Transcripts For CSPAN2 Sexual Assault In The Military Forum 20240714

It was created in 2015 in accordance with the act in 2015 as amended. Our mandate is to advise the secretary of defense on investigation, prosecution of allegations of Sexual Assault and other Sexual Misconduct involving members of the armed forces. Please note that todays meeting is being transcribed. A complete written transcribe will be posted on the website. Todays meeting will begin with the dac ipads fiscal 2018 for acquittal rates of Sexual Assault in the military based on case documents from all military Sexual Assault cases closed during the fiscal year. Next, staff director will provide an overview of the Draft Department of defense report on allegations of misconstruct. This draft report was submitted to the dac ipad in fulfillment of the Defense Authorization act for fiscal year 2019. Following the overview of the report, Service Representatives involved in the report, drafting and Data Collection will appear before the committee to answer questions about the data, and the report methodology. Following the collateral misconduct, the committee will hear from three additional panels. Services military Justice Division chief. The Services Special Victims Counsel Program Managers and the Services Trial Defense Service organization chief. These panelists will each respond to questions from Committee Members regarding their organizations written responses to questions, the dac ipad committed in may on Sexual Assault and acquittal rates. The case adjudication process and the victim declinenation to submit to the process. And i want to thank these were very very substantive responses. And the committee will receive a case working review group and regarding the fiscal year 2018 case adjudication data report plan. For the final session of the meeting the committee will deliberate on the dod collateral misconduct report and Services Responses to its written questions. Each Public Meeting of the da krchcdac ipad, weve requested no comments for the meeting. If a member of the audience would like to comment on the issue record please direct it to the dac ipad all at the discretion of the chair. Written comments may be submitted at anytime for consideration. Before we do the data review i want to thank everybody to be here today. I think well start off with colonel ware. Thank you. As the chair said this was public law 115232. In that legislation set out the secretary of defense acting through the dac ipad, including the following information. Im reading now from the legislation. There are three requirements that this legislation put out. Number one, the number of instances in which a covered individual was accused of misconduct or crimes considered collateral to the investigation of a Sexual Assault committed against the individual. And so, its important to understand what a covered individual is. Its defined in this section means an individual who is identified as a victim of Sexual Assault in the case file of criminal organization. The number two, number of instances in which an adverse action was taken against the covered individual who was accused of collateral misconduct or crimes described in paragraph one and number three, the third piece of information required was the percentage of investigations of Sexual Assaults that involved an accusation or adverse action against a covered individual, as prescribed in paragraphs one and two. The services were tasked with gathering the requested information and that information and the draft report was forwarded to the dac ipad. Mr. Nye gave the report to offer any information or an analysis and provide that to the department of defense and mr. Nye requested that dac reply and to congress by september 30th. They reviewed the report for the Services Including the coast guard. The staff requested a meeting with individuals responsible for the information in the report. And this was held on july 9th. The staff requested the meeting so we could better understand the methodology behind gathering information because it was clear that there were difference in methodology and definitions between the services. For example, the Army Definition of accused is different from the navy and marine corps definition. The navy and marine corps only counted collateral misconduct committed by the victim if an inquiry into the misconduct was actually initiated. We were told that that meant a report of investigation was initiated. The army defined the accused as a victim who may have committed a u krchuc the air force did not require a separate investigation into the misconduct. The army had a very low number for the time period april 1, 2017 to march 31st, 2019 involving an army victim. Based upon the experience with the case reviews and the Court Martial data base we knew at that something was off. During the meeting we discovered that the army only counted penetrated Sexual Assault investigations where the others counted penetrated and contact. The army, marine and air force sent us corrected numbers which changed the report. As the staff reviewed the percentages, became apartment the percentages did not accurately reflect the victims punished as those victims who committed collateral misconduct. The number of victims receiving adverse action out of the total number of assault investigations involving Service Member victims from their respective services. And so as a result of the report and the different methodologies, we thought it was important that dac Ipad Committee have an opportunity to review the report which we sent for your review and also had an opportunity to deliberate and discuss which is going to occur during the end of this public session, in order to compile a letter back to the secretary of defense. And pending any of your questions, thats all i have right now. Anybody have any questions for colonel ware . Then well turn to mr. Mason for your remarks. Good morning, maam. Committee. You dont have to strap in this morning because im not as excited as i was yesterday so were only going to cover just the conviction and acquittal rates. Its a couple of slides. This afternoon i cannot promise we will not be excited again because were going to do all the data. But for conviction and acquittal rates, the first chart that we have up is the outcomes for penetrated offenses referred to Court Martial and i apologize its just the one side only on the lefthand side of the room. If you look the at top of the slide, fy 2018 when someone had a referred penetrative offense, the other extreme is 37 about. 3 of the time they were acquitted of all charges. So if they had multiple charges with the most serious the penetrative offense in 43 of the time acquitted. And the 2017 acquittal rate for penetrative if he ever had was almost 31 . When you look at those, that same class of cases whereas a penetrative referred to trial and then handled, adjudicated by a military judge, the conviction rate for the penetrative offense goes to 33. 3 , which was previously 28. 2 for overall. And the acquittal rate drops to 17 . So you have a much lower acquittal rate when youre going for a military judge and its a penetrative offense. Where it gets interesting is when you now look at when its adjudicated by a panel of members, the conviction rate is 23. 2 , which is slightly lower than the overall rate, but the acquittal rate is 59. 4 . So looking at this statistic it might be safe to say if you have a penetrative case thats referred you may want that adjudicated in front of members because your chances of acquittal are much higher than if you go before a military judge. We have the numbers for 18, 17, 16, 15, the acquittal rate bounces back and forth there isnt a true trend that we can identify thats going in one direction or the other only to say in the most recent year the acquittal rate with members is much higher than in the previous year. And now we want to look at those same metrics when were talking about a contact offense that was referred to trial. And you have a much smaller universe of cases, but when youre looking at convicted of a contact offense as the most serious offense, its almost 14 and a half percent. And going back when we were talking penetrative, 28. 2 of convicted much penetrative aacquittal. 37. 3. A higher acquittal overall of penetrative than realizing with the contact offenses. If you have a contact case that is adjudicated in front of a judge, you are at 14, almost 15 for conviction for the contact and only 6 1 2 for acquittal, but you have a much larger, 78. 7 , theyre convicted of some other offense. So the contact Sexual Assault was the most serious offense they were charged with, one or more multiples and other offenses maybe an article 92 or article 112 something along those lines. They were found guilty of those rather than more likely to be found guilty of those offenses than the sex assault or be completely acquitted. And then when you look at it for military members, the overall acquittal rate, again, is much higher when youre dealing with members. So, the military judge was realizing 6. 4 overall acquittal rate for the contact. In front of members, it was 46. 7 acquittal. Interestingly though, the convicted for a contact offense with members was almost 17 and it was 15 with a judge. So the members are finding them guilty of a contact offense more than the judge is, but the judge is finding them guilty of something and the members are more likely to acquit. So we wanted to just give you an overview of whats happening with penetrative and contact so that you have that in the back of your mind as youre hearing the professionals today and you can ask their opinion of do they see this as a trend . Do they see this as a problem . Is this how the system should work . We are not drawing any conclusions that are right or wrong, were just giving you what we know from our statistics in the system whats happening at the trial level. Thank you, maam. Thank you, mr. Mason. I have a couple of questions. On the contact offenses where the military judge was convicting a substantial number of nonsex offenses, would those charges standing alone have had to go to a general Court Martial . Without knowing the specific other offenses, i cant tell you. Okay. In our data base, we in order for a case to be in our data base it has to be a penetrative or contact Sexual Assault, but we also enter every other offense on the chart sheet so we could go through our data base and look and say contact was the most serious Sexual Assault, but was there an attempted murder or Something Else that was a rather extreme offense, a serious offense that would rise to the level of a general Court Martial. We could tell you that, i just dont have it off the top of my head. Things such as underage drinking or fraternization, would those go to Court Martial . Not necessarily. If you go back, take the acquittal rate of 2018 and convicted of nonsexual offense, i cant see the numbers that well, whats the total percentage then . Your total if you do convicted of Sexual Assault any penetrative or contact Sexual Assault youre going to be at 28 , 29 , and then your acquittal acquittal or convicted. Acquittal is about 70 . So acquittal of any Sexual Assault, if youre convicted of Something Else is about a 70 rate . Yes, maam. Thank you. Are there i in other questions for mr. Mason. I have a question. Mr. Mason, thank you. Im just curious sorry about that if there is any similar data in the civilian context for a judge or jury outcomes on cases that you know of . I am not aware of it. We have talked and when kate is up speaking later she could probably tell you other studies shes looked at with respect to the investigations in Going Forward. Right. We could probably look at the Sentencing Commission and see what metrics theyre tracking to see if something would address it, but i dont know of anything that is a direct correlation to what we have. And just to be clear, these this data tells you whats happening, but it doesnt tell you why anything is happening. It does not. So that would involve further analysis . And we can tell you, these are the results and if you want to see the record of trial for these cases, we have much of the documents. We dont have the complete transcript, but we can pull out what the article 32 hearing was or the sja advised. We can say that the we are going to step away from this conference briefly as the u. S. Senate is about to gavel in for what is expected to be a quick pro forma session. We will be back to the meeting on military Sexual Assault as soon as the senate is done. The presiding officer the senate will come to order. The clerk will read a communication to the senate. The clerk washington, d. C. , august 23, 2019. To the senate under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the honorable steve daines, a senator from the state of montana, to perform the duties of the chair. Signed chuck grassley, president pro tempore. The presiding officer under the previous order, the Senate Stands adjourned until 10 00 a. M. , on tuesday, august 27, 2019. Adjourn back now live to the meeting on Sexual Assault with the u. S. Military. Thank you. Mr. Mason, i want to make sure i understand, in order for the dacipad at doing the best work at grabbing the data, you need a better data base system, is that correct . We actually need a legitimate data base. We are using a share point website, which is a way to share documents. We, because we are a documentbased system and we have to have a legal document that we can look at and pull the information from, we take those and enter them into fields so that we can aggregate what we have, but then to get an outcome, the only way to do it is to do an excel spread sheet and separate by columns and count them. Its not a data base. If you have anybody that works in data base, this is not. Its a work run. It has served remarkably well for its purposes. The jpp started this with limited funds, limited people. I mentioned it to you yesterday because of one person, we have one individual, stacy, who has entered all 4,000 cases into our data base. So shes read every one of toes documents and then categorizes it and enters it, but the only way we can do this Going Forward is with a legitimate data base that youre able to track an offense, each individual offense as a unit and then combine those units into the case, and then look at the cases out. We are unable to do that at this point. And that would better serve the members of this committee, is that correct . It would better serve the members of this committee and allow you to present the information to the services as customers, as well as to congress, who has asked you to investigate this. It would allow you to actually do the job that youve been asked to do. Thank you. Thank you so much for the information and i call you our inspector gadget with all of the data and we love it. You have to understand your information and be able to manage it. Are you aware in the different branches of the military, are you aware of any Information Management system or data base that is able to track the information and report data as you have presented to us today . There are systems within each service that attempt to track Court Martials beginning to end, however, and theres something ill get into with the data report, we ask them to provide the cases to us so that we can add them to our data base. We do not have the when a chart sheet is created we dont have access to them, we have to wait for them to provide it to us. The problem we have a run into, the number of cases the Services Report to us as being is valid case for the purposes of our study, the actual responsive rate is nowhere near what they think it should be. So, as an example, the services, they gave us 774 cases in this past year, that they believe are a penetrative or contact Sexual Assault that was resolved in that fiscal year. Only 574 of those were actual cases that we could track. So 70 75 of what they told us were actually the cases. The other ones that were reported were maybe a child sex assault that we dont track or maybe a different fiscal year that happened to surface in their system or they duplicated and told us the same name two or three times. Unfortunately this year we ran into an issue where we have a multiple of cases that they were reported as being cases, but they have no documentation to back it up in their system. So we have a name, but we dont have a actual case so we dont know that its actually a case and we cant count it. So, the short answer is, no, there is not a system that im aware of that can do what we are trying to do. Yes, sir. Thank you, mr. Mason. I think were ready for the panel of Service Panel on collateral misconduct and that would be lt. Colonel khasan, lieutena lt. Colonel mail and lieutenant mill miller. Ic good morning, welcome. Thank you for being here to share your perspectives on the collateral misconduct and the results of your studies. Im going to start it off with one question and well see what the other members have. Do you all agree that you should be using the same definitions for the same terms as youre reporting data out . Because of some of your different definitions,the army figures showed had a 10 adverse action in collateral misconduct and the marine corps showed a 92 adverse action, which seems absurd something you realize youre talking apples and oranges. So my question for each of you, i guess well start with you, lieutenant miller. Do you think you should all be using the same definitions . Yes, maam. But i think this is just a function of the first time conducting this type of study. And i notice that congress didnt actually give you very many definitions. I think other than covered individuals. Yes, maam, uniform definitions would be useful. Yes, maam, we agree. It would be provide a much more useful measure across the services if there were uniform definitions. In our responses for the marine corps most likely would have been much different had the term suspected of collateral misconduct have been used instead of accused of misconduct. I agree as well, maam. Yes, maam, we generally agree that having universal definitions and there were attempts by the services to try to coordinate. This didnt actually come through the joint services committee, but we basically got together and tried to hash out some of the distinctions without the services defining things, but some are cultural things and how the services define adverse information or adverse conduct. So there were some differences of opinions, but we definitely made attempts to try to smooth out some of the differences based on the back of statutory types provided to us initially. For the first time going through this iteration, weve seen where the bumps are and hopefully can smooth this process are and clean up where there are distinctions and going for the future data pools. Im sorry, major. What would be im sorry, i cant pronounce your last name. Whats the difference between suspected of collateral misconduct and accused of collateral misconduct. Sorry. Accused of collateral misconduct normally we think of an accusation in a charge sheet or some sort of formal accusation where somebody is being accused of something. Suspected would include things like where a witness statement or some other information came to the light of the commander. Where they could have been accused of collateral misconduct, but they werent and thats where the numbers were not reflected in the marine corps or the navys responses. So theyre treated differently now . No, theyre not treated differently if theyre not captured into numbers. I think across the services its important to point out when we analyze the number, were talking about a very, very small percentage of cases in the first place, so for the marine corps numbers, for example, 826 victims that we looked at, ten of them received any sort of adverse action. Now, there were probably higher numbers included where there was some sort of underage drinking or some sort of offense where the command could have taken action, but there was no formal inquiry, no formal action taken. So, we define those as cannot accused of collateral misconduct because there was no accusation made. And this is sort of maybe going out a little bit towards the end, but i know that were looking at this data for one reason, but do the services find this data important for you, your work, handling Sexual Violence cases . Is it useful data to know if there are victims that are facing collateral consequences for collateral misconduct and whats happening to those cases in terms of whether you feel youre improving justice, safety, or is this something that you just see as an exercise in people overseeing what youre doing . So from our point of view, its useful in more of a policy sense of when there are concerns of retaliation, because retaliation is often linked to some sort of adverse action, whether or not theres adverse action taken against victims that might dissuade them from reporting. And separating social retaliation and offices in one adverse act of the chain of command and knowing that the overall, the consistency amongst the services of a very low percentage of adverse action helps us understand that, yes, there are valid concerns about retaliation, but that the reality of overall percentages versus anecdotal stories, tells that the anecdotal stories are in the minority, 1 and lets focus on what is probably a greater thing and victims not coming forward to report. Please go across and everybody answer. Absolutely, maam. I would agree with that as well. I think just having the data by itself is important. Im sort of a proponent of that. I also, as a victim advocate, too, i know its important from that perspective because thats something that gets talked about as well, as well if you report sex assault, what kind of potential adverse consequences might that expose you to. So, im actually very glad that we took this time to get an answer on what the numbers are, on that. So yes, i agree as well at that it was very useful. And one trend that we hadnt been aware of before pulling these numbers at least in our cases, 70 of the victims who received some sort of adverse action for collateral misconduct had had previous disciplinary action, say, for example, if the victim received adverse counseling for underage drinking or some sort of offense, in 70 of the cases there was a prior incident preceding the Sexual Assault. Thats Important Information for commanders because from the commanders perspective we could certainly see why it might be reasonable for them to see why they might need to take action, but from the victims perspective as well. That would certainly be the toughest case for a victim to come forward and report having had previous adverse action in the past. Yes, its important and we were glad to have the data. Certainly, were all concerned and want to understand there are circumstances that would dissuade a victim from coming forward because of the collateral circumstances. Yes, i think all the highlights have been discussed at this point. The one thing i know, it was valuable for the coast guard for was looking at a one size fits all approach to collateral misconduct, but i think that was guided more by what was perceived instead of the actual numbers that we found because i think as everyone here has stated, that the percentage of actual collateral misconduct is very well in comparison to what i think somebody who doesnt have access to these numbers would look at and say is happening because those are the cases that you do hear about the most. So this gives the actual data to drive policy decisions, as well as i think as weve mentioned here, it reinforces the unit commanders indiscretion and to address issues where you might have good order and discipline issues, that need to be addressed and really can only be addressed in the very specific fact, specific scenar scenario. Thank you. When you all were looking at what constituted collateral misconduct, was there a time frame that you were looking at in the data that you gave . Was it coincident with the alleged Sexual Assault and then combining with that, because do you agree that you see sometimes conduct that comes downstream after a Sexual Assault that might be misconduct that could be causally related potentially to the Sexual Assault that could not be captured in these, selfbehavior and self later . Yes, weve also had to look at how it was captured in the Investigation Report initially because that was our first poll if we went and got every case from the time period and identified that victim and pulled that, and pulled that case. In some of the ka is cases we found what was the impetus of reporting. We had the example somebody came ut hot for cocaine and they were processed for separation and adverse action as done under the services regulations, and during that time period, during the administration of the adverse action is when the report came down. We consider that collateral because it was really close in time and it could have been selfsoothing or selfmedicating to deal with the trauma so that was captured in the overall numbers because we consider that to be collateral. That involved a little bit of judgment on our part because we could have said well, it didnt happen it didnt happen before not after and theres a bit of judgment there. In that particular case the Sexual Assault was used as a mitigating action because it had occurred prior to reporting, but the command used their discretion and we understand now theres a Sexual Assault involved and how that cocaine use might be related to that and they suspended all of the actions in it. So with the way the army approached it was, we looked at anything that was around that time period and then there was a specific we had each unit go through the case file, say, was this related to the misconduct or Sexual Assault in any way and reported that back in our numbe numbers. In the navy, i mean, all the collateral misconduct that we reported here was actually did have some direct coincidence with the sex assault. It was happening generally the same night on maybe just an hour or during the assault, but thats not to say that we didnt also get when we were collecting the data, we got some reports maybe from commands that didnt quite understanding what we were asking for, but gave us misconduct by the victim that happened afterwards that clearly had a connection to the sex assault. I mean, its the psychological trauma maybe even led them to become engaged in Substance Abuse. So, we did we have that data. We didnt consider that to be collateral misconduct for the task here. Yes, i agree. Well, that would be incredibly useful data to have. Again, it wasnt included in the marine corps numbers as well. We had a number of cases where we doublechecked what the command was sending us for numbers by pulling the records ourselves and doing that we would go through and see, for example, na a victim had been njpd a month or two months after the report of Sexual Assault so we would go back and say doublecheck this, are you sure there was no punish pt for collateral misconduct and the command would come back and say, yeah, that was a totally separate incident so it was not collateral misconduct. I think having, when we did go through all of those records, it was almost sad or heartbreaking to see the High Percentage of cases where a person is being separated a year, six months after the report of Sexual Assault for Something Like a Mental Health condition or some sort of other underlying. So thats an issue that we did bring up and have to address or at least decided that it warrants further study. I do think that a study that looked at victims after they reported Sexual Assault, the percentages of them that six months, a year, two years down the road, are separated or get out of the service and what the reasons are that they separate would be very useful and beneficial. Thank you for asking the question, maam, because the temporal aspect, i think, is a key distinction between the definitions in the services. The air force did something slightly different than the navy in that we only included conduct that was happening at the time of the allegation that wasnt already known, meaning, if it happened after, it was not included and then when we further reviewed our numbers, which were provided in supplemental report, we also excluded that misconduct that was already known. Our initial numbers were in i any misconduct in the investigation. But we excluded that misconduct that was known because our understanding was that this study was to figure out if there was information that would dissuade a victim from coming forward. If the misconduct was already known, presumably it wouldnt dissuade a victim from coming forward. And the air force had one victim, there was already a command directed investigation for the misconduct. During the course of that investigation, a Sexual Assault was alleged, based on what the army describedment we excluded it because of the base of where the study was different. Yes, maam, i think that this would be of value, but the coast guard did something very similar or identical to what the air force did, in that you had to have the Sexual Assault first in time and then the misconduct came next. So that the convening authority had to have been aware of both the Sexual Assault allegations as well as the misconduct for us to count it in our numbers. We did not include any one, but the subsequent what i would refer to as subsequent misconduct did come up in serp cases similar, i think, was the Substance Abuse where you had somebody several years down the road either drugs or alcohol and then that was processed for discharge and through that it came to light that there was a previous Sexual Assault. But i think, as well, it would be very difficult in certain situations to understand, you know, what subsequent misconduct would look like, just a decline in performance or somebody that does get article 15 punishment down the road where what the actual causal link is to the Sexual Assault. I think when you get separations that might be easier, but if you have a High Performer and then all of a sudden, their performance declines for them, but theres still an average performer, even slightly below average, you wouldnt be able to necessarily capture that that was directly related to this Sexual Assault like you would if theres the Substance Abuse aspect or thank you. So one of the things that we discovered when we looked at the data is that the services had a very different approach to what was called false reports, with the air force counting false reports as part of their data on collateral misconduct and the other services did not. So the question is, you know, how did you define a false report . Did it require recanttation by the victim . Or what were the criteria you used to term that a report was false and how did you make the determination that a report was false . And do you think its appropriate to consider issues of false report in collateral misconduct data . The coast guard, looking at our numbers, there were twoincidents of false reports, one was actually from a third party that witnessed, witnessed the sex act which was one discovered to be consensual during the course of investigation. And then there was another one where a alleged victim alleged Sexual Assault and determined that it was not a Sexual Assault. That was both of those numbers were included in our numbers, however, there was no adverse action taken for the false report. One, obviously because it was a third party that perceived something that wasnt actually happening, and the other instance, there just was no action taken. But both of those numbers were included in our collateral miscondu misconduct. So its difficult to know, i think, what would be useful for us to know, whether a false allegation should or should not be included. Its logical that if the basis of the Sexual Assault allegation is found to be false, it wouldnt be collateral misconduct. So a recommendation would be to exclude that, but certainly goes back to the initial question, the uniformity and definitions would be useful. At the Headquarters Level we didnt make a determination or define false allegation, we looked to whether there were circumstances or whether there was a false allegation. For the air force, there were five of those cases and in two of the cases there were adverse action given. So that would have been at the command and the local servicing legal office whether they would have made that determination. So we left it at that. We had additional cases where there were other false related statements that were not related to false accusations and we characterize these differently, but we didnt make a determination of false allegation simply, there was a false official statement, to the Sexual Assault happening at all. We also didnt include similar of a different question, whether there was a cross claim of Sexual Assault was the challenge. Weeden it of those cases where theres an allegation of Sexual Assault and then the victims collateral misconduct was that, no, you sexually assaulted me or the abused said, rather, no, you sexually assaulted me so we had a cross claim. We found it challenging to count those and counted those as fls official statements, not false allegation where theres a collateral im sorry, we counted that as a Sexual Assault that was a cross claim. So we found those very challenging relating to the question of false allegation. And we did the same way. So we did not attempt to get into the underlying merits of any one allegation. We defined the false allegation as the command had taken allegation against that person, either an njp for the Court Martial for a false statements. And we had cases a person was punished for making a false allegation and not included in the report. We had a number that were included where the timing and nature of the way the incident was reported led the commander to believe taking action against that person was none of less appropriate. For example, cases where, say, a person is pulled over for a dui and month later at njp says, you know, i was driving intoxicated to flee a Sexual Assault that happened at an unknown location im not going to provide any information to ncis about. Cases like that, were not going to define that as false or true pt were not going to look at the merits of the allegation. We will support that victim in any way that we can, but the commander may feel its appropriate to take disciplinary action for that person against discovered by the command. So we looked at we asked ncis for data outside of the total number of sex assault investigations they handed us. They had a certain number of those where that had sort of transitioned into an investigation for either perjury or false official statement against the victim and then they had a case synopsis for each of those. So we took a look at number five, i believe, in total. We looked at those and determined sort of what exactly were they investigating . Does this look like a false allegation of sex assault or a false official statement that happened during the investigation. If it was, they determined the false official statement or the perjury was actually tied to the allegation itself, we considered that to be a false report of sex assault and then we looked at the case outcomes and actually reached back out to the commands and asked them what adverse action did you take in those cases. We didnt consider that to be collateral misconduct we just decided to include that in the report as an Additional Data poi point. So we put our request guidance out to the definition that broadly defined as the victim misconduct might be in time, place or circumstances associated with the victims Sexual Assault incident. And so false reporting is one of those concepts that is it a true false report, as in someone is not saying something that thats not true. We identified eight cases out of 154 where someone received misconduct that we identified as a false report. Typically in the cid reports when we close out a case, theres a distinction between when were closing it for insufficient evidence, probable cause, not enough evidence for an assault report. So i would have to go back and check the eight classes to see if thats the way they were classified in the case themselves. They were universal cases we had pulled to that time period. Some would consider a case of false reporting would be a collateral and making a false allegation, and somehow the people reporting something fls, somehow theyre being punished and their assailants now, how many cases are out there and how many victims are being accused of making a false report if theres a useful data point and it seems to be a very low number. I have a question, im curious and it might make a difference to victims. How does collateral misconduct come to light . I think think of three ways, there may be more. The victim selfreports and says you should know that something happened or later on tells. Or the investigators uncover it somehow on their own, or the accused makes an allegation or says something about misconduct. So im curious how the misconduct comes to light generally or maybe its just all different ways. So many different ways. [laughter] if you look at the highest percentage of the ones that we saw were underage drinking. Thats going do come to light, basically an alcohol facilitated assault. Youll know how everyone is and it doesnt really require selfreporting. Sometimes it comes to light for the disciplinary proceedings. Someone is being disciplined for fraternization and sometimes its from third parties which is why we threw a fairly broad net on the term accused, and i agree, it would have been suspected might have been better, but the word accused has a specific meaning in the code, but we all know that accused in normal parlance just means that basically someone is telling you that you did something. Because of the broadways it could be reported we tried to fashion in broad as much as possible. I would agree with that. We didnt really look at how the collateral misconduct in each individual case came to light, we just for every single Sexual Assault case, we called the command, it was there Sexual Assault in this case . Did you take action on this . And sort of an independent command action. And we approach it the same way so it could have came to light in a number of different ways and we didnt break out by in way way the command became aware of the misconduct. Other than to as we said earlier, about 70 of the time the allegation of the Sexual Assault preceded the collateral misconduct. So its the other 30 of times where the commander is already aware or tracking some sort of issue with miscutting and then the Sexual Assault allegation was made before that. Thats really the only way that we broke out that distinction. I have nothing to add as to how collateral misconduct comes to light and only to emphasize the point we examined in te temporasl aspect and those things that came to light in the investigation. I dont have anything else to add. We we didnt look or break out how that report of collateral misconduct came about. Since the number of people that actually received adverse consequences seems to be quite low across the services, that would mean that the bulk of people dont receive adverse consequences. Are your services tracking, tracking that in some way . Because i would think somebody with then, if theyre part of the whatever low percent received an adverse consequence, say well, this person also did underage drinking and got a pass. Let me ask you, colonel, do you track that . We dont track it. Theres certainly guidance in our regulations that commanders need to be cognizant of, of taking action against the person who is an alleged victim of assault i believe Army Regulation 60020, to wait until the proceedings are done and disposition of those proceedings before considering whether to take action. Its also by dod requirements held up to the special Court Martial competing levels. We dont have commanders able to take action without going through some sort of higher review process. Its an exercise of prosecutorial judgment by the commander in association with i see the larger issue here in this particular case, i dont think any additional action necessary and thats where, again, we trust those special Court Martial level commanders to make those decisions. We havent been tracking it outside of here, realizing theres a low percentage really of those pardon me, cases where theres accusation. Identified only as 154 and accused of collateral misconduct. If you spread that across the size of our force, the army being as large as it is and spread out as it go, its a low percentage of even an accusation of collateral misconduct. Its not something that weve tracked, but is something were aware of and thats why i think withholding policy makes a lot of sense. So i concur with all of that. First, its not something that we track, whether at least not now, if theres collateral misconduct in the fact pattern of a particular case and whether if a commander decides not to take action, we dont currently track that. As far as, you know, tracking where adverse action is taken, obviously, now that theres an ongoing requirement to record that, we will be tracking that in the navy as well. It was a very low number of cases in way it would even happen. So, its not a significant thing that happens. I agree with everything that was said earlier. The only thing it will add is the very low number of cases that we see would not include the informal type actions that might be taken by a squad leader or some other sort of leader. So, for example, informally counseling somebody or forced to cancel weekend plans as a response to collateral misconduct. It may be the case that victims may have a different perspective on our numbers that are reported because they might feel like what adverse action was taken against them for collateral misconduct, but it was something that was at a lower level that was not documented anywhere. I would echo whats already been said by the other services and add though, even as a policy, theres a very low incidence of collateral misconduct and at least anecdotally we often hear that victims want the collateral misconduct addressed and thats not an issue at trial. And then sent her to one of my colleagues in the trial division, that a victim would want, say, underage drinking, theyd receive the punishment so thats not the issue and doesnt cast doubt on the issue of Sexual Assault. We dont normally track, but according to the standards were adding victim management into the case system so obviously Going Forward for purposes of this biannual report well track and adding into our system, information about victims because all military Justice Systems are accused base and were not tracking data. But we have victim information added officially and other cases in the case notes about something that were doing as a result of the i40a initiatives. I think that everything has been hit. We are the coast guard is not tracking in real time other than this report, collateral misconduct. And credible theres no specific guidance for the commanders, so i think that theres maybe some ambiguity about what discretion does for commanders to punish either for f false reports or misconduct when theres a Sexual Assault allegation. So going back to the very start, lt. Colonel kazin. You have said thank you all for going down the line even when youre kind of saying i echo. It really helps us understand that we dont assume one ser sis agrees with the other. Thank you for that. Lt. Colonel, at the beginning you mentioned that you tried to come up with a common ground, you noted there was some difference of opinion of those and cultural differences and you said for instance, for example, adverse. You gave that as the example of maybe cultural differences of definition and i just wondered if you could tell us a little more what you meant by that specific example and, yeah. [inaudible] adverse or Court Martial, but reprimand so everyone agrees on certain definitions of adverse, article 15 Court Martial separation proceedings. But things like nonpunitive letters of reprimand that are filed or not filed. If you dont file it, its not considered adverse under certain Army Regulations its the equivalent of a counseling statement. But a soldier on the ground considers it to be adverse to them if they get a negative counseling statement or a negative comment in an evaluation and we consider negative formal evaluations to be adverse information in their personnel files. I want to thank you all for coming and we will hold you to your so now you would use the same timeframe. You will use the same group of sexual offenses and youre going to use all the same definitions, correct . Okay, great. Thank you so much. And will now move on to our next panel, and i believe judge grimm has joined us on the line, is that correct . Judge grimm, are you on the line . [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] okay. Thank you for joining us this morning. Were going to be looking at the perspectives of the services military justice position cheese regarding conviction and acquittal rate, case adjudication process and victim declination. Thank you, captain, colonel, Lieutenant Colonel king, captain monahan, and you got a light of light on that one, colonel europe thank you. [inaudible] [inaudible] some members of the committee have reviewed [inaudible] as drafted fight an effective check against charges for which there is no probable cause. Why dont we start with you, colonel . For the passover use the procedural requirements of the article has diminished greatly. One significant change is the statutory policy, the statutory change to eliminate the requirement for victims to testify. And as a result in many cases thats the governments most significant evidence. In those cases where victim chooses not to testify the government is basically making its case based on the paper file. And so i will say that those changes over time have reduced the procedural requirements of the article 32, that i still think it is a valuable check. First off, theres an experienced judge advocate looking at the case and at the evidence. There is also the opportunity for the defense to present evidence at the case. And i as a former staff judge advocate had seen even in those diminished proceedings where an article 32 officer will make note or make findings that are relevant for me to consider and highlight to the committee convening authority when im providing my advice on this position. It has been, was built into the system for a reason, and i still think that reason exists currently. And i would agree with colonel pflaum but emphasize two points. First, that the article 32 in its current form still features a neutral and detached preliminary hearing officer providing advice to the convening authority and they judge advocate make a determination or recommendation of probable cause. That is still value added. In addition, under the current rules, it does give the defense, the victim and the government the opportunity to provide matters for the sj and convening authority to consider were not present at the hearing itself. So that is an additional avenue in which information thats important to the determination of probable cause be brought to the dizzying maker decision maker. I agree article third two still performs a fellow function. One thing thats that captured in the timelines that were mentioned is that these preliminary hearing officers are also taking hours of video, interviews with victims, and other witnesses or parties. Sometimes even including the accused withers and interrogation. Its important when you put the 32 preliminary report into context it usually involves an interview with the Victim Company to interview, that is usually an hour or two long that covers a number of issues. Thats just an important part in the analysis in the preliminary hearing. I probably sound like a broken record because im going to echo minute of the sentiments. I think Lieutenant Colonel king points out a good point, that while the hearing itself seem somewhat abbreviated, that when you go back and look at the evidence that is being reviewed and the time spent doing that, sometimes victim interviews can be four to five hours long and they are reviewing every bit of those and all videotaped now because a military criminal investigating officer, offices are videotaping those, victim and suspect interviews. Answer all of that stuff is being provided and its being reviewed by the investigative officer. So while the content of the hearing or the actual hearing may be very abbreviated i think going through that through investigation could take hours and hours if you think would point out is that oftentimes i know the other services to the special but in air force take with Sexual Assault cases or penetrative Sexual Assault cases, we have sitting military judges that would be the preliminary hearing officer. Not only neutral and detached but very experienced military judges who have been come to understand the probable cause standard extremely well who are able to then make a recommendation to the staff judge advocate thats well thought out. I guess for my view is that the article 32 has transformed itself from what it originally had intended, so early intended was more of a tool for the defense. Yes, it was there to look at all available facts and evidence to make and a partial determination, but it was a discovery tool for the defense and also the defense could put on a very, very deliberate defense medication, extenuating evidence as well. That transform the 2014 as all know and now its genes begin a look at in 2019. So from that standpoint the original purpose of article to just change. Its a probable cause hearing for those purposes all i think its fine. Does it perfect the governments case . I i dont think thats intent of article 32. Its put on as what is necessary to get the pc. Talking to some in the field theyre frustrated some of it is just a paper review and they do last as little as 15 minutes with a just handed literally the record of investigation. So from that standpoint i dont think its very helpful. As far as the government is concerned, it gets some notice to the defense. While there may be some other features the other services have talked about i dont want to not highlight that there is some level of paper shuffle. And i dont know how much its more informed convening authority because of it. If they could read the roi as well. Is the entire investigative file tranten, are portions turn in . Is her summary of it given to the 32 officer . No. I talked yesterday about it from a particular case, and it was not adult Sexual Assault. This child Sexual Assault can put in an limited amount of roi and the defense one of the entire roi submitted. I would say it depends on the strategy and notion of the trial counsel itself so i think its casebycase. Im speculating at a dont like to speculate, i would assume most of done is just our wide. I cant be certain to that. For the air force, i know that we try to focus on the actual evidence that contained within the roi. We would point to more wikipedia tapes that were done from the him cio as well as any statements that are contained by witnesses that are not present to testify. But for us office of the special investigations the thoughts and feelings selfcontained at the beginning of the roi does not go before the investigative officer because i dont believe thats relevant. Similar response for the marine corps. In some instances you may have an entire roi presented to the article 32 officer by the government, but in some instances we may look at a complete self owned extraction that includes every text message the accused sent for one year. We wouldnt provide the entire enclosure to the investigation. We would pull an excerpt from. For the navy its case dependent silver to as the of the services. And similar with the army. As the government puts on evidence they believed relevant and helpful to obtaining probable cause, and the good of the parts brought in by other parties to echo with other services that but again they government typically starts with those key relevant pieces of evidence. So section 832, whether or not theres probable cause to be the accused committed the offense charged, thats the general provisions giving the authority investigating officer. In some cases its judge advocate. Sometimes its not a judge advocate but judge advocate but by. Sometimes it military judge or military magistrate. Regardless of the process, if theres a finding that there is not probable cause, that does not result in a dismissal without prejudice, does it . No. It does not. Thats an essence the recommendation that would then go to the next level of convening authority, which have convening authority appointed that investigation for their determination. Im sorry, to the point it is not binding on. Thats consistent throughout the services. So its really not a true preliminary hearing in the sense of my federal court or even the state courts with omnibus hearings or delimiter hearings where if the government fails to show probable cause according to the judicial officer, the neutral and detached officer, the case is dismissed without prejudice. They can be brought back, renewed if further investigation gives a new basis. But thats the end of the case, right . In our system that check is held at this statute adjective level. The convening authority would receive the premier had officers report and if your cd from the show probable that would be determinative. Is a consistent throughout the services . Thats correct. Thats correct for the air force. And the staff judge advocate however is in the role of the Legal Advisor to the convening authority, so staff judge advocate is not in a true sense a neutral detached as a magistrate judge would be or as military the miniature judicial system is a stovepipe standalone system, which their decisions and recommendations, the rulings cannot be adversely impacted other careers, correct . Theres independent built into the system. I think if i may, the original idea article 32 and 34 was to ensure that baseless charges that we do courtmartial, and a talk again pre2014, taken together those vehicles were to ensure again baseless charges that shouldnt see the inside of a general courtmartial anyways. Those kind of protections, and so some of the features wouldve carried over, for example, the waiver still remains. Thank nicu says i waive my righ. That doesnt have to accept by the convening authority but they do that the accused you dont have determination to article 32. Still resides with the convening authorities and the advice of the sga. We have jurisdiction and theres probable cause these offenses were committed and specification. Just to ensure the very basic aspects of the case go forward but the other features of conviction or what for form anl those things, those are still reasonable determination at the discretion of the convening authority. Its just there different than civilian context. So we try to make an analysis to analogize article 32. I just think its a different creature altogether at least original decide and not it has kind of morphed into Something Else and i dont think making a direct comparison is helpful. I would agree, and i would add a couple of points. As staff judge advocate i really tried very hard to evaluate the evidence that was presented at the article 32 by the preliminary hearing officer. I try to take a good fresh eyed look at whats going on. As a staff judge advocate you are not personally involved in the court so youre trying to pull yourself back and actually get a good perspective on, not only whats going on in this particular case, but you should be read into whats right for the good order display of the unit you are serving. I think a staff judge advocate, it sometimes that goes awry. Sometimes people get too close but the goal is really for the staff judge advocate if they are advising a neutral and detached convening authority sit down and try to remain neutral and detached as well. The other part of that is, i know for the air force and doubly for the other services, its always a judge advocate who doesnt article 32. Its was was a judge advocate that is a preliminary hearing officer. We try hard to make sure that they have the right training and the right experience before becoming a preliminary hearing officer. Thats not always possible given timelines and whats going on. The staff judge advocate is not limited to the four corners of the document that is presented by the preliminary hearing officer. As pray for making him the defense counsel, the trial counsel and the sdc or vlc for the other Victims Counsel can provide Additional Information to the staff judge advocate thats going to the convening authority. So while the neutral and detached preliminary hearing officer gets evidence that can make a recommendation, the staff judge advocate is not limited to only that information that goes to the convening authority in determining whether or not there is probable cause. The marine corps agrees with the position that the 32 preliminary hearing officer probable cause determination should not be a binding decision. Decision. Its important look at the Historical Context and the role of the command and the role of the sja in that process. The commanding, the convening authority shouldnt abdicate their role in the process to the preliminary hearing officer. The sja does have essentially the veto power with that probable cause determination, and they are in a position to look at the entire evidence for a particular case. And also give the command an informed decision. Thats really what this process is, is designed to do. The article 32 process is to help give the commander and informed decision on the evidence and then the sja also assist with that informed decision process. I think distro context is important because you look at the qualifications for the actual preliminary hearing officer. In most circumstances your staff judge advocate is going to be a more experienced judge advocate than the preliminary hearing officer. There are some instances were military judges have served as preliminary hearing officers but thats not a requirement and in that circumstance you may have a preliminary hearing officer that has less experience than the sja who is looking at the same evidence, but is also using their experience to provide that commander with the informed decision. I echo that but would also say there are checks in place that either the convening authority are staff judge advocate has less interest in the case, individual can be disqualified. It is a a complex system of chs and balances and i would agree that although different, the federal civilian system and the military system are different, both have pathways to a binding determination of no probable cause. I would echo a lot of the prior comments that my colleagues made in this, but the way i understood your question to start was that the United States, isnt neutral and detached. They are part of the prosecution. It is true the prosecution are involved under the supervision of staff judge advocate, but i think the staff judge advocate is over all responsible for providing the convening authority the advice on the military Justice System and they have an interest and have an obligation to advise the convening authority on those interests of discipline that might warrant prosecution as well as justice in making sure that privilege charges baseless charges dont go to trial. Frivolous charges i think the 32 and for the ultimate advice that that experienced staff judge advocate provides to the convening authority in making a decision to refer a case to trial. And again, the 34, the advice under article 34 is not just whether theres probable cause. That is in essence a low subjective standard of whether a probable cause existed the of the value and the key portion of the staff judge advocate recommendation under article 34 is the recommendation as to disposition. Thats where the sja is saying yes, there if theres a finding by the staff judge advocate theres no probable cause, thats binding on the convening authority. The case can proceed forward. However, if the recommendation where the sja is advising that convening Authority Based on that experience, based on the full review of the case file in terms of whats the right disposition to whether its referral to a courtmartial or taking some other action. Thank you. Looking to asking some questions on the bit about whether the 32 officers finding of no probable cause should be binding, but i noted in your introductory remarks these 32 judges with the most experienced and highly trained, very experienced military, experience at the right thing, until we Start Talking whether the recommendation should be binding and then maybe not so much. So my question for you before we get to that is, if the finding of no probable cause isnt binding, and if its really kind of a paper chase at this point because i believe very few complainants actually elect to testify at the article 32 these days, kind of whats the point . Like, why not just didnt go straight to the staff judge advocate if hes got access to more information, why are we even bothering with having these very experienced people taken away from the other duties to look at hours and hours of video and read the hundreds of pages of paper . Let me start with you, captain tasikas. Its a good question. Again, i think i would like to go back again twice article 32 came into existence in the first place and it was a check of sorts against the plenary authority. It was not necessary open but open. The accused had a right to counsel, to cross examine, to present evidence, to lay out the defense, constitutional defense, mitigation and affirm defense. That was quite useful for the convening authority because if there was a case on the margins, they would want to have an article 32 to flesh this out and maybe a case would go way if you will because there wasnt a strong inclination. Now with the probable cause determination, its less helpful in that regard. However, i think it does give some level protection to the accused again on the 30 basic tenants of what the looking for, the scope of the Current Article 32. Issues of again is the specification actually a crime . Is their jurisdiction . Lately retirees have become an issue of whether or not those are jurisdictional issues. So there is just against a floor theyre looking at, a very basic, to ensure they have the basic notions of jurisdictional and other substantive issues before they go forward with the crime. I dont think it is there again to perfect a case for the government or for prosecution. Its i think a very narrow protection again for the accused. In that regard its helpful. It would think he is more broad and more expansive than i would argue going back to the pre2014 article 32 which was very informative for both the defense and for the prosecution convening authority. So i believe that the preliminary officer does provide fresh eyes on the case. I think they can take a look at the form of the charges. They can recommend, particularly and penetrative sexual offenses the greater offense whether or not theres sufficient force, whether or not theres not forced, whether it should be a lesser offense. And i do believe that it still provides the defense a forum to provide evidence. I think that is a unique aspect of article 32, is defense has the ability to provide evidence to the preliminary hearing officer and, therefore, really directly to the convening authority to get whatever evidence that they deem is relevant and necessary in making a recommendation as to disposition of charges. Before the person whos actually making that recommendation. So i do believe it still has a value to our system. I will agree, however, that weve got a lot more information in a prior iteration of the article 32. It was much more comprehensive. You had a better idea what disposition of charges, what the charges should look like, particularly in an era where the charges themselves have changed dramatically over the course of the last probably i think 12 or 13 years. Weve had many, many changes to article 120 over the timeframe. Having someone with ice look at make sure you look at the right charge timeframe for that particular iteration of article 120 is important to look at. I agree. It does still have an important procedural function. The fresh eyes description is a good one. I think in addition to the point already mentioned, you have the ability to conduct a detailed charging analysis, and focusing back on the informed decision for the command and providing the command with an informed decision. Article 32 also provides the staff judge advocate with a more informed decision. It provides a forum for the accused to present a challenge to a particular charging theory, if there are charges. The accused not present a case or testify or call witnesses, but it does give the defense the opportunity to present challenges to the charges themselves and it would enable the sja to also have a more informed decision. There certainly can be some improvements procedurally. In our written comments we mention the ideal scenario would be to have a military judge serve as a preliminary hearing officer. We have not advocated for the military judges recommendation to be binding, but in certain cases in the marine corps where there is a complex charging theory or if were looking at some offenses that involve murder allegations, we have brought in military judges to serve as the preliminary hearing officer. And in those instances we do feel the command of the staff judge advocate are provided with the most informed decisions prior to referral. So i believe the system benefits in every case which is article 32 in that the defense and government can depending on the facts of the case derive a benefit from its current iteration. The current iteration of article 32 provides an opportunity for qualified judge advocates conduct a deep dive into the facts present at the article 32 preliminary hearing to include what is commonly submitted several hours of investigative video, recorded interviews with alleged victims, witnesses and sometimes the accused. And that provides the preliminary hearing officer or fall an opportunity to prepare a company to charging analysis for the benefit of staff judge advocate and convening authority. Authority. Now, if a case is particularly week, whether or not the recommendation of no probable cause only is adopted by the convening authority, the defense can still gain the benefit from the comprehensive analysis because a wellwritten article 32 foes report can provide a roadmap to an acquittal at a contested trial. Because it points out the flaws in the comments case which a savvy defense counsel can use to his or her advantage. But in a particular strong case i would argue that the government can use a wellwritten foe report to its benefit because they can incentivize a guilty plea if a guilty pleas wanted under the facts because the defense will see from a qualified neutral and detached judge advocate laying out why the case is so strong against their client. So i do see even under its current iteration article 50 does provide benefits to all parties and most important to the system. Im actually going to start by disagreeing with the marine on just one minor point, and at my peril i believe. [laughing] on the fact whether you should have judges, at a Formal Garden for judge on 32 if that will was taken away. I think that is valued and it seemed that income for example, france a capital case or something along those. But as a matter of practice i disagree with that. Maybe from a logistics experience but also a logistics issue also i dont think necessary. I think at least in my experience with offices in the rank of major who are judge advocates performing the foe role at a think they did a marvelous job and exact with the article 32 and rcm 405 were designed to get at. So just on that point. But will agree with my colleagues that it is still a value. On a number of different levels. The first one is for me as a staff judge advocate i benefited from a formal process by which the government presented its case, the defense had an opportunity to present its evidence and those given to me in a report i could then utilize and entice the convening authority. It is too early in a full prosecution process to be required to be binding. Theres lot of work that can be done that captain monahan and referred to any statement after the 32. The case is incomplete at that point. You made the point at the 32 if it were binding it could be dismissed with prejudice and the government could come back and try again but that in the process would require going all the way back to the referral process in cases which could adt time and delay, whereas as captain monahan referred to, the government and or the defense can take that 32 and six the issues in the case and fix their case as the proceeds forward as long as there is probable cause and the recommendation is to dispose of the case by general courtmartial. I do believe theres value. There was value to me in a a formal process having a neutral and detached judge advocate look above such of the case, having the prosecutors bring their case to an outside party for evaluation in getting that analysis by that officer. So several of you lamented while clearly there is value in this process, the process has changed. Its not what it used to be. Weve heard a couple suggestions about what you would like to see different, but from all of you, can you talk to us about recommendations to the 32 process that you each eat likee to make the process more meaningful . And we can so again i just i going a lot of comments but i would like to point out that the current process that we have is a floo, not a ceiling. So i think, i think its incumbent upon the services to push down to the young trial counsel that are presenting evidence that it doesnt have to just barely meet the probable cause standard. Thats one of the things that we are constantly United States our young judge advocates, is again its the floor. Youre building a case for probable cause. The government in and of itself to we should be transparent. We should be pushing evidence out there. And just because the victim in the case can elect not to testify doesnt mean that there isnt buckets of evidence that either corroborate or doesnt, that version of events. And so to the extent that, i dont know, perhaps change it on the market and i agree rodney power to seek evidence, theres a lot of stuff to include digital evidence out there that would be nice to be able to read. But i do think that as the services that we really need to be pushing information down that says look, just because you can barely meet the probable cause, just because youre barely met the probable cause standard does mean thats what this hearing was intended to do. And theres nothing wrong with adding more evidence and letting people consider more evidence in an article 32 investigation. We really should be eating that up. I think integrally meeting those requirements. I dont know we need changes to the ucmj by to do think internally our service it really should be pushing that information, look, you need to be doing better. You need to be adding more evidence that just because its a floor doesnt mean you just need to barely clear that. You need to add what would be helpful to the convening authority to make that informed decision. I think its a good question. Ill just add that, i wanted to employ people are lamenting about the article 32. It depends on where you sit or stand if youre perhaps trial counsel you find a very valuable. But there was a policy determination a few years ago that changed article 32 to equities of the victim in place at the lahore to stay in the system or se see a case to go to courtmartial because of the perceived notion of article 32 as it was currently constituted. Acting anyways. There is no perfect fix. I think what you do is theres pluses and minuses. You just have no which are losing out by changing and what youre gaining by which are changing. Theres no perfect system. Again, talking historically, when the military first brought in lawyers im sure they were not happy with that. A few years ago when the sec were brought in people were not happy with that but now theyre part of the system and part of our culture, part of military Justice System and they are facilitating a policy, objective if you will. I would suggest we change article 32 is for changing it for lawyers, convening authorities. One last point. Going back prior to 2014, convening efforts would take those tough cases of article 32 to flush the outside the dakota courtmartial if they were thickly weak cases were Nigel Seymour cases go to courtmartial and maybe get a higher rate. Thats just the reality of how it is and so if youre willing to live with that i think article 32 is okay. If you want to article 32 is more robust so you dont have to go to courtmartial, then the old system is probably better. I wouldnt say better, i would say its different is how i look at it. Ms. Peters, we will move on to section two if people want to come back, a time period which have a lot to cover with this panel. [inaudible] [inaudible] how does this approach nonbinding factors such as whether the admissible evidence likely be sufficient to obtain and sustain a conviction in a trial like courtmartial . I would request i think this question is the time to the air force respond and then have the other services weigh in on the weight they give to that factor, the ability to obtain and sustain the conviction at referral. Thank you. I know the air force is an outlier on this, because, because a look at the probable cause standard and the referral standard and take into consideration the wants of the victim. When we evaluate whether or not that probable cause standard has been that and we have cooperating victim, which used to go forward. I know that is not necessarily what every other service does, and i respect that you have the right to differ in their opinion. What i would say to that is, is that we have a lot of cases that go forward and evidence is developed as we are Going Forward on that case. Evidence is accumulated we are gathering information and we are going out, and again like me to before, we should be corroborating every fact of consequence that you can, that the victim asserts in her testimony. And if you are doing that, you can get convictions in cases that you did previously think, that you didnt briefly think that were a slamdunk over taken into consideration, that there was a probability or a high probability of the conviction. And so if we are training our prosecutors to do their very best and you have a credible, reliable victim that wants to participate, we feel strongly that probable cause standard allows us to go forward in that case and gives the victim the opportunity to say what they want to say in court before, before the military judge and members and whoever else happens to be present. Go through and see what the rest of the services say. So i would like to thank our service is different, but i would suggest probably the coast guard probably has a similar mindset with convening authorities. If you have a victim who is going to persist in the military Justice System and would like to see their court go to courtmartial, their case for courtmartial, that is a huge ingredient in the decisionmaking process. Then the conviction, the likelihood of conviction is important, very important, significant but probably not determinative. In that regard i think it is a little problematic because convening authorities are not going to be secondguessed if they send case to courtmartial. They will be if they dont, especially if you have a willing participant in a courtmartial case. So there is a little bit of friction there that you cannot deny. I think you look at this objectively, so some outsider observers may be that as problematic. Now they get a fair trial and thats what theyre entitled to, so in that regard its a fair process. There is certain factors that a think i may be different in these types of cases than maybe others. I agree with the coast guard perspective, that the strength of the evidence is certainly a a factor. Its an important factor and i would say that the victim preference and the strength of the evidence in sex assault case are probably the two most difficult factors to weigh considering the other appendix 2. 1 factors in a sex assault case that of lean towards looking for to courtmartial such as the seriousness of offense and lean towards moving to a courtmartial. I also agree with captain tasikas, in those cases, in most cases where the victim wants to move forward and the evidence may not certainly result in a conviction, we are going to lean towards moving forward to a courtmartial. A lot of that centers around the fact that determining the likelihood of the conviction is so difficult at that stage of trial, when you havent seen sworn testimony at that point from any other witnesses or the victim, and we are going to err on the side of moving forward in that circumstance. There are some situations where you can look at the evidence and determine that it is very likely this is going to result in an acquittal, but in sex assault cases that situation is a rare. Its very rare. We find ourselves in a similar position where were going to move forward in most of the circumstances where we have a victim that wants to participa participate. So i believe the likelihood of conviction or the likelihood that evidence to support a conviction which is a factor in the article 33 mandated nonbinding guidelines is a very important consideration for convening authorities when they bring cases forward. Because as a system of justice we should take our cases to trial, cases that may not, its not clear if the conviction will be obtained or not. We should take those hard cases to trial but on the other hand, cases that although meeting the probable cause standard have a very low probability of success, i think that the vast majority of cases its not advisable to take those cases to trial. And if we do take those cases to trial that have very low probability of success, then i believe that if they inevitably result in acquittal, there is no gain for the system. I believe the navys program and the responses indicated that although all victims are different, they have said universally most victims feel a negative emotional effect after full acquittal, which is intuitively obvious, right . But then you look at the accused, and i believe defense counsel assistant program might testify many accused who are found not guilty of Sexual Assault fence can many times after that acquittal will leave the service because they feel that the service has turned the back on them through the result of the process. From a systemic standpoint, i also believe that its an advisable to take cases with a very low probability of success to trial because that case may consume vital resource that might be otherwise dedicated the cases that have stronger chance for success here so those are my thoughts on the matter. So to start, first off from the armys perspective i would not characterize it as a policy or and advise best practice in the army. That if theres probable cause and th victim wants to go forwad that we go forward as a matter of course. Item preference is of course a key consideration. Its listed in the nonbinding disposition guidance and is a factor that ways on convening authorities as important to the convening authority because they are in the interest of justice, victims of use and desires matter and are important. But that has to be considered in light of all of the other factors that others have articulated in determining whether to take the case to trial. Of course the availability of admissible evidence to obtain and sustain a conviction. There is no mathematical formula that i used or that im aware of, victim preferences, 65 , et cetera. Its all provide in the package thats advised, brought to the convening authority to make a disposition decision on that case. But that disposition, the decision to refer a case to trial is based on probable cause. And as weve articulated i think throughout, there is other evidence thats obtain. There are other investigative efforts that continue to take place at that case is approaching trial, and one of those is input from the defense. Thats one factor that as this process is proceeding, the defense does have a say in an adversarial process. So they can choose to participate in article 32 or they could not, but certainly at trial that evidence. They have a side of the story that comes out that affects conviction rates. And so at the referral decision there is a need to consider all of the criteria and advising. But it just make a disposition decision solely, to make a disposition decision, theres a lot that can change after that initial disposition decision. I would be low to advise convening authority and a case where a victim wants to participate and evidence is otherwise strong tonight before because theres also a risk of criticism i think as easily as it could be slides of the talk about conviction rates. There could also be slides talking about nondisposition rates. To wear a command is elected to choose some alternative disposition or cannot try a case that someone else was otherwise meritorious. I think we both want to add something. I just wanted to add i think one of the things we are seeing routinely these days is about the special Victims Counsel and the area defense counsel or the defense counsel in the case began talking and discussing alternative dispositions that would not otherwise happen if we were not referring cases to trial. Sigh d to think that we have a high incidence of a discharge. With high incidence of ideas of how the victims and the accused can both be satisfied with the process i but that only comes after a referral. And i think thats an important factor. Im think the air force doesnt specifically to get to that. The ideas were going to trial, i think the reality is that their alternative dispositions are available that are sometimes used and utilized based upon the decision to go forward in the case. If i can add, the system is society can for military context. We talked about reasonable likelihood of conviction and then low probability of conviction. Those are easy calls and theres ambiguity in between and have probable cause standard. So i would envision a convening authority to send case of Sexual Assault to courtmartial because, for example, your very senior officer or Commanding Officer who is having an affair with a married subordinate, for example, and there might be some issues with favoritism, fraternization and if the person wants to break it off there is a course of nature just in the right different sugar you would send the case to a courtmartial with the Sexual Assault allocation because you still have fraternization. You still have adultery. Thats why have the probable cause standard Sexual Assaulter human i get the conviction because of summer in all probability and regional likelihood. You may. Theres always a possibility but the point is, is that those types of cases are where i think Mildred Justice context is different than sipping context and cindy Sexual Assault case to a traffic those on the cases the system is designed to ensure Commanding Officer and keeping authorities have that flexibility to showcase certain issues in the command culture to syndicates in the maybe article 120 is likely to get conviction. If i may piggyback on that a little bit. Again, that trial and the courtmartial system is the ultimate adversarial factfinding process that we can utilize to get after, not get after, i think you look at these very close, very difficult, very serious cases and allow either a judge or a panel to look at the full range of evidence in an adversarial process to come to a finding of fact on a criminal offense. We jump a little ahead whether with plenty. We are not letting off the hook of article 32 what yet but i think ms. Long, you what a question about this section. I did but it was raised so ask a question. Its been raised many times this term reasonable likelihood of conviction, which im curious what the definition is that you are using. Because what the Research Tells Us and experience is this is an area where speculation typically takes over analysis. As you have rightly pointed out, when you describe your practice here, that determining a strong or weak case could be subjective and could be based on how experienced you are analyzing things. And im wondering objectively, what is your test for determining that . I think you hit the nail on the head. It is inherently subjective and it is based on our experience in the military Justice System, what weve seen in terms of how cases are presented, how evidence has been received by the fact finder, what evidence can get into trial. Also an evaluation of the case file. Is there overall evaluation in the case . Is a readily available defense . Is there inconsistent statements made . Is there evidence in the trial that tends to negate deal that cuts against a story. Again the result likely a conviction is, and providing that advice, the staff judge advocate puzzling at the entire case file to understand the courtmartial process, the dynamics of the particular case. This applies in Sexual Assault, of course, but also in every case that we try, to make our best assessment. And it is a bet, its an assessment. I dont think they can be necessarily a mathematical or scientific approach to it, but our best assessment of the likelihood of success that tri trial. Just following up because you are saying with your experience in the courtroom, in your experience with your panels, and that makes me think that it could be leading to selffulfilling prophecies. We put these cases forward, our panels dont like them and, therefore, when w were assessig regional likelihood of conviction, perhaps this isnt the case that should go forward rather than thinking okay, looking at all the available and admissible evidence, looking at the elements of the case, should a reasonable, educated jury, panel, determine someones guilt beyond a reasonable doubt, not will be based on our experience . I dont think he meant that but i wanted to make sure i understood what you met. What you meant. You can think i am substituting for the factfinder, should come out. It is the error but that is not my call and also at that stage in the trial i have not heard all of the evidence so i think it would be a bit precocious to suggest i know everything at this point. To say they came to the wrong conclusion should they come to the conclusion. I would agree it is at its core a subjective standard so it is difficult to arrive at an objective standard. It would be looking at the evidence based on your experience, what should a reasonable finder of fact the return and that would be a working workable approach to the issue. When we conduct our analysis and give recommendations to the staff judge advocate, really the standard should be factual and legal sufficiency so we are going to rely on experience but also caselaw. Our Appellate Courts have a review that gives us the ability to look at what facts might have been reversed and the legal sufficiency so when dealing with the article 120 offenses where the charging theory is incapacitated, looking at detail whether a certain Legal Standard has been met based on the patterns you have it surrounds the incapable of center to impairment by intoxication situations where we may have a blackout involved and going to the actual case law would be a standard we should be focusing on as well. Im probably glad the air force answered the question originally. The idea that is not what we used and im not saying we shouldnt. Im just saying we look at the case in a clearcut fashion and try to remain objective about what the probable cause standard means, and looking to the desires of the victim, and Going Forward. I assess the credibility of the victim and making that recommendation and there is a victim who is contradicted by all the other evidence. And we assess the credibility, whether it is contradicted or not but i do appreciate a clearcut standard, it is all subjective. It is not as false to the subjectivity for the conviction. It is one of those things your prosecutor, you are aware of what you have. I am of greek decent, found it so many times and i dont and when you see it from afar what you have, tuesday subjective is not just a laypersons perspective. They know what evidence gets the standard. The variable is how people hold up in court, an adverse ruling, making the testimony if the key witness falls apart in the last second. And an acquittal. And the reasonable likelihood that members they didnt buy the argument the government had. It is part of the system we have, that happened in our system for sure. I dont know if that is the policy call it judgment call if the system allows for that. Presented to the staff judge advocate for the plenary hearing. What type of evidence that may be. If they dont have the evidence prior to referral. We might know more of that from my experience. One example might take a long time, the forensic examination that might reveal evidence. And a particular place, either inculpatory exculpatory. Another example i just had and lost, witnesses the defense may find at the referral age. As the defense starts to do their investigation they talk to witnesses they didnt find or know about in an interview and bring sports statements or i witness testimony they didnt have at that time. That raises an important point. There are times when just because the case was referred to trial, not prevent alternative disposition, should the cases change in a significant way. I cant remember where it is raised in the written products but the issue of delay in investigation to adjudication of a case and one concern that i have, for many of the reasons i put forward the rays, if we wait till the case is perfect, it could be too long and it triggers processes that help us determine the right answer. The forensic examiners, additional witnesses may come to light as a result of that. The trees trial prices, some amount of evidence before that is not present. Could that if a ph oh determines what i consider a threshold of probable cause. Additional evidence could reverse that decision based on additional evidence . In addition to evidence of that, at the 32 process, 706 proceeding to examine mental capacity for lack of mental responsibility, could be Something Like that. One Important Note is during the trial itself the defense has the ability to raise an issue to reopen the article 2 process. The mj a changed the landscape a little bit. We talked earlier in january of this year, the ability to issue subpoenas and referral. When you look at the landscape, how long it took to issue subpoenas, so much information you got, only got it after the case was referred to trial. To social media that requires be subpoena, my children tell me it is not facebook, instagram, facebook for old people, sorry, we are all old. You have to reach out, we are limited until referral case, only no way to perfect the case prior to referral. And we dont know exactly what that will look like because these things have not been implemented. We are waiting to see, lots of evidence comes in, used to trickle in after referral. They try to make a probable cause determination, not necessarily hopeful but knowing it is out there, knowing you can go out and see maybe not instagram but facebook and what people are saying, going back and getting the provider to provide that information, that is incredibly important. We have been reviewing cases where we see this trend and dont know what it means but we see a trend where the preliminary hearing officer finds probable cause. The judge advocate says i disagree, there is probable cause. The cg refers to trial and ultimately ends in acquittal on the substantive effect of Sexual Assault. What we are trying to find is the why and theres a lot of variables. One of the reasons you dont want to qualify article 32, finding of probable cause because so much information comes in prior to referral. The information comes in prior to trial, focusing on that one chunk, what would take probable cause to a nonbinding likelihood for the referral decision. It comes in post referral, defense can come forward. They cant stop it from coming forward prereferral but could you focus on that chunk of time in response to this . If somebody goes to a social media page and ill the print screen that will not be held to the pulmonary hearing officer. Something someone posted on social media, may be able to look at it but will not have the necessary parameters, preliminary hearing officer take a look at that and says that is something i could consider. It doesnt meet any of the standards but that is something the judge advocate may be aware of. Different things throughout social media, different information, witnesses that were not available. We have a lot all the services are deploying at a high rate and people are going overseas to the extent you cannot get them back. The case may have evidence if they are willing to write a letter or provide evidence, the defense counsel is able to find them and they are able to gather that evidence and provide that to the convening authority but may not be something for the pulmonary hearing officer. All of that extrinsic evidence can be gathered up and provided to the staff judge advocate and the convening authority in making that decision. It is not something that could be considered by the pulmonary hearing officer based on rules and evidence that apply to the preliminary hearing. One thing to offer, under the new rules, often times 32 preliminary hearing officer doesnt have the full benefit because the victims testimony because the election does not participate in preliminary hearing and the trial counsel assessment of the victim, judge advocates may sway no probable cause different from article 32 but also too would be curious, i dont have the data in front of me to understand the number of cases, how specifically significant the difference is in cases where there is no probable cause where they did find probable cause and still ending up as a result of acquittal and that is because of the wide gulf between probable cause and beyond a reasonable doubt. 32 determination that there is not probable cause, a strong signal in the process, there are issues to look for. Just because there is probable cause does not equate to a conviction. They a further study from us. I hail from state Court Criminal defense. We have preliminary hearings that are binding and can be overruled with legal process. The concern you are pointing out, problems of proof, availability at the 32, is that if it were binding, wouldnt you be inclined to be ready for continuances and be ready with that information. We have media, all kinds of things. If it was binding, that might, one, get you already, and 2, influence number of cases you are dealing with post 32, it is close, she should have a right, he should have a right, her day in court, there is a suspect having to deal with the consequences and waiting for that trial when it could have gone 32. Something to balance. The question i have is would a more binding effect, 32, alleviate these concerns i just described and get rid of these weaker cases. We dont have anything more to provide, and that doesnt help you make that decision. Your thoughts. I think that forcing the government to have its case in essence complete at the 32, i cant say there is not value. It appears to be common sense the government has the strongest cases as early as possible. I would be concerned about two things in the first, the concern is, and waiting may cause unnecessary delays waiting for 32, the case can continue to improve through the process. In the military Justice System allowing the case to proceed versus waiting too long versus this decision. Certainly take your point, a better case to present prior to 32. If we were to go down that road. And we have qualified pulmonary hearing officers certifying in all of our cases, often times not as experienced, it is more to attain that role for the problem cause check. To answer your question, it is additional evidence convening authority to sway them in that small window and in my experience i havent seen new evidence being the things that might sway the authority to move forward. It is contrary analysis by the prosecution, it is after the article 32. That moves to your question, if it was a binding proceeding, making the ultimate disposition decision and it would cut the informed decision and informed advice out of the process. Miss cannon, you have hit on every debate we have had internally within our office probably the last five years. It is a difficult decision. We talk about binding versus nonbinding. It is an experienced judge advocate, lots to get to the heart of that. As many of you know, you have four different opinions. On something as important as probable cause, i would like to see cases that only meet the probable cause standard. I would like to see that disposition preliminary hearing officers decision has more weight. And ja 16 right now, we are still relying on the old version where there is so much information and evidence you didnt get until after referral. Are actively trying to get our 120 day standard is real. It is not a joke, we see cases dismissed. We see cases all the time dismissed, we didnt meet the 120 day standard and you have to start over from scratch. Generally speaking if you can show why the delay, but the government is assembling its evidence thats not sufficient. The idea that they are trying to move the cases to get a preliminary hearing, and article 52 investigation, preferring charges is the trigger. Unless the person is in confinement and sometimes they are. You are moving fast, dont have the ability to delay a forensics examination or subpoenas to go to various places you havent yet received. Lots of stuff comes in that you are waiting for. And theres tick tick tick on the clock. If you are not doing what you can to further that cable in all likelihood your case may go away and it could be a no kidding win for the defense in a case that should have been for the government. I understand where youre coming from. Im a 3time defense counsel. I understand that article 32 process is a good one in trying to move that out. But right now, i do think it is a good way, the judge advocate has the benefit of knowing what is going on, maybe additional evidence, and again, just disagrees with the flow, you have to give them that benefit and there is no mechanism for them coming in and saying here is that extra evidence because by then the clock has ticked to the point that case is going away because of a speedy trial. The original idea of article 32 was to protect the accused, the idea of having an open forum with crossexamination to provide evidence, and make sure there werent baseless charges or a valid defense. Now we are in a moment we are trying to push something that is more civilian like, if we continue to make the Justice System more civilian like, why do we need military justice if you gain something you lose something, jurisdiction over the accused, and the more time in the system the more we have somebody already now we have a system that is taking too long. The more process we have, the more likely this case will take even longer for a longer period of time. I would not want to have that and while these systems operate wonderfully in peacetime, they can operate armed conflict. That is an important facet in the system in time of normalcy if you will. The abdication of the fda responsibility. I dont like the words binding or nonbinding. Looking at probable cause, a constitutional issue, i hope we would all agree about that so in a way it is inherently binding or should be inherently binding because it is a basic constitutional issue. I dont think from a comparative standpoint the 93 us Attorneys Nationwide feel that every time a grand jury votes to bill or nobility case their responsibility is being abdicated and that decision is resting with, i have a pig farmer sitting on my tuesday grand jury and the pc determination in her as a schoolteacher from erie county and american citizens across the country. Why cant the military trust a judge advocate to make a determinative binding issue on probable cause at the preliminary hearing. At most the navy and the marine corps acknowledging their answers if it were binding this would afford due process protection, shouldnt we be concerned about due process . That is the heart of the issue. It is not about changing things are taking things away, it is about making things better. Is that what we should be working toward . The nature of probable cause standards, no article 32 specification and the convening authority for taking jp action, that is very important. To tie the hands from all other actions, no probable cause whether it is 120 article 92 or general order whether the person was absent from their duty, that is a very important maybe you cant get a conviction or courtmartial, but article 15, in our system, the preponderance of article 15 preponderance. That is a policy determination. Article 32 being jurisdictional process in the system would be problematic and if there are defects in article 32 those are issues at appellate level and the cases overturned. It was not a decision we all want to do process, this is military due process, they go handinhand. There is a judge advocate in this process to determine whether probable cause is met. If there is no probable cause, the commander cannot refer to the charge. That women are hearing officer is a lawyer, and why cannot that opinion be determinative, we delay the staff sentencing. My two questions, there has been talk about how this advocates the goal of the commander and making the decision. Realistically if the staff judge advocate has said there is probable cause, how often does the commander feel comfortable. That goes up to the secretary. The septage advocate says yes, the commander exercising his role, that is one question and how often are members administratively discharged after an acquittal on Sexual Assault charges. They are completely unrelated. I dont know if the army has collected data on the new secretary of the army review after convening authority. Anecdotally, it is exceedingly rare. It is a check on that convening authority to exercise at his discretion, understand that decision will be reviewed, i believe it is exceedingly rare. After a full acquittal of Sexual Assault charge. Based on Army Regulations if there is a fool acquittal, evidence or other misconduct, it would be a barrier for administrative separation for that particular offense. That would be rare. Might they be separated from other misconduct they commit . I dont specifically have the data for that. We have similar policies in the navy. Any case in which they found probable cause to go forward to trial and go to the secretary of the navy and not refer to thereby to the secretary of the navy. The first question, it has occurred but where i have seen it happen there was an additional victim preference provided after the article 2 process, after the probable cause findings prior to referral over a small period of time and administrative separation. I agree with captain monahan that circus regulations, moving forward for enlisted personnel for officers after an acquittal, separation proceeding but i have not seen that. To your first question, the recommendation is not limited to whether there is pc. It is pc and a recommendation of whether or not to go forward. In the air force weve not had convening authority. We had judge advocates say there is pcs but i dont recommend you go forward for the following reason and layout reasons and the convening authority did not go forward. We did not have the situation to my knowledge where they said yes pc, yes go forward. We have not had to go to the secretary as of yet. In the air force, and acquittal, the underlying facts that led to the acquittal cannot serve as the basis for administrative discharge. Likely other services of his underlying misconduct, i have seen subsequent misconduct, trigger and administrative discharge. This is not the era for this because if theres a conviction of any sexual offense, automatically requires a discharge from courtmartial but in a prior life time at the defense counsel i did see convictions of sexual offense that did not receive a discharge but that could not be used as a basis to trigger other than honorable conditions discharge. For that member. The policy of an acquittal goes to the article 32 and if you find no probable cause that has triggering repercussions for administrative avenues. I envision a system that if you find no probable cause to this binding that the Commanding Officer is barred from taking other administering of actions, thats not a system as far as your questions i echo the same thing. We have time for one staff question. It is a short answer. To convey information for the convening authorities, do they do poorly or sit and do that, anything for Service Regulation that requires or dictates how the information is conveyed to a convening authority. The 32 report in the file. I will say in a case where there is a negative article 32 finding, it draws the convening authoritys attention and it depends on the case and convening authority whether they tweet everything or whether i summarize that for the convening authority. It is casebycase, dependent on variables like the command and convening authority and how much the convening authority reads and how much is to him or her. I would agree with my colleagues. That was short and sweet. In my experience, staff judge advocates provide written advice and oral advice from convening authorities and in my experience, they read article for that investigation. They had questions for me about it and why is there a difference if theres a difference . They are very, very cognizant of what is going on before them. Very interested in making sure they make the right decision for the right reasons. I have seen them be very thorough. I have one convening authority the tapped their 32 report so we can go in and talk about it and have questions about different testimony pre20 2014 but very aware of what is going on and interested to know why there is a difference. It is a dynamic process and talking on the field the convening authorities are detail oriented, they have a lot of questions, not just a routine oriented exercise. I would suggest it is dynamic and the give and take back and forth and they have to feel comfortable with the decisions they are making. Thank you very much. I will try to compress our break, 9 45 minutes. Thank you for coming. [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] when the Defense Department Advisory Committee on Sexual Assault in the military continues representatives from various military branches talk about treatment of victims, programs they put in place and their effectiveness. During this meeting donald trump set out several tweets about china. It retaliated us tariffs with 75 billion worth of tariffs on us goods and the president said our country has lost stupidly trillions of dollars to china over many years, they have stolen our intellectual property at a rate of hundreds of billions of dollars a year and they want to continue. I wont let that happen. We dont need china and would be better off without them. Asked amount of money made and stolen by china from the United States year after year for decades will and must stop. Great American Companies are ordered to start looking for an alternative to china including bringing your companys home and making your product in the usa. I will be responding to chair of signs tariffs this afternoon. This is a great opportunity for the United States and im ordering all carriers including fedex, amazon, ups and the post office to search for and refuse all deliveries of sentinel from china or anywhere else. Fentanyl kills 100,000 americans a year. President xi said this would stop and it didnt. Our economy because of our gains in the last 21 2 years is much larger than that of china. We will keep it that way. Weeknights this month we are featuring booktv program speaking what is available every weekend on cspan2 and tonight it is after words. 60 minutes correspondence scott kelly discusses major news events he has covered as a reporter. And the rise of violence committed by young men around the world. You can watch it tonight starting at 8 00 eastern on cspan2. Enjoy booktv this weekend every weekend on cspan2. Saturday on booktv at 7 00 pm eastern. In her latest book women on the ground, all of the authors were able to push through whatever barriers they had and write openly and honestly about their deepest struggles. One of the essays that comes to mind, such an honest account of greece and of loss. It also reflects the state of the arab world today. This isnt an uplifting book. 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[inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] conduct that comes downstream after a Sexual Assault that might be misconduct that could be related to the Sexual Assault that would not be captured in the numbers, selfmedication later. I had a look at how it was captured in the investigation. That was our first poll, every case from the time. Go and pulled that case. Some of the cases we found conduct was the impetus of reporting so someone came up and were being processed for separation and adverse action for regulations and during that time period, the report came down. It was close in time and could be selfmedicating to deal with the trauma. That was captured in the overall numbers and involves a little judgment on our part. It didnt have to happen before, not after. Heres a little bit of judgment and in that particular case Sexual Assault was used as mitigating evidence with the adverse action. The command, their discretion says we understand that Sexual Assault is involved here and cocaine use might be related to that and they suspended all the actions in it. The way the army approached it was anything around that time period, there was a specific, we had each unit go through with this related to the misconduct or Sexual Assault and put it back in our numbers. In the navy, all the collateral misconduct that we reported was actually direct coincidence so it was happening the same night. An hour or during the assault but thats not to say we didnt also get when we collected the data some reports, commands the did not understand what we were asking for but gave us reports of misconduct by the victim that happened afterwords that clearly had a connection to the Sexual Assault. The psychological trauma led them to become engaged in Substance Abuse. We have that data, but we didnt consider that to be collateral misconduct to the task here. I agree as well that would be incredibly useful data to have and it wasnt included in the marine corps numbers as well. We had a number of cases for example where we double checked the numbers by pooling records ourselves and doing that we would go through and see the victim was a month or two after the report of Sexual Assault but to double check, are you sure there was no punishment for misconduct and they come back, that was a totally separate incident so it was not collateral misconduct. I do think when we did go through those records it was almost sad or heartbreaking to see the High Percentage of cases where persons being separated a year or 6 months after the Sexual Assault for Something Like a Mental Health condition or other underlying. Thats an issue we did bring up and i have addressed or at least decided it warrants further study. I think a study that looked at victims after they reported Sexual Assault, the percentages of them 6 months, a year, two years down the road are separated or get out of the service and what the reasons are. Thank you for asking the question because the temporal aspect is a key distinction between definitions and services. They did Something Different to the navy. And at the time of the allegation, and was not included and when we further reviewed our numbers which were provided, and and in that course of the investigation. We excluded that misconduct that was known because our understanding was the study was to figure out information that would dissuade a victim from coming forward. Of the misconduct was known it would dissuade a victim from coming forward. The air force had one victim, already a command directed for the misconduct. For the course of that investigation a Sexual Assault is alleged similar to what the army described but in that case we excluded it because the understanding of the study was different. Yes, maam. This would be of value, the coast guard did something similar or identical to what the air force did. We had to have Sexual Assault first, so the convening authority had to be aware of Sexual Assault allegations and the misconduct for us to count it in our numbers. We did not include anyone but the subsequent misconduct did come up in certain cases. The Substance Abuse where you had somebody several years down the road, drugs or alcohol being processed for discharge and through that it came to light there was a previous Sexual Assault. But i think as well. Victims legal Counsel Program managers regard conviction and acquittal rates, a case of adjudication and the victim, military process. Thank you. Colonel clay, captain sullivan and colonel hamilton. Talking about the process, how many respond to the committee . Great concern from the judge advocate serving as a pulmonary hearing officer lacking extensive experience dealing with Sexual Assault papers. Other responses indicate due to the limited scope of article 32 preliminary hearing officers do not have all the information needed to make probable cause determination that is binding. The overall assessment, and advocate who is more experienced is in better position to advise the convening authority on probable cause. Should a judge advocate sitting as a pulmonary hearing officer serve in that role only if he or she has significant litigation experience in Sexual Assault cases . The ideal answer would be yes, you want somebody with the requisite skill set to serve as a disciplinary hearing officer but thats not always the ideal case as structured with personnel. However i do believe the best person for the final determination is the staff judge advocate because of his or her experience and the fact that they have Additional Resources starting with special victims prosecutor, senior trial counsel, trial counsel, to advise what may have or may not have been raised during the 32 process and make requisite advice and provide the requisite advice to the convening authority. Good morning absolutely. The preliminary hearing officer should have extensive litigation experience, the navy recently stood up a reserve unit of for linear hearing officers to assist in that capacity where we have prior activeduty judge advocates who in civilian capacity work in litigation or a Us Attorneys Office or prosecution or defense but unfortunately the numbers in the unit dont meet the need of the numbers are for women are hearing officers that we have in that capacity. The next step is to have extensive litigation experience to sit in that capacity but again based on the numbers they are not always available depending on the location or just given the other needs for prosecution or defense purposes filling those roles with limited number of military justices and personnel. In addition to being fully trained and certified judge advocate, it would be important to examine and identify someone who has the experience, expertise, and knowledge to assess the evidence that the hearing. The one key way to do that is the officers will now generally the background Training Experience of potential foes out there and the opportunity to assess whether or not that officer could conduct a thorough and fair and well thought out hearing. Ideally someone with expensive military justice and military Justice Experience in the air force who use military judges, but they are not always available. A person with Extensive Knowledge of the system and criminal law would be ideal but sometimes the number and availability are not always going to be able to have a judge or someone with extensive military Justice Experience. Definitely in a Perfect World they would have military Justice Experience. The coast guard being as small as it is there is less opportunity for them to get the military Justice Experience so if there were to be a requirement i think it would make sense pulling from a bunch of experienced personnel to require some sort of training for Sexual Assault so they would be aware of the nuances in Sexual Assault cases. We heard a lot about a change in the article 32, so post that changed 2014, have any of you had clients testify . Yes. The coast guard definitely had clients who wanted to add have testified in article 32 hearings. They desired the opportunity to speak or they thought their attorney has been anxious for them to have that experience first because of various reasons. Similar in the air force we have had some clients who have testified often to add Additional Information that was not in the original statement to law enforcement. His experience and information to me was his clients did not testify. For the navy with had clients who testified after consultation with the trial counsel for the same reasons articulated by the other panel members. Im not sure qualified to answer that question. Ive been the Program Manager over a month. From sj perspective which have been in the past the most of the victims have chosen not to participate article 32 but there have been some cases where they do. We start i dont know if you if you hear for that, pretty hot acquittal rates either complete acquittal rates or acquittal rates on all the Sexual Assault and we read from the victim represented perspective how how do with this whole process for nothing. Theres the nonbinding guidance but to push the case to refer to courtmartial . No, maam i do not believe there should be a higher threshold. Victims do not like full of acquittals, obviously. However, the process i believe has significant protections in, not only about the convictions. Its about making sure the process worked fairly and equitably for both the victim and the accused in that regard. But focusing on the victim and operative to participate full understanding of the potential consequences of april acquittal i believe its best for the victim my experience can what im learning in the process, is their ability to know that they have been validated and heard through the process. Its significant for their healing, and this something we need to protect. I dont think there should be a higher bar. However, one of the other questions we were asked regarding the victims expectation, given the entire process and understanding each point in the process, the effects. Although victims are emotionally devastated, some of them have to have gone through the process and to the scene and that experienced that, they feel like their voices heard ultimately by the trier of fact. And others do not, as you articulated, they feel the system was not fair and that they do not get a fair shake at it. I dont think changing the standard would fix that. I agree. I dont think changing the standard would be beneficial. But allow, continue to allow the victim to participate and be educated and informed through the process is whats most important. I would also agree changing the standard would not be in the best interest. Our clients often express that while there disappointed or devastated, depending on the acquittal, often the way they perceive how the been treated threat the entire process with their interactions with investigators and counsel and other individuals involved in the process, that has a great influence in how they perceive whether not a been treated fairly and given an opportunity to present to a finder of fact, that what happened to them and then have going through the process. I would just reiterate exactly what has already said. I think theres values to victims to go through the process in so. Theres point stop the process that an opportunity to participate. So the idea that by making the, making a high determination of probable cause would somehow alleviate the despair or the feelings within acquittal, its that with the right way to look at it, in the sense that they have a dlc thats helping them the entire time sort of manage expectations and talk about success, aside from the ultimate conviction. If that child counselor working together, you can really help the victim understand that what the panel says is not definitive. The value and going to this isnt necessarily what the victim actually experienced. Ill go. Thank you for your service. After the acquittal of the victim, how do you see the victim being able to adapt, go back to the unit, get back into the mission of that unit . And how many of them you see throwtold her heads up and saidm out of here, im gone . Sir, it really sort of piggybacks on what i just said. I really feel like the quality of the response will lead to the recovery. So if there was an engaged trial counsel, if there was a support of command, if the victim felt all the way to that he or she was allowed to participate in meaningful ways, then i think the Recovery Process is much easier for them regardless of what the panel might say. No doubt again theres disappointment there but i dont see across the board victim sort of vincennes saying you know, im leaving the service as result of this. I would echo that its very individual. Its going to be up to the individual and how he or she perceives how they were supported and whats going on in the life, whether theyre in the Recovery Process. Its very, very individual, very, very specific. In fact, even when there is a conviction, that healing process is not complete. They are still going to that, acquittal or conviction is not necessary closure for that individual. As far as how many clients do we see choosing to separate, i dont have that data available. I agree sir. And its not just the importance of the expectation management in the care and advocacy for your client to the process but its also important to remember that that marine is coming and have probably or an extensive period of time, and suffering through the process, procedurally. And so as that unit is they are supporting that victim through the process, that includes whatever the result of the trial may be. But where it really is going to be important regardless of the outcome is, with the impact a full acquittal can have your going to have to have some leadership, some commanders, some ncos take care of that marine and ensure that marines wellbeing similarly, the culmination of a long process even if was a successful conviction is going to come with some significant emotional challenges in and of itself. Concluding this process thats been dominating large aspect of their life for so long, its important to remember that in either case acquittal or a conviction, that marine and servicemember winning some significant help and support afterwards. As for the numbers of how many choose to separate, i dont have those numbers, sir. We likewise do not have the numbers. I dont have the numbers on how many choose to separate or remain. And some do choose to leave, and others have stated, its important for even the folks who do choose, theyre making a decision we provide them with the right sources to help to make the decision, make sure their care for afterwards whether it be under the Disability Evaluation System or other Resources Available to those Service Members who do choose to leave and make that decision with the help of the resources that we have. I concur with what my colleagues have said and i think the benefit to the way we are structured what is the fact that theres an opportunity for some we choose to leave, will go ahead and leave. Others will ask for a permanent change of station to get a fresh start somewhere else followed it throughout the process or early in the process, automatic request an expert at transfer to be in a location that is divorced and separate from the horrors of where the incident occurred and the accused at that point. So those options are available to the victims, and the other benefit is that when the move someplace else with improved the process so that we are provided for a very good one hand off so that the physical, Emotional Wellbeing of the victims are taken care of at the new installation. I know you said number of you had those numbers none of you had those numbers but you know if your services are tracking, and not just after Court Martial, after filing the complaint . A lot of the cases dont even go to referral. Do you know if your services are tracking filing a complaint and fairly shortly after the resolution of the complaint, leaving the service . I dont believe so. I just got a head shake. [laughing] i am unaware of tracking that information. Im just not sure but i can deathly take that back and research it for you. Maam, i am informed that we do not track. Likewise, like ms. Specht i looked around, too, got the same head shake th. Were not tracking the statistics right now. Sigar back to article 32 for a minute. What difference would it make to your clients if there was no article 32 at all . And whatever you offer if you have something to offer 232, instead offered to the sja, would it make any difference to your clients . Conceivably i think sometimes because sja is in the same victims, even though the fcc will try to explain the process of events, the rules of military justice practitioners, i can envision, i dont know this for sure, i can envision a victim embracing a foe because they believe it to be the neutral individuals look at all of the evidence by someone who sort of a friend of the command so to speak. I think there is some value in article 32 in the the victim was able to attend and watch the proceedings. All 15 minutes of it . If th there evidentiary issus that come up such as perhaps mra 12 issues, regarding sexual history, there able to have that foe look at the patien issue ane an appropriate determination based upon the law in that particular case. And that they get a copy of the recorded at the end as well. So i think there is value to the victim to see the process in work. I think theres value as they their city and working in explaining the process to the accused. The feedback from the field has been the trust in the system, the thoroughness despite conversation earlier about it being a 15 minute paper drill, it is an additional step in the process where you can convey to your client that an independent officer with Legal Training is going to take a good, close look at the evidence and make a recommendation and write a report. With that said i think some of the answers that we provide to some of the other questions highlighted the importance to the client and some frustrations that can exist with the life just to the overall system. And so i think if there was a way, if there was a system in place that could help expedite the 32 process, or in your example, just to get rid of it altogether, of course that would potentially shrink the process and that would be something that would be appealing to a victim, potentially. I do see value in it to the victim as far as requiring that in the processes for checks and balances that theres analysis, theyre hurting all be or after the entity looking at the charges. Sometimes the trial counsel may not have come present to the victim all of the information and so than getting that transcript and getting the tape and having that information helps them see the process as its proceeding forward. I actually think theres value to their i think its the First Step Towards healing for the victim going to the process or getting information, reading it, understand whats going on out there and the finding of the preliminary hearing officer is sort of an acknowledgment that something happened even though its a lower threshold, theres probable cause. I think thats crucial to victims and their healing. One of you mentioned and i just want to followup, some frustration with the length of the process, if there was way of expediting the length of the investigation, the process. Do you have any suggestions about this process could be expedited without sacrificing back kathy . Im going to start with you, colonel hamilton. I dont have a answer on the way to expedite it because i think if we attempt to expedite to quickly we will rush things to the point where we may not ensure justice is served. I do for the victim or the accused. So i think the process, while it has its flaws, working, and im seeing the mere fact that more victims are willing to come forward and request svc and engage in the process the significant work were the svc program hasnt reached its five Year Anniversary for the army. I need ask your anniversary, the numbers have increased of how we people are requesting svc shows that the process is becoming more familiar and victims are more willing to engage in the process. So as far as i would expedite it i dont have an answer for you specifically other than i know its working for victims. Before answer that question id like to go back to the last answer as well. Article 32 is good for the victims in the case whether it is no probable cause find it because again they are able to see the hearing, the analysis and input so i dont want it to be thought that were only looking towards restitution of the accused for the benefit of the victim, the victims healing. It also does help with the victim understanding of new probable cause finding if there is a full article 32 hearing in the sense we have it now. As far as the process i do have any suggestions for that. Our military justice folks talked about that and on the way to change the system once again, to expedite the process. But i know weve all been working very hard at the steps of the procedure to really get down the processing time as far as the trial, working under prosecutorial memos, getting all this time frames shortened. But as far as overall 32 i dont have any suggestions for you. I was the one that mentioned it but infertile dont have any recommendations. [laughing] but i mentioned it not just to be clear, not as a critique of the military justice practitioners or the commanders who are carefully considering these cases in which are investigating offices are diligently and thoroughly investigating them. Its very important to do that, and expediting it just for the sake of expediting it would not be prudent for anybodys interest. But i think the reason why i brought up as an issue of length of time and concern is where they can be of great value is to really thoroughly and proactively communicate with their clients frequently, daily. Weekly at least, sometimes daily just to keep the informed so that their clients know that the process is moving forward even though nothing is happening in the courtroom or no statements are being provided, that despite the length of time that the process is moving in the right direction and the feedback from the field is if the victims Legal Counsel do that with her clients and keep them informed and keep in touch with them, that they are satisfied and feel happy about the fact that they know that someone is still to marshaling the case from beginning to end. Similar to my colleagues i dont have any specific comments. I know our military justice folks are working on ways to improve timelines. I know one initiative within a judiciary is to get our circuit trial counsel, those are more experienced prosecutors, our special victims qualified prosecutors, involved in the cases at baselevel earlier in the process to hopefully get better quality investigations earlier in the process to reduce the timelines of us having to go back and look at other things that may been missed during the initial look. There are other things they are working on to improve this timeline while still getting a quality investigation that looks at all the facts to ensure fairness to a joint involvement in the allegations. I can speak only for the coast guard, sort of what the air force is talking about. As i mentioned, we dont have special victims prosecutors. With the coast guard is trying to do is build experience at to accept locations. What has happened or as a result is the investigation happens at the district level and then its handed over to the people are going to try the case. Just not this ability to really integrate with the investigators, discuss what needs to be happened based on the people are going to be prosecuting the case. I wish there was more overlap in the coast guard between investigators and trial counsel. I also think the way the coast guard defines restricted reports, they put themselves in the pie because we have a lot of thirdparty reports. You have very uninterested, unwilling victim having to go through the process and if theres a way just to shut those down at the beginning, and resources could go towards it normally integrated and interested in moving forward. Thank you, chair. So weve heard a lot this morning about if the pho that is a note pc funny, right, so we come out and hearing officer says no pc but the sja can still find probable cause, would be in that window of time if the pho says no pc, but as j has not found yet, what is the vlc and svc role . The coast guard and the army are the role of the svc for the army during the time would just be communicating their interestt and from where the perspective what the client is looking for through the trial counsel and the Prosecution Team who are the advisors to the sj before he or she goes in and meets with the convening authority. So the svc will security gate the kinds, wishes and desires that the Prosecution Team. That is the role to continue advocating on behalf of of the victim and providing that information that the victims Victims Counsel may have felt was not fully vetted during article 32. Yes, maam. For convening authorities benefit is the important point. The vlc will continue to represent, advocate, to make it with, explain the process to the client. And importantly, whether the determination was that there was probable cause or that it doesnt reach probable cause, it assures, and the victim is assured that the convening authority is going to know right up until the sja goes in and devises the vlcs properly communicate with the government and public communicating in a timely matter if the victims wishes. The victim will know the convening authority is considering their input right up until his final decision, or her final decision. Its the same process in air force. I dont have really much to add. Same with the coast guard as well. Have any of you been pretty to whats been explained as this post preliminary hearing additional evidence session been privy with the staff judge advocate . If you have been in your role as a special Victims Counsel or victims Legal Counsel, what are you telling the sja and why could that not have been presented to the preliminary hearing officer . Ive not been privy to that or discuss that with any of the vlcs. I think sumita what i mentioned in my previous answers, because the victim, because the victim cant be compelled to testify in 32 or provide a statement, it could be just a situation to wear with proper communication that the vlc is communicating with the sja right up until that moment the sja doesnt set seem like to try to get to the back door, that which are not able to get to the front by having some type of export taking medication with the staff judge advocate . Well, the victim has the ability to testify in 32. If they elected to. Right. Assuming you dont. They still can have an audience with the sja, correct . Well, the sja will understand the victims preference is a big part of this process, is probably understand at all times what the victims preference is. And so as an estimate i would certainly want to know and verify at any given time not necessarily by audience with the victim. In my role as an sja i did not do that, but i would certainly make sure that prior to going in into meet with my commander that i was up to speed and could probably communicate to the commander what the current victim preference feeling was. I believe under the new rules under 405 k, defense of the opportunity present Additional Information as well. So i have been privy to any of the conversation and i dont believe the victims Legal Counsel have taken the opportunity under the new availability of that, but i think [inaudible] after the article 32. As from the svc that i have no express with regarding it but from the sja side, ive never met with the victims. They would can make it to their trial team. Trial team would briefed me on where, what the victim is looking for, what the svc is looking for, concerns that are other information. But it also want to be clear that havent had a case with a was no pc finding, no assistance from the preliminary hearing officer which was going to the convening authority. However, the committee kaisha and their trial team to the sja. And while the would be an opportunity if the victim wanted to come to the svc, ive never experienced any way the victim wants to come and meet with the the sja and if they did they would do so through the svc and it would be rather significant that is virtually, you know, would be nominal. Again, similar to my colleagues. I dont have any personal knowledge of these post discussions. I can tell you i did get written matters through counsel trial regarding the victims preference on disposition which would then be provided to the convening authority for his or her consideration. Similarly, ive never known of a victim or a svc to provide evidence that was not included as part of the roi during the 32. Its really just victim preference and that was afforded to the victims by congress. Its just been provided again saying im ready to move forward. Forward. I would like to move forward. Its not anything different than what had already been provided than whats going to the convening authority already. Thank you. Is victim advised if they 32 officer, hearing officer, finds no probable cause . And if so, what, if anything, additional occurs to try and influence the sja, if at all . In overcoming that lack of probable cause. Maam, if the svc and vlc under the job the victim would know. They got the process and what to find it was. That is first and foremost our mission to keep the victim informed of things going to the process. As far as what strategy, i can speak to that. I have no excrete as far as what he would attempt to do to change the final preliminary or influence the sja before he going to the convening authori authority. As far as the recommendation of probable cause, i think, im not directly aware of this, but i would imagine that they would, if there was any issue with our children, any problems with 32 or anything else left out, and n identified that to a trial counsel. And we do. We do inform the victim of the recommendation and decision by the convening authority. Yes, maam. The victim would know the results and continue to commit kate, work with the victims Legal Counsel. In terms of what next, i think close and proper work with trial counsel and perhaps some Additional Information that may not have been conveyed properly or communicated up to that point. You could do that by communicating with the trial counsel as they are preparing documents like case analysis, memos, prosecution merit memos that theyre going to present. Again yes. The victims would be informed of the foe recommendation. The only time that i have seen anything after that point would be if the svc perceived there was some legal error in the proceedings and they might bring that forward for the consideration of both the sja and the convening authority. But again thats pretty rare they would see that kind of error and bring to the attention of the appropriate individual. Not really anything different to add, just similar whatever was responded before. Really what the sja is really concerned about is if the victims willing to afford and what are the victims desires. If i could add to what colonel clay mentioned. What we try to do is we try to get our svc to already been, to already participate at trial counsel summer in the justice process before becoming svc. So if, for instance, if the svc were sitting in on 32, and there was something that was wrong or missed by the Prosecution Team or the trial counsel who is responsible for trying the case, and then the svc merely to ensure that his or her clients wishes were being, or wishes were being pursued or their rights being protected would communicate that to the trial team and then the trial team would, hopefully doing the job which they are, take it to the sja, which would then be contrary to i guess the finding of the 32 officer. Well, so one of the findings of research on Sexual Assault Case Processing in the sibling context is that the victims willingness to cooperate in investigation and prosecution of the case is one of the strongest predictors of whether the police will make an arrest, whether prosecutable file charges and whether the case will result in a conviction. And our case review weve been reviewing cases that have been reported to all of the services, and we discovered that theres a very high rate of victim declination in these cases. And that occurs at various stages in the process. And many of you have just now mentioned the importance of the victims preferences or the victims willingness to move forward with the case. In your experience, what are the reasons that motivate victims to decline to cooperate after having made an allegation of Sexual Assault . The feedback seems indicate a strong desire to put the issue behind them and move on with their lives and with their careers while still acknowledging that something terrible happened. They do just, a personal decision that they make on their own that they just want to move on. It could be influenced by their closeknit team that they are part of that is supporting them through the process. They do have, whether or not remains in the military justice real or not, i think weve done a committed job in the military of providing Additional Resources for victims of these types of crimes to recover and succeed with or without the military justice process. It is important to some that some individuals have just chosen to take the benefit of the resources that are available outside the military Justice System and move on with her life as quickly as they can. And i would echo that. Its an individual decision, and the reasons are pretty much individual that each person, although a desire to move on and heal and get to a better place in their journey after experiencing a trauma. Also we often see a desire to protect their own privacy through that healing process as well. , issues, although there are many Different Reasons and there as individual as the people involved. I would mention again, a lot of times with the coast guard, the way that we had defined restrictive reporting. A lot of individuals are telling friends and he never intended it to go to investigation. It gets reported and then they are sort of pushed forward and thats why they declined to prosecute. The reason for the navy victims are similar. Every victim is unique, every case is unique in that different motivations and Different Reasons for wanting to decline and move on. As far as the resources, providing women with the resource and it is very important for the services to do. So the restrictive reporting is very helpful and have those Resources Available to them without the need to report if they dont desire to participate in the process. I concur with just about everything everyone said. I think victims go through the own costbenefit analysis of personally continuing on and what pain that would bring to relive it, or just move on, put it behind them. Pc to a new location, eustachian or location or expedited transfer and heal in their own way. So its too hard to know for sure all the Different Reasons. I heard mentioned from the coast guard a thirdparty report, plus, because the rigor structured the inadvertent disclosures but weve seen inadvertent disclosure in other services as well. They dont realize they are saying something to somebody who then has a duty to report. At our third annual report issued last year, we advocated allowing sort of a clawback to change and unrestricted report back to unrestricted report when that was not the intent of the person, is to make such report, or with a thirdparty report. Are you in favor of that sort of clawback provision, and would you be in favor of a thirdparty report with the victims as i dont want anything to do with this, be able to shut down the investigation rather than the full, talking to all of the france, the coworkers, the supervisors, people in the barracks, et cetera . Weve kind of done that any air force already. By policy, the office of special investigations, if they have no other leads you on what a victim can provide to them, they will shut down the investigation. So we have given the option to victims within the air force. As far as shutting down investigation that is, because its the victims preference, i think thats generally a good idea. Maybe theres cases which its in multiple victim case in which it should be invested anyway because of the other individuals involved in a particular case. Im just going to follow quickly on that, because osi would know theres no other leads other than the victim until they did a full investigation, correct . Until the top to everybody and they were able to say theres no other way of getting evidence. And less a Third Party Complaint or another victim came forward. I would support that, although i would need to clawback and wil while also retn some of the belief for the commander to act and respond as needed. Obviously you always want to continue to provide the resources needed for the victim, continue to allow the expedited transfer ability and just try to get that victim in a position to recover, adhere to what the preferences are what allow that victim to recover from the assault. What about the ability to shut down a thirdparty complaint with the victim says, either i dont want to do anything, or nothing happens . The inadvertent disclosure that then some third particles in and says, i know this person was sexually assaulted. If the computer says no, it wasnt, i just want to talk about it. I would support the victim. Yes, maam, and i would in the same manner. What does you identified though is a difficult question, how do you know is there of the victims and to investigate. So what point to stop that investigation. Given the limited resources that we have an given the interest of the accused, unless visually good information as far as going down to a full complaint if the victim does not want to participate and does not want any action on the thirdparty complaint, we should provide them with the resources and not pursue that. From my sja side, im torn. I believe that failing to pursue to remove, cancel a problem within organization will have a negative impact on discipline. Being able to just shut down based on the victim poses a problem. Im just split. Let me go back to this and a second, but from now were in the svc it has. The one thing i load is having to revictimized the victim already. Empowering the victim with the expedited transfer and being able to shut down investigation does help with that person healing. However, when you look at in the sense that, the note i received some type of recruiter malfeasance or basic training, malfeasance and the victim says i do want to participate when you talk about a drill instructor or recruiter who may have the tendency to repeat and then by not going for to ensure discipline is there. We have put others harms way and so i think its a doubleedge sword and a dont know that have a very clear answer for you. I dont like we victimizing victims but also want to remove problem individuals on the formation because that is what degrades good order and discipline and affects all of us. I would agree with colonel hamilton. I think the command needs to have the ability if there some pervasive issue thats happening within the command, again, coast guard being very small. It can really deteriorate the building of the mission to get to get the mission done. I like the air force methodology in that its only if there is this one time one person said something combivent osi rings and in and says, the want to move forward . And they say no, i dont. But osi has an obligation if additional evidence comes for or the command provides additional evidence, that they would still move forward with the investigation. Again, i would just like the weight and what else does restrict reports. That would be a success for me. So i think you, colonel clay, but forgive me if im wrong, i did mention, im going back to the 32. You mention i think that during the 32 both victim can be there but also the svc or vlc to be there. So a twopart question. What does that look like . And do you think the vlc and svc has standing to protect rights that might arise in a 32 both in the moment and then any thoughts going on from that . Generally, the way it looks is if an issue arises during the hearing, the svc will stand that can be recognized and then have an opportunity to object or make an oral argument. In some cases this is the ideal situation. Trial counsel has talked to the svc prior to the hearing of those issues have been resolved before they walk in sometimes as we all know things dont go according to plan and the svc has to stand up and object and make the argument as to why a particular issue is affecting their clients rights and their ability to argue on behalf of their clients to protect their clients rights. But thats typically the way it works. At trial odyssey thats going to be a bit more formal with written motion and everything else, but at the third to hearing it is usually oral arguments. What was a second part of your question . Sufficient standing to protect the rights. At 32, yes, we we believe it is sufficient. We havent really had any issues that it reached this point we had to file an appeal to the avenue so we havent actually tried to do that or see what happens through the course if that type of issue has come up. Do you have concerns adriatic case that you would be well received at the appellate court, or do you think you could move forward . I think we could move forward if we had the right case with the right fax in line with what the law says. I just would like to hear from others. I dont have anything to add. The process is the same. Im tracking the process would be the same for us. I think the standing piece is a larger issue, the closer she moved to trial and the control being more in the judges as far as whether or not, how come i i was just speaking to the military judges, and the role of the svc is not under case law, and statute, actual Party Interest for the svc to stand to make an objection. That is an issue that is still being resolved. Through case law or statutory change, maybe it would be more of an opportunity for svc to object and interject at trial. But as far as the 32, i think we are okay right now. Very familiar in the coast guard. Similar. Tactically speaking some of it is to get on the, how comfortable they feel with the svc standing up and making argument contemporaneously. It may come after the fact, and appendix. Thank you for taking time out of your day to really give us some great information to help this committee look, other areas where we can improve the process. Kind of along the same vein of victim participation, article 32, we heard about collateral misconduct. And i guess i was looking for some clarity on when that comes up, i was soon comes up in an investigative process initially. So im wondering what is your experience with how thats manage, what does it look like . And is that considered a factor, or have you seen that considered as a factor for victims who dont want to move for all dont want to participate . I know theres a lot of things wrapped up in there, but basically im looking to see some clarity about the collateral misconduct and how is that, what does it look like . Is it a formal identification of investigation . Is it running of the chain of command, were going to have to report this . And what impact does that have on your clients . Thank you. In the case of where line vlc will meet with and consult with and have the initial meeting with a victim, its, if information a person that the could be collateral misconduct, that vlc will arrange for representation from defense counsel there in the region locally. The communication and interaction for the line ms. Specht teen daughter of threats and declines doesnt represent just then and the government of the tricouncil but with the defense bar as well. So in the case to where it would be a potential exposure for that individual, its not for the victims the cocounsel to represent and advise a potential collateral misconduct. Its going to be for the victims defense counsel if one is ultimately made available. The process is similar in the navy. As far as your question regarding how that is dealt with, it depends on the victim, on the collateral misconduct. Some victims prefer to have it adjudicated prior if theyre willing to begin some type of formal reprimand, have it taken care of ahead of the time theyre going to testify, the potential to be crossexamined on it. It is really dependent on the victim and the misconduct thats involved. And the same thing as far as whether to move forward or not, it depends on the victim, a type of conduct, just i guess their job completion of the job. Thats their future in the military. But again we do have them consult with defense counsel on those issues if theres anything under the military justice misconduct system that theyre going to be facing charges for. Similarly. We will take in for the collateral misconduct and the svc will refer the client over to trial Defense Services. But the protections i see are also built in in the sense that if the fence was something, underage drinking but there was a serious activator Sexual Assault in addition to underage drinking, will deal with the collateral misconduct so that, if your she chooses to go forward, will they be able say yes, that was dealt with. Pixel at the time of trauma during crossexamination, oh, youre only here because you involved in some other offense, and are not getting prosecutor or charge with that. Ive already received a reprimand or my article 15foot underage drinking, but what happened to me more egregious and that provide some of the protection in there. But yes, we do separate the special Victims Counsel advice to when theres collateral misconduct and cynical to trial Defense Services. Is that automatic . S. Res. Theres information that is received, they are automatically giving that information to tds for them to manage that . While i mean well well, depending on how once special Victims Counsel gets information about collateral misconduct or the victim starts raising other collateral misconduct to the special Victims Counsel, Victims Counsel are trained, go through the training so they understand will you information of another, you know, uniform code of military justice violation Something Else that the victim may have done okay, it is best for you to Seek Services in the event the chain of command chooses to come after you or to prosecute or move to some other adverse administrative action for the victim because of the collateral misconduct. So its up to the svc to the look at that. From sja side, if we have the collateral misconduct then were going to look to the chain of command to say what are you recommending for this person who, although a victim, also engaged in some of the type of violation . That answer your question . [inaudible] i think if the svc is doing his or her job, i think, i dont think it impacts it. Its like hey, i need to protect you. Im going to protect what your result of the Sexual Assault, but hey, now to look at added protection for you, lets go over and meet with tds because youre going to discuss things with you bu outside of my scopef representation for the Sexual Assault. And very similar in the air force. Often comes up during the investigation but it could be from other sources including the victim in their protected conversation with their svc. If the svc becomes aware of collateral misconduct they will talk to the client, and with the clients consent, make a referral to the defense counsel so they can be represented for this matters my a defense counsel. Similar in the coast guard come to the air force is more of the conversation the client and the svc because general and when we talk about in the coast guard at least its going to be under age drinking. Its a fairly low level offense and is going to come out because everybody was at the party, everybodys everybody drinking. That something that necessary needs to be referred to the defense counsel at the stage. However, if its more serious, something that we think is potential a courtmartial offense they will definitely be referring over. [inaudible] we have [inaudible] sounds like its a low level offense. That would be with clients consent. Is there any guidance on that . Its with our instruction itself. To seek advic advice and defe counsel, that is the client, thats a clients decision whether you want to seek advice of the fence. We cant force them to seek counsel. Apart from collateral misconduct, have you personally seen or have you just more broadly seen any instances of retaliation in the chain of command against somebody . I suppose what a client perceived as retaliation, apart from social consequences what you dont think people can really control all that well. But have you seen retaliation . Im racking my brain because we see retaliation frequently not frequently what the victim proceeds as retaliation or its difficult because theyre in a situation with a dont feel super connected with the commands everything feels like retaliation, like anything that mightve just been normal during the normal course of business. But i would say if weve seen retaliation in the sense that they dont have support of command, ill use that, connecticut academy, maybe the dont get to go on their first, second, third order of whether wanted to go over the summer. They may feel like thats retaliation in and of itself. Im trying to think of we had one very, very formal retaliation claim and that ended up getting investigated and was substantiated and was acted upon by the command at that time. Similar, as far as official chain of command, professional retaliation is extremely rare. In fact, nothing is coming to mind as an example, but im sure it has come up im just not aware of it but it is extremely rare to have actual professional retaliation to the chain of command. Im not aware of any. My answer is similar to the air force where its very rare to see seniorlevel professional retaliation. Sometimes what weve seen is members of doing something good for the victim and the victim proceeds as retaliation, changing were scheduled or something that really isnt necessary on the victims perspective and the victim thinks thats retaliation or punishment were as the command is trying to do something to help without committee can effectively. We always encourage our vlcs as far as we got issues. Sometimes in arena, again not to level retaliation is sometimes with the idea that protecting the victim or assisting the victim, they do certain things that may be perceived as retaliation and then with communication and education weve been able to resolve those issues. Very similar to what the captain was saying. Ive not been a party towards or expensive professional retaliation to proceed retaliation use gets dealt with, with a phone call or two and once you with the information you talk to the chain of command or send the trial team back to make sure its taken care of. Thank you for being here. I want to go back to the article 32 and the usefulness of it, and thinking that some of the comments this morning and youre very unique positions. I wonder if you think that, understand its been changed, that it is stronger when the victim testifies and that its useful for preparing the victim for trial. Nature depending on the nature of the victim knowing what happened but it just looks odd. Its the odd career progression and could potentially be due to delay. He could also be that that individual victim felt that in addition to his expert a transfer just to avoid the local Geographic Area that they were in a particular field of practice that really required them to get out of that deal. Its too small. Everyone knows that you do a lateral move into another, you get into the situation to where as career advisers would recommend is how would you get that victim with new mls into position to get m. O. S. Job credibility in a completely new and different job. Those are the type of challenging adverse actions that are not adverse in terms of formal written counsel thats in the record, in someones record but in terms of a victims grid progression and overall standing over a 20 year career it could be a one to twoyear blip that looks very odd that can have negative impacts on them. Just something until this morning had not thought about much. In the responses to the request for information for this particular Speaker Group . There was an indication even though the reaction of victims very casebycase, many of them express devastation as an acquittal. So my question is, do you think based on the very high acquittal rate in the military that we are seeing as a group to the case review working group and the actual raw data we are seeing from analyzing cases in the field, do you think given to their high acquittal rate in the military coupled with the devastation, the feelings of devastation from the victim, that they should be a higher standard for referral of cases to trial . If so, what do you think that should be . If you just had waited you couldve gone last. But too late. [laughing] were similar [laughing] i didnt think it should be a higher standard. I obviously feel for and empathize with victims who feel devastated, and who wouldnt. However, i think the process, i think some victims, although devastated, at least feel through the process, if the svc, everyone, resource, the treatment, that care was there for the victim, at least i think there are some healing in the fact that their story was heard, their trauma was heard, and while it may not have reached the level of beyond a reasonable doubt for a conviction, there was some empathy through the process for the victim. So while they are disappointed with the result, i think may have taken a giant step towards healing i havent had the opportunity to tell their story. And i think if we just look at conviction rate for these victims as some means of success or make it more of a challenge to get them to have that healing, i think we are missing the boat on the trauma that these victims experience through the Sexual Assault. Im thinking back, our military justice folks responses, as far as the acquittal rate really is difficult to judge on because every case is different and the reason for the acquittal is different. These cases are tough. Many times two people in a room and something happens and there are different reports of what happened. So i think it would be very, changing the standard i dont know would fix that. And you dont think that basing the decision on the acquittal rate would just really help the system. But again i differ, thinking about to the answers are read to this question from our military justice folks and i would defer to the. Interchanging the standard to prove beyond reasonable doubt at referral could get a lot of cases right there, true . It could. It could. Thats right, it could. Although it might not be to the same level and i agree with colonel hamilton, you raise the standard, use the term kill it or it would sort of expedite the devastation from the victim at that point rather than having them wait until the trial, after all the factors were considered by the article 32 officer at the same standard as in the trial counsel and in the convening authority made that determination, of which sustaining the conviction is one of the factors to consider. And so i think if you made it higher standard and preclude it from moving forward at all, much of the benefits that our vlcs have committed getting to us about willing participant who want to go forward, who had the opportunity with their vlc to work through the case that would be gone at that point. And i would agree that there is a value from the victims perspective of going to the process, having an opportunity to tell the juror for the judge what they experienced. It does come back to managing expectation of the client. As you all know oftentimes its not a result that our client once at the end of the day that i do believe it is a value to that victim to publicly state that i was wrong to and had that made known. What i was saying to the chair earlier, theres value in the process itself to victims. I dont think that, i think they want to have it heard by a panel member. And if the svc is working well, they will be aware of potential consequences of moving forward. [inaudible] all right, then thank you so much for coming. We will adjourn for lunch and feedback at 2 00. If anybody is going out [inaudible] thank you. [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations]