such title (article 134 of the Uniform Code 
of Military Justice).
    (f) Policies and Procedures.--
            (1) In general.--The Secretaries of the military 
        departments and the Secretary of Homeland Security (with 
        respect to the Coast Guard when it is not operating as a 
        service in the Navy) shall revise policies and procedures as 
        necessary to comply with this section.
            (2) Uniformity.--The General Counsel of the Department of 
        Defense and the General Counsel of the Department of Homeland 
        Security shall jointly review the policies and procedures 
        revised under this subsection in order to ensure that any lack 
        of uniformity in policies and procedures, as so revised, among 
        the military departments and the Department of Homeland 
        Security does not render unconstitutional any policy or 
        procedure, as so revised.
    (g) Manual for Courts-Martial.--The Secretary of Defense shall 
recommend such changes to the Manual for Courts-Martial as are 
necessary to ensure compliance with this section.
    (h) Improved Specialization of Criminal Investigators.--The 
Secretary of Defense shall revise policies and procedures as necessary 
to improve specialization of criminal investigators to help increase 
the efficiency and effectiveness of sexual assault and domestic 
violence investigations.

SEC. 3. MODIFICATION OF OFFICERS AUTHORIZED TO CONVENE GENERAL AND 
              SPECIAL COURTS-MARTIAL FOR CERTAIN OFFENSES UNDER UCMJ 
              WITH AUTHORIZED MAXIMUM SENTENCE OF CONFINEMENT OF MORE 
              THAN ONE YEAR.

    (a) In General.--Subsection (a) of section 822 of title 10, United 
States Code (article 22 of the Uniform Code of Military Justice), is 
amended--
            (1) by redesignating paragraphs (8) and (9) as paragraphs 
        (9) and (10), respectively; and
            (2) by inserting after paragraph (7) the following new 
        paragraph (8):
            ``(8) with respect to offenses to which section 2(a) of the 
        Military Justice Improvement and Increasing Prevention Act of 
        2021 applies, the officers in the offices established pursuant 
        to section 3(c) of that Act or officers in the grade of O-6 or 
        higher who are assigned such responsibility by the Chief of 
        Staff of the Army, the Chief of Naval Operations, the Chief of 
        Staff of the Air Force, the Commandant of the Marine Corps, or 
        the Commandant of the Coast Guard;''.
    (b) No Exercise by Officers in Chain of Command of Accused or 
Victim.--Such section (article) is further amended by adding at the end 
the following new subsection:
    ``(c) An officer specified in subsection (a)(8) may not convene a 
court-martial under this section if the officer is in the chain of 
command of the accused or the victim.''.
    (c) Offices of Chiefs of Staff on Courts-Martial.--
            (1) Offices required.--Each Chief of Staff of the Armed 
        Forces or Commandant specified in paragraph (8) of section 
        822(a) of title 10, United States Code (article 22(a) of the 
        Uniform Code of Military Justice), as amended by subsection 
        (a), shall establish an office to do the following:
                    (A) To convene general and special courts-martial 
                under sections 822 and 823 of title 10, United States 
                Code (articles 22 and 23 of the Uniform Code of 
                Military Justice), pursuant to paragraph (8) of section 
                822(a) of title 10, United States Code (article 22(a) 
                of the Uniform Code of Military Justice), as so 
                amended, with respect to offenses to which section 2(a) 
                applies.
                    (B) To detail under section 825 of title 10, United 
                States Code (article 25 of the Uniform Code of Military 
                Justice), members of courts-martial convened as 
                described in subparagraph (A).
            (2) Personnel.--The personnel of each office established 
        under paragraph (1) shall consist of such members of the Armed 
        Forces and civilian personnel of the Department of Defense, or 
        such members of the Coast Guard or civilian personnel of the 
        Department of Homeland Security, as may be detailed or assigned 
        to the office by the Chief of Staff or Commandant concerned. 
        The members and personnel so detailed or assigned, as the case 
        may be, shall be detailed or assigned from personnel billets in 
        existence as of the effective date for this Act specified in 
        section 10.

SEC. 4. DISCHARGE USING OTHERWISE AUTHORIZED PERSONNEL AND RESOURCES.

    (a) In General.--The Secretaries of the military departments and 
the Secretary of Homeland Security (with respect to the Coast Guard 
when it is not operating as a service in the Navy) shall carry out 
sections 2 and 3 using personnel, funds, and resources otherwise 
authorized by law.
    (b) No Authorization of Additional Personnel or Resources.--
Sections 2 and 3 shall not be construed as authorizations for 
personnel, personnel billets, or funds for the discharge of the 
requirements in such sections.

SEC. 5. MONITORING AND ASSESSMENT OF MODIFICATION OF AUTHORITIES BY 
              DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 
              AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES.

    Section 546(c) of the Carl Levin and Howard P. ``Buck'' McKeon 
National Defense Authorization Act for Fiscal Year 2015 (10 U.S.C. 1561 
note) is amended--
            (1) in paragraph (1)--
                    (A) by striking ``on the investigation'' and 
                inserting ``on the following:
                    ``(A) The investigation''; and
                    (B) by adding at the end the following new 
                subparagraph:
                    ``(B) The implementation and efficacy of sections 2 
                through 4 of the Military Justice Improvement and 
                Increasing Prevention Act of 2021 and the amendments 
                made by such sections.''; and
            (2) in paragraph (2), by striking ``paragraph (1)'' and 
        inserting ``paragraph (1)(A)''.

SEC. 6. LIMITATION ON MODIFICATIONS TO SEXUAL ASSAULT REPORTING 
              PROCEDURES.

    (a) In General.--The Secretary of Defense may not amend section 4 
of enclosure 4 of Department of Defense Instruction (DoDI) 6495.02, 
relating to Sexual Assault Prevention and Response (SAPR) Program 
Procedures, or otherwise prescribe any regulations or guidance relating 
to the treatment and handling of unrestricted and restricted reports of 
sexual assault, until 30 days after notifying the congressional defense 
committees of the proposed amendment or modification.
    (b) Congressional Defense Committees Defined.--In this section, the 
term ``congressional defense committees'' has the meaning given the 
term in section 101(a) of title 10, United States Code.

SEC. 7. PROFESSIONALIZATION OF MILITARY PROSECUTORS.

    (a) In General.--The Secretary of Defense shall increase enhanced 
and specialized training to certain prosecutors on the proper conduct, 
presentation, and handling of sexual assault and domestic violence 
cases.
    (b) Report.--Not later than 180 days after the date of the 
enactment of this Act, the Secretary of Defense shall submit to the 
congressional defense committees a report on the program implemented 
under subsection (a).

SEC. 8. INCREASED TRAINING AND EDUCATION ON MILITARY SEXUAL ASSAULT.

    (a) Uniformed Officers and Senior Enlisted Leaders.--
            (1) Uniformed officers.--All uniformed officers of the 
        military services shall be required within 2 years of the date 
        of the enactment of this Act to complete training on military 
        sexual assault prevention equivalent to that provided to Sexual 
        Assault Prevention and Response Victim Advocates before those 
        officers may be considered for promotion to a grade at or above 
        O-5. A portion of this training shall be in-person, facilitated 
        training.
            (2) Enlisted leaders.--All senior enlisted leaders of the 
        military services will be required within 2 years of the date 
        of the enactment of this Act to complete a training on military 
        sexual assault prevention equivalent to that provided to the 
        Sexual Assault Prevention and Response Victim Advocates before 
        enlisted service members may be considered for promotion to a 
        grade at or above E-9. A portion of this training shall be in-
        person, facilitated training.
    (b) Officer Candidates and ROTC.--
            (1) In general.--The United States Army Cadet Command, the 
        Naval Education and Training Command, the Air Education and 
        Training Command, and the Coast Guard Recruiting Command shall 
        carry out a program for increasing training on the prevention 
        of military sexual assault within cadet ranks. A portion of 
        this training shall be in-person, facilitated training.
            (2) Report on development of plan.--Not later than 180 days 
        after the date of the enactment of this Act, the United States 
        Army Cadet Command, the Naval Education and Training Command, 
        the Air Education and Training Command, and the Coast Guard 
        Recruiting Command shall submit to the congressional defense 
        committees a report on the development of the program required 
        under paragraph (1) and a plan for execution.
            (3) Report on implementation.--Not later than 2 years after 
        the date of the enactment of this Act, the United States Army 
        Cadet Command, the Naval Education and Training Command, the 
        Air Education and Training Command, and the Coast Guard 
        Recruiting Command shall submit to the congressional defense 
        committees a report on the implementation of the program 
        required under paragraph (1).
    (c) Military Service Academies.--
            (1) In general.--The Superintendents of the military 
        service academies shall carry out additional military sexual 
        assault prevent training and education at the academies. A 
        portion of this training shall be in-person, facilitated 
        training.
            (2) Report.--The Secretary of Defense, in consultation with 
        the Superintendents of the military service academies, shall 
        submit a report to the congressional defense committees 
        describing the additional training and education implemented 
        pursuant to paragraph (1).

SEC. 9. INCREASING THE PHYSICAL SECURITY OF MILITARY INSTALLATIONS.

    (a) Survey.--Not later than 180 days after the date of the 
enactment of this Act, the Secretary of Defense shall conduct a survey 
of all lodging and living spaces on military installations to identify, 
replace, or repair locking mechanisms on points of entry, identify 
areas of installation of closed-circuit television (CCTV) security 
cameras, and other passive security measures as necessary to increase 
the prevention of crimes, including sexual assault, on military 
installations.
    (b) Report.--Not later than 180 days after the date of the 
enactment of this Act, the Secretary of Defense shall submit to the 
congressional defense committees a report on the results of the survey 
conducted under subsection (a).
    (c) Program.--Based on the results of the survey conducted under 
subsection (a), the Secretary of Defense shall carry out a program for 
increasing the security of all lodging and living spaces on military 
installations, including replacing or repairing locking mechanisms on 
points of entry, installation of CCTV security cameras, and other 
passive security measures as necessary to increase the prevention of 
crimes, including sexual assault, on military installations.

SEC. 10. EFFECTIVE DATE AND APPLICABILITY.

    (a) Effective Date and Applicability.--This Act and the amendments 
made by this Act shall take effect 180 days after the date of the 
enactment of this Act, and shall apply with respect to any allegation 
of charges of an offense specified in subsection (b) of section 2, and 
not excluded under subsection (c) of section 2, which offense occurs on 
or after such effective date.
    (b) Revisions of Policies and Procedures.--Any revision of policies 
and procedures required of the military departments or the Department 
of Homeland Security as a result of this part and the amendments made 
by this part shall be completed so as to come into effect together with 
the coming into effect of this Act and the amendments made by this Act 
in accordance with subsection (a).
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