Members of the U.S. military are subject to the same rules of behavior as the civilian population, but as defenders of the nation, they may be ordered to commit acts that are considered criminal in the nonmilitary community. Therefore, they require a justice system that is tailored to their unique tasks and responsibilities. This chapter provides a brief overview of the military justice system--its structure, organization, and procedures for the charging, prosecution, and punishment of offenses. It explains the Victim-Witness Assistance Programs that provide victims and witnesses of military crime with guidance through the justice system. It outlines related programs designed to assist military families in coping with child and spousal abuse and to assist military personnel in coping with sexual harassment, sexual assault, and job discrimination. Finally this chapter discusses the measures the federal government has authorized to compensate victims of military crime and the use of negotiated restitution as a condition for pretrial agreements and parole.
Upon completion of this chapter, students will understand the following concepts:
Sexual harassment charges were filed in late 1999 by the first three-star and ranking female general in the Army. The case marks the beginning of a new round of investigations into sexual harassment in the military. Groping charges were made against another general, who was the victim's immediate superior, at the time the events were alleged to have occurred in 1996. The harassment was reported at that time and dealt with in a non-public manner. Last year, when the alleged offender was promoted to a higher rank, the victim took her charges to the Army Inspector General's Office. Women make up 15 percent of the army's 479,000 people, but there are only 10 women among the 301 Army generals on active duty (Ricks 5 April 2000).
The last decade has witnessed heightened interest in the rights and needs of crime victims throughout the military. The Department of Defense (DoD) has issued extensive policy guidance to assign responsibilities and to establish procedures and program standards for providing victim assistance. Military installations around the world have established comprehensive programs and entered into Memoranda of Understanding with neighboring civilian communities to enhance and protect the rights of victims throughout the military criminal justice system. Through collaboration with the Office for Victims of Crime, the DoD has provided training and technical assistance to improve victims' rights and services when military personnel are involved in crimes.
Overview of the Military Justice System
The Uniform Code of Military Justice (UCMJ), enacted by Congress, contains the substantive and procedural laws governing the military justice system. The President prescribes procedural rules and punishments for violations of crimes in the Manual for Courts-Martial (MCM).
Investigations of serious offenses involving military personnel such as rape, indecent assault, drugs, or larceny are usually conducted by a criminal investigative agency, such as the Army's Criminal Investigation Command (CID). For less serious offenses and most military-connected crimes, the authority rests with military or security police investigators. In cases involving very minor offenses, the immediate commander of the military member suspected will conduct or cause to be made a preliminary inquiry. Lawyers, known as judge advocates, are actively involved in advising commanders throughout the process.
Unlike civilian communities, military commanders exercise discretion in deciding whether an offense should be charged and how the offenders should be punished. The disposition decision is one of the most important and difficult decisions facing a commander. The commander has a number of options available for the resolution of disciplinary problems. Briefly summarized, they are as follows:
The trial of a court-martial is not unlike a civilian criminal trial. The differences lie in the procedural requirements. The military follows rules of evidence patterned after the Federal Rules of Evidence. The members or judge hears evidence and renders a decision concerning the accused's guilt. In order to convict the accused, the members must be persuaded beyond a reasonable doubt that the accused is guilty. If the accused is convicted, a sentencing hearing is held.
An accused convicted by court-martial is entitled to review of his or her trial. Before approving a court-martial conviction and sentence, the convening authority must be satisfied beyond a reasonable doubt that the findings are supported by the evidence. The type of review depends on the level of trial and nature of the approved sentence. Some appeals may proceed all the way the United States Supreme Court.
The initial step in the appellate process is a review by the convening authority. The convening authority may approve all or any part of a legal sentence; he or she may mitigate a sentence or change the punishment to one of a different nature so long as the severity of the punishment is not increased.
If the convening authority approves a punitive discharge (either a bad-conduct discharge, dishonorable discharge, or dismissal) or confinement in excess of one year, the record of trial must be reviewed by the Department's Court of Criminal Appeals. This court, composed of military judges, will weigh the evidence and decide whether the findings and sentence are legally correct and, if so, whether the sentence is appropriate. The court may set aside the findings and sentence or may reduce the sentence, but it cannot increase the severity of the punishment.
The next court in the appellate process, the Court of Appeals for the Armed Forces, is composed of five civilian judges appointed by the President for fifteen year terms. This Court reviews questions of law only. Both the accused and the government may petition the Supreme Court for a writ of certiorari from the Court of Appeals for the Armed Forces. The review by the Supreme Court is entirely discretionary and extremely rare.
To address hate and bias crimes in the military, President Clinton signed an executive order on October 9, 1999, that amended the Manual for Courts-Martial, which establishes procedures for criminal trials in the armed forces. The order makes a number of changes to modernize the rules of evidence thatapply to court-martial proceedings. Gay rights advocates called for the order in the wake of the killing in July 1999 of Army Pvt. Barry Winchell at Fort Campbell, Kentucky, because he was believed to be homosexual. He was beaten to death with a baseball bat. President Clinton's order also extends limited protection to homosexuals in the military who confide their sexual orientation to psychotherapists.
The new rule provides that evidence of a violent hate or bias crime may be presented to the sentencing authority as an aggravating factor in the determination of the appropriate sentence. Section 1. Part II of the Manual for Courts-Martial, United States, R.C.M. 1001(b)(4) is amended by inserting the following:
Evidence in aggravation includes, but is not limited to, evidence of financial, social, psychological, and medical impact on or cost to any person or entity who was the victim of an offense committed by the accused and evidence of significant adverse impact on the mission, discipline, or efficiency of the command directly and immediately resulting from the accused's offense. In addition, evidence in aggravation may include evidence that the accused intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.
As is increasingly the case in civilian courts, this rule sends a strong message that violence based on hatred will not be tolerated. In particular, the rule provides that the sentencing authority may consider whether the offense was motivated by the victim's race, color, religion, national origin, ethnicity, gender, disability or sexual orientation (Uniform Code of Military Justice, 10 U.S.C. 801-946).
DoD Victim and Witness Assistance Programs
DoD Directive 1030.1, Victim and Witness Assistance (November 23, 1994) and DoD Instruction 1030.2, Victim and Witness Assistance Procedures (December 23, 1994) implement statutory requirements for victim and witness assistance and provide guidance for assisting victims and witnesses of crime from initial contact through investigation, prosecution, and confinement.
Together, the Directive and Instruction provide policy guidance and specific procedures to be followed for victim and witness assistance in all sectors of the military. They apply to the Office of the Secretary of Defense and the following military components:
The Directive includes a Bill of Rights which closely resembles the Federal Crime Victims' Bill of Rights. DoD officials are responsible for ensuring that victims of military crimes are afforded the rights to:
The DoD victim and witness assistance programs cover the entire military justice process--from investigation through prosecution and confinement.
In providing services and assistance to victims, the DoD programs emphasize an interdisciplinary approach involving the following:
DoD victim and witness assistance programs use standard forms to advise victims and witnesses of their rights during all stages of a case. The following chart lists the DoD forms, when they are used, and their purpose:
An Interdisciplinary DoD Victim and Witness Assistance Council provides a forum for the exchange of information and the coordination of policy recommendations. The Council helps to foster the implementation of consistent and comprehensive policies and procedures to respond to crime victims and witnesses in all of the military services. A Senior Program Specialist with the U.S. Department of Justice, Office for Victims of Crime, serves as a liaison member.
Each branch of the military has issued regulations to further implement victim and witness programs and assign program responsibilities. [Army: DA Reg. 27-10, Chapter 18 (24 June 1996); Air Force: AF Instruction 51-201 (September 1996); and Navy/Marine Corps: SECNAV INSTR. 5800.11A (16 June 1995) and OPNAVINSTR 5800.7 (30 April 1996)]. All of these programs implement the guidelines and policies set forth in the DoD Directive and Instruction described above. There are some differences in the programs within each service. The Air Force and Army have designated the Service Judge Advocate General as component responsible official to provide oversight over the respective programs. The Chief of Naval Personnel is the component responsible official for the Navy.
Each military department has also established an interdisciplinary Victim and Witness Assistance Council, as well as a central repository for tracking notice of the status of offenders confined in military correctional facilities. In addition, as required by DoD policy, local councils have been established at each significant military installation to ensure that an interdisciplinary approach is followed by victim and witness service providers.
The following offices provide oversight for the implementation of victim assistance programs within the Office of the Secretary of Defense and in each military service:
RELATED SPECIAL MILITARY PROGRAMS
Family Advocacy Program. Each branch of the military services has a Family Advocacy Program that operates in accordance with DoD Directive 6400.1. They are designed to prevent child and spouse abuse, to promote early identification and intervention in cases of alleged child and spouse abuse, and to provide programs of rehabilitation and treatment for child and spouse abuse problems. To the maximum extent possible, DoD cooperates with responsible civilian authorities in efforts to address the problems to which this Directive applies. Each branch of service maintains a central registry containing data on reports of alleged child and spouse abuse.
If more than one child is a victim of sexual abuse in an out-of-home care setting, DoD may convene a multidisciplinary team of specially trained personnel to provide technical assistance. Technical assistance may include law enforcement investigations, forensic medical examinations, forensic mental health examinations, and victim assistance to the victim and family.
Equal Opportunity Program. DoD Directive 1350.2 establishes a system of discrimination complaint processing and resolution for all forms of unlawful discrimination and sexual harassment. Under DoD policy, the chain of command is responsible for creating and maintaining an environment to ensure that human relations and equal opportunity matters are taken seriously and to correct discriminatory practices. This includes the processing and resolving of complaints of unlawful discrimination and sexual harassment. It also provides for the training of all military personnel on how the complaint system functions and the protection against reprisal it affords individuals making complaints.
Navy's Sexual Assault Victim Intervention Program (SAVIP). The Navy SAVIP was established in 1994 as a comprehensive, standardized, victim-sensitive system response to sexual assault. The program provides sexual assault awareness and prevention education programs and victim advocacy and intervention services; and collects accurate data on sexual assault in the Navy. There are 28 SAVIP Coordinators working in 26 Family Service Centers.
Special Compensation Programs in the Military
TRANSITIONAL COMPENSATION [10 U.S.C. §1059]
Dependents of members of the Armed Forces are eligible for transitional compensation if the military member was:
Monthly payments to a spouse will be at the rate in effect for the payment of dependency and indemnity compensation (DIC). This amount is currently $811 for the spouse and $120 for each child. If the spouse has custody of a dependent child(ren) of the member, the amount of compensation to the spouse will increase for each child. If there is no eligible spouse, compensation is paid to a dependent child or children in equal shares. Transitional compensation beneficiaries are also entitled to commissary and exchange privileges as long as payments are received. The minimum duration of the transitional compensation is the length of the member's remaining active duty commitment or twelve months, whichever is longer. The maximum duration of the compensation payments is thirty-six months.
Payments will be forfeited if the spouse remarries and are not resumed if remarriage ends. If payments to the spouse terminate due to remarriage and there is a dependent child not living in the same household as the spouse or member, payments will be made to the dependent child. In addition, payments end on the date the abuser begins residing in the household and will not be resumed once terminated.
PAYMENTS FROM RETIRED PAY FOR ABUSED DEPENDENTS [10 U.S.C. §1408(H)]
In order to receive payments from retired pay, the spouse or former spouse must obtain a civilian court order (typically done as part of a legal separation or divorce action) setting forth the spouse's portion of the accused's retired pay. The spouse/former spouse must have been married to the abusive member for at least ten years during which the member performed at least 10 years creditable service towards retirement (the ten-year periods must overlap). The spouse may not receive payments under both this program and the Transitional Compensation Program. If the spouse is eligible for both, the spouse must elect which payment to receive.
ARTICLE 139, UCMJ-PROPERTY CLAIMS
FOREIGN CLAIMS ACT
RESTITUTION FROM OFFENDER
COMPENSATION FOR MILITARY VICTIMS UNDER STATE PROGRAMS
State compensation programs vary in scope and procedures. Most programs pay for medical care, mental health counseling, lost wages and, in cases of homicide, funerals and lost support, and can help victims preserve some financial stability and continuity. With very few exceptions, compensationprograms pay only for expenses related to personal injury and do not cover property that is stolen, lost, or damaged. (Eyeglasses, hearing aids, and medical prostheses are exceptions, and some programs cover crime-scene cleanup.) Most states cover mental health counseling for family members of homicide victims, and in some cases, relatives and household members.
State compensation programs are "payers of last resort," meaning that they cannot offer benefits for expenses covered by "collateral resources," such as military benefits, medical and automobile insurance, other public assistance programs, and restitution received. State compensation programs generally impose an overall cap on the amount of compensation payable to a victim for a crime and caps on specific expenses, such as funeral expenses, and also contain time limits for applying for compensation.
Military Justice Self-Examination
1. Describe two significant differences between the military justice system and the criminal justice system in the way crimes are prosecuted.
2. Briefly describe the DoD interdisciplinary approach to providing services and assistance to victims.
3. Describe one victim assistance program available to victims of crime in the military justice system.
4. Under what circumstances may victims of crimes committed by military personnel be eligible for compensation from state victim compensation programs?