II 116th CONGRESS 2d Session S. 4600 IN THE SENATE OF THE UNITED STATES September 16, 2020 Ms. Hirono (for herself and Mr. Booker ) introduced the following bill; which was read twice and referred to the Committee on Armed Services A BILL To amend title 10, United States Code, to improve the responses of the Department of Defense to sex-related offenses, and for other purposes.

1. Short title This Act may be cited as the I Am Vanessa Guillén Act . 2. Modification of authority to determine to proceed to trial by court-martial on charges involving sex-related offenses (a) Role of Office of the Chief Prosecutor in determination To proceed to trial on charge involving sex-Related offense (1) Referral and determinations by Office of the Chief Prosecutor Section 834 of title 10, United States Code (article 34 of the Uniform Code of Military Justice), is amended— (A) by redesignating subsection (d) as subsection (e); and (B) by inserting after the subsection (c) the following new subsection (d): (d) Referral to Office of the Chief Prosecutor (1) In the case of a charge relating to a sex-related offense, in addition to referring the charge to the staff judge advocate under subsection (a), the convening authority shall refer, as soon as reasonably practicable, the charge to the Office of the Chief Prosecutor of the armed force of which the accused is a member to make the determination required by paragraph (3). The actions of the Office of the Chief Prosecutor under this subsection whether or not to try charges by court-martial shall be free of unlawful or unauthorized influence or coercion. (2) For purposes of this subsection, the term sex-related offense means any of the following: (A) An offense covered by section 920, 920a, 920b, 920c, or 920d of this title (article 120, 120a, 120b, 120c, or 120d). (B) A conspiracy to commit an offense specified in subparagraph (A) as punishable under section 881 of this title (article 81). (C) A solicitation to commit an offense specified in subparagraph (A) as punishable under section 882 of this title (article 82). (D) An attempt to commit an offense specified in subparagraphs (A) through (C) as punishable under section 880 of this title (article 80). (3) The Office of the Chief Prosecutor shall make a determination regarding whether a charge relating to a sex-related offense should be referred to trial. If the Office of the Chief Prosecutor makes a determination to try the charge by court-martial, the Office of the Chief Prosecutor also shall determine whether to try the charge by a general court-martial convened under section 822 of this title (article 22) or a special court-martial convened under section 823 of this title (article 23). (4) A determination under paragraph (3) to try a charge relating to a sex-related offense by court-martial shall include a determination to try all known offenses, including lesser included offenses. (5) The determination to try a charge relating to a sex-related offense by court-martial under paragraph (3), and by type of court-martial, shall be binding on any applicable convening authority for a trial by court-martial on the charge. (6) A determination under paragraph (3) not to proceed to trial on a charge relating to a sex-related offense by general or special court-martial shall not operate to terminate or otherwise alter the authority of commanding officers to refer such charge for trial by summary court-martial convened under section 824 of this title (article 24), or to impose non-judicial punishment in connection with the conduct covered by the charge as authorized by section 815 of this title (article 15). (7) Nothing in this subsection shall be construed to alter or affect the disposition of charges under this chapter (the Uniform Code of Military Justice) that allege an offense triable by court-martial under this chapter for which the maximum punishment authorized under this chapter includes confinement for one year or less. (8) This subsection does not apply to the Coast Guard when it is not operating as a service in the Department of the Navy. . (2) Appointment of chief prosecutor For any Armed Force (other than the Coast Guard) for which the position of Chief Prosecutor does not exist as of the date of the enactment of this Act, the Judge Advocate General of that Armed Force shall establish the position of Chief Prosecutor and appoint as the Chief Prosecutor a commissioned officer in the grade of O–6 or above who has significant experience prosecuting sexual assault trials by court-martial. (b) Chief Prosecutor authority To convene Article 32 preliminary hearings Section 832(a) of title 10, United States Code (article 32(a) of the Uniform Code of Military Justice), is amended by adding at the end the following new paragraph: (3) The Office of the Chief Prosecutor of an armed force may order a preliminary hearing under this section in the event of an allegation of a sex-related offense (as defined in section 834(d)(2) of this title (article 34(d)(2))) involving a member of that armed force. This paragraph does not apply to the Coast Guard when it is not operating as a service in the Department of the Navy. . (c) Modification of officers authorized To convene general and special courts-Martial (1) In general Section 822(a) of title 10, United States Code (article 22(a) of the Uniform Code of Military Justice), is amended— (A) by redesignating paragraphs (8) and (9) as paragraphs (9) and (10), respectively; and (B) by inserting after paragraph (7) the following new paragraph (8): (8) the officers in the offices established pursuant to section 2(c)(3) of the Justice for SPC Vanessa Guillén 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, or the Commandant of the Marine Corps, but only with respect to a sex-related offense (as defined in section 834(d)(2) of this title (article 34(d)(2))); . (2) No exercise by officers in chain of command of accused or victim Section 822 of title 10, United States Code (article 22 of the Uniform Code of Military Justice), is 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. . (3) Offices of Chiefs of Staff on courts-Martial (A) Offices required The Chief of Staff of the Army, the Chief of Naval Operations, the Chief of Staff of the Air Force, or the Commandant of the Marine Corps shall establish an office to do the following: (i) 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 amended by paragraph (1), with respect to a sex-related offense (as defined in section 834(d)(2) of title 10, United States Code (article 34(d)(2) of the Uniform Code of Military Justice)). (ii) 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 clause (i). (B) Personnel The personnel of each office established under subparagraph (A) shall consist of such members of the Armed Forces and civilian personnel of the Department of Defense 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 on the date of the enactment of this Act. (d) Implementation and effective date (1) Funding source The Secretaries of the military departments shall carry out subsections (a), (b), and (c) (and the amendments made by such subsections) using funds appropriated after the date of enactment of this Act and otherwise available to the Secretary of the military department concerned. (2) Policies and procedures (A) In general The Secretaries of the military departments shall revise policies and procedures as necessary to comply with this section. (B) Uniformity The General Counsel of the Department of Defense shall review the policies and procedures revised under this paragraph in order to ensure that any lack of uniformity in policies and procedures, as so revised, among the military departments does not render unconstitutional any policy or procedure, as so revised. (3) 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. (4) Effective date and applicability This section and the amendments made by this section shall take effect on the date designated by the President, which shall not be later than the first day of the first calendar month that begins two years after the date of the enactment of this Act. 3. Punitive article on sexual harassment and related investigation matters (a) Punitive article on sexual harassment (1) In general Subchapter X of chapter 47, United States Code (the Uniform Code of Military Justice), is amended by inserting after section 920c (article 120c) the following new section (article): 920d. Art. 120d. Sexual harassment (a) In general Any person subject to this chapter who commits sexual harassment against another person shall be punished as a court-martial may direct. (b) Sexual harassment defined (1) In this section term sexual harassment means conduct that takes place in a circumstance described in paragraph (2) that takes the form of— (A) a sexual advance; (B) a request for sexual favors; or (C) any other conduct of a sexual nature. (2) A circumstance described in this paragraph is a situation in which— (A) submission to the conduct involved is made either explicitly or implicitly a term or condition of employment; (B) submission to or rejection of such conduct is used as the basis for an employment decision affecting an individual’s employment; or (C) such conduct unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating hostile, or offensive work environment, as determined in accordance with paragraph (3). (3) In determining, for purposes of paragraph (2)(C), whether conduct constitutes sexual harassment because the conduct unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment, the following rules shall apply: (A) The determination shall be made on the basis of the record as a whole, according to the totality of the circumstances. A single incident may constitute sexual harassment. (B) Incidents that may be sexual harassment shall be considered in the aggregate, with— (i) conduct of varying types (such as expressions of sex-based hostility, requests for sexual favors, and denial of employment opportunities due to sexual orientation) viewed in totality, rather than in isolation; and (ii) conduct based on multiple protected characteristics (such as sex and race) viewed in totality, rather than in isolation. (C) The factors specified in this subparagraph are among the factors to be considered in determining whether conduct constitutes sexual harassment and are not meant to be exhaustive. Not one of those factors shall be considered to be determinative in establishing whether conduct constitutes sexual harassment. Such factors are each of the following: (i) The frequency of the conduct. (ii) The duration of the conduct. (iii) The location where the conduct occurred. (iv) The number of individuals engaged in the conduct. (v) The nature of the conduct, which may include physical, verbal, pictorial, or visual conduct, and conduct that occurs in person or is transmitted, such as electronically. (vi) Whether the conduct is threatening. (vii) Any power differential between the alleged harasser and the person allegedly harassed. (viii) Any use of epithets, slurs, or other conduct that is humiliating or degrading. (ix) Whether the conduct reflects stereotypes about individuals in the protected class involved. . (2) Clerical amendment The table of sections at the beginning of such subchapter is amended by inserting after the item relating to section 920c (article 120c) the following new item: 920d. 120d. Sexual harassment. . (b) Investigations of sexual harassment (1) In general Section 1561 of title 10, United States Code, is amended to read as follows: 1561. Complaints of sexual harassment: independent investigation (a) Action on complaints alleging sexual harassment A commanding officer or officer in charge of a unit, vessel, facility, or area of an armed force under the jurisdiction of the Secretary of a military department, who receives, from a member of the command or a member under the supervision of the officer, a formal complaint alleging sexual harassment by a member of the armed forces shall, as soon as practicable after such receipt, forward the complaint to an independent investigator. (b) Commencement of investigation To the extent practicable, an independent investigator shall commence an investigation of a formal complaint of sexual harassment not later than 72 hours after— (1) receiving a formal complaint of sexual harassment forwarded by a commanding officer or officer in charge under subsection (a); or (2) receiving a formal complaint of sexual harassment directly from a member of the armed forces. (c) Duration of investigation To the extent practicable, an investigation under subsection (b) shall be completed not later than 14 days after the date on which the investigation commences. (d) Report on command investigation To the extent practicable, an independent investigator who commences an investigation under subsection (b) shall— (1) submit a final report on the results of the investigation, including any action taken as a result of the investigation, to the officer described in subsection (a) not later than 20 days after the date on which the investigation commenced; or (2) submit a report on the progress made in completing the investigation to the officer described in subsection (a) not later than 20 days after the date on which the investigation commenced and every 14 days thereafter until the investigation is completed and, upon completion of the investigation, then submit a final report on the results of the investigation, including any action taken as a result of the investigation, to that officer. (e) Definitions In this section: (1) The term formal complaint means a complaint that an individual files in writing and attests to the accuracy of the information contained in the complaint. (2) The term independent investigator means a member of the armed forces or employee of the Department of Defense— (A) who is outside the chain of command of the complainant; and (B) whom the Secretary concerned determines is trained in the investigation of sexual harassment. (3) The term sexual harassment has the meaning given that term in section 920d(b) of this title (article 120d of the Uniform Code of Military Justice). . (2) Clerical amendment The table of sections at the beginning of chapter 80 of such title is amended by striking the item relating to section 1561 and inserting the following new item: 1561. Complaints of sexual harassment: independent investigation. . (3) Effective date The amendment to section 1561 of such title made by this subsection shall— (A) take effect on the day that is two years after the date of the enactment of this Act; and (B) apply to any investigation of a formal complaint of sexual harassment (as those terms are defined in such section, as amended) made on or after that date. (4) Report on implementation Not later than nine months after the date of the enactment of this Act, each Secretary of a military department shall submit to Congress a report on preparation of that Secretary to implement the amendment to section 1561 of such title made by this subsection. 4. Confidential reporting of sexual harassment (a) Establishment Chapter 80 of title 10, United States Code, is amended by inserting after section 1561a the following new section: 1561b. Confidential reporting of sexual harassment (a) Establishment Notwithstanding section 1561 of this title, the Secretary of Defense shall prescribe regulations establishing a process by which a member of an armed force under the jurisdiction of the Secretary of a military department may confidentially allege a complaint of sexual harassment to an individual outside the immediate chain of command of that member. (b) Receipt of complaint An individual designated to receive complaints under subsection (a)— (1) shall maintain the confidentiality of the member alleging the complaint; (2) shall provide to the member alleging the complaint the option— (A) to file a formal or informal report of sexual harassment; and (B) to include reports related to such complaint in the Catch a Serial Offender Program; and (3) shall provide to the commander of the complainant a report— (A) regarding the complaint; and (B) that does not contain any personally identifiable information regarding the complainant. (c) Education and tracking The Secretary of Defense shall— (1) educate members under the jurisdiction of the Secretary of a military department regarding the process established under this section; and (2) track complaints alleged pursuant to the process. (d) Annual reports The Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives on an annual basis a report containing data (that does not contain any personally identifiable information) relating to complaints alleged pursuant to the process established under this section during the preceding year. . (b) Clerical amendment The table of sections at the beginning of chapter of 80 such title is amended by inserting after the item relating to section 1561a the following new item: 1561b. Confidential reporting of sexual harassment. . (c) Implementation The Secretary shall carry out section 1561b of title 10, United States Code, as added by subsection (a), not later than one year after the date of the enactment of this Act. 5. Authorization of claims by members of the Armed Forces and employees of the Department of Defense against the United States that arise from sexual misconduct (a) Claims arising from sexual harassment (1) In general Chapter 163 of title 10, United States Code, is amended by inserting after section 2733a the following new section: 2733b. Claims arising from sex-related offenses (a) In general Consistent with this section and under such regulations as the Secretary of Defense shall prescribe under subsection (d), the Secretary may allow, settle, and pay a claim against the United States for personal injury or death of a claimant arising from— (1) a sex-related offense; (2) the negligent failure to prevent a sex-related offense; or (3) the negligent failure to investigate a sex-related offense. (b) Requirement for claims A claim may be allowed, settled, and paid under subsection (a) only if— (1) the claim is filed by the claimant who is the victim of the sex-related offense, or by an authorized representative on behalf of such claimant who is deceased or otherwise unable to file the claim due to incapacitation; (2) the claim is presented to the Department in writing within two years after the claim accrues; (3) the claim is not allowed to be settled and paid under any other provision of law; and (4) the claim is substantiated as prescribed in regulations prescribed by the Secretary of Defense under subsection (d). (c) Payment of claims (1) If the Secretary of Defense determines, pursuant to regulations prescribed by the Secretary under subsection (d), that a claim under this section in excess of $100,000 is meritorious, and the claim is otherwise payable under this section, the Secretary may pay the claimant $100,000 and report any meritorious amount in excess of $100,000 to the Secretary of the Treasury for payment under section 1304 of title 31. (2) Except as provided in paragraph (1), no claim may be paid under this section unless the amount tendered is accepted by the claimant in full satisfaction. (d) Regulations (1) The Secretary of Defense shall prescribe regulations to implement this section. (2) Regulations prescribed by the Secretary under paragraph (1) shall include the following: (A) Policies and procedures to ensure the timely, efficient, and effective processing and administration of claims under this section, including— (i) the filing, receipt, investigation, and evaluation of a claim; (ii) the negotiation, settlement, and payment of a claim; and (iii) such other matters relating to the processing and administration of a claim, including an administrative appeals process, as the Secretary considers appropriate. (B) Uniform standards consistent with generally accepted standards used in a majority of States in adjudicating claims under chapter 171 of title 28 (commonly known as the Federal Tort Claims Act ) to be applied to the evaluation, settlement, and payment of claims under this section without regard to the place of occurrence of the sex-related offense giving rise to the claim or the military department of the covered individual, and without regard to foreign law in the case of claims arising in foreign countries, including uniform standards to be applied to determinations with respect to— (i) whether an act or omission by a covered individual was negligent or wrongful, considering the specific facts and circumstances; (ii) whether the personal injury or death of the claimant was caused by a negligent or wrongful act or omission of a covered individual; (iii) requirements relating to proof of duty, breach of duty, and causation resulting in compensable injury or loss, subject to such exclusions as may be established by the Secretary; and (iv) calculation of damages. (C) Such other matters as the Secretary considers appropriate. (3) In order to implement expeditiously the provisions of this section, the Secretary may prescribe the regulations under this subsection— (A) by prescribing an interim final rule; and (B) not later than one year after prescribing such interim final rule and considering public comments with respect to such interim final rule, by prescribing a final rule. (e) Limitation on attorney fees (1) No attorney shall charge, demand, receive, or collect for services rendered, fees in excess of 20 percent of any claim paid pursuant to this section. (2) Any attorney who charges, demands, receives, or collects for services rendered in connection with a claim under this section any amount in excess of the amount allowed under paragraph (1), if recovery be had, shall be fined not more than $2,000, imprisoned not more than one year, or both. (f) Annual report Not less frequently than annually until 2026, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report— (1) indicating the number of claims processed under this section; (2) indicating the resolution of each such claim; and (3) describing any other information that may enhance the effectiveness of the claims process under this section. (g) Definitions In this section: (1) The term covered individual means a member of the armed forces or an employee of the Department of Defense. (2) The term sex-related offense has the meaning given that term in section 834(d)(2) of this title (article 34(d)(2) of the Uniform Code of Military Justice). . (2) Clerical amendment The table of sections at the beginning of chapter 163 of such title is amended by inserting after the item relating to section 2733a the following new item: 2733b. Claims arising from sex-related offenses. . (b) Interim briefing on development of regulations Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall provide to the Committees on Armed Services of the Senate and the House of Representatives a briefing on the development of regulations under section 2733b(d) of title 10, United States Code, as added by subsection (a)(1). (c) Conforming amendments (1) Section 2735 of such title is amended by inserting 2733b, after 2733a, . (2) Section 1304(a)(3)(D) of title 31, United States Code, is amended by inserting 2733b, after 2733a, . (d) Effective date and transition provision (1) Effective date The amendments made by this section shall apply to any claim filed under section 2733b of such title, as added by subsection (a)(1), on or after January 1, 2021. (2) Transition Any claim filed in calendar year 2020 shall be deemed to be filed within the time period specified in section 2733b(b)(2) of such title, as so added, if it is filed within three years after it accrues. 6. Reports on Sexual Harassment/Assault Response Programs of the military departments (a) Secretary of Defense report (1) In general Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to Congress a report on the Sexual Harassment/Assault Response Programs (SHARP) of the military departments. (2) Elements The report required by paragraph (1) shall include the following: (A) A description and assessment of the Sexual Harassment/Assault Response Program of each military department, including the funding for such program, the manner in which such funding is allocated, and the elements of such program that receive funding. (B) A comparative assessment of the feasibility and advisability of carrying out the Sexual Harassment/Assault Response Programs through each structure as follows: (i) The current structure. (ii) A structure involving discharge through civilian personnel. (iii) A structure involving discharge though substantial numbers of contractors. (iv) A structure involving the establishment of a military occupational specialty to permit members of the Armed Forces to extend their time in a Sexual Harassment/Assault Response Program and professionalize their services (including proper education and training as well as continuing education). (v) Any other structure the Secretary considers appropriate. (b) Comptroller General of the United States report (1) In general Not later than one year after the date of the enactment of this Act, the Comptroller General of the United States shall submit to Congress a report on the Sexual Harassment/Assault Response Programs of the military departments. (2) Elements The report required by paragraph (1) shall include the following: (A) An assessment by the Comptroller General of the efficacy and impacts of the Sexual Harassment/Assault Response Programs of the Armed Forces. (B) Such recommendations as the Comptroller General considers appropriate for improvements to the Sexual Harassment/Assault Response Programs. 7. GAO study of members absent without leave or on unauthorized absence (a) Study; report Not later than September 30, 2021, the Comptroller General of the United States shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report containing the results of a study regarding how the Armed Forces handle cases of members of the Armed Forces absent without leave or on unauthorized absence. (b) Elements The study under this section shall include the following: (1) The procedures and guidelines established by each Armed Force for the investigation of such a case. (2) The guidelines for distinguishing between— (A) common cases; (B) cases that may involve foul play or accident; and (C) cases wherein the member may be in danger. (3) The current guidelines for cooperation and coordination between military investigative organizations and— (A) local law enforcement agencies; and (B) Federal law enforcement agencies. (4) The current guidelines for use of traditional and social media in conjunction with such cases. (5) Military resources available for such cases and any apparent shortfalls in such resources. (6) How the procedures for such cases vary between Armed Forces. (7) How the procedures described in paragraph (6) vary from procedures used by local and Federal law enforcement. (8) Best practices for responding to and investigating such cases. (9) Any other matter the Comptroller General determines appropriate.