SAATIF Report

Sexual Assault Accountability
and Investigation Task Force
April 30, 2019

We, the appointed leads of the Task Force on Sexual Assault Accountability and
Investigation, hereby submit the results of our findings and recommendations.

)

Dr. Elizabeth P. Van Winkle
Executive Director, Force Resiliency

CHARLES N. PEDE
Lieutenant General, U.S. Anny
The Judge Advocate General

JOHN G. HANNINK
Vice Admiral, JAGC, U.S. Navy
The Judge Advocate General

JEFFREY A. ROCKWELL
Lieutenant General, U.S. Air Force
The Judge Advocate General

DANIELJ. LECCE
Major General, U.S. Marine Corps
The Staff Judge Advocate to the
Commandant of the Marine Corps

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Table of Contents
Executive Summary .................................................................................................................................... 5
Background ............................................................................................................................................... 5
Overview ................................................................................................................................................... 5
Task Force Structure and Process ............................................................................................................. 7
Specific Recommendations ....................................................................................................................... 7
Accountability Recommendations ............................................................................................................ 7
Support Recommendations ....................................................................................................................... 9
Introduction ............................................................................................................................................... 11
Background of the Military Justice System and Historical Reforms ................................................... 12
Role of the Commander in the Military Justice System ........................................................................ 13
Task Force Membership........................................................................................................................... 14
Task Force Process ................................................................................................................................... 14
Initial Deliberations ................................................................................................................................ 14
Data Review and Analysis ...................................................................................................................... 15
Additional Data and Information............................................................................................................ 15
Recommendation Formulation................................................................................................................ 15
Overview .................................................................................................................................................... 15
Assumptions ............................................................................................................................................ 15
Task Force Lines of Effort and Overview of Recommendations ............................................................. 15
Section 1. Accountability Recommendations......................................................................................... 17
Recommendation 1.1. Establish a Specific Criminal Offense of Sexual Harassment ............................ 17
Recommendation 1.2. Advance Sentencing Reform and Guidelines ..................................................... 19
Recommendation 1.3. Enhance 21st Century Forensic and Investigative Capabilities ........................... 20
Recommendation 1.3.1. Long-Term Storage Solution for Evidence Taken in Sexual Assault Cases.... 20
Recommendation 1.3.2. Establish a First-Ever Dedicated Analytical Capability .................................. 21
Recommendation 1.3.3. Enhance the Number of MCIO Digital Evidence Investigators....................... 22
Recommendation 1.3.4. Expand Forensic Science Technology ............................................................. 23
Recommendation 1.4. Expand Judicial Authorities ................................................................................ 24
Recommendation 1.5. Establish and Enhance Roles and Responsibilities for Commanders ................. 25
Recommendation 1.5.1. Role of the Commander to Keep Victims Informed ........................................ 25
Recommendation 1.5.2. Training and Education of the Commander at All Levels ............................... 27
Recommendation 1.5.3. Develop and Enhance Training and Education of Sexual Assault Initial
Disposition Authorities ........................................................................................................................... 29
Recommendation 1.6. Enhance the Military Justice System’s Transparency with the Public ............... 30
Recommendation 1.7. Extend the DAC-IPAD ....................................................................................... 31
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Section 2. Support Recommendations.................................................................................................... 32
Recommendation 2.1. Enhance the Integrated Multi-Disciplinary Special Victim Investigation and
Prosecution (SVIP) Capability ................................................................................................................ 32
Recommendation 2.2. Develop Policy to Enhance Protection for Victim Preference in Restricted
Reporting ................................................................................................................................................ 36
Recommendation 2.3. Protect Information Used in the CATCH Program............................................. 37
Recommendation 2.4. Develop Defense Investigator Capability ........................................................... 38
Task Force Way Forward ........................................................................................................................ 40
Appendix A ................................................................................................................................................ 41
Establishment of the Sexual Assault Accountability and Investigation Task Force. .............................. 41
Appendix B ................................................................................................................................................ 43
Task Force Membership ......................................................................................................................... 43
Appendix C ................................................................................................................................................ 44
Military Justice Reform – Legislative Changes in FY14-FY16 .............................................................. 44
Appendix D ................................................................................................................................................ 48
Side-by-side comparison of MJA 16 Changes ........................................................................................ 48
Appendix E ................................................................................................................................................ 52
Changes to the Military Justice System After the Enactment of MJA 16 ................................................ 52
Appendix F ................................................................................................................................................ 54
Associated Reports .................................................................................................................................. 54

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Executive Summary
Background
At the request of Senator Martha McSally during the Senate Armed Services Committee hearing
on March 14, 2019, Acting Secretary of Defense Patrick Shanahan pledged to form a team of
experts to take a fresh look at specific issues involving sexual assault, with a focus on the
investigative and accountability processes. To this end, the Department of Defense (DoD)
established the Sexual Assault Accountability and Investigation Task Force (SAAITF) to identify,
evaluate, and recommend immediate and significant actions to improve the accountability process,
specific to the investigation and disposition of cases in which members of the Armed Forces are
either victims or alleged offenders of sexual assault, while ensuring due process for both.
The SAAITF recognizes the significant military justice reform the Department has gone through
since 2006 and, most recently, with the Military Justice Act of 2016 (MJA 16), fully implemented
earlier this year. These reforms mark some of the most significant changes to the military justice
system since the Uniform Code of Military Justice (UCMJ) was enacted in 1950, including new
punitive articles, changes to pre-referral authorities and plea agreements, an additional courtmartial forum, changes to court-martial panel sizes, sentencing reform, enhanced changes to posttrial procedures and appellate rights, and mandatory training on the UCMJ. These changes
enhanced the system’s fairness – for victims and accused alike – while maintaining the system’s
usefulness as a tool to maintain military discipline.
In light of recent reforms, the charge of the SAAITF was to develop bold recommendations for
improvements to the military justice system in the areas of accountability, in particular commander
and military justice practitioner responsibilities and authorities, comprehensive support to victims,
and protection of rights for both the victim and the accused. The end result is specific and
significant recommendations to help Commanders set command/organizational climate, enhance
victim support, and ensure fair and just support for the accused, to include:
•

•
•

Improving the ability of the commander to set appropriate command climate by identifying
sexual harassment as a “stand alone” military crime vice being addressed under broader
charges that do not highlight the severity of these behaviors
Improving support to the victim by providing additional information and assistance
throughout the process, including more consistent and regular updates and notifications
Providing a dedicated investigation capability for defense counsel to help them defend
accused Service members

Overview
The military justice system must provide a fair criminal justice forum recognized by Service
members and the American public as such. It must also help military Commanders maintain the
good order and discipline necessary for our armed forces to fight and win wars. The Commander
stands at the center of the military justice system, and, regardless of Service, is responsible for the
health, welfare, and discipline of every Service member in his or her Command. This
responsibility and authority are vital to units’ accomplishment of their assigned missions. There
is no equivalent role in the civilian world that comes close to having this impact on the general
population. The military justice system is therefore quite unique in that it treats behaviors counter
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to good order and discipline as crimes, while providing comprehensive support to victims
throughout the process.
Because of this ultimate and unique responsibility of the Commander, authority for determining
the proper disposition of allegations of misconduct under the UCMJ, including serious crimes like
sexual assault and other forms of sexual misconduct, rests with the Commander. Commanders,
however, do not make military justice decisions in isolation. Every Commander is informed and
advised by qualified, professional judge advocates throughout the life of a case and at each key
stage of the process, from report and investigation to disposition and adjudication. Therefore, the
military justice system requires a process by which there is both accountability for the Commander
and support for the victim.
Reforms to the military justice system towards this end have been unparalleled in any other
jurisdiction. Reforms have consistently focused on improving the accountability of the process,
such as the role and responsibility of the Commander, and the support the military provides to
victims of sexual assault, such as the establishment of confidential reporting options and the special
victims’ counsel/victims’ legal counsel program. Both the accountability of the system and the
support provided by the system are unique to the military. Unlike a lawyer-focused civilian
system, the military needs a Commander-driven, lawyer-supported, victim-supportive system to
drive cultural change and enforce discipline required on the battlefield. While the military system
is unique in this regard, and necessarily so, the system deserves rigorous attention and evaluation
to ensure the process continues to provide support, upholds fairness, and maintains accountability
throughout the lifecycle of a sexual assault case.
Based on this, the SAAITF reviewed each step along the military justice process – from initial
reporting experiences, to investigations and forensic capabilities, to the prosecutorial system, to
sentencing, and to assessment of the victims’ experiences throughout the process – to ensure
accountability and support, and to identify ongoing improvements of the system. The report details
significant recommendations for improvement: adding a specific criminal offense of sexual
harassment to make a strong military-wide statement about the seriousness of these behaviors and
the military’s zero tolerance for them; thoroughly-updated training and education of all military
justice practitioners; enhanced capabilities to ensure the Department has state-of-the-art 21st
century forensic capabilities, which will enhance both the accuracy and timeliness of the
investigative process and military justice system; providing defense counsel with their own
investigators to promote due process for the accused; sentencing guidelines to promote consistency
in punishments; and Commander-assigned responsibilities to ensure the victim has consistent upto-date information throughout the investigation and military justice process, and to enhance the
Commander’s role, responsibility, and accountability throughout the process.
Not only will these recommendations improve the governing military law and the Department’s
policies, but they will send a strong, clear message to all Service members and their unit
commanders: The Department will ensure the Commander has all available tools, authorities,
information, and guidance to hold offenders appropriately accountable and support the victim,
while protecting the rights of the victim and the accused throughout the military justice process.
The Department will use whatever resources are required and bring the full weight of the
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Department of Defense to eliminate the scourge of sexual assault in our ranks and encourage more
Service members to come forward and report sexual assault and sexual harassment so
Commanders can hold offenders appropriately accountable and ensure good order and discipline.

Task Force Structure and Process
The SAAITF was co-led by the Executive Director of the DoD Office of Force Resiliency, the
Judge Advocates General of the Military Departments (TJAGs), and the Staff Judge Advocate
(SJA) to the Commandant of the Marine Corps (CMC). Task Force members also included leaders
from the Military Criminal Investigative Organizations (MCIOs), the Director of the DoD Sexual
Assault Prevention and Response Office (SAPRO), a senior representative from the Office of DoD
General Counsel (DoD OGC), and the Military Deputy for the Office of the Under Secretary of
Defense for Personnel and Readiness (OUSD(P&R)). Additional members were senior staff from
the Office of the Under Secretary of Defense for Personnel and Readiness, Office of the Assistant
Secretary of Defense for Legislative Affairs, the Office of DoD Inspector General (observation
role only), each Service’s respective sexual assault prevention and response (SAPR) office, senior
leaders from the Joint Staff and National Guard Bureau, the Judge Advocate General of the Coast
Guard, and a Senior Enlisted Advisor.
Before the establishment of the SAAITF, each Military Service was working to identify potential
gaps or areas of improvement in the military justice system as it relates to sexual crimes. During
its initial deliberations, the SAAITF reviewed all pending efforts to improve and enhance the
military justice system’s processing of sexual assault cases, as well as those that remained under
consideration by the Military Services. The SAAITF determined where efforts should be
standardized across the Department. Additional information was identified and reviewed by
members of the Task Force, including: recommendations from prior internal and external Task
Forces and Federal Advisory Committees, with specific focus on the Defense Advisory Committee
on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD);
data from the Workplace and Gender Relations Surveys (WGRs); and data from the Military
Investigation and Justice Experience Survey (MIJES).
To ensure a comprehensive review, members of the Task Force received briefings from sexual
assault survivors; a retired Service member accused while on active duty of a sexual assault (an
allegation later determined by a civil jury to be false); special victims’ counsel and support staff;
a defense counsel; and Commanders at the two-star level.

Specific Recommendations
Accountability Recommendations
The following recommendations provide significant actions and reforms to increase and enhance
the authority, integrity, and transparency of Commanders and the military justice system through
the entire lifecycle of a sexual assault case.
Recommendation 1.1. Establish a Specific Criminal Offense of Sexual Harassment

1.1. DoD OGC will direct the Joint Service Committee on Military Justice (JSC) to draft a proposal
for a specific offense of “sexual harassment” to be added to the Manual for Courts-Martial. The
Services may maintain their respective sexual harassment resolution processes as an option to
address minor misconduct.
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Recommendation 1.2. Advance Sentencing Reform and Guidelines

1.2. DoD OGC will direct the JSC to draft a proposal for adoption of non-binding sentencing
guidelines based on the sentencing data collected by the Military Justice Review Panel (MJRP) to
provide the sentencing authority with the range of confinement that will generally be appropriate
for a violation of each of the offenses criminalized under the UCMJ.
Recommendation 1.3. Enhance 21st Century Forensic and Investigative Capabilities

1.3.1. The Department will develop a long-term storage solution for evidence taken in sexual
assault cases.
1.3.2. The Department will establish a first-ever dedicated analytical capability to support the ongoing research needs of the MCIOs and share findings with the prevention community and law
enforcement community.
1.3.3. The Department will increase the number of MCIO digital evidence examiners to meet the
increasing demand for forensic digital evidence processing and timely return of victim electronics,
when legally possible, in sexual assault cases.
1.3.4. The Department will seek transfers and reprogrammings of current funding for Special
Victims Programs to allow for procurement to support advanced forensic capabilities.
Recommendation 1.4. Expand Judicial Authorities

1.4. DoD OGC will direct the JSC to draft a proposal to expand authorities for Military Judges and
Magistrates, particularly before a case has been referred to a court-martial.
Recommendation 1.5. Establish and Enhance Roles and Responsibilities for Commanders

1.5.1. The Department will direct the Military Services to require Sexual Assault Initial
Disposition Authorities (SAIDAs) to ensure that victim preference on choice of venue is
documented prior to making any decisions on allegations. The Department will direct the
Commander of a victim to ensure documentation of periodic notification of the key and significant
events during the military justice process has occurred. In addition, the Military Services will
ensure Commander’s compliance with these documentation requirements using established
Inspector General inspection processes.
1.5.2. The Department will establish training objectives for all aspects of a Commander’s role in
processing sexual assault cases through a comprehensive review of best practices in military
justice, victim assistance, promotion of healthy command climates, and ensuring the accused is
afforded due process rights. These training and education requirements will be standardized and
institutionalized across the Military Services’ respective training commands. Training will
enhance Commander and command team knowledge and skill through improved leadership
preparation that emphasizes various critical elements provided in the full report.
1.5.3. The Department will direct formalized training requirements for Commanders exercising
SAIDA, and determine minimum training objectives, including a focus on not only the handling
of alleged penetrative sexual assault offenses, but also related collateral misconduct alleged against
the accused or victim. Training requirements will be standardized and institutionalized across the
Military Services’ respective training commands.

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Recommendation 1.6. Enhance the Military Justice System’s Transparency with the Public

1.6. The Department will continue to support the enactment of legislation promoting public access
to military justice documents by excepting from the purview of the Privacy Act the public release
of court-martial dockets, filings, and records, while adopting measures to protect against the
inappropriate release of personal information.
Recommendation 1.7. Extend the DAC-IPAD

1.7. The Secretary will extend the DAC-IPAD beyond its current termination date to continue to
assess the effectiveness of the military justice system for sexual crimes.

Support Recommendations
The SAAITF also focused military justice reform recommendations to enhance the protections and
support of the victim while protecting the due process rights of both the victim and the accused.
Specific recommendations were formulated as follows:
Recommendation 2.1. Enhance the Integrated Multi-Disciplinary Special Victim Investigation and
Prosecution (SVIP) Capability

2.1. Multiple initiatives include:
•

The Department will, in collaboration with the Military Services, conduct a compliance
review of the SVIP capability across all military justice practitioners, including
investigators, trial counsel, support staff, and victim assistance personnel. This review will
include identification of areas of improvement to support this capability within the military
justice system.

•

Based on the above compliance review, the Department will revise applicable instructions,
as required, to enhance SVIP collaboration, integration, and synchronization involving
victim assistance personnel, criminal investigators, and military prosecutors any time a
sexual assault event is reported throughout the entire military justice process.

•

The Department will direct the Military Services to identify the appropriate delegated
official within the SVIP to provide and document notifications per Recommendation 1.5.1
in order to ensure regular and consistent updates to the victim as to the progress of the case.

•

The Department will modify applicable instructions to incorporate SVIP capability within
the investigative process. SVIP-qualified prosecutors will work closely with the MCIOs
when developing the investigative plan. Ultimately, all federal law enforcement
investigative processes and final investigative decisions must remain with the lead MCIO.

•

The Judge Advocates General and the SJA to CMC will enhance training requirements for
military justice practitioners, including Special Victims’ Counsel/Victims’ Legal Counsel
(SVCs/VLCs), defense counsel, and trial counsel. They will also coordinate to determine
minimum training objectives, and the Military Services will standardize and
institutionalize the training requirements across their respective training commands.
Training will focus on not only the handling of alleged penetrative sexual assault offenses,
but also related collateral misconduct alleged against the victim.

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•
•

The MCIOs will establish training requirements for investigators supporting SVIP. They
will also coordinate to determine minimum training objectives.

The Department will field the MIJES in years opposite the Workplace and Gender Relations
Survey of the Active Duty (WGRA), and adjust if need be to minimize burden on victims. In
addition, the MIJES will require additional publicity and support from response system
professionals to encourage greater participation rates.

Recommendation 2.2. Develop Policy to Enhance Protection for Victim Preference in Restricted
Reporting

2.2. The Department will develop a policy that would more fully protect the victim’s ability to file
a Restricted Report, as well as provide victims a confidentiality option should the victim’s sexual
assault allegation be inadvertently disclosed or a third-party report arise, in appropriate
circumstances.
Recommendation 2.3. Protect Information Used in the CATCH Program

2.3. The Department will make clear that information used in the CATCH a Serial Offender
(CATCH) Program will be protected under the Restricted Report protections and will not be
subject to disclosure under the Freedom of Information Act (FOIA).
Recommendation 2.4. Develop Defense Investigator Capability

2.4. The Department will direct the Services to develop an appropriate defense investigator
capability on a trial basis for a three-year term. Following the conclusion of the pilot program, the
program will be reassessed to determine whether the defense investigator capability enhanced the
administration of justice.

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Introduction
Sexual assault is beyond mere criminal conduct within the military; it is a reprehensible act that
harms those who have volunteered to serve in our Armed Forces. Not only does sexual assault
contravene our moral commitment to the basic dignity and respect of every individual, it also
damages the trust and cohesion that are critical foundations of military unit effectiveness and
lethality. That, fundamentally, makes sexual assault a readiness issue for the Department of
Defense (Department). Addressing this scourge is an operational imperative necessary to ensure
our ability to defeat any enemy, anywhere in the world.
Recent reforms to the military justice system, particularly in the area of victim support, have been
unparalleled in any other jurisdiction. These reforms have consistently focused on improving the
accountability of the process, such as the role and responsibility of the Commander, and the
support the military provides to victims of sexual assault, such as the establishment of confidential
reporting options and the special victims’ counsel/victims’ legal counsel program. Both the
accountability of the military justice process and practitioners, and the support of the victim, are
unique to the military. Unlike a lawyer-focused civilian system, the military needs a Commanderdriven, lawyer-supported, victim-supportive system to drive cultural change and enforce discipline
required on the battlefield. While the military system is unique in this regard, and necessarily so,
the system deserves rigorous attention and evaluation to ensure the process continues to provide
support, ensures fairness, and maintains accountability throughout the entire lifecycle of a sexual
assault case. At the same time, reforms must uphold – and ideally enhance – Commanders’ ability
to establish an appropriate command climate that fosters unit cohesion, esprit de corps, and mission
readiness.
In regard to sexual assault, the Department tracks trends within the response system and sexual
assault programs using two primary metrics: past-year prevalence of the crime and the percent of
Service members who report the crime to military officials. Outcomes of the military justice
system are most directly connected to the latter. That is, the good order and discipline achieved
through the military justice system is largely reliant upon the percent of individuals who opt into
the system by making a report. Over the last 15 years, as the Department expanded its military
justice system support to Service members, prevalence of sexual assault decreased by half and
reporting increased four-fold. In 2006, the Department estimated only 7 percent of those who
experienced a sexual assault came forward to report the incident to the military. In 2018, this rate
was approximately 30 percent. While the Department encourages greater reporting by Service
members, the majority of victims, an estimated 70 percent, do not come forward to report. Thus,
we must redouble our efforts, sustain important progress, and produce new and innovative
solutions to solve the problem. The Department must maintain a clear-eyed, impartial, and
consistent approach to evaluation of all elements of the investigative and military justice system.
Our military members must likewise have faith and confidence in this system so the world’s most
disciplined, ready, and lethal fighting force can protect the Nation and always be ready to fight
and win wars.
At the request of Senator Martha McSally during the Senate Armed Services Committee hearing
on March 14, 2019, Acting Secretary of Defense Patrick Shanahan pledged to form a team of
experts to take a fresh look at specific issues involving sexual assault, with a focus on the
11

investigative and accountability processes. To this end, the Department established the SAAITF
to identify, evaluate, and recommend immediate and significant actions to improve the
accountability process, specific to the investigation and disposition of cases in which members of
the Armed Forces are either victims or alleged perpetrators of sexual assault, while ensuring due
process for both (Appendix A). With a focus on accountability and investigation, the SAAITF
complements the ongoing work in separate, co-aligned efforts focused on prevention and includes
senior representation from the Office of Force Resiliency, the Judge Advocates General (TJAGs)
and the Staff Judge Advocate to the Commandant of the Marine Corps (SJA to CMC), and the
leads of the Military Criminal Investigative Organizations (MCIOs) (Appendix B for full
membership).

Background of the Military Justice System and Historical Reforms
The military justice system is designed to enhance good order and discipline while protecting the
rights of the accused and the victim. These concepts are enshrined in the Preamble of the Manual
for Courts-Martial (MCM): “The purpose of military law is to promote justice, to assist in
maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness
in the military establishment, and thereby to strengthen the national security of the United States.”
Like any complex system, it requires constant refinement. Since the UCMJ’s enactment, Congress
has amended it numerous times and the President has promulgated periodic revisions to the MCM
to refine the procedures related to courts-martial.
Starting in 2006, Congress enacted a series of modifications to the UCMJ focused on improving
the handling of sexual assault cases. These revisions to the military justice system continued at a
steady pace with significant legislative changes incorporated in the National Defense
Authorization Acts (NDAA) for Fiscal Years (FY) 2014, 2015, and 2016. These changes were
created in response to the deep concern of Congress and the Department with the problem of sexual
assault in the military. A summary of the changes to the military justice system during this time,
many of which provided additional rights and services for victims, is provided in Appendix C.
Section 576 of FY13 NDAA established the Response Systems Panel (RSP) to conduct a 12-month
review of the effectiveness of the systems used to investigate, prosecute, and adjudicate sexual
assault offenses, including the role of the Commander in the military justice system. After holding
14 public meetings, hearing from 154 witnesses, and reviewing thousands of pages of documents,
the RSP issued its report in June 2014 making 132 recommendations. The RSP included a
recommendation to retain the Commander’s role in exercising disposition discretion. The RSP
concluded that the Department, the Services, and senior leaders must ensure Commanders
understand their responsibility and that they be held accountable, and fairly evaluated, on their
execution of these critical responsibilities. Overall, the Department approved the vast majority of
the RSP recommendations.
Section 576 of FY13 NDAA created the Judicial Proceedings Panel (JPP) for a three-year term to
review the operation of the court-martial process with respect to sexual assault offenses. The JPP
held 32 public meetings between August 2014 and July 2017, and heard testimony from many
witnesses, including military leaders, sexual assault victims, sexual assault advocacy groups, DoD
and civilian victim services personnel, military and civilian prosecutors, defense counsel, victims’
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counsel, academic and subject matter experts, members of the public, and members of Congress.
The JPP received and reviewed thousands of pages of documents. The JPP issued 11 reports and
made 63 recommendations, many of which have been enacted by Congress, or implemented by
the Department and the Services, on the topics of Article 120, UCMJ; restitution and compensation
of victims of sexual assault; retaliation against those who report sexual assault; military defense
counsel resources and experience; victims’ appellate rights; sexual assault investigators; and
concerns regarding the fair administration of military justice in sexual assault cases.
On October 18, 2013, Secretary of Defense Chuck Hagel directed a comprehensive review of the
UCMJ and the MCM. In response to this direction, the Military Justice Review Group (MJRG),
led by the Honorable Andrew Effron, former Chief Judge of the United States Court of Appeals
for the Armed Forces, conducted a comprehensive review of the military justice system and
submitted its findings to the Department. The Department, with the Office of Management and
Budget’s approval, submitted the MJRG’s report to Congress in December 2015, which in large
measure formed the basis for the Military Justice Act of 2016 (MJA 16), most of which became
effective on January 1, 2019. The late Senator John McCain, then-Chairman of the Senate Armed
Services Committee, characterized these changes in the MJA 16 as “the most significant reforms
to the Uniform Code of Military Justice since it was enacted six decades ago.” A side-by-side
comparison of the former military justice system and the system as systematically reformed by the
MJA 16 is provided in Appendix D, along with a list of changes enacted after the MJA 16 at
Appendix E.
The Department established the DAC-IPAD in February 2016 pursuant to section 546 of the FY15
NDAA, as amended. The mission of the DAC-IPAD, the successor to the JPP, is to advise the
Department on the investigation, prosecution, and defense of allegations of rape, forcible sodomy,
sexual assault, and other sexual misconduct involving members of the Armed Forces. The DACIPAD is required to submit an annual report to the Department and Congress no later than March
30 of each year. It is now scheduled to terminate in February 2021.

Role of the Commander in the Military Justice System
The Commander stands at the center of the military justice system. The Commander, regardless
of Service, is responsible for the health, welfare, and discipline of every Service member in his or
her Command. This responsibility and authority promote the unit’s accomplishment of its
assigned missions. Because of this ultimate responsibility, authority for determining the proper
disposition of allegations of misconduct under the UCMJ, including serious crimes like sexual
assault, rests with the Commander. Commanders, however, do not make military justice decisions
in isolation. Every Commander is informed and advised by qualified, professional judge advocates
throughout the life of a case and at each key stage of the process, from report and investigation to
disposition and adjudication.
As the Department has worked with Congress to combat sexual assault, the role of the Commander
has undergone tremendous scrutiny and study. Some theorize that a Commander’s role at the
center of the military justice system hampers the Department’s ability to hold alleged offenders
appropriately accountable or to care for victims. External oversight entities tasked with reviewing
this issue arrived at a different conclusion that does not support the aforementioned theory. As an
13

example, the role of the Commander was studied by the RSP in 2014. The RSP determined that
removing the Commander’s authority within the military justice system would not improve the
quality of investigations and prosecutions, or the Department’s response to sexual assault. Further,
in its March 2019 report, the DAC-IPAD “found that military Commanders’ decisions whether to
prefer charges or not to prefer charges in penetrative sexual assault cases were reasonable in the
overwhelming majority (95%) of cases reviewed,” and “that there is no systemic problem with
command decision-making regarding preferral of charges for penetrative sexual assaults.”
While there remains much work to be done, objective measures demonstrate that the Commander’s
role in the military justice system does not hinder the Department’s response to sexual assault.
Moreover, because of the vital role Commanders play in establishing the climate of their units, and
achieving culture change where necessary, sexual assault is a Commanders’ issue. Therefore, if
Commanders were to be removed from their central role in the military justice system, they would
lose their most powerful tool available to drive home the message that sexual assault has no place
in the United States Armed Forces.

Task Force Membership
The SAAITF was co-led by the Executive Director of the DoD Office of Force Resiliency, the
Judge Advocates General of the Military Departments, and the SJA to CMC. Task Force members
included leaders from the MCIOs, the Director of DoD SAPRO, a senior representative from the
DoD OGC, and the Military Deputy for the OUSD(P&R). Additional members were senior staff
from the OUSD(P&R), Office of the Assistant Secretary of Defense for Legislative Affairs, DoD
OGC, DoD Office of the Inspector General (observation role only), each Service’s respective
SAPR offices, senior leaders from the Joint Staff and National Guard Bureau, and a Senior Enlisted
Advisor.
While the SAAITF is a DoD-led initiative, many of the recommendations directly affect the Coast
Guard. This is especially true for recommendations to revise the UCMJ, and other proposals to
reform the military justice system. Pursuant to 10 U.S.C. § 101 and 14 U.S.C. § 101, the Coast
Guard is a military service and a branch of the Armed Forces of the United States at all times.
Coast Guard officers and enlisted members are subject to the UCMJ pursuant to 10 U.S.C. § 802
(Article 2), and the Coast Guard is part of the military justice system as implemented in the MCM
(2019 ed.). Therefore, the SAAITF also included representation from the Coast Guard and this
report will be shared with the Department of Homeland Security. A comprehensive list of SAAITF
members is provided at Appendix B.

Task Force Process
Initial Deliberations Before the establishment of the SAAITF, each of the Military Services was
working to identify potential gaps or areas of improvement in the military justice system as it
relates to sexual crimes. During its initial deliberations, the SAAITF reviewed all pending efforts
to improve and enhance the military justice’s processing of sexual assault cases, as well as those
that remained under consideration by the Military Services. The SAAITF determined where
efforts should be standardized across the Department.

14

Data Review and Analysis Additional information was identified and reviewed by members of
the Task Force including:
•

•

Recommendations from prior internal and external Task Forces and Federal Advisory
Committees, with specific focus on the DAC-IPAD. More details on considered reports
are included in Appendix F.
Data from the WGRs as well as the MIJES.

Additional Data and Information To ensure a comprehensive review, members of the Task
Force received briefings from sexual assault survivors; a retired Service member accused while on
active duty of a sexual assault (an allegation later determined by a civil jury to be false); special
victims’ counsel and support staff; a defense counsel; and Commanders at the two-star level.

Recommendation Formulation The SAAITF developed recommendations through an informed
process with a focus on increasing the authority, integrity, transparency, and support of the military
justice system through the entire lifecycle of a sexual assault case and ensuring the system is
appropriately supportive of all who interact with it.

Overview
Assumptions
1. The SAAITF formulated recommendations agnostic of current policies, regulations, laws,
or legislative limitations.
2. The SAAITF did not limit its review to one aspect of the military justice system; rather the
SAAITF evaluated the entire lifecycle of the military justice process.
3. The SAAITF focused recommendations on the military justice system as it pertains to the
investigation and judicial processes for sexual assault crimes specifically, though many
recommendations will improve the military justice process writ large.
4. While the SAAITF focused primarily on response aspects, namely investigation and
adjudication, the SAAITF recognizes the profound and holistic impacts that these response
efforts have on overall prevention efforts.
5. The SAAITF Report references “victim” and “accused” throughout. Reference to “victim”
includes any Service member who reports a sexual assault to a military official, either
through restricted or unrestricted channels, as well as Service members whom others report
as being the victim of a sexual assault. Reference to the “accused” includes any Service
member who is named as the alleged perpetrator of the reported sexual assault. These
references in no way presuppose guilt or innocence of the accused, nor do they presuppose
a founded or unfounded allegation on behalf of the victim.

Task Force Lines of Effort and Overview of Recommendations
The Task Force leveraged the critical reforms from the MJA 16 and identified additional areas of
improvement and reform with a focus on two primary lines of effort outlined below.
Accountability: The ability of the military to maintain a ready and lethal force fundamentally
depends on the role and authority of Commanders, including their role within the military justice
system. Recommendations in this line of effort focused on increasing the authority, integrity, and
15

transparency of Commanders and the military justice system through the entire lifecycle of a
sexual assault case. Specific recommendations were formulated as follows:
•

•

•

•

The Commander is integral to military justice and good order and discipline.
o Recommendations include: Clarified roles and responsibilities of the Commander,
requirements for Commanders to ensure victims are informed throughout the
military justice process, established training objectives for all Commanders
involved in processing sexual assault cases, and the creation of Department-wide
training requirements for Commanders exercising SAIDA.
The Commander must make decisions based on the most accurate and timely information
from appropriately-trained investigators, robust forensic capabilities, and unbiased legal
guidance.
o Recommendations include: Increased forensic and analytic capability to provide
the most accurate and valid evidence.
The Commander must make informed, swift, and appropriate decisions using all authorities
granted to him/her.
o Recommendations include: Introduction of a specific criminal offense of sexual
harassment, sentencing guidelines to help guide the sentencing authority and to
promote sentencing consistency, and expansion of judicial authorities.
Commanders’ decisions should be transparent and the Commander should be held
accountable for ensuring procedures that are within his or her responsibility are applied
appropriately.
o Recommendations include: Requirements for the Services to ensure Commander
compliance with roles and responsibilities for ensuring victims are updated
throughout the investigation and military justice process.

All recommendations within this line of effort improve the following areas of focus:
•
•
•
•

Commander Responsibility and Authority
Process Timelines and Accuracy
Fairness and Due Process
System Credibility and Transparency

Support: The SAAITF focused military justice reform recommendations to enhance the protections
and support of the victim while protecting due process for both the accused and the victim.
Specific recommendations in this line of effort were formulated as follows:
•

•

The military justice system must reflect a comprehensive, standardized, experienced, and
collaborative approach to investigating and prosecuting sexual assault crimes.
o Recommendations include: Revitalization of SVIP Capability with enhanced
training and education for all practitioners within the SVIP.
The rights of the victim and the accused must be protected throughout all aspects of the
military justice process.

16

o Recommendations include: Ability of victims to maintain restricted reports;
protection of data for victims who use the CATCH program; documentation and
tracking of victim jurisdictional preference; notification of case progress and
outcome; standardized survey of victim experiences, attitudes, and satisfaction
after going through the system; defense investigator capability.
All recommendations within this line of effort improve the following areas of focus:
•
•
•

Victim/Accused Support and Experience
Integration and Synchronization of Services
Training and Education

Section 1. Accountability Recommendations
The following recommendations provide significant actions and reforms to increase and enhance
the authority, integrity, and transparency of Commanders and the military justice system through
the entire lifecycle of a sexual assault case.

Recommendation 1.1. Establish a Specific Criminal Offense of Sexual Harassment
Background:
Sexual harassment is not merely immoral, but also damages the teamwork that is necessary to the
successful accomplishment of military missions. Additionally, from our Department-wide surveys
and research, the Department recognizes that personnel within commands with heightened sexual
harassment prevalence are also at increased risk for sexual assault. Deterring and effectively
responding to sexual harassment is one of many initiatives that may, in combination, drive down
sexual assault prevalence.
While civilian laws prohibit sexual harassment, they do not make sexual harassment itself a crime.
Rather, U.S. civilian law characterizes sexual harassment as a civil wrong. In some other countries,
on the other hand, sexual harassment is a crime. 1
The Services have programs in place to resolve complaints of sexual harassment and allegations
of a hostile work environment administratively. An informal resolution process can be used to
address conduct that creates a hostile work environment such as inappropriate jokes, innuendo, or
discussions in the workplace. The informal resolution process resolves the minor misconduct
outside of the military justice process while maintaining good order and discipline in the unit.
The military has both the ability and the imperative to criminalize some behavior that is not
criminal in civilian society. As discussed previously, good order and discipline is a critical
necessity to a ready and lethal force. Good order and discipline is inherently the responsibility of
the Commander, and the military justice system is responsible for providing him or her with the
authorities and tools to succeed in this regard. Currently, a military member can be held criminally
1

See, for example, L. Camile Hebert, Dignity and Discrimination in Sexual Harassment Law: A French Case
Study, 25 Wash. & Lee J. Civil Rts. & Soc. Just. 4 (2018) (discussing France’s criminalization of sexual
harassment); Karen Musalo, El Salvador – A Peace Worse than War: Violence, Gender and a Failed Legal
Response, 30 Yale J.L. & Feminism 3, 44 (2018) (discussing El Salvador’s criminalization of sexual harassment by
a superior).

17

accountable for sexual harassment and similar conduct under the UCMJ by charging the alleged
offender with committing a general disorder (Article 134) or failing to obey an order or regulation
(Article 92). However, the military justice system does not have a specific punitive article or
enumerated Article 134 offense addressing sexual harassment.
The civilian system chiefly penalizes sexual harassment within the workplace. However, Service
members live and work in very close quarters where such behavior can become even more
disruptive. Consequently, a specific “sexual harassment” offense for the military should
encompass misconduct that occurs not only in the workplace, but also anywhere Service members
live, work, train, and socialize together.
Creating a specific “sexual harassment” offense under military law would be beneficial for
multiple reasons. Among them is it would more firmly reinforce the Department’s view that such
conduct is immoral and unacceptable. It would give Commanders another tool to help them
influence the behavior of their subordinates. Additionally, creating a specific sexual harassment
offense would facilitate data collection and analysis of incidence and reporting of this crime as the
Department could gauge specific alleged violations of this criminal charge.
Task Force Priority Areas:
•
•

System Credibility and Transparency
Commander Responsibility and Authority

Data Sources:
•
•
•
•
•

WGRAs
2014 RAND Military Workplace Survey
Manual for Courts-Martial, United States (2019 ed.)
Briefings to the SAAITF
National Discussion on Sexual Assault and Sexual Harassment at America's Colleges,
Universities, and Service Academies

Findings:
Based on surveys conducted by the Department, there is a strong positive correlation between the
occurrence of sexual harassment within military units and the occurrence of sexual assault.
Commands and installations with greater occurrence of sexual harassment often have higher rates
of sexual assault. This connection, and the importance of the Department’s focus on eliminating
sexual harassment from the ranks, was reiterated by briefings to the SAAITF and by panel briefers
at the 2019 National Discussion on Sexual Assault and Sexual Harassment at America's Colleges,
Universities, and Service Academies.
While sexual harassment can currently be prosecuted in the military justice system, there is no
stand-alone offense of “sexual harassment.” Feedback from Commanders reflected the importance
of the tools available to them to send strong messages about expected conduct, with the UCMJ as
the primary tool of authority.

18

Recommendation:
DoD OGC will direct the JSC to draft a proposal for a specific offense of “sexual harassment” to
be added to the Manual for Courts-Martial. The Services may maintain their respective sexual
harassment resolution processes as an option to address minor misconduct.
Estimated Resource Implications: None.

Recommendation 1.2. Advance Sentencing Reform and Guidelines
Background:
The UCMJ provides mandatory minimum sentences for a very limited class of offenses. 2 For most
offenses, the sentencing authority is free to adjudge any sentence from no punishment to the
maximum authorized punishments for all of the offenses resulting in a conviction combined. In a
rape case, for example, while the sentence must include a punitive discharge, the sentencing
authority may sentence a convicted Service member to any period of confinement ranging from
none to life without eligibility for parole. The sentencing authority is given very little guidance
concerning how to exercise discretion within that broad range.
The MJRG carefully analyzed the historical background, contemporary practice, and the purpose
and operation of Federal civilian sentencing guidelines. The MJRG concluded that several reforms
to military sentencing were necessary:
•
•

•

Eliminate the possibility of sentencing by members in non-capital cases, reserving the
sentencing function to military judges.
Provide that military judges will impose a separate term of confinement for each offense
that resulted in a conviction and make a determination as to whether the sentences will run
consecutively or concurrently.
Establish non-binding sentencing parameters and criteria to provide guidance to Military
Judges in determining an appropriate sentence in a manner similar to the Federal
Sentencing Guidelines in federal districts.

These proposed reforms were included in the draft Military Justice Act the Department transmitted
to Congress. Congress, however, chose to retain the possibility of member sentencing in some
non-capital cases and removed the provisions concerning sentencing parameters and criteria.
Task Force Priority Areas:
•
•
•

System Credibility and Transparency
Process Timeliness and Accuracy
Fairness and Due Process

2

Article 56 prescribes minimum punishments for rape, sexual assault, rape of a child, sexual assault of a child, and
attempt or conspiracy to commit any of these sex offenses. Additionally, a mandatory minimum sentence of
confinement for life applies to premeditated murder and felony murder.

19

Data Sources:
•
•

Report of the Military Justice Review Group, Part I (UCMJ Recommendations), 22 Dec
2015, pp. 501–15
Section 5521 of the FY17 NDAA modified Article 146, UCMJ to create the MJRP

Findings:
The lack of sentencing guidelines leaves the sentencing authority with tremendous discretion
regarding how much confinement to adjudge, while providing little guidance concerning the
exercise of that discretion. As a result, court-martial sentences for similar offenses often vary
widely.
Recommendation:
DoD OGC will direct the JSC to draft a proposal for adoption of non-binding sentencing guidelines
based on the sentencing data to be collected by the MJRP to provide the sentencing authority with
the range of confinement that will generally be appropriate for a violation of each of the offenses
criminalized under the UCMJ.
Estimated Resource Implications: Minimal.

Recommendation 1.3. Enhance 21st Century Forensic and Investigative Capabilities
The SAAITF identified four areas of reform and enhancement on the Department’s forensic and
investigative capabilities.

Recommendation 1.3.1. Long-Term Storage Solution for Evidence Taken in Sexual
Assault Cases
Background:
The Sexual Assault Forensic Evidence Reporting (SAFER) Act (2013) led to national best-practice
recommendations for retention of sexual assault evidence. Recommendations call for 50-year
retention in uncharged or unsolved cases and 20-year retention for sexual assault kits taken in
restricted reporting cases. DoDI 5505.18, Investigation of Adult Sexual Assault in the Department
of Defense, change 2, effective January 31, 2019, requires “all [sexual assault] physical and
forensic evidence must be retained for a period of at least 20 years from the date of seizure of the
evidence.”
“Physical and forensic evidence” collected in sexual assault cases frequently accumulates to
several cubic feet of material, such as clothing items, bed coverings, and carpeting, per case.
MCIOs investigate more than 5,000 sexual assault cases per year and most cases involve the
collection of some type of physical or forensic (including digital) evidence.
Task Force Priority Areas:
•

Process Timelines and Accuracy

20

Data Sources:
•
•
•

DoDI 5505.18, Investigation of Adult Sexual Assault in the Department of Defense, change
2, effective January 31, 2019
SAFER Act of 2013
Survivors’ Bill of Rights Act of 2016 (Public Law 114-236) 18 U.S.C. § 3772a

Findings:
MCIO field units are located in typical office facilities on military installations. MCIO offices do
not have sufficient space to store evidence for 20 years, per policy requirements. It is not feasible
to arrange for local storage solutions at more than 200 MCIO field units.
Recommendation:
The Department will develop a long-term storage solution for evidence taken in sexual assault
cases.
Estimated Resource Implication: Extensive
•
•
•

Manning: Central storage facility = approximately five full time personnel ($300,056)
Space: 85,000 square feet
Facility cost: TBD

Recommendation 1.3.2. Establish a First-Ever Dedicated Analytical Capability
Background:
The MCIOs have made significant progress in incorporating research-informed best-practices,
such as looking into the background of offenders for past similar conduct, utilizing cognitive
interviewing techniques, and providing investigators with training on the impact cognitive biases
can have in investigations. Currently, little research data exist about repeat offenders in sexual
assaults involving acquaintances or co-workers. Most sexual assaults in the military involve
acquaintances; less than 15 percent of Service members indicate experiencing sexual assault at the
hands of a complete stranger.
The MCIOs collectively conduct over 5,000 sexual assault investigations per year. As a result of
improved investigator training and agency oversight, MCIO investigations completed in the last
few years contain substantially more qualitative and quantitative information. This rich source of
data needs to be analyzed to assess if the improvements the MCIOs have made are leading to
quality investigative outcomes. The data also offer better insights into repeat offenders and their
methods of operation in reported cases, as well as insights to help better identify possible past
victims of repeat offenders.
Task Force Priority Areas:
•

Process Timelines and Accuracy

Data Sources:
•

MCIO case management and timeliness data
21

•

WGRs

Findings:
MCIOs do not possess sufficient dedicated analytical support to research data from investigative
case files to assess the efficacy of adjustments they have recently made to training and investigative
techniques or patterns of offending critical to future investigations. MCIOs, and the sexual assault
prevention community, would benefit from a deeper understanding of repeat offenders in reported
military sexual assault cases, an understanding not currently available in existing research.
Recommendation:
The Department will establish a first-ever dedicated analytical capability to support the on-going
research needs of the MCIOs and share findings with the prevention community and law
enforcement community.
Estimated Resource Implication: Extensive
•
•
•

Manning: Six full-time employee (FTE) analysts
Funding: Approximately $2M annually
Space and Equipment: Working space and computer support for six analysts

Recommendation 1.3.3. Enhance the Number of MCIO Digital Evidence Investigators
Background:
Most sexual assault incidents in the military involve individuals who know each other. In reported
cases, the parties often agree sexual activity took place but contest matters of consent. In cases
with these fact patterns, digital evidence can be the most probative, as records of electronic
communications provide important insight into issues surrounding consent.
Most criminal investigations conducted today involve the need to analyze computers, laptops, cell
phones, internet-connected home assistants, digital data stored in vehicles, etc. Digital devices
almost always contain relevant evidence (e.g., emails, texts, photographs, internet search logs, geolocation data, social media uploads/downloads), evidence particularly helpful in sexual assault
cases and associated crimes (e.g., stalking). Rapidly increasing data storage capacity, as well as
“cloud” storage, is adding to the challenge. More time is needed to analyze each device and
address procedures required for legally accessing remotely stored digital data.
MCIOs collectively saw a 14 percent increase (up by 695 cases) in unrestricted sexual assault
reports in 2018 over 2017. This increase resulted in more digital evidence needing to be collected
and analyzed. In fact, in 2018, the MCIOs processed 20 percent more terabytes of data than in
2017. The increased time it takes MCIOs to process digital evidence is now the main contributor
to case timeliness challenges. In 2018, the average time it took to publish a sexual assault
investigative report rose to 123 days, up from 119 days in 2017. This upward trend is expected to
continue due in large part to increased need for digital evidence analysis. In addition, as digital
devices become increasingly integrated into daily life, victims of sexual assault become quite
concerned about the loss of their primary means of communication. Recent changes in analysis
procedures attempt to minimize the amount of time a victim goes without his or her cell phone.
22

However, further reducing processing time and timely return of victims’ cell phones whenever
legally possible diminishes the potential for negative experiences associated with participation in
the military justice process.
Task Force Priority Areas:
•
•

Process Timelines and Accuracy
Victim/Accused Support and Experience

Data Sources:
•

•
•

Various studies, including: Digital Evidence and the U.S. Criminal Justice System:
Identifying Technology and Other Needs to More Effectively Acquire and Utilize Digital
Evidence, a RAND Corporation study (2015) for the National Institute of Justice
Workplace and Gender Relations Surveys
MIJES

Findings:
The combination of increasing caseloads, the increasing number of digital devices requiring
forensic processing, and the ever-increasing data storage capacity of digital devices is significantly
impacting overall investigative timeliness. The MCIOs need to meet the growing demand for
digital forensic evidence processing in sexual assault investigations.
Recommendation:
The Department will increase the number of MCIO digital evidence examiners to meet the
increasing demand for forensic digital evidence processing and timely return of victim electronics,
when legally possible, in sexual assault cases.
Estimated Resource Implication: Extensive
•
•
•

Manning: Each MCIO requires 10 (30 total) additional digital forensic examiners to meet
the demand for digital evidence processing in the field
Funding: Salary: GS 12/13 at $165K each (salary and benefits) = ~$5M
Initial training and equipment costs: $25K each = $750K

Recommendation 1.3.4. Expand Forensic Science Technology
Background:
Additional Operations and Maintenance (O&M) funding authority has been provided within
Consolidated Appropriations Bills historically from FY14 through FY19 for Special Victims
Programs.
The additional funds are made available for transfer to the Army, Air Force, Navy, and Marine
Corps, and Army and Air National Guard to continue support and expansion of the Special
Victims programs. The Special Victim program includes SVCs/VLCs, which provide covered
sexual assault victims their own attorney, as well as the SVIP Capability, which is comprised of
specially trained military investigators, judge advocates, paralegals, and victim witness

23

assistance personnel who investigate, prosecute, and support victims of covered offenses of child
abuse, serious domestic violence, or sexual offenses.
Task Force Priority Areas:
•

Process Timelines and Accuracy

Data Source:
•

Past DoD SAPRO efforts to try to approve procurement of equipment that would provide
enhanced forensics capability

Findings:
Existing additional funding is provided as O&M dollars, with plus-ups in funding ($35M in
FY19) from the House Appropriations Committee – Defense (HAC-D) and Senate
Appropriations Committee – Defense (SAC-D) for Special Victims Programming is O&M
funding (current year only). However, funds are not able to be transferred to the Department of
the Army for U.S. Army Criminal Investigation Laboratory (USACIL) investment accounts to
procure equipment to support advanced forensic technologies.
Recommendation:
The Department will seek transfers and reprogrammings of current funding for Special Victims
Programs to allow for procurement to support advanced forensic capabilities.
Estimated Resource Implications: None.

Recommendation 1.4. Expand Judicial Authorities
Background:
Under the current system, Military Judges are not involved in the judicial process until after
referral of charges, with a limited exception for certain matters such as the issuance of
investigative subpoenas and requests for orders or warrants for stored communications.
Otherwise, the Convening Authority retains responsibility for making many quasi-judicial
decisions which may later be reviewed by the detailed Military Judge once the case has been
referred to a court-martial. This results in unnecessary delays and duplication of effort.
Task Force Priority Areas:
•
•
•

System Credibility and Transparency
Process Timeliness and Accuracy
Fairness and Due Process

Data Sources:
•
•

Report of the Military Justice Review Group, Part I, pp. 301-06
Report of the Response Systems to Adult Sexual Assault Crimes Panel, pp. 49-50

24

Findings:
Military Judges have the authority to conduct certain hearings before referral of charges and the
Services have processes in place to facilitate the judiciary’s involvement early on in the process.
Congress assigned Military Judges this authority based upon a recommendation by the MJRG with
the purpose of aligning practice in courts-martial more closely to civilian Federal courts. Judges
in civilian Federal courts hold hearings on a number of pre-trial issues in addition to the issuance
of compulsory process.
Legal proceedings would benefit from a pre-referral review by a Military Judge or Magistrate,
thereby streamlining the military justice process and reducing duplication of effort. Early judicial
involvement would be beneficial for matters including, but not limited to: pretrial confinement
hearings, inquiries into an accused’s mental capacity or responsibility, and requests for Individual
Military Counsel, or issuance of protection orders. Post-trial proceedings could also benefit from
expanded judicial authority.
Recommendation:
DoD OGC will direct the JSC to formulate a proposal to expand authorities for Military Judges
and Magistrates.
Estimated Resource Implications: Minimal.
Manning: Additional Military Judges and/or Magistrates might be necessary to handle these
additional hearings.

Recommendation 1.5. Establish and Enhance Roles and Responsibilities for Commanders
The SAAITF strongly believes the ability of the military to maintain a ready and lethal force
fundamentally depends on the role and authority of the Commander. However, the SAAITF found
two areas where it recommends reform and enhancement of the roles and responsibilities of the
Commander.

Recommendation 1.5.1. Role of the Commander to Keep Victims Informed
Background:
Congress, the President, the Secretary of Defense, the Secretaries of the Military Departments, and
senior leaders in the Military Services have adopted numerous protections for victims in the
military justice system. Some of these are innovative programs that provide protections far beyond
those available in civilian criminal justice systems, such as the special victims’ counsel/victims’
legal counsel programs.
Crime victims, as defined in Article 6b(b), UCMJ, are afforded certain statutory rights in
accordance with Article 6b. Among those rights, a crime victim has the right to timely notice of
specified military justice proceedings involving the accused, (as well as the ability to be reasonably
heard at some proceedings) – to include: pretrial confinement proceedings under RCM 305(i);
preliminary hearings pursuant to Article 32, UCMJ; court-martial proceedings; public sentencing
hearings relating to the offense; and public hearings before any clemency and parole board.

25

Article 6b affords the victim the right to confer with the attorney for the U.S. Government in the
case, including the right to confer at any proceeding identified in Article 6b. R.C.M. 306 requires
the Secretaries of the Military Departments and, in the case of the Coast Guard, the Secretary of
Homeland Security, to prescribe regulations that provide a victim of a sexual assault crime the
ability to express their views as to the disposition of the case to the responsible convening
authority. Moreover, the convening authority must consider the victim’s jurisdictional preference
– whether that preference is to have the case adjudicated at a court-martial or a civilian court.
In addition to rights of a victim, there are responsibilities for Commanders, and there are a variety
of Commanders who play a role in the process. Rule for Courts-Martial 306 provides that “[t]he
Commander, and if charges are preferred, the convening authority, shall consider such views as to
the victim’s preference for jurisdiction, if available.” In this context, the “Commander” refers to
the SAIDA or the convening authority. There is no statutory requirement for any Commander to
document this preference.
Likewise, there is no statutory requirement for any Commander to notify the victim of the
disposition decision personally, and it is appropriate for the Commander to direct a victim-witness
assistance specialist or another appropriate individual to make the notification rather than doing
so personally. However, Department policy requires the victim’s Commander provide sexual
assault victims filing an Unrestricted Report with monthly updates regarding the current status of
any ongoing investigative, medical, or legal issues impacting the case, as well as command
proceedings regarding the sexual assault case until the final disposition. The Chair of the Monthly
Case Management Group meeting, typically an installation Commander, is required to ensure that
case dispositions are communicated to the sexual assault victim, to the extent authorized by law,
within 2 business days of the final decision. There is currently no standardized approach
documenting such victim notification has been accomplished
Requiring documentation of compliance with victims’ rights, and clarifying the responsibilities of
the various Commanders in the process, would serve at least two laudable goals. First, it would
promote compliance with the requirements, while providing a means to identify and remedy any
failures. Second, the resulting documentation would provide those entities that assess the military
justice system with helpful data to inform their analysis.
Task Force Priority Areas:
•
•

Commander Responsibility and Authority
Victim/Accused Support and Experience

Data Sources:
•
•
•
•
•

Article 6b, UCMJ (10 U.S.C. § 806b)
R.C.M. 306 (M.C.M. 2019 ed.)
DoDI 6400.07, “Standards for Victim Assistance Services in the Military Community,”
July 6, 2018
DoDI 6495.02, “Sexual Assault Prevention and Response (SAPR) Program Procedures,”
incorporating Change 3, May 24, 2017
2016-2017 Military Investigation and Justice Experience Survey
26

•

Briefings to the SAAITF

Findings:
Article 6b and R.C.M. 306 afford a victim of an alleged sexual assault the right to express a
preference as to military or civilian prosecution to the responsible convening authority. Currently,
there is no statutory requirement that the victim receive notification of a convening authority’s
disposition decision. There is also no uniform practice across the Services as to how victims of
alleged sexual assaults are notified of the disposition decision of the convening authority, nor is
there a requirement that this notification be in writing.
While DoDI 6400.07, enclosure 2, para. 3b, broadly discusses victim interaction with the military
justice system, there is no specific provision that mandates notification of the victim of disposition
decisions by a convening authority. DoDI 6495.02, enclosure 5, para. g2, requires a victim’s
commanding officer to notify victims who made an Unrestricted Report of updates relating to case
progress following monthly Case Management Group meetings. DoDI 6495.02, enclosure 5, para.
b3, requires the Chair of the Case Management Group meeting to ensure that case dispositions are
communicated to the sexual assault victim, to the extent authorized by law, within 2 business days
of the final disposition decision.
Statutes, executive orders, DoD issuances, and Military Department/Service regulations accord
extensive rights and procedural protections to victims in the military justice system. However,
documentation of compliance with those protections has been inconsistent. Requiring
documentation of compliance with victims’ rights, procedural protections, and fulfilment of
Commander notification responsibilities would promote compliance with those requirements.
In addition, surveys conducted by the Department found that victims’ rated survey items regarding
updates on the case as lowest in terms of satisfaction with services provided to them (2016-2017
MIJES). The surveys found – and briefings to the SAAITF also raised concern about – victims’
perceptions that their Commander was not knowledgeable about the case.
Recommendation:
The Department will direct the Military Services to require SAIDAs to ensure that victim
preference on choice of venue is documented prior to making any decisions on disposition of
sexual assault allegations. The Department will direct the Commander of a victim to ensure
documentation of periodic notification to victims of sexual assault of the key and significant events
during the military justice process has occurred. In addition, the Military Services will ensure
Commander’s compliance with these documentation requirements using established Inspector
General inspection processes.
Estimated Resource Implications: None

Recommendation 1.5.2. Training and Education of the Commander at All Levels
Background:
The considerable progress against sexual assault in the military over the past decade highlights
important lessons:
27

•
•
•

•

Leadership emphasis across the enterprise is a necessary, but not sufficient, factor to
advance sexual assault prevention and response.
Problematic command climate factors highly correlate with sexual assault.
Command leadership team preparation and a Commander’s responsibility and
accountability for the climate of the command play essential roles in promoting healthy
climates.
Service members respond when they perceive sincere leadership support, respect for
confidentiality, and sufficient value in the response process.

At the end of the March 6, 2019, Senate Armed Services Subcommittee on Personnel hearing with
representatives from the Office of the Secretary of Defense and the Judge Advocates General of
the Military Departments, Chairman Tillis stated he desired greater standardization of best
practices by Commanders related to their involvement in sexual assault cases.
Task Force Priority Areas:
•
•

Commander Responsibility and Authority
Victim/Accused Support and Experience

Data Sources:
•
•
•

DoD SAPRO, Military Services, and Congressional input
2016-2017 Military Investigation and Justice Experience Survey
Senate Armed Services Sub-Committee on Personnel Hearing on Military Services’
Prevention of and Response to Sexual Assault (March 7, 2019)

Findings:
The Department has oversight responsibility and each Military Service’s training command has
the capability to carry out and institutionalize this task in Commanders’ professional military
education (PME) courses and other educational opportunities. Further, precedent establishes the
Department’s ability to establish minimum standards to be implemented by the respective Service
training commands in training objectives across a variety of PME courses.
Recommendation:
The Department will establish training objectives for all aspects of a Commander’s role in
processing sexual assault cases through a comprehensive review of best practices in military
justice, victim assistance, promotion of healthy command climates, and ensuring the accused is
afforded due process rights. These training requirements will be standardized and institutionalized
across the Military Services’ respective training commands. Training will enhance Commander
and command team knowledge and skill through improved leadership preparation that emphasizes:
•

•

Expectations of professional conduct for Commanders and their command leadership team
and how to promote healthy unit climates and prevent incidents of retaliation against
victims, victims’ family members, bystanders, witnesses, and first responders.
Improved competency in skillfully addressing applied leadership challenges such as sexual
assault, domestic violence, and child abuse.
28

•

Guidance for commanders on how to explain to their subordinates in their unit the
appropriate, professional response by peers to a victim and an alleged offender when a
sexual assault is reported in a unit; and to explain that incidents of retaliation, reprisal,
ostracism, or maltreatment violate good order and discipline, erode unit cohesion, and may
deter reporting of sexual assault incidents.

Estimated Resource Implications: Minimal
Funding: Costs associated with curriculum development, assessment, and oversight of these
efforts.

Recommendation 1.5.3. Develop and Enhance Training and Education of Sexual Assault
Initial Disposition Authorities
Background:
The training and education of military justice practitioners, Commanders, and convening
authorities directly impact the experiences of the victims and the accused.
A Secretary of Defense memorandum of April 20, 2012, withheld initial disposition authority
(IDA) for all penetrative sexual assault offenses and attempts thereof from all Commanders who
are not at least special court-martial convening authorities (SPCMCA) in the grade of O-6 or
above. This restriction applies to all other alleged offenses arising from or relating to the same
incident, whether committed by the subject or the victim (“collateral misconduct”). The March
2019 report of the DAC-IPAD determined that “there is no systemic problem with command
decision-making regarding preferral of charges for penetrative sexual assaults.” DAC-IPAD also
found that Commanders’ disposition decisions were reasonable in 95% of reviewed cases from
FY17. However, the Secretary’s memorandum does not specify what training or other formal
qualifications these SAIDAs must possess. The Secretary’s memorandum requires the SAIDA to
consult with a judge advocate in making the initial disposition decision. Formal SAIDA training
will further enhance Commander capability in this area.
Task Force Priority Areas:
•
•
•

Training and Education
Victim/Accused Support and Experience
Integration and Synchronization of Services

Data Sources:
•
•
•

2016-2017 MIJES
Secretary of Defense Memo (“Withholding Initial Disposition Authority Under the
Uniform Code of Military Justice in Certain Sexual Assault Cases”) of April 20, 2012
DAC-IPAD Third Annual Report, March 2019

Findings:
There is no Department-wide consistent specific training requirement for Commanders exercising
SAIDA. While Commanders continue to successfully execute decision-making authority as

29

SAIDAs, more formalized training requirements will enhance Commander capability in this area,
while promoting trust and confidence in the military justice system.
Recommendation:
The Department will direct formalized training requirements for Commanders exercising
SAIDA, and determine minimum training objectives, including a focus on not only the handling
of alleged penetrative sexual assault offenses, but also related collateral misconduct alleged
against the accused or victim. Training will also focus on reducing retaliatory behavior relating
to sexual assault cases and sexual harassment complaints. Training requirements will be
standardized and institutionalized across the Military Services’ respective training commands.
Estimated Resourcing Implications: Minimal

Recommendation 1.6. Enhance the Military Justice System’s Transparency with the Public
Background:
The public, including the media, has far less accessibility to court-martial filings than it does to
court records from the federal and state criminal justice systems. In the federal system, the Public
Access to Court Electronic Records (PACER) internet site generally makes court filings available
as soon as they are filed. For those state systems that do not have comparable internet-accessible
systems, most documents can be obtained as soon as they are filed through the clerk of court’s
office. In the military justice system, however, court filings are generally not made available to
the public without a FOIA request, and then only once the case has concluded. That can lead to
delays of weeks or months before, for example, a military judge’s ruling on a motion is made
available to the public. The resulting lack of transparency impedes public knowledge about the
court-martial system. The military operates a sophisticated, professional criminal justice system.
The Department welcomes public scrutiny of the military justice system.
Because of Privacy Act concerns associated with the release of records maintained by the Military
Departments (which, unlike Article III courts, are subject to the Privacy Act), the Military
Departments must carefully review court filings for information potentially protected by the
Privacy Act before making them publicly available. In the federal civilian criminal justice system,
the courts rely on the attorney making a filing to redact any personally identifiable information or
other information that would be inappropriate to release.
Task Force Priority Areas:
System Credibility and Transparency
Data Sources:
•
•
•
•

MJRG report
Article 140a, UCMJ, (10 U.S.C. Section 940a)
The Secretary of Defense memorandum: Uniform Standards and Criteria Required by
Article 140a, UCMJ
Legislative Proposal to except from the purview of the Privacy Act the public release of
certain records
30

Findings:
In the federal civilian court system, the vast majority of court filings are made available to the
public immediately upon filing through the PACER internet site. In the military justice system,
court-martial filings are generally made available only after a FOIA request has been submitted
and only once the court-martial case is complete. The Department has proposed, with OMB's
approval, the enactment of legislation to remove from the purview of the Privacy Act the public
release of most military court dockets, records, and filings so that such information may be made
available to the public more promptly while protecting sensitive information from release in the
same manner as in the federal civilian court system.
Recommendation:
The Department will continue to support the enactment of legislation promoting public access to
military justice documents by excepting from the purview of the Privacy Act the public release of
court-martial dockets, filings, and records. The Department will adopt measures to protect against
the inappropriate release of personal information.
Estimated Resource Implications: None

Recommendation 1.7. Extend the DAC-IPAD
Background:
The DAC-IPAD evaluates, among other things, the preferral or non-preferral decisions of
convening authorities in adult sexual assault investigative files involving penetrative offenses.
Under the existing statutory framework, the DAC-IPAD is scheduled to terminate in February
2021. However, the Secretary of Defense may continue the DAC-IPAD after its current
termination date if the Secretary determines its continuation after that date is advisable and
appropriate. If the Secretary decides to continue the DAC-IPAD after that date, the Secretary must
submit to the President and the House and Senate Armed Services Committees a report describing
the reasons for that decision and specifying the new termination date for the DAC-IPAD.
Task Force Priority Areas:
System Credibility and Transparency
Data Sources:
•

Section 546 of FY15 NDAA (Public Law 113-291)

Findings:
The DAC-IPAD is a Congressionally-mandated Federal Advisory Committee that assesses the
effectiveness of the military justice system as related to adult sexual assault cases and makes
recommendations for improvements to the system. Under the existing statutory framework, the
DAC-IPAD is scheduled to terminate in February 2021, but the Secretary of Defense has the
authority to extend the DAC-IPAD. To extend the DAC-IPAD, the Secretary must submit a report
to the President and the House and Senate Armed Services Committees describing the reasons that
the extension is advisable and appropriate and specifying the new termination date.

31

Recommendation:
The Secretary will extend the DAC-IPAD beyond its current termination date to continue to assess
the effectiveness of the military justice system for sexual crimes.
Estimated Resource Implications: Minimal
Continued resourcing of DAC-IPAD staff, facilities, and travel budgets.

Section 2. Support Recommendations
The SAAITF focused military justice reform recommendations to enhance the protections and
support of the victim while protecting the due process rights of the accused. Specific
recommendations were formulated as followed:

Recommendation 2.1. Enhance the Integrated Multi-Disciplinary Special Victim
Investigation and Prosecution (SVIP) Capability
Background:
In 2009, based on widespread use of multi-disciplinary teams (MDT) in the civilian community,
the Congressionally mandated Defense Task Force on Sexual Assault in the Military Services
(DTF-SAMS) recommended that “[t]he Secretary of Defense establish two installation-level
sexual assault management groups: a Sexual Assault Response Team, responsible for overseeing
unrestricted reported cases, and a Sexual Assault Review Board, responsible for installation-level
systemic issues.” While DoDI 6495.02 subsequently established monthly Case Management
Groups to address the DTF-SAMS recommendations, the policy did not fully address what could
be done to more fully coordinate and optimize investigative and prosecutorial resources.
In 2015, the Secretary established requirements for the SVIP capability in DoDI 5505.19, and the
Services have seen the benefits of the increased capability of key participants in the military justice
process, such as the MCIOs and judge advocates.
Over the past 10 years, each of the Services has benefited from integrating specially trained and
designated personnel during case processing from report to investigation and adjudication.
Integration and synchronization of services and personnel have been demonstrated to increase
support for the victim throughout the process; improve the timeliness, efficacy, and quality of
investigation; and facilitate offender accountability when appropriate. While the efforts to
integrate assets may not be uniform across the Services to account for Service-specific missions,
maximizing integration efforts to harness SVIP capabilities is a proven concept.
Part of an effective SVIP capability is timely investigations. DoDI 5505.18, Investigation of Adult
Sexual Assault in the Department of Defense, requires MCIOs to initiate a criminal investigation
in response to all allegations of adult sexual assault of which they become aware that occur within
their jurisdiction, and to investigate them thoroughly. This has led to situations where unnecessary
investigative activities are undertaken for the sole purpose of compliance with policy and not
towards an investigative purpose, leading to inefficiencies and delays in investigations and
processing.

32

Recently, DAC-IPAD Committee members observed that nearly all the case files they reviewed
included the same series of investigative actions. The members believed that in some cases, these
investigative tasks appeared to have no probative value and were extraneous and unnecessary
given the specific facts of the case.
The Committee’s observations were reinforced by testimony received from MCIO investigators,
many of whom commented that they have little discretion in determining what steps to take when
conducting sexual assault investigations. One investigator noted that investigators have “less
control” when conducting investigations than they previously had, adding, “There’s almost a
checklist and people feel very required to do absolutely everything that is on the checklist.”
Another noted that investigators have to do the same amount of work for cases that are unlikely to
be prosecuted as for cases in which a felony trial is likely. However, the investigators explained
that some of the seemingly extraneous investigative steps did serve specific purposes. For
example, they told the Committee members that the reason they conduct interviews of a subject’s
co-workers in a sexual assault case is to detect predatory behavior and identify other potential
victims of sexual assault or harassment.
The March 2019 DAC-IPAD Annual Report cites Committee members’ concerns “...about the
investigators’ lack of discretion in how they conduct investigations in sexual assault cases. The
Committee noted that the military is treating the investigators as if they were untrained and not
fully capable, without giving any credence to their experience and professionalism.... [However]
at the same time, the Committee is reluctant to recommend that investigators adopt civilian
standards or omit certain investigative tasks, recognizing that what seems extraneous may end up
being useful in certain investigations.”
Finally, it is critical the members of the SVIP capability are evaluated to ensure effectiveness. In
support of the Report to the President of the United States on Sexual Assault Prevention and
Response in the Military, the Department initiated a number of approaches to assess victims’
experiences with response services and the military justice process. The Department conducted
separate surveys that assessed victims’ initial experiences with services provided and then victims’
overall experience with the military justice process. This survey proved invaluable to gauging
victim experience throughout the military justice process.
Task Force Priority Areas:
•
•
•
•

Integration and Synchronization of Services
Victim/Accused Support and Experience
System Credibility and Transparency
Process Timeliness and Accuracy

Data Sources:
•
•
•

The Report of the Defense Task Force on Sexual Assault in the Military Services (2009)
The National District Attorneys’ Association, National Sexual Assault Investigation and
Prosecution Best Practices Guide (White Paper) (2018)
Office of Justice Programs, SART Toolkit, Resources for Sexual Assault Response Teams
(2017)
33

•

DoDI 5505.19, Establishment of Special Victim Investigation and Prosecution (SVIP)
Capability within the Military Criminal Investigative Organizations (MCIOs), March 23,
2017
• DoDI 6595.02, “Sexual Assault Prevention and Response Program Procedures,”
incorporating Change 3, May 24, 2017
• Reports by the MCIOs
• DAC-IPAD, Third Annual Report, March 2019, Finding 13, recommends a balance be
found to accommodate instances where there is an unrestricted report but the victim does
not want an investigation to proceed
• DoDI 5505.18, Investigation of Adult Sexual Assault in the Department of Defense
• DoDI 5505.03, Initiation of Investigations by Defense Criminal Investigative
Organizations, February 13, 2017
• DoDI 5505.16, Investigations by DoD Components, June 23, 2017
• 2016-2017 MIJES
Findings:
Many valuable resources are being expended in our efforts to effectively respond to incidents of
sexual assault. These efforts are focused primarily across three lines of effort – victim care
(advocacy, medical, SVC), criminal investigations, and offender accountability (UCMJ
prosecution, when appropriate). While DoDI 5505.19 lays out a requirement for collaboration
among special victim responders, the focus of the DoDI is on collaboration of separate entities,
and may not result in full integration of capabilities.
The training and education of all military justice practitioners within the SVIP directly impacts the
experiences of the victims. This was further supported by the 2016-2017 MIJES and briefings to
the SAAITF. It is imperative that SVIP personnel, including investigators, trial counsel, and all
those involved, have appropriate training on the military justice process, expectations, and traumainformed communications to ensure the victim is treated fairly, and with empathy.
In addition, there is also a need for increased training of investigators. Sexual assault cases
comprise well over a third of the MCIOs’ 14,000 + cases initiated per year. Since 2012, MCIOs
have focused on providing additional, enhanced sexual assault training to field investigators.
While this training has significantly improved the MCIOs’ handling of sexual assault cases, as
evidenced by recent DoD IG investigation sufficiency review results, the training has essentially
been “catch up” training; training for investigators already working in field units.
Further, while MCIOs are required to fully investigate all allegations of adult sexual assault
without any professional discretion, there are inefficiencies in the investigative phase leading to
long case processing timelines. A collaborative forum between DoD IG and the MCIOs on
potential clarifications to policy will most certainly increase the accuracy and credibility of the
investigative process.
Finally, data from the 2016-2017 MIJES proved invaluable in the DoD’s ability to assess
compliance with policies and regulations, determine areas of improvement, and gauge the
experiences of victims in the military justice system. The DoD is committed to continuing its
assessment of the military justice system to ensure an unparalleled supportive and accountable
system is in place.
34

Recommendations:
1. The Department will, in collaboration with the Military Services, conduct a compliance
review of the SVIP capability across all military justice practitioners including
investigators, trial counsel, and victim services personnel. This review will include
identification of areas of improvement to support this capability within the military justice
system.
2. Based on the above compliance review, the Department will revise applicable instructions,
as required, to enhance SVIP collaboration, integration, and synchronization involving
victim services personnel, criminal investigators, and military prosecutors any time a
sexual assault event is reported throughout the entire military justice process.
3. The Department will direct the Military Services to identify the appropriate delegated
official within the SVIP to provide and document notifications per Recommendation 1.5.1
in order to ensure regular and consistent updates to the victim as to the progress of the case.
4. The Department will modify applicable instructions to incorporate SVIP capability within
the investigative process. SVIP-qualified prosecutors will work closely with the MCIOs
when developing the investigative plan. Ultimately, all federal law enforcement
investigative processes and final investigative decisions must remain with the lead
MCIO.
5. The Judge Advocates General and the SJA to CMC will enhance training requirements for
military justice practitioners, including SVC/VLC, defense counsel, and trial counsel.
They will also coordinate to determine minimum training objectives, and the Military
Services will standardize and institutionalize the training requirements across their
respective training commands. Training will focus on not only the handling of alleged
penetrative sexual assault offenses, but also related collateral misconduct alleged against
the victim.
6. The MCIOs will establish training requirements for investigators.
coordinate to determine minimum training objectives.

They will also

7. The Department will field the Military Investigation and Justice Experience Surveys in
years opposite the Workplace and Gender Relations Survey of the Active Duty, and less if
need be to minimize burden on victims. In addition, the MIJES will require additional
publicity and support from response system professionals to encourage greater
participation rates.
Estimated Resource Implications: Minimal
Manning: None – MIJES is conducted by Office of People Analytics
Funding: Approximately $250,000 per administration of the MIJES; additional training costs

35

Recommendation 2.2. Develop Policy to Enhance Protection for Victim Preference in
Restricted Reporting
Background:
DoD policy limits the ability to make restricted reports, and also requires restricted reports be made
prior to the Sexual Assault Response Coordinator’s notification of the initiation of a criminal
investigation. Victims making a disclosure to someone without a privilege of confidentiality to
receive such reports oftentimes forfeit their option to make such restricted reports when, in turn,
an MCIO is notified of the event. DoD has several years of experience with the restricted reporting
process. This experience, together with the evolution of survivor services, specifically the
availability of legal counsel services, presents the opportunity to reassess and revise DoD restricted
reporting policy to give victims more control over how their disclosures are handled, while still
balancing victims’ interests with those of society and those accused.
Task Force Priority Areas:
•

Victim/Accused Support and Experience

Data Sources:
•
•

DAC-IPAD, Third Annual Report, March 2019
Briefings to the SAAITF

Findings:
DAC-IPAD findings appearing in its March 2019 annual report, as follows:
•

Under current DoD sexual assault policy, a victim’s communication with another person
(e.g., roommate, friend, family member) does not, in and of itself, prevent the victim from
later electing to make a restricted report. However, if the person to whom the victim
confided is in the victim’s chain of command - whether an officer or a noncommissioned
officer—or is DoD law enforcement, the allegation must be reported to the MCIO and is
therefore treated as an unrestricted report, regardless of the victim’s wishes or intent.
(Finding 30)

•

DoD policy further states that if information about a sexual assault comes to a
Commander’s attention, even if from a source other than the victim, that Commander must
immediately report the matter to an MCIO and an official investigation based on that
independently acquired information may be initiated. (Finding 31)

•

Several Commanders indicated in their testimony to the DAC-IPAD that the one change
they would make to the system is to allow victims who have lost the ability to make a
restricted report - whether because of third-party reports or because they were unaware of
this consequence of reporting to a member of their chain of command - to restrict any
further disclosure or investigation of the incident, if they so desire. Some representatives
from the MCIOs testified in support of such a policy; others testified in opposition.
(Finding 33)

36

In addition, at least one briefing to the panel reflected concerns when a victim inadvertently
discloses to a mandatory reporter resulting in an automatic conversion to an unrestricted report
despite the victim’s expressed wishes to remain restricted.
Recommendation:
The Department will develop a policy that would more fully protect the victim’s ability to file a
Restricted Report, as well as provide victims a confidentiality option should the victim’s sexual
assault allegation be inadvertently disclosed or a third-party report arise, in appropriate
circumstances.
Estimated Resource Implication: None

Recommendation 2.3. Protect Information Used in the CATCH Program
Background:
Section 543 of the Carl Levin and Howard P. “Buck” McKeon FY15 NDAA required DoD to
develop a plan that would allow an adult victim who elected to make a restricted report to disclose
suspect or incident information to investigators to enable them to determine if separate sexual
assaults may have been committed by the same perpetrator. Under 10 U.S.C. § 1565b, persons
authorized to receive restricted reports are sexual assault coordinators, victim advocates, or
healthcare professionals. To ensure the restricted reporting status is not compromised by reporting
details of the alleged incident as part of the CATCH program, persons authorized to accept a
restricted report should include those receiving information as part of the CATCH program. Thus,
a victim can be assured that he or she can confidentially disclose the details of the alleged incident
without initiating an investigation of the allegation except when disclosure is necessary to prevent
or mitigate a serious and imminent threat to the health or safety of an individual.
Task Force Priority Areas:
•

Victim/Accused Support and Experience

Data Sources:
•
•

Section 543 of the Carl Levin and Howard P. “Buck” McKeon NDAA for FY15
DoD and Service Sexual Assault Prevention and Response Offices

Findings:
Protecting information provided as part of the CATCH program increases confidence in the
system, and will further the Department’s efforts to hold offenders appropriately accountable.
Recommendation:
The Department will make clear that information used in the CATCH program will be protected
under the restricted report protections and will not be subject to disclosure under FOIA.

37

Estimated Resource Implications: None

Recommendation 2.4. Develop Defense Investigator Capability
Background:
Defense investigators are a common capability in civilian practice. Federal public defender offices
have, on average, one defense investigator for every three defense attorneys. Defense
investigators are also often found in state public defender offices. Defense investigators assist
defense counsel by locating and interviewing potential witnesses and evidence, identifying experts,
and helping defense counsel prepare for trial. The Supreme Court has recognized that the right to
counsel is, at its heart, the right to counsel’s assistance in both investigating the case and preparing
and presenting a legal defense. Because of ethical limitations, counsel are generally prohibited
from testifying at trial when they are serving as advocates; those ethical limitations create obstacles
to the defense’s right to investigate, as often the investigator must testify to what he or she was
told or what he or she saw. More importantly, defense counsel are not investigators; they are legal
experts. Like the government counsel, who benefit from law enforcement’s investigation, the
defense counsel should be focused on preparing the case for trial, not investigating the
underpinnings of a case.
For these reasons, defense investigators are common in the civilian bar. Almost every federal
public defender’s office has defense investigators. The creation of civilian defense investigators
in the Military Services was strongly supported by two congressionally mandated commissions,
one stating that investigators “enable defense counsel to properly prepare their cases.”
Finally, defense investigators make it more likely that the system as a whole will function more
effectively and efficiently. Our adversarial system depends on both sides being fully prepared to
present their cases so that the fact finder has all the relevant information, which is less likely to
happen when the defense lacks this asset. In addition, a defense counsel who is armed with the
relevant facts can, if he or she chooses, ensure the Government is aware of those facts, and if they
change the case’s disposition, the Government can evaluate the best course of action in light of the
victim’s, the accused’s, the unit’s, and society’s interests.
Military defense investigators, or defense litigation support specialists, would operate under the
same restrictions on contacting the victim and witnesses that apply to defense counsel. In addition,
defense litigation support specialists could identify and interview new witnesses at the direction
of defense counsel. However, witnesses already identified and interviewed by the government
would be interviewed only by the defense counsel.
Task Force Priority Areas:
•
•
•

System Credibility and Transparency
Process Timeliness and Accuracy
Fairness and Due Process

Data Sources:
•
•

The report of the JPP
The report of the RSP
38

•

Briefings to the SAAITF

Findings:
Providing defense counsel with defense investigators is an additional tool they can use to
effectively represent their clients. By ensuring that both sides are fully prepared for trial, defense
investigators will help make the military justice system more effective in determining the truth. In
addition, by allowing the defense to identify and bring new evidence to the Government’s
attention, investigators will help to ensure that the system is more fair and efficient. Defense
investigators operate under the same legal constraints on seeking to speak with the victim that
apply to defense counsel.
Defense Investigators were strongly supported by the RSP and JPP, and were supported by
briefings to the panel.
Article 6b protections currently state “counsel for the accused will make a request to interview the
victim through the Special Victim’s Counsel, or other counsel for the victim, if applicable.”
Consequently, there is a gap in protections where the victim does not have an SVC/VLC. Article
6b(f)(1) should be amended to read: “counsel for the accused will make a request to interview the
victim through the Special Victim’s Counsel, or other counsel for the victim, if applicable. If the
victim does not have a special victim’s counsel, or other counsel, then the request to interview the
victim should be made through trial counsel.” Also recommend expanding Article 6b(f)(1)
protections to include prosecution witnesses, as well.
Recommendation:
The Department will direct the Services to develop an appropriate defense investigator capability
on a trial basis for a three-year term. Following the conclusion of the pilot program, the program
will be reassessed to ensure that the defense investigators enhanced the administration of justice
and did not have the unintended consequence of deterring reporting or participation of witnesses
in justice actions. The Department will assess expanding Article 6b(f)(1) protections to witnesses
and explicitly require notification to trial counsel when the victim does not have an SVC/VLC.
Estimated Resource Implications: Extensive
Manning: End-strength; the Navy currently tracks the total cost of its eight DLSS at $1.3M/year,
which reflects salary, benefits, PCS travel, and housing/COLA
Funding: Money (both start-up and operating), training, and travel and expense budgets for Trial
Defense Service; the Navy budgeted for FY19 $187,000 for travel expenses, $9,000 for access to
the TransUnion Investigator Database, and $45,900 for supplies and materials

39

Task Force Way Forward
The delivery of this report does not mark the termination of the Task Force. In fact, the SAAITF
and the Secretary of Defense recognize the critical importance of the group to ensure ongoing
collaborations among military justice practitioners, policy, and prevention experts towards
enhancement of the accountability and support of the military justice system.
The SAAITF will, upon delivery of this report and official approval and tasking by the Secretary
of Defense, develop and deliver a second report on the implementation and integration of the
SAAITF Recommendations. This report will detail the specific steps required for the Department
to comply with the approved recommendations.
Once this second report is delivered, while the official duties of the SAAITF will terminate,
members of the Task Force will continue to meet as an executive council and continue to share
data, best-practices, lessons-learned, and additional collaborative information to ensure ongoing
evaluations and assessments of the military justice system writ-large continue. To this end, the
Task Force has already identified areas of continued concern that require additional data and
information prior to determining a way forward. This includes:
1. Data Tracking and Management System. While each Military Service has its own data
tracking system, and will comply with the standardized data elements detailed pursuant to
Article 140a, all Services are interested in determining whether efficiencies might come
from a DoD-wide data management system and the potential expansion of data elements
to assist with transparency. The Task Force would like to explore the feasibility and
limitations of such a system.
2. Support for the Accused. During briefings to the SAAITF, concerns were raised about the
impact of the military justice process on accused and/or their families. The Task Force
would like to explore further the need for this support and the feasibility of utilizing
existing resources, or establishing new resources, to mitigate this potential concern.
3. Additional Sentencing Reform. The SAAITF considered recommending that court-martial
be permitted to impose administrative discharges. However, the Task Force would like to
explore this issue further.
In addition to the continued efforts of the Task Force, the Department looks forward to continuing
to partner with the Senate and House Armed Services Committees to promote an effective response
to the scourge of sexual assault in our ranks. While the SAAITF's recommended initiatives focus
on solutions that can be implemented within the Executive Branch, Congress may choose to
enshrine some of those solutions in law. Congress has played a leading role in protecting the rights
of victims in the military justice system, a role the Department applauds and anticipates will
continue. The Constitution entrusts Congress with making rules and regulations for our military.
The Department stands ready to assist Congress as it exercises that authority. Lastly, the SAAITF
will continue to review new and proposed legislation, as well as feedback from internal and
external oversight committees, to determine effectiveness of proposed initiatives and potential
benefit towards improving the military justice system.

40

Appendix A
Establishment of the Sexual Assault Accountability and Investigation Task Force.

41

42

Appendix B
Task Force Membership
Task Force Leadership
OSD

Dr. Elizabeth Van Winkle

Executive Director, DoD Force Resiliency

Navy

VADM John Hannink

The Judge Advocate General, US Navy

Army

LTG Charles Pede

The Judge Advocate General, US Army

Air Force

Lt Gen Jeffrey Rockwell

The Judge Advocate General, US Air Force

USMC

MajGen Daniel Lecce

Staff Judge Advocate to Commandant USMC

Task Force Membership
OSD

RADM Ann Burkhardt

Director, DoD SAPRO

OSD

Mr. Dwight Sullivan

Office of General Counsel

OSD

LtGen Stacy Clardy

Military Deputy, OUSD(P&R)

NCIS

Mr. Andrew Traver

Director, NCIS

Army CID

MG David Glaser

Army Criminal Investigation Command

SAF- IG

Lt Gen Sami Said

Inspector General of US Air Force

Additional Advisors / Consultants
OSD

Ms. Julie Blanks

Acting Chief of Staff, OUSD(P&R)

OSD

Lt Col Erin Hancock

OSD Legislative Affairs

OSD

Ms. Lynn McCormick

Director, Investigative Oversight, DoD Office
of Inspector General (observation only)

Navy

Ms. Melissa Cohen

DoN SAPRO

Air Force

Brig Gen Michael Martin

USAF SAPRO

Army

Dr. James Helis

Army SHARP and Resiliency

USMC

Ms. Marie Balocki

Deputy Director, Marine and Family Programs

NGB

Col. Roxanne “Rox” Toy

Chief, NGB SAPR

OCJCS

SMSgt LaTisha Tippins

Superintendent, AF Personnel Management, J-1

OCJCS

RDML Sara Joyner

Director for Manpower and Personnel, J-1

USCG

RADM Steven Andersen

Judge Advocate General of the Coast Guard

43

Appendix C
Military Justice Reform – Legislative Changes in FY14-FY16
Beginning with the National Defense Authorization Act (NDAA) FY14, Congress implemented
significant reform to the military justice system. These changes were primarily focused on the
issues surrounding sexual assault. The changes continued with FY15 and FY16 NDAAs.
FY 14 NDAA
Article 6b, UCMJ, Enacted to Give Victim Rights under UCMJ
Article 6b is created to codify victims’ rights such as: (1) right to be protected from the accused;
(2) right to timely notice of a pre-trial confinement hearing, an Article 32 preliminary hearing, a
court-martial, clemency or parole hearing, or the accused’s release from confinement; (3) the right
not to be excluded from a public hearing; (4) the right to be reasonably heard at a pre-trial
confinement hearing, sentencing hearing, and public clemency/parole hearing; (5) the right to
confer with government counsel; (6) the right to receive restitution as provided in the law; (7) the
right to proceedings free from unreasonable delay; and (8) the right to be treated with fairness,
respect, and dignity.
New Article 32, UCMJ Hearing Procedures
Article 32 hearings changed significantly from “investigations” to “preliminary hearings.” The
purpose of the Article 32 preliminary hearing is limited to (1) determining if there is probable
cause to believe an offense was committed and the accused committed it; (2) assessing whether
the convening authority has jurisdiction over the accused and the offense; (3) considering the form
of the charges and (4) recommending the appropriate disposition of the charges.
Victims Are Given the Right Not to Testify at Article 32, UCMJ Preliminary Hearings
Victims are not required to provide testimony at preliminary hearings, even if the victim is on
active duty in the military. A victim is permitted to decline an invitation to testify and to then be
deemed unavailable. (Before this change, civilians – including victims – could not be required to
appear at an Article 32 proceeding, but Service members – including victims – could.)
Sexual Assault/Child Sexual Assault Statute of Limitations Removed
Article 43(a), UCMJ, is amended to add sexual assault and sexual assault of a child to the list of
crimes that can be “tried and punished at any time without limitation.”
Defense Counsel Required to Make Requests for Interviews of Sexual Assault Victims Via
Trial Counsel
Article 46, UCMJ, now requires defense counsel to make requests to interview victims of sexual
assault offenses through trial counsel; and, at the request of the victim, requires trial counsel,
victim’s legal counsel, or a victim advocate to be present during the defense interview. This was
further amended in FY15 NDAA to remove “Trial Counsel” and insert “Special Victims’
Counsel.”

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Consensual Sodomy Decriminalized
Article 125, UCMJ, is revised to remove the offense of consensual sodomy. Forcible sodomy and
bestiality remain offenses under Article 125 and issues such as orders violations (sexual relations
onboard a ship) and fraternization under Articles 92 and 134, respectively, remain viable charges
independent of the nature of the sexual conduct.
Sexual Assault Offense Notification to Military Criminal Investigative Organization
While already required by DoDI 6495.02, the FY14 NDAA mandates that unit Commanders who
receive unrestricted reports of sexual assault must refer the matter to the servicing Military
Criminal Investigative Organization (e.g., NCIS).
Mandatory Review of Decisions Not to Refer Charges in Sexual Assault Cases
Establishes two systems for reviewing a decision not to refer charges in cases involving Articles
120(a), 120(b), 125 and attempts to commit those offenses under Article 80. Where the SJA
recommends referral and the convening authority declines to refer any charges, the Secretary of
the Military Department must review the case. Where the SJA recommends NOT referring charges
and the convening authority agrees, the case must be reviewed by the next superior Commander
authorized to exercise general court-martial convening authority.
Service Record Notation of Sex-Related Offenses
Requires a notation be placed in a member’s service record if they are convicted of a “sex-related
offense” by court-martial, or if they receive NJP or administrative action for a sex-related offense.
Clemency Authority for Convening Authorities Limited for Other than Qualifying Offenses
The convening authority’s clemency powers significantly limited. Specifically, the convening
authority is no longer permitted to set aside a finding of guilty for any offense other than a
“qualifying offense.” A qualifying offense is defined as: (1) an offense where the maximum
sentence of confinement that may be adjudged does not exceed two years; and (2) the sentence
adjudged does not include confinement greater than six months or a punitive discharge. In
addition, a qualifying offense does not include any violation of Article 120(a), 120(b), 120b, and
125. Additionally, the convening authority is no longer permitted to disapprove, commute, or
suspend portions of a sentence that provide for a punitive discharge or confinement in excess of
six month.
Victim Participation in Clemency Process
A victim must be afforded the right to submit matters to the convening authority for consideration
during the clemency process.
Mandatory Minimum Punishments Established for Sex-Related Offenses
The mandatory minimum for a violation of rape (Article 120(a)), sexual assault (Article 120(b)),
rape of a child (Article 120b(a)), sexual assault of a child (Article 120b(b)), forcible sodomy
(Article 125), or any attempt thereof is a dishonorable discharge or dismissal.

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SECDEF Required to Prescribe Regulations to Prohibit Retaliation Against Victim When
Reporting a Criminal Offense
SECDEF is required to implement regulations to ensure the Military Services do not take adverse
action against a person who reports a criminal offense. In addition, SECDEF is directed to submit
a proposal for a separate punitive article to address this issue.
Victims’ Legal Counsel Established
Secretaries of the Military Departments are directed to designate legal counsel for the purposes of
providing legal assistance to a victim of an alleged sex-related offense, regardless of whether the
report is restricted or unrestricted.
FY 15 NDAA
Access to Victims’ Legal Counsel Expanded to Reservists
A member of a reserve component who reports a sex offense that occurred while on active duty,
inactive training, or full-time National Guard is eligible for representation by a Victims’ Legal
Counsel.
Consultation with Victim Regarding Preference in Prosecution Venue
SECDEF is required to establish a process to ensure consultation with every victim of an alleged
sexual assault in the United States to determine that victim’s preference regarding whether the
offense should be tried by civilians or at a court-martial. That preference must be communicated
to the convening authority prior to making a disposition decision.
Military Character No Longer a Defense for Certain Crimes
Congress required the modification of M.R.E. 404(a) to prevent the admission of evidence of
general military character for the purpose of showing the probability of innocence of the accused
of specific offenses, including rape, sexual assault, abusive sexual contact, stalking, child sex
offenses, forcible sodomy, and any attempt or conspiracy to commit any of these offenses.
Modification to the Patient-Psychotherapist Rule (M.R.E. 513)
Congress required the modification of M.R.E. 513 to: (1) remove the enumerated constitutional
exception, and (2) establish a clearer standard the party seeking the records must meet before the
records can be released or for an in camera review to be conducted.
Victims May Petition CCA for Violation of Rights under Military Rules of Evidence
(M.R.E.).
Article 6b, UCMJ is amended to allow victims to petition the Court of Criminal Appeals (CCA)
for a writ of mandamus if the victim believes a ruling violates the victim’s rights afforded by the
Military Rules of Evidence, specifically M.R.E. 412 or 513.
Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault
in the Armed Forces (DAC-IPAD) is established.

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FY16 NDAA
Victims’ Rights to Petition CCA Are Expanded
Article 6b, UCMJ is amended to allow victims to petition the Court of Criminal Appeals (CCA)
for a writ of mandamus regarding an Article 32 preliminary hearing order, court-martial ruling, or
deposition order. This writ petition right specifically applies with respect to the protections
afforded in Article 6b, Article 32, and M.R.E. 412, 513, 514, and 615. Such writs will be
forwarded directly to the CCA and given priority over all other proceedings before the court.
Victims’ Legal Counsel Powers Expanded
10 U.S.C. § 1044e is amended to expressly authorize SVC/VLC to assist victims in (1) any
complaint against the Government, including allegations under review by an inspector general and
a complaint regarding equal employment opportunities; (2) any request to the Government for
information (e.g., FOIA); and (3) any communications with Congress. The following additional
changes were made specific to SVC/VLC rights:
•

10 U.S.C. § 1044e(a)(2) is amended to allow civilian employees within the DoD to have
access to an SVC/VLC.

•

10 U.S.C. §§ 1044e and 1565b are amended to require notice of eligibility to have an
SVC/VLC to eligible victims prior to being interviewed by military investigators or trial
counsel, subject to such exceptions for exigent circumstances as SECDEF may prescribe.

•

10 U.S.C. § 1044e is amended to require SECDEF to standardize the time period within
which SVC/VLC receive training and to establish the baseline training requirements for
SVC/VLC. The amendment also requires SECDEF to establish guiding principles and
performance measures for the SVC/VLC program to ensure that (1) SVC/VLC are assigned
locations that maximize the opportunity for face-to-face communication with their clients;
(2) effective means of communication are available when face-to-face communication is
not feasible; and (3) performance measures and standards are put in place to measure the
effectiveness of the program.

SECDEF to Establish a Strategy to Prevent Retaliation Against Members Who Report or
Intervene on Behalf of the Victim of an Alleged Sex-Related Offense
SECDEF must establish a strategy that promotes bystander intervention, protects bystanders who
intervene, and provides for training for Commanders on methods to combat attitudes and beliefs
that result in retaliation.

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Appendix D
Side-by-side comparison of MJA 16 Changes
Below is a summary of the changes to the military justice system that were recently implemented
on 1 January 2019 as part of the Military Justice Act 2016.
Pre-Military Justice Act (Prior to 1 Jan 19)

Post-Military Justice Act (As of 1 Jan 19)

Punitive Articles

Punitive Articles
Four new offenses:
- Art 93a: Prohibited activities with military
recruit or trainee
- Art 121a: Fraudulent use of credit cards
- Art 123: Offenses concerning Government
computers
- Art 132: Retaliation

Pre-referral Authorities

Pre-referral Authorities

Military judges have little authority to act in Judges empowered to rule/act on the
courts-martial prior to referral
following pre-referral:
- Subpoenas
- Warrants/orders for electronic
communications, records, other information
- Motions to quash/modify compulsory
process
- Matters referred by an appellate court
- Appointment of individuals to assume rights
for certain victims, and violation of victims’
Article 6b
Subpoena duces tecum authority available
only post preferral to compel evidence for Art
32

New investigative subpoena duces tecum
authority available from the inception of a
criminal investigation

Pre-trial Agreements

Plea Agreements

Parties can agree to a limit on the maximum
punishment

Parties can agree to a minimum punishment,
maximum punishment, or both a maximum
and minimum, e.g., a range

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Pre-Military Justice Act (Prior to 1 Jan 19)

Post-Military Justice Act (As of 1 Jan 19)

Two-part agreements where the military judge
is unaware of the agreed upon maximum
punishment until after sentence announcement

Military judge is aware of the entire
agreement, including any sentence
limitations, before the plea is accepted

Court-Martial Forums

Court-Martial Forums

GCM w/ members; GCM w/ MJ alone

All the same forums still except for the
SPCM w/members and no military judge; and
additional forum created:

SPCM w/ members; SPCM w/ MJ alone;
SPCM w/ members and no military judge

Military Judge Alone SPCM
- Limited to 6 months’ confinement,
forfeitures/fine, reduction in grade, reprimand
- No punitive discharge authorized
Art 32

Art 32

Report does not require analysis of
preliminary hearing officer’s conclusions

More detailed report requiring PHO to
provide analysis w/in 24 hours of closure of
the PH, parties may submit supplemental
materials to inform the disposition decision

Pre-Trial Advice

Pre-Trial Advice

Required SJA to state charges are warranted
by the evidence in the Article 32 report

Requires SJA to state there is probable cause
to believe accused committed the offense and
make a recommendation as to the disposition
of the case made in the interest of justice and
discipline

Court-Martial Panel Size

Court-Martial Panel Size (Fixed Number)

0 – Special, Judge Alone;

0 – Special, Judge Alone;

Min 3 – Special (no max)

4 – Special;

Min 5 – General (non-capital) (no max)

8 – General (non-capital); or

Min 12 – General (capital) members (no max)

12 – General (capital) members.
*Alternate members if authorized by CA
*New randomization process for
impanelment

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Pre-Military Justice Act (Prior to 1 Jan 19)

Post-Military Justice Act (As of 1 Jan 19)

Votes Required for Findings and
Sentencing

Votes Required for Findings and
Sentencing

2/3 majority (For <10 yrs confinement and
3/4 majority (Non-Capital)
portions of sentence other than confinement or Unanimous (Capital)
death)
3/4 majority (For >10 yrs confinement)
Unanimous (Capital)
Sentencing

Sentencing

Default:

Default:

If MJ Alone – MJ determines sentence

- MJ sentencing authority; unless accused
elects to be sentenced by members, which the
accused may do only if members adjudicated
the findings or the accused pleads guilty

If panel on findings – panel determines
sentence and unitary sentence for all charges
and specifications
Accused may appeal the sentence as either
illegal or inappropriate

- If MJ sentences accused, MJ will segment
confinement and fines for each specification
and determine whether confinement will run
consecutively or concurrently
- If panel sentences accused, one unitary
sentence will be given for all charges and
specifications
- Government, as well as the accused, may
appeal a sentence as illegal or plainly
unreasonable

Victim Rights

Victim Rights

Limited to certain types of crime victim

Expanded protections to victims of all crimes
and increased opportunities to be heard and
submit matters

Post-Trial

Post-Trial

Record of trial authenticated by military judge
only after written transcript produced, then
accused/victim submits matters, convening
authority takes action

New sequence: 1) MJ Produces statement of
trial results; 2) Court-martial record
produced; 3) accused/victim submit matters;
4) CA takes action; 5) MJ enters judgment
onto record all while written transcript being

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Pre-Military Justice Act (Prior to 1 Jan 19)

Post-Military Justice Act (As of 1 Jan 19)
produced. Final step is when court reporter
certifies the record

UCMJ Training for Service members

UCMJ Training for Service members

Enlisted members must have certain UCMJ
articles carefully explained upon entry into
service

- Officers and enlisted members must have
certain UCMJ articles carefully explained
upon entry into service
- Commanders will receive periodic training
regarding the purpose and administration of
the UCMJ

UCMJ Jurisdiction

UCMJ Jurisdiction

Members of the reserve component subject to
the UCMJ while on inactive duty training
(IDT)

Members of the reserve component subject to
the UCMJ:
- When traveling to and from IDT
- During intervals between consecutive
periods of IDT
- During intervals between IDT on
consecutive days pursuant to orders or
regulations

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Appendix E
Changes to the Military Justice System After the Enactment of MJA 16
FY18 NDAA
Victim’s Writ of Mandamus. Article 6b, UCMJ is amended to expand the enforcement
mechanism of victims’ rights by providing jurisdiction to the Court of Appeals for the Armed
Forces (CAAF) to hear writ appeals for Court of Criminal Appeals (CCA) rulings arising from
victims’ petitions for writs of mandamus. Jurisdiction to review victims’ petitions for writs of
mandamus was previously limited to the CCAs. Article 6b also provides for expedited review of
victims’ petitions for writs of mandamus at both the CCAs and CAAF. Articles 6b and 30a are
amended to authorize a military judge to review pre-referral claims that the victims’ rights were
violated, and to designate individuals to assume the rights for underage, incompetent,
incapacitated, or deceased victims. (MJA16).
New Punitive Article. Article 117a (Wrongful broadcast or distribution of intimate images) is
new. The NDAA provision prohibits distribution or broadcast of an intimate visual image if: (1)
the accused knowingly and wrongfully broadcasted or distributed a visual image; (2) the visual
image is an intimate visual image of another person or an image of sexually explicit conduct
involving another person; (3) the person depicted in the visual image is an adult who is identifiable
from the visual image itself or from information displayed in connection with the visual image,
and the depicted person does not explicitly consent to the broadcast or distribution of the visual
image by the accused; (4) the accused knew or reasonably should have known that the visual image
was made under circumstances in which the person depicted retained a reasonable expectation of
privacy regarding any broadcast or distribution of the visual image by the accused; (5) the accused
knew or reasonably should have known that the broadcast or distribution is (a) likely to cause
harm, harassment, intimidation, emotional distress, or financial loss to the person depicted in the
image, or (b) harms substantially the depicted person’s health, safety, business, calling, career,
financial condition, reputation, or personal relationships; and (6) the conduct of the accused, under
the circumstances, had a reasonably direct and palpable connection to a military mission or military
environment. (effective immediately).
FY19 NDAA
Punitive Articles Changed to Address Strangulation and Domestic Violence
Article 128, UCMJ, Aggravated Assault, is modified to include strangulation and suffocation as
means to commit aggravated assault.
Article 128b – Domestic Violence is created as an additional punitive article.
Uniformity in Handling Certain Cases
Sec 535. Uniform command action form on disposition of unrestricted sexual assault cases
involving members of the Armed Forces. This section requires the SECDEF to create a uniform
form to report the disposition of unrestricted sexual assault cases across all Services.

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Sec. 536. Standardization of policies related to expedited transfer in cases of sexual assault or
domestic violence. This section requires the SECDEF to create standard procedures for expedited
transfers in sexual assault and domestic violence cases.
New Administrative Requirements
Sec 542. Security clearance reinvestigation of certain personnel who commit certain offenses. This
section amends 10 U.S.C. 1564 by creating a section for the reinvestigation or readjudication of
certain individuals. The reinvestigation or readjudication of a security clearance occurs when a
flag officer, a general officer, or an employee of the DoD in the Senior Executive Service is
convicted in a court of competent jurisdiction of (1) sexual assault; (2) sexual harassment; (3) fraud
against the U.S.; or (4) any other violation that the Secretary determines renders that individual
susceptible to blackmail or raises serious concern regarding the ability of that individual to hold a
security clearance; or a commanding officer determines that a flag officer, a general officer or an
employee of the DoD in the Senior Executive Service has committed an offense described above.
This section requires the Secretary to also ensure relevant information of this conviction or
determination is reported into Federal law enforcement records and security clearance databases
and transmitted to other Federal agencies.
Sec. 543. Development of oversight plan for implementation of Department of Defense harassment
prevention and response policy. This section requires the Secretary of Defense to submit to the
Committees on Armed Services of the Senate and House a report on the Department’s plan to
implement DoDI 1020.03 – “Harassment Prevention and Response in the Armed Forces.”
Sec. 544. Oversight of registered sex offender management program. This section requires that
SECDEF create a position within the Office of SECDEF with the principal responsibility of
providing oversight of the registered sex offender management program throughout the DoD. This
official/entity will collect data from the Services to determine compliance with the DODI 5525.20
and collect data on Service members convicted of a qualifying sex offense.
Sec. 545. Development of resource guides regarding sexual assault for the military service
academies. This section requires that the Superintendent of each military service academy develop
a guide for all students regarding sexual assault.

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Appendix F
Associated Reports
Judicial Proceedings Panel
The Secretary of Defense, as required by Section 576(a)(1) of the NDAA for Fiscal Year 2013
(Public Law 112-239) and in accordance with the Federal Advisory Committee Act of 1972
(FACA) (5 U.S.C., Appendix, as amended) and 41 C.F.R. Section 102-3.50(a), established the
Judicial Proceedings Panel.
The Judicial Proceedings Panel conducted 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.
Eleven reports of the Judicial Proceedings Panel are available at http://jpp.whs.mil/.
Response Systems to Adult Sexual Assault Crimes Panel
The Secretary of Defense, as required by Section 576(a)(1) of the National Defense Authorization
Act for Fiscal Year 2013 (Public Law 112-239) and in accordance with the Federal Advisory
Committee Act of 1972 (FACA) (5 U.S.C., Appendix, as amended) and 41 C.F.R. Section 1023.50(a),
established
the
Response
Systems
Panel.
The Response Systems Panel conducted an independent review and assessment of the systems
used to investigate, prosecute, and adjudicate crimes involving adult sexual assault and related
offenses, under Section 920 of title 10, U.S.C. (Article 120, Uniform Code of Military Justice), for
the purpose of developing recommendations regarding how to improve the effectiveness of such
systems.
The Final Report and Annex to Final Report of the Response Systems Panel are available
at http://responsesystemspanel.whs.mil/.
The Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual
Assault in the Armed Forces (DAC-IPAD)
The Secretary of Defense, pursuant to Section 546 of the Carl Levin and Howard P. “Buck”
McKeon National Defense Authorization Act for Fiscal Year 2015 (“FY 2015 NDAA”) (Public
Law 113-291), as modified by Section 537 of the National Defense Authorization Act for Fiscal
Year 2016 (Public Law 114-92), and in accordance with the provisions of the Federal Advisory
Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 C.F.R. § 102-3.50(a),
established this non-discretionary Committee.
The Committee, pursuant to Section 546(c)(1) of the FY2015 NDAA, will advise the Secretary of
Defense and the Deputy Secretary of Defense on the investigation, prosecution, and defense of
allegations of rape, forcible sodomy, sexual assault, and other sexual misconduct involving
members of the Armed Forces.

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The following reports from the DAC IPAD are available at https://dacipad.whs.mil/:
•
•
•

Initial Report - March 2017
Annual Report - March 2018
Annual Report - March 2019

Military Justice Review Group
In August 2013, the Joint Chiefs of Staff recommended that the Secretary of Defense direct a
comprehensive and holistic review of the Uniform Code of Military Justice (UCMJ) to ensure that
the military justice system most effectively and efficiently does justice consistent with due process
and good order and discipline. In October 2013, the Secretary of Defense approved the
recommendation and directed DoD OGC to conduct a comprehensive review of the UCMJ and the
military justice system with support from experts provided by the military Services.
The Military Justice Review Group report is available at http://ogc.osd.mil/mjrg.html.

55