[Federal Register Volume 85, Number 82 (Tuesday, April 28, 2020)]
[Rules and Regulations]
[Pages 23473-23486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07608]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 114
[Docket ID: DOD-2014-OS-0131]
RIN 0790-AJ31
Victim and Witness Assistance
AGENCY: Under Secretary of Defense for Personnel and Readiness
(USD(P&R)), DoD.
ACTION: Final rule.
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SUMMARY: This final rule adds a part to the Code of Federal Regulations
which assists victims and witnesses of alleged crimes committed in
violation of the Uniform Code of Military Justice (UCMJ), and discusses
the rights of crime victims under the UCMJ which are more extensive
than those of witnesses. The rule also describes notification and
assistance available to victims and witnesses of crime from initial
contact with the local responsible official, law enforcement officer,
or criminal investigation officer through the investigation of the
crime and the prosecution, acquittal or confinement, and release of the
accused. Finally, the rule includes annual reporting requirements for
assistance provided across the DoD to victims of and witnesses to sex-
related crime, and legal assistance for sex-related crime victims.
DATES: This rule is effective on May 28, 2020.
FOR FURTHER INFORMATION CONTACT: Lt Col Ryan A. Hendricks, Office of
Legal Policy, 703-571-9301.
SUPPLEMENTARY INFORMATION:
Background
The Military Services are required to provide legal counsel, known
as Special Victims' Counsel/Victims' Legal Counsel (SVC/VLC), to assist
victims of alleged sex-related offenses under Articles 120, 120a, 120b,
120c, and 125 of the UCMJ, to include victims of alleged attempts to
commit the enumerated offenses, who are eligible for legal assistance.
The Military Services are also required to establish a special victim
capability comprised of specially trained criminal investigators, judge
advocates, paralegals, and victim/witness assistance personnel to
support victims of covered special victim offenses. To de-conflict with
victims' counsel programs, this distinct group of recognizable
professionals will be referred to, at the DoD level, as the ``Special
Victim Investigation and Prosecution (SVIP)'' capability.
Authority
This rule implements all of the following requirements under law:
10 U.S.C. chapter 47, the UCMJ; 10 U.S.C. 1034, 1044, 1044e 1058, 1059,
and 1408; 18 U.S.C. 1514; and section 573 of Public Law 112-239,
requiring the Military Services to establish a special victim
capability comprised of specially trained investigators, judge
advocates, paralegals, and victim witness assistance personnel to
support victims of covered alleged offenses. Sections 1701 and 1716 of
Public Law 113-66 strengthened the rights of victims of alleged crimes
committed under the UCMJ, and provided for the designation of SVC/VLC
for victims of covered offenses. Section 533 of Public Law 113-291
extended eligibility for SVC/VLC services to members of a reserve
component of the armed forces.
Major Provisions of the Regulatory Action
This rule describes the responsibilities that the USD(P&R),
Inspector General of the Department of Defense, and other DoD component
heads have when dealing with the procedures described in the regulatory
text. The rule also discusses procedures involving local responsible
officials, comprehensive information and services to be provided to
victims and witnesses, SVIP capability, legal assistance for crime
victims, and special victims' counsel programs.
This regulation: (1) Provides a complete victim and witness
assistance policy, to ensure the consistent and effective management of
DoD victim and witness assistance programs operated by DoD Components.
The final rule implements statutory requirements for the DoD victim
assistance programs. It revises the rights for crime victims of alleged
offenses committed under the UCMJ, requires the Military Services to
create enforcement mechanisms, provides for legal assistance for crime
victims entitled to legal services, requires that Military Services
provide SVC/VLC to assist victims of covered alleged offenses, and
further implements the SVIP capability, which provides enhanced support
to victims of sexual assault, serious domestic violence, and child
abuse alleged offenses. VWAP provides guidance for assisting victims
and witnesses of alleged crimes from initial contact through
investigation, prosecution, confinement, and release, until the victim
specifies to the local responsible official that he or she no longer
requires or desires services. Particular attention is paid to victims
of serious and violent alleged crimes, including child abuse, domestic
violence, and sexual assault.
(2) Strengthens the rights of crime victims in the military justice
system and requires the establishment mechanisms for enforcement of
these rights in each Military Department, in accordance with section
1701 of Public Law 113-66. These provisions ensure victims have a right
to be reasonably heard at public hearings concerning the continuation
of confinement before the trial of the accused, preliminary hearings
under section 832 (Article 32) of the UCMJ, and court-martial
proceedings relating to the Military Rules of Evidence (M.R.E.) 412,
513, and 514 of the Manual for Courts-Martial (MCM) (available at
http://www.apd.army.mil/pdffiles/mcm.pdf) and that all victims are
treated with fairness and respect for their dignity and privacy.
(3) Orients victims and witnesses to the military justice system,
about the military criminal justice process, on the role of the victim
or witness in the process, and how the victim or witness can obtain
additional information concerning the process and the case.
(4) Provides for timely notification of information and assistance
available to victims and witnesses of alleged crimes from initial
contact through investigation, prosecution, and confinement.
[[Page 23474]]
(5) Enables victims to confer with the attorney for the U.S.
Government in the case before preliminary and trial proceedings, and to
express their views to the commander or convening authority as to
disposition of the case.
(6) Assists victims with prompt return of personal property held as
evidence during a military criminal investigation and court-martial.
(7) Provides eligible victims and military families with access to
transitional compensation in accordance with Federal law and 32 CFR
part 111, ``Transitional Compensation for Abused Dependents.'' Internal
DoD policy related to that program is contained in DoD Instruction
1342.24 of the same name (available at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/134224p.pdf).
(8) Ensures victims are aware of procedures to receive restitution
as provided in accordance with State, local, and Federal crime victims'
funds, and the procedures for applying for such funds. Restitution may
also be available from, or offered by, an accused as a condition in the
terms of a pretrial agreement, during the sentencing process, or as a
part of post-trial clemency requests under Rule for Courts-Martial
1105, of the MCM. Under Article 139, UCMJ, victims may also be provided
with relief if the property loss or damage resulted from wrongful
taking or willful damage by a member of the Armed Forces due to
riotous, violent, or disorderly conduct.
(9) Mandates compliance with DoD standards for victim assistance
services in the military community established in DoD Instruction
6400.07 ``Standards for Victim Assistance Services in the Military
Community,'' November 25, 2013, as revised (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/640007p.pdf?ver=2018-07-06-073608-400).
(10) Provides that crime victims who are entitled to military legal
assistance under sections 1044 and 1044e of title 10, U.S.C., and as
further prescribed by the Military Departments and National Guard
Bureau policies, may consult with a military legal assistance attorney.
(11) Provides legal counsel, known as Special Victims' Counsel or
Victims' Legal Counsel (SVC/VLC), to assist victims of alleged sex-
related offenses in violation of Articles 120, 120a, 120b, 120c, and
125 (before January 1, 2019) of the UCMJ, and attempts to commit any of
these offenses under Article 80 of the UCMJ, regardless of whether the
report of the offense is restricted or unrestricted. Individuals
entitled to SVC/VLC representation include any of the following:
(a) Individuals eligible for military legal assistance under
sections 1044 and 1044e of title 10, U.S.C., and as further prescribed
by the Military Departments' and National Guard Bureau policies.
(b) Members of a reserve component of the armed forces, in
accordance with section 533 of the National Defense Authorization Act
for Fiscal Year 2015, and as further prescribed by the Military
Departments and National Guard Bureau policies.
(12) Establishes a SVIP capability in each Military Service
comprised of specially trained criminal investigators, judge advocates,
paralegals, and victim and witness assistance personnel to work with
specially trained military criminal investigators to support victims of
alleged adult sexual assault, domestic violence, and child abuse. To
de-conflict with the names of SVC/VLC programs, this distinct group of
recognizable professionals will be referred to as SVIP at the DoD
level. Ensures SVIP training programs meet established DoD and Military
Service standards for special prosecutors, paralegals, VWAP
coordinators and providers, and legal support personnel.
(13) Establishes local Victim and Witness Assistance Councils, when
practicable, at each military installation, to ensure victim and
witness service providers follow an interdisciplinary approach. This
will ensure effective coordination between VWAP coordinators and DoD
personnel providing related services, including sexual assault
prevention and response coordinators, family advocacy personnel,
military treatment facility health care providers and emergency room
personnel, family service center personnel, chaplains, military equal
opportunity personnel, judge advocates, SVC/VLCs, unit commanding
officers, corrections personnel, and other persons designated by the
Secretaries of the Military Departments.
(14) Maintains annual reporting requirements on assistance provided
across the DoD to victims and witnesses of alleged crimes, which will
be provided to the Department of Justice Office of Victims of Crime and
the Bureau of Justice Statistics.
Comments and Responses
On May 22, 2015, the Department of Defense published a proposed
rule titled ``Victim and Witness Assistance'' (80 FR 29571-29582) for a
60-day public comment period. This section addresses the three public
comments received. No changes were made to the rule based on public
comment.
Comment: Two respondents argued for extension of legal assistance
to civilian victims with no military connection to ensure all victims
can enforce their rights in the military justice process, not just
those eligible for Special Victims' Counsel/Victims' Legal Counsel
(SVC\VLC).
Response: Congress amended 10 U.S.C. 1044e in the National Defense
Authorization Act for Fiscal Year 2016 (section 532, Pub. L. 114-92) to
specifically authorize Military Departments to provide civilian
employees of the Department, who are victims of a sex-related offense,
with SVC services. The proposed rule included the eligibility of
civilian employees to receive SVC/VLC services at Sec. 114.6,
paragraph (d)(i), because they are eligible under 10 U.S.C. 1044e. This
content is located in this final rule at Sec. 114.6, paragraph (e)(i)
due to the correction of a formatting error in the proposed rule.
Comment: One respondent suggested amending the policy statement in
Sec. 114.4, paragraph (c) to require each DoD Component to provide
particular attention and support to victims of ``serious or violent
crimes'' instead of ``serious, violent crimes.'' The respondent
expressed concern that victims of serious financial crimes suffer grave
harm and should be afforded the same basic rights of notification as
other violent crimes. The respondent further recommended expressly
including stalking as a crime and requested DoD require training on the
dynamics and impact of stalking.
Response: The rights of victims and witnesses are generally the
same except that sexual assault victims have been granted some
additional rights in recent years. Financial crime victims, therefore,
have the same rights as other non-sexual assault victims. The list of
training requirements is also not exhaustive and stalking could be
included within the training on sexual assaults, domestic violence, or
in the section on identifying safety concerns and specific needs of a
victim. No changes were made to the rule text because the Department
believes this rule sets minimum standards and permits the Military
Departments some flexibility to tailor training as needed to maximize
effectiveness for target populations and locations.
Comment: One respondent called for dedicated Victim-Witness
Liaisons (VWLs) in each prosecution office in order to relieve over-
burdened prosecutors from VWL duties.
Response: The Department believes the Military Departments are
well-suited
[[Page 23475]]
to determine the best allocation of their resources to fulfill
requirements.
Comment: One respondent requested clarification on the interaction
between the Freedom of Information Act and the Privacy Act, and
specific identification of what documents may be provided to victims.
Response: The comment is too broad and encompasses too many
variable possibilities to provide a narrow answer. The Department
prioritizes protecting personally identifying information, and/or
sensitive personal information. However, the Department shall comply
with the established law under both the Freedom of Information Act and
the Privacy Act in responding to requests for information related to
the former. Additional information about the Department's
implementation of the Freedom of Information Act is available at 32 CFR
part 286, and its implementation of the Privacy Act is available at 32
CFR part 310.
Comment: One respondent expressed concern that the forms referenced
in this policy blur the rights of victims and witnesses and
insufficiently distinguish trial rights from those that may exist in
administrative forums.
Response: The Department appreciates this feedback on the forms and
will consider it when the forms are next revised.
Comment: One respondent requested further guidance on designations
of guardians when there are no appropriate family members to be
designated.
Response: The Department believes the final rule provides
sufficient guidance and considerations for the appropriate designations
of guardians. This guidance can be found in Sec. 114.6(c)(11)(ii) of
this final rule.
Additional Edits
Following further coordination within the Department of Defense,
edits were made to correct citations, clarify provisions, improve the
accuracy of the sample letter in Figure 1, and harmonize the rule with
the following Department of Defense Forms: DD Form 2701, ``Initial
Information for Victims and Witnesses of Crime'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2701.pdf); DD Form
2702, ``Court-Martial Information for Victims and Witnesses of Crime
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2702.pdf); DD Form 2703, ``Post-Trial Information for Victims and
Witnesses of Crime'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2703.pdf); DD Form 2704, ``Victim/Witness
Certification and Election Concerning Prisoner Status'' (available at
https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2704.pdf);
DD Form 2704-1, ``Victim Election of Post-Trial Rights'' (one
finalized, will be made available at https://www.esd.whs.mil/Directives/forms/dd2500_2999/); DD Form 2705, ``Notification to Victim/
Witness of Prisoner Status'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2705.pdf); and DD Form 2706,
``Annual Report on Victim and Witness Assistance'' (available at
https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2706.pdf).
Additional edits to the provision regarding who can assume the
rights of a victim who is under 18 years of age, incompetent,
incapacitated, or deceased were made to comply with the National
Defense Authorization Act (NDAA) for Fiscal Year 2017 (section 5105,
Pub. L. 114-328). Previously, NDAA Fiscal Year 2015 language required a
military judge to make such a designation even if a civilian judge
already made a legal designation, or if there are already legal
guardians and no one disputes who should act for the victim. The NDAA
Fiscal Year 2017 language removes the requirement of the military judge
designation, and Sec. 114.6(c)(11) was edited to remove text relating
to the military judge.
Section 114.6(b)(1), ``Rights of crime victims,'' was also amended
to include additional victims' rights provided by 18 U.S.C. 3772 and
page 758 of the NDAA Fiscal Year 2015. These rights pertain to medical
forensic examinations, sexual assault evidence collection kits, and the
victim's preference for whether prosecution occurs in a military or
civilian court. Publishing these amendments for public comment is
impracticable, unnecessary, and contrary to public interest because the
amendments are based upon a decision made by Congress which DoD has no
discretion to alter or expand upon.
Regulatory Procedures
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule is not a ``significant regulatory action,''
under Section 3(f) of E.O. 12866 and was reviewed by the Office of
Management and Budget.
Executive Order 13771, ``Reducing Regulation and Controlling Regulatory
Costs''
The rule is not expected to be an E.O. 13771 regulatory action,
because it is not significant under E.O. 12866.
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. We will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States. A
major rule cannot take effect until 60 days after it is published in
the Federal Register. This final rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2).
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
(Pub. L. 104-4) requires agencies assess anticipated costs and benefits
before issuing any rule whose mandates require spending in any 1 year
of $100 million in 1995 dollars, updated annually for inflation. This
rule will not mandate any requirements for State, local, or tribal
governments, nor will it affect private sector costs.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
The Department of Defense certifies that this final rule is not
subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it
would not, if promulgated, have a significant economic impact on a
substantial number of small entities. Therefore, the Regulatory
Flexibility Act, as amended, does not require DoD to prepare a
regulatory flexibility analysis.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3520) applies to
collections of information using
[[Page 23476]]
identical questions posed to, or reporting or recordkeeping
requirements imposed on, ten or more members of the public. This rule
does not impose requirements under the PRA.
Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a final rule that imposes
substantial direct requirement costs on State and local governments,
preempts State law, or otherwise has Federalism implications. This
final rule will not have a substantial effect on State and local
governments.
List of Subjects in 32 CFR Part 114
Child welfare, Military law, Uniform Code of Military Justice.
0
Accordingly, 32 CFR part 114 is added to read as follows:
PART 114--VICTIM AND WITNESS ASSISTANCE
Sec.
114.1 Purpose.
114.2 Applicability.
114.3 Definitions.
114.4 Policy.
114.5 Responsibilities.
114.6 Procedures.
Authority: 10 U.S.C. chapter 47; 10 U.S.C. 113, 1034, 1044,
1044e, 1058, 1059, and 1408; 18 U.S.C. 1512 through 1514; section
573 of Pub. L. 112-239, 126 Stat. 1632; sections 1701 and 1706 of
Pub. L. 113-66, 127 Stat. 672; and section 533 of Pub. L. 113-291,
128 Stat. 3292.
Sec. 114.1 Purpose.
This part:
(a) Establishes policy, assigns responsibilities, and prescribes
procedures to assist victims and witnesses of alleged crimes committed
in violation of 10 U.S.C. chapter 47, also known and referred to in
this part as the Uniform Code of Military Justice (UCMJ).
(b) Establishes policy, assigns responsibilities, and prescribes
procedures for:
(1) The rights of crime victims under the UCMJ and required
mechanisms for enforcement, in accordance with section 1701 of Public
Law 113-66, ``National Defense Authorization Act for Fiscal Year
2014,'' and in accordance with DoD standards for victim witness
assistance services in the military community established in DoD
Instruction 6400.07, ``Standards for Victim Assistance Services in the
Military Community,'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/640007p.pdf?ver=2018-07-06-073608-400).
(2) Providing timely notification of information and assistance
available to victims and witnesses of crime from initial contact
through investigation, prosecution, and confinement in accordance with
18 U.S.C. 1512 through 1514, 32 CFR part 286, ``DoD Freedom of
Information Act (FOIA) Program,'' 32 CFR part 111, ``Transitional
Compensation for Abused Dependents,'' DoD Instruction 1325.07,
``Administration of Military Correctional Facilities and Clemency and
Parole Authority,'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/132507p.pdf?ver=2019-02-19-075650-100), DoD
Directive 7050.06, ``Military Whistleblower Protection,'' (available at
http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/705006p.pdf), and 10 U.S.C. 113, 1034, 1059, and 1408; and section 1706
of Public Law 113-66.
(3) Annual reporting requirements on assistance provided across the
DoD to victims and witnesses of alleged crimes.
(c) Provides for legal assistance for crime victims entitled to
such services pursuant to 10 U.S.C. 1044 and 1044e, and in accordance
with Under Secretary of Defense for Personnel and Readiness (USD(P&R))
Memorandum, ``Legal Assistance for Victims of Crimes'' (available at
http://www.sapr.mil/public/docs/directives/Legal_Assistance_for_Victims_of_Crime-Memo.pdf), and 10 U.S.C. 1565b,
and as further prescribed by the Military Departments and National
Guard Bureau policies.
(d) Adopts section 573 of Public Law 112-239, ``The National
Defense Authorization Act for Fiscal Year 2013,'' January 2, 2013,
requiring each Military Service to establish a special victim
capability comprised of specially trained criminal investigators, judge
advocates, paralegals, and victim and witness assistance personnel to
support victims of covered special victim offenses. To de-conflict with
victims' counsel programs, this distinct group of recognizable
professionals will be referred to, at the DoD level, as the Special
Victim Investigation and Prosecution (SVIP) capability.
(e) Adopts the victim and witness portion of the special victim
capability in accordance with) DoDI 5505.19, ``Establishment of Special
Victim Investigation and Prosecution (SVIP) Capability within the
Military Criminal Investigative Organizations (MCIOs),'' March 23, 2017
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/550519p.pdf?ver=2019-08-12-152401-387), and Directive-
type Memorandum (DTM) 14-003, ``DoD Implementation of Special Victim
Capability (SVC) Prosecution and Legal Support,'' February 12, 2014,
Incorporating Change 6, August 15, 2019 (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dtm/DTM-14-003.pdf?ver=2019-08-15-102432-590).
(f) Adopts section 1716 of Public Law 113-66, and section 533 of
the National Defense Authorization Act for 2015 (NDAA 2015), requiring
the Military Services to provide legal counsel, known as Special
Victims' Counsel or Victims' Legal Counsel, (SVC/VLC) to assist victims
of alleged sex-related offenses in violation of Articles 120, 120a,
120b, 120c, 125 (before January 1, 2019) of the UCMJ, and attempts to
commit any of these offenses under Article 80 of the UCMJ, who are
eligible for legal assistance in accordance with 10 U.S.C. 1044 and
1044e, and as further prescribed by the Military Departments and
National Guard Bureau policies.
Sec. 114.2 Applicability.
This part applies to any military or civilian victims or witnesses
of alleged offenses under the UCMJ. This part also applies to OSD, the
Military Departments, the Office of the Chairman of the Joint Chiefs of
Staff and the Joint Staff, the Combatant Commands, the Office of the
Inspector General of the Department of Defense, the Defense Agencies,
the DoD Field Activities, and all other organizational entities within
the DoD (referred to collectively in this part as the ``DoD
Components'').
Sec. 114.3 Definitions.
Unless otherwise noted, these terms and their definitions are for
the purpose of this part:
_Central repository. A headquarters office, designated by Service
regulation, to serve as a clearinghouse of information on a confinee's
status and to collect and report data on the delivery of victim and
witness assistance, including notification of confinee status changes.
_Confinement facility victim witness assistance coordinator. A
staff member at a military confinement facility who is responsible for
notifying victims and witnesses of changes in a confinee's status and
reporting those notifications to the central repository.
_Court proceeding. A preliminary hearing held pursuant to Article
32 of the UCMJ; a hearing under Article 39(a) of the UCMJ; a court-
martial; a military presentencing hearing; or a military appellate
hearing. Conferences, such as those between attorneys and the military
judge pursuant to Rule for
[[Page 23477]]
Courts-Martial (R.C.M.) 802 or between attorneys and preliminary
hearing officers pursuant to Article 32, are not court proceedings for
purposes of this part. If all or part of a court proceeding has been
closed to the public by the military judge, preliminary hearing
officer, or other official, the victims and witnesses will still be
notified of the closed hearing as provided in this part, and of the
reasons for the closure. In such a case, the military judge,
preliminary hearing officer, or other official may place reasonable
limits on the reasons disclosed, if such limits are necessary to
protect the safety of any person, the fairness of the proceeding, or
are otherwise in the interests of national security.
_DoD Component responsible official. Person designated by each DoD
Component head to be primarily responsible in the DoD Component for
coordinating, implementing, and managing the victim and witness
assistance program established by this part.
_Equal opportunity. The right of all persons to participate in, and
benefit from, programs and activities for which they are qualified.
These programs and activities will be free from social, personal, or
institutional barriers that prevent people from rising to the highest
level of responsibility possible. Persons will be evaluated on
individual merit, fitness, and capability, regardless of race, color,
sex, national origin, or religion.
_Local responsible official. Person designated by the DoD Component
responsible official who has primary responsibility for identifying
victims and witnesses of crime and for coordinating the delivery of
services described in this part through a multidisciplinary approach.
The position or billet of the local responsible official will be
designated in writing by Service regulation. The local responsible
official may delegate responsibilities in accordance with this part.
_Local Victim and Witness Assistance Council. A regular forum held
at the DoD installation, or regional command level, that promotes
efficiencies, coordinates victim assistance-related programs, and
assesses the implementation of victim assistance standards and victim
assistance-related programs, in accordance with this part, DoD
Instruction 6400.07, and any other applicable Service guidance.
_Military Department Clemency and Parole Board. In accordance with
DoD Instruction 1325.07, a board which assists the Military Department
Secretary as the primary authority for administration and execution of
clemency, parole, and mandatory supervised release policy and programs.
_Military services. Refers to the Army, the Navy, the Air Force,
and the Marine Corps, the Coast Guard, and the Reserve Components,
which include the Army and Air National Guards of the United States.
_Protected communication. (1) Any lawful communication to a Member
of Congress or an IG.
(2) A communication in which a member of the Armed Forces
communicates information that the member reasonably believes evidences
a violation of law or regulation, including a law or regulation
prohibiting sexual harassment or unlawful discrimination, gross
mismanagement, a gross waste of funds or other resources, an abuse of
authority, or a substantial and specific danger to public health or
safety, when such communication is made to any of the following:
(i) A Member of Congress, an IG, or a member of a DoD audit,
inspection, investigation, or law enforcement organization.
(ii) Any person or organization in the chain of command; or any
other person designated pursuant to regulations or other established
administrative procedures to receive such communications.
_Reprisal. Taking or threatening to take an unfavorable personnel
action, or withholding or threatening to withhold a favorable personnel
action, for making or preparing to make a protected communication.
_Restricted reporting. Defined in 32 CFR part 103.
_Special victim investigation and prosecution (SVIP) capability. A
distinct, recognizable group of appropriately skilled professionals,
consisting of specially trained and selected military criminal
investigative organization (MCIO) investigators, judge advocates,
victim witness assistance personnel, and administrative paralegal
support personnel who work collaboratively to:
(1) Investigate allegations of adult sexual assault, domestic
violence involving sexual assault and/or aggravated assault with
grievous bodily harm, and child abuse involving sexual assault and/or
aggravated assault with grievous bodily harm.
(2) Provide support for the victims of such covered offenses.
_Special victim offenses. The designated criminal offenses of
sexual assault, domestic violence involving sexual assault, and/or
aggravated assault with grievous bodily harm, and child abuse involving
sexual assault and/or aggravated assault with grievous bodily harm, in
violation of the UCMJ. Sexual assault includes offenses under Articles
120 (rape and sexual assault in general), 120b (rape and sexual assault
of a child), and 120c (other sexual misconduct), or forcible sodomy
under Article 125 (before January 1, 2019) of the UCMJ or attempts to
commit such offenses under Article 80 of the UCMJ. Aggravated assault
with grievous bodily harm, in relation to domestic violence and child
abuse cases, includes an offense as specified under Article 128 of the
UCMJ (assault). The Military Services and National Guard Bureau may
deem other UCMJ offenses appropriate for SVIP support, based on the
facts and circumstances of specific cases, and the needs of victims.
_Special Victims' Counsel/Victims' Legal Counsel (SVC/VLC). Legal
counsel provided to assist eligible victims of alleged sex-related
offenses in violation of Articles 120, 120a, 120b, 120c, and 125
(before January 1, 2019) of the UCMJ and attempts to commit any of
these offenses under Article 80 of the UCMJ (or other offenses as
defined by the Military Services), in accordance with 10 U.S.C. 1044,
1044e, and 1565b; section 1716 of Public Law 113-66; and section 533 of
Public Law 113-291.
_Specially trained prosecutors. Experienced judge advocates
detailed by Military Department Judge Advocates Generals (TJAGs), the
Staff Judge Advocate to the Commandant of the Marine Corps, or other
appropriate authority to litigate or assist with the prosecution of
special victim cases and provide advisory support to MCIO investigators
and responsible legal offices. Before specially trained prosecutors are
detailed, their Service TJAG, Staff Judge Advocate to the Commandant of
the Marine Corps, or other appropriate authority has determined they
have the necessary training, maturity, and advocacy and leadership
skills to carry out those duties.
_Unrestricted reporting. Defined in 32 CFR part 103.
_Victim. A person who has suffered direct physical, emotional, or
pecuniary harm as a result of the commission of a crime committed in
violation of the UCMJ. Victim assistance is limited to individuals
eligible for military legal assistance under 10 U.S.C. 1044 and 1044e,
and as further prescribed by the Military Departments' and National
Guard Bureau's policies. Federal Departments and State and local
agencies, as entities, are not eligible for services available to
individual victims.
[[Page 23478]]
_Victim assistance personnel. Personnel who are available to
provide support and assistance to victims of alleged crimes consistent
with their assigned responsibilities and in accordance with this part.
They include part-time, full-time, collateral duty, and other
authorized individuals, and may be domestic violence or sexual assault
prevention and response coordinators (to include unit and uniformed
victim advocates), Sexual Assault Response Coordinators, victim-witness
assistance personnel, or military equal opportunity advisors.
_Victim assistance-related programs. The SAPR Program; FAP; and the
VWAP. A complainant under the DoD MEO Program may be referred by the
MEO office to one of the victim assistance-related programs for
additional assistance.
_Witness. A person who has information or evidence about a criminal
offense within the investigative jurisdiction of a DoD Component and
who provides that knowledge to a DoD Component. When the witness is a
minor, that term includes a parent or legal guardian, or other person
responsible for the child. The term does not include an individual
involved in the crime as an alleged perpetrator or accomplice.
Sec. 114.4 Policy.
It is DoD policy that:
(a) The DoD is committed to protecting the rights of victims and
witnesses of alleged crimes and supporting their needs in the criminal
justice process. The DoD Components will comply with all statutory and
policy mandates and will take all additional actions within the limits
of available resources to assist victims and witnesses of alleged
crimes without infringing on the constitutional or other legal rights
of a suspect or an accused.
(b) DoD victim assistance services will focus on the victim and
will respond, protect, and care for the victim from initiation of a
report through offense disposition, if applicable, and will continue
such support until the victim is no longer eligible for such services
or the victim specifies to the local responsible official that he or
she no longer requires or desires services.
(c) Each DoD Component will provide particular attention and
support to victims of serious, violent alleged crimes, including child
abuse, domestic violence, and sexual assault. In order to ensure the
safety of victims, and their families, victim assistance personnel
shall respect the dignity and the privacy of persons receiving
services, and carefully observe any safety plans and military or
civilian protective orders in place.
(d) Victim assistance services must meet DoD competency, ethical,
and foundational standards established in DoD Instruction 6400.07,
``Standards for Victim Assistance Services in the Military Community,''
(available at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/640007p.pdf).
(e) Making or preparing to make or being perceived as making or
preparing to make a protected communication, to include reporting a
violation of law or regulation, including a law or regulation
prohibiting rape, sexual assault, or other sexual misconduct, in
violation of 10 U.S.C. 920 through 920c, sexual harassment, or unlawful
discrimination, in accordance with 10 U.S.C. 1034, section 1709 of
Public Law 113-66, and DoD Directive 7050.06, ``Military Whistleblower
Protection,'' (available at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/705006p.pdf), shall not result in reprisal
activity from management officials.
(f) This part is not intended to, and does not, create any
entitlement, cause of action, or defense at law or in equity, in favor
of any person or entity arising out of the failure to accord to a
victim or a witness the assistance outlined in this part. No
limitations are hereby placed on the lawful prerogatives of the DoD or
its officials.
Sec. 114.5 Responsibilities.
(a) The Under Secretary of Defense for Personnel and Readiness
(USD(P&R)):
(1) Establishes overall policy for victim and witness assistance
and monitors compliance with this part.
(2) Approves procedures developed by the Secretaries of the
Military Departments that implement and are consistent with this part.
(3) Maintains the DoD Victim Assistance Leadership Council, in
accordance with DoD Instruction 6400.07, which advises the Secretary of
Defense on policies and practices related to the provision of victim
assistance and provides a forum that promotes efficiencies, coordinates
victim assistance-related policies, and assesses the implementation of
victim assistance standards across the DoD's victim assistance-related
programs.
(4) Submits an annual report to the Office for Victims of Crime,
Department of Justice, identifying the number of specified
notifications made to victims and witnesses of alleged crimes.
(b) The Director, DoD Human Resources Activity, through the Defense
Manpower Data Center, and under the authority, direction, and control
of the USD(P&R), assists in formulating a data collection mechanism to
track and report victim notifications from initial contact through
investigation to disposition, to include prosecution, confinement, and
release.
(c) The Inspector General of the Department of Defense (DoD IG):
(1) Establishes investigative policy and performs appropriate
oversight reviews of the management of the Victim Witness Assistance
Program (VWAP) by the DoD military criminal investigative organizations
(MCIOs). This is not intended to substitute for the routine managerial
oversight of the program provided by the MCIOs, the USD(P&R), the DoD
Component heads, the DoD Component responsible officials, or the local
responsible officials.
(2) Investigates and oversees DoD Component Inspector General
investigations of allegations or reprisal for making or preparing to
make or being perceived as making or preparing to make a protected
communication, in accordance with 10 U.S.C. 1034.
(d) The DoD Component heads:
(1) Ensure compliance with this part, and establish policies and
procedures to implement the VWAP within their DoD Components.
(2) Designate the DoD Component responsible official for the VWAP,
who will report annually to the USD(P&R) using DD Form 2706, ``Victim
and Witness Assistance Annual Report'' (available at http://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2706.pdf)
(3) Provide for the assignment of personnel in sufficient numbers
to enable those programs identified in the 10 U.S.C. 113 note to be
carried out effectively.
(4) Designate a central repository for confinee information for
each Military Service, and establish procedures to ensure victims who
so elect are notified of changes in inmate status.
(5) Maintain a Victim and Witness Assistance Council, when
practicable, at each military installation, to ensure victim and
witness service providers follow an interdisciplinary approach. These
providers may include chaplains, sexual assault prevention and response
personnel, family advocacy personnel, military treatment facility
health care providers and emergency room personnel, family service
center personnel, military equal opportunity personnel, judge
advocates, SVC/VLCs, unit commanding officers, corrections personnel,
and other persons designated by the Secretaries of the Military
Departments.
[[Page 23479]]
(6) Maintain training programs to ensure Victim Witness Assistance
Program (VWAP) providers receive instruction to assist them in
complying with this part. Training programs will include specialized
training for VWAP personnel assigned to the SVIP capability, in
accordance with Sec. 114.6(c).
(7) Designate local responsible officials in writing in accordance
with Military Service regulations and Sec. 114.6(a)(1).
(8) Maintain oversight procedures to ensure establishment of an
integrated support system capable of providing the services outlined in
Sec. 114.6, and meet the competency, ethical, and foundational
standards established in DoD Instruction 6400.07. Such oversight may
include coverage by DoD Component Inspectors General, staff assistance
visits, surveys, and status reports.
(9) Establish mechanisms for ensuring that victims are notified of
and afforded the rights specified in the UCMJ, including the rights
specified in Article 6b of the UCMJ (10 U.S.C. 806b) and R.C.M. 306.
(10) Establish mechanisms for the enforcement of the rights
specified in the UCMJ, including mechanisms for the application for
such rights and for consideration and disposition of applications for
such rights. At a minimum, such enforcement mechanisms will include the
designation of an authority within each Military Service to receive and
investigate complaints relating to the provision or violation of such
rights and the establishment of disciplinary sanctions for responsible
military and civilian personnel who wantonly fail to comply with the
requirements relating to such rights.
Sec. 114.6 Procedures.
(a) Local responsible officials. Local responsible officials:
(1) Will coordinate to ensure that systems are in place at the
installation level to provide information on available benefits and
services, assist in obtaining those benefits and services, and provide
other services required by this section.
(2) May delegate their duties as appropriate, but retain
responsibility to coordinate the delivery of required services.
(3) May use an interdisciplinary approach involving the various
service providers listed in paragraph (b)(7) of this section, to
coordinate the delivery of information and services to be provided to
victims and witnesses.
(b) Comprehensive information and services to be provided to
victims and witnesses--(1) Rights of crime victims. Personnel directly
engaged in the prevention, detection, investigation, and disposition of
offenses, to include courts-martial, including law enforcement and
legal personnel, commanders, trial counsel, and staff judge advocates,
will ensure that victims are accorded their rights in accordance with
Article 6b of UCMJ. A crime victim has the right to:
(i) Be reasonably protected from the accused offender.
(ii) Be provided with reasonable, accurate, and timely notice of:
(A) A public hearing concerning the continuation of confinement
before the trial of the accused.
(B) A preliminary hearing pursuant to Article 32 of the UCMJ
relating to the offense.
(C) A court-martial relating to the offense.
(D) A public proceeding of the Military Department Clemency and
Parole Board hearing relating to the offense.
(E) The release or escape of the accused, unless such notice may
endanger the safety of any person.
(iii) Be present at, and not be excluded from any public hearing or
proceeding described in paragraph (b)(1)(ii) of this section, unless
the military judge or preliminary hearing officer of a hearing
conducted pursuant to Article 32 of the UCMJ determines, after
receiving clear and convincing evidence, that testimony by the victim
would be materially altered if the victim observed that hearing or
proceeding.
(iv) Be reasonably heard, personally or through counsel at:
(A) A public hearing concerning the continuation of confinement
before the court-martial of the accused.
(B) Preliminary hearings conducted pursuant to Article 32 of the
UCMJ and court-martial proceedings relating to Rules 412, 513, and 514
of the Military Rules of Evidence (M.R.E.) or regarding other rights
provided by statute, regulation, or case law.
(C) A public sentencing hearing relating to the offense.
(D) A public Military Department Clemency and Parole Board hearing
relating to the offense. A victim may make a personal appearance before
the Military Department Clemency and Parole Board or submit an audio,
video, or written statement.
(v) Confer with the attorney for the U.S. Government in the case.
This will include the reasonable right to confer with the attorney for
the U.S. Government at any proceeding described in paragraph (b)(1)(ii)
of this section.
(A) Crime victims who are eligible for legal assistance may consult
with a military legal assistance attorney in accordance with paragraph
(c)(1) of this section.
(B) Victims of an alleged offense under Articles 120, 120a, 120b,
or 120c or forcible sodomy under the UCMJ or attempts to commit such
offenses under Article 80 of the UCMJ, who are eligible for legal
assistance per Military Department or National Guard Bureau policies or
in accordance with 10 U.S.C. 1044 or 1044e, may consult with a SVC/VLC
in accordance with paragraph (d)(1) of this section. Victims of these
covered alleged offenses shall be informed by a sexual assault response
coordinator (SARC), victim advocate, victim witness liaison, military
criminal investigator, trial counsel, or other local responsible
official that they have the right to consult with a SVC/VLC as soon as
they seek assistance from the individual in accordance with 10 U.S.C.
1565b, and as otherwise authorized by Military Department and National
Guard Bureau policy.
(C) All victims may also elect to seek the advice of a private
attorney, at their own expense.
(vi) Receive restitution as provided in accordance with State and
Federal law.
(vii) Proceedings free from unreasonable delay.
(viii) Be treated with fairness and respect for his or her dignity
and privacy.
(ix) Express his or her views to the commander or convening
authority as to disposition of the case.
(x) Be prevented from, or charged for, receiving a medical forensic
examination.
(xi) Have a sexual assault evidence collection kit or its probative
contents preserved, without charge.
(xii) Be informed of any result of a sexual assault evidence
collection kit, including a DNA profile match, toxicology report, or
other information collected as part of a medical forensic examination,
if such disclosure would not impede or compromise an ongoing
investigation.
(xiii) Be informed in writing of policies governing the collection
and preservation of a sexual assault evidence collection kit.
(xiv) Upon written request, receive written notification from the
appropriate official with custody not later than 60 days before the
date of the intended destruction or disposal.
(xv) Upon written request, be granted further preservation of the
kit or its probative contents.
[[Page 23480]]
(xvi) Express a preference regarding whether the offense should be
prosecuted by court-martial or in a civilian court with jurisdiction
over the offense (for a victim of an alleged sex-related offense that
occurs in the United States).
(A) Victims expressing a preference for prosecution of the offense
in a civilian court shall have the civilian authority with jurisdiction
over the offense notified of the victim's preference for civilian
prosecution by the convening authority.
(B) The convening authority shall notify the victim of any decision
by the civilian authority to prosecute or not prosecute the offense in
a civilian court, if the convening authority learns of any decision.
(2) Initial information and services. (i) Immediately after
identification of a crime victim or witness, the local responsible
official, law enforcement officer, or criminal investigation officer
will explain and provide information to each victim and witness, as
appropriate, including:
(A) The DD Form 2701, ``Initial Information for Victims and
Witnesses of Crime'' (available at http://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2701.pdf) or computer-generated equivalent will
be used as a handout to convey basic information. Specific points of
contact will be recorded on the appropriate form authorized for use by
the particular Military Service.
(B) Proper completion of this form serves as evidence that the
local responsible official or designee, law enforcement officer, or
criminal investigative officer notified the victim or witness of his or
her rights, as described in paragraph (b)(1) of this section. The date
the form is given to the victim or witness shall be recorded by the
delivering official. This serves as evidence the victim or witness was
timely notified of his or her statutory rights.
(ii) The local responsible official will explain the form to
victims and witnesses at the earliest opportunity. This will include:
(A) Information about available military and civilian emergency
medical and social services, victim advocacy services for victims of
domestic violence or sexual assault, and, when necessary, assistance in
securing such services.
(B) Information about restitution or other relief a victim may be
entitled to, and the manner in which such relief may be obtained.
(C) Information to victims of intra-familial abuse offenses on the
availability of limited transitional compensation benefits and possible
entitlement to some of the active duty Service member's retirement
benefits pursuant to 10 U.S.C. 1059 and 1408 and 32 CFR part 111.
(D) Information about public and private programs available to
provide counseling, treatment, and other support, including available
compensation through Federal, State, and local agencies.
(E) Information about the prohibition against intimidation and
harassment of victims and witnesses, and arrangements for the victim or
witness to receive reasonable protection from threat, harm, or
intimidation from an accused offender and from people acting in concert
with or under the control of the accused offender.
(F) Information concerning military and civilian protective orders,
as appropriate.
(G) Information about the military criminal justice process, the
role of the victim or witness in the process, and how the victim or
witness can obtain additional information concerning the process and
the case in accordance with section 1704 of Public Law 113-66. This
includes an explanation of:
(1) Victims' roles and rights during pretrial interviews with law
enforcement, investigators, government counsel, and defense counsel and
during preliminary hearings pursuant to Article 32 of the UCMJ, and
section 1702 of Public Law 113-66.
(2) Victims' rights when action is taken by the convening authority
pursuant to Article 60 of the UCMJ, and during the post-trial/clemency
phase of the process.
(H) If necessary, assistance in contacting the people responsible
for providing victim and witness services and relief.
(I) If necessary, how to file a military whistleblower complaint
with an Inspector General regarding suspected reprisal for making,
preparing to make, or being perceived as making or preparing to make a
protected communication in accordance with 10 U.S.C. 1034 and DoD
Directive 7050.06.
(J) Information about the victim's right to seek the advice of an
attorney with respect to his or her rights as a crime victim pursuant
to Federal law and DoD policy. This includes the right of Service
members and their dependents to consult a military legal assistance
attorney in accordance with paragraph (d)(1) of this section, or a SVC/
VLC in accordance with paragraph (e)(1) of this section.
(3) Information to be provided during investigation of a crime. (i)
If a victim or witness has not already received the DD Form 2701 from
the local responsible official or designee, it will be provided by a
law enforcement officer or investigator.
(ii) Local responsible officials or law enforcement investigators
and criminal investigators will inform victims and witnesses, as
appropriate, of the status of the investigation of the crime, to the
extent providing such information does not interfere with the
investigation.
(4) Information and services to be provided concerning the
prosecution of a crime. (i) The DD Form 2702, ``Court-Martial
Information for Victims and Witnesses of Crime'' (available at http://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2702.pdf) will be
used as a handout to convey basic information about the court-martial
process. The date it is given to the victim or witness shall be
recorded by the delivering official. If applicable, the following will
be explained and provided by the U.S. Government attorney, or designee,
to victims and witnesses:
(A) Notification of crime victims' rights, to include the victim's
right to express views as to disposition of the case to the responsible
commander and convening authority.
(B) Notification of the victim's right to seek the advice of an
attorney with respect to his or her rights as a crime victim pursuant
to Federal law and DoD policy. This includes the right of service
members and their dependents to consult a military legal assistance
attorney in accordance with paragraph (d)(1) of this section or a SVC/
VLC in accordance with paragraph (e)(1) of this section.
(C) Consultation concerning the decisions to prefer or not prefer
charges against the accused offender and the disposition of the offense
if other than a trial by court-martial.
(D) Consultation concerning the decision to refer or not to refer
the charges against the accused offender to trial by court-martial and
notification of the decision to pursue or not pursue court-martial
charges against the accused offender.
(E) Notification of the initial appearance of the accused offender
before a reviewing officer or military judge at a public pretrial
confinement hearing or at a preliminary hearing in accordance with
Article 32 of the UCMJ.
(F) Notification of the release of the suspected offender from
pretrial confinement.
(G) Explanation of the court-martial process.
(H) Before any court proceedings (as defined to include preliminary
hearings conducted pursuant to Article 32 of the
[[Page 23481]]
UCMJ, pretrial hearings conducted pursuant to Article 39(a) of the
UCMJ, trial, and presentencing hearings), help with locating available
services such as transportation, parking, child care, lodging, and
courtroom translators or interpreters that may be necessary to allow
the victim or witness to participate in court proceedings.
(I) During the court proceedings, a private waiting area out of the
sight and hearing of the accused and defense witnesses. In the case of
proceedings conducted aboard ship or in a deployed environment, provide
a private waiting area to the greatest extent practicable.
(J) Notification of the scheduling, including changes and delays,
of a preliminary hearing conducted pursuant to Article 32 of the UCMJ,
and each court proceeding the victim is entitled to or required to
attend will be made without delay. On request of a victim or witness
whose absence from work or inability to pay an account is caused by the
alleged crime or cooperation in the investigation or prosecution, the
employer or creditor of the victim or witness will be informed of the
reasons for the absence from work or inability to make timely payments
on an account. This requirement does not create an independent
entitlement to legal assistance or a legal defense against claims of
indebtedness.
(K) Notification of the recommendation of a preliminary hearing
officer when an Article 32 preliminary hearing is held.
(L) Consultation concerning any decision to dismiss charges or to
enter into a pretrial agreement.
(M) Notification of the disposition of the case, to include the
acceptance of a plea of ``guilty,'' the rendering of a verdict, the
withdrawal or dismissal of charges, or disposition other than court-
martial, to specifically include non-judicial punishment under Article
15 of the UCMJ, administrative processing or separation, or other
administrative actions.
(N) Notification to victims of the opportunity to present to the
court at sentencing, in compliance with applicable law and regulations,
a statement of the impact of the crime on the victim, including
financial, social, psychological, and physical harm suffered by the
victim. The right to submit a victim impact statement is limited to the
sentencing phase and does not extend to the providence (guilty plea)
inquiry before findings.
(O) Notification of the offender's sentence and general information
regarding minimum release date, parole, clemency, and mandatory
supervised release.
(P) Notification of the opportunity to receive a copy of
proceedings. The convening authority or subsequent responsible official
must authorize release of a copy of the record of trial without cost to
a victim of sexual assault as defined in R.C.M. 1104 of the MCM and
Article 54(e) of the UCMJ. Victims of offenses other than sexual
assault, and witnesses of any offenses, may also receive a copy of the
record of trial, without cost, as determined by the Military
Departments, which may be on a case-by-case basis, in categories of
cases, or on the basis of particular criteria, for example, when it
might lessen the physical, psychological, or financial hardships
suffered as a result of a criminal act.
(ii) After court proceedings, the local responsible official will
take appropriate action to ensure that property of a victim or witness
held as evidence is safeguarded and returned as expeditiously as
possible.
(iii) Except for information that is provided by law enforcement
officials and U.S. Government counsel in accordance with paragraphs
(b)(3) and (4) of this section, requests for information relating to
the investigation and prosecution of a crime (e.g., investigative
reports and related documents) from a victim or witness will be
processed in accordance with 32 CFR part 286.
(iv) Any consultation or notification required by paragraph
(b)(5)(i) of this section may be limited to avoid endangering the
safety of a victim or witness, jeopardizing an ongoing investigation,
disclosing classified or privileged information, or unduly delaying the
disposition of an offense. Although the victim's views should be
considered, this part is not intended to limit the responsibility or
authority of the Military Service or the Defense Agency officials to
act in the interest of good order and discipline.
(5) Information and services to be provided on conviction. (i)
Trial counsel will explain and provide services to victims and
witnesses on the conviction of an offender in a court-martial. The DD
Form 2703, ``Post-Trial Information for Victims and Witnesses of
Crime'' (http://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2703.pdf), will be used as a handout to convey basic information
about the post-trial process.
(ii) When appropriate, the following will be provided to victims
and witnesses:
(A) General information regarding the convening authority's action,
the appellate process, the corrections process, work release, furlough,
probation, parole, mandatory supervised release, or other forms of
release from custody, and eligibility for each.
(B) Specific information regarding the election to be notified of
further actions in the case, to include the convening authority's
action, hearings and decisions on appeal, changes in inmate status, and
consideration for parole. The DD Form 2704, ``Victim/Witness
Certification and Election Concerning Prisoner Status'' (available at
http://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2704.pdf)
will be explained and used for victims and appropriate witnesses to
elect to be notified of these actions, hearings, decisions, and changes
in the offender's status in confinement. The DD Form 2704-1, ``Victim
Election of Post-Trial Rights'' (under development, will be available
at http://www.esd.whs.mil/Directives/forms/dd2500_2999/ once finalized)
will be explained and used for victims to make elections about records
of trial, submission of matters in clemency, and notifications of
certain appellate proceedings.
(1) For all cases resulting in a sentence to confinement, the DD
Form 2704 will be completed and forwarded to the Service central
repository, the gaining confinement facility, the local responsible
official, and the victim or witness, if any, with appropriate
redactions made by the delivering official.
(i) Incomplete DD Forms 2704 received by the Service central
repository must be accompanied by a signed memorandum detailing the
reasons for the incomplete information, or they will be sent back to
the responsible legal office for correction.
(ii) Do not allow an inmate access to DD Forms 2704 or attach a
copy of the forms to any record to which the inmate has access. Doing
so could endanger the victim or witness.
(2) For all cases resulting in conviction but no sentence to
confinement, the DD Form 2704 will be completed and forwarded to the
Service central repository, the local responsible official, and the
victim or witness, if any.
(3) For all convictions with a qualifying victim, a DD Form 2704-1
will be completed for each victim and forwarded to the appropriate
points of contact, as determined by the Military Department. This form
may be included in the record of trial with appropriate redactions. If
a qualifying victim personally signs and initials a declination to
receive the record of trial or to submit matters in clemency, this form
may satisfy the requirement for a
[[Page 23482]]
written waiver. See. Rules for Courts-Martial 1103(g)(3)(C) and
1105A(f)(3).
(4) The DD Forms 2704, 2704-1, and 2705, ``Notification to Victim/
Witness of Prisoner Status'' (available at http://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2705.pdf), are exempt from release
in accordance with 32 CFR part 286.
(C) Specific information regarding the deadline and method for
submitting a written statement to the convening authority for
consideration when taking action on the case in accordance with Article
60 of the UCMJ and R.C.M. 1105A.
(6) Information and services to be provided on entry into
confinement facilities. (i) The victim and witness assistance
coordinator at the military confinement facility will:
(A) On entry of an offender into post-trial confinement, obtain the
DD Form 2704 to determine victim or witness notification requirements.
If the form is unavailable, ask the Service central repository whether
any victim or witness has requested notification of changes in inmate
status in the case.
(B) When a victim or witness has requested notification of changes
in inmate status on the DD Form 2704, and one of the events listed in
paragraph (b)(6) of this section occurs, use the DD Form 2705,
``Notification to Victim/Witness of Prisoner Status,'' to notify the
victim or witness.
(1) The date the DD Form 2705 is given to the victim or witness
shall be recorded by the delivering official. This serves as evidence
that the officer notified the victim or witness of his or her statutory
rights.
(2) Do not allow the inmate access to DD Form 2705 or attach a copy
of the forms to any record to which the inmate has access. Doing so
could endanger the victim or witness.
(C) Provide the earliest possible notice of:
(1) The scheduling of a clemency or parole hearing for the inmate.
(2) The results of the Service Clemency and Parole Board.
(3) The transfer of the inmate from one facility to another.
(4) The escape, immediately on escape, and subsequent return to
custody, work release, furlough, or any other form of release from
custody of the inmate.
(5) The release of the inmate to supervision.
(6) The death of the inmate, if the inmate dies while in custody or
under supervision.
(7) A change in the scheduled release date of more than 30 days
from the last notification due to a disposition or disciplinary and
adjustment board.
(D) Make reasonable efforts to notify all victims and witnesses who
have requested notification of changes in inmate status of any
emergency or special temporary home release granted an inmate.
(E) On transfer of an inmate to another military confinement
facility, forward the DD Form 2704 to the gaining facility, with an
information copy to the Service central repository.
(ii) The status of victim and witness notification requests will be
reported annually to the Service central repository.
(7) Information and services to be provided on appeal. (i) When an
offender's case is docketed for review by a Court of Criminal Appeals,
or is granted review by the Court of Appeals for the Armed Forces
(C.A.A.F.) or by the U.S. Supreme Court, the U.S. Government appellate
counsel or appropriate Military Service designee will ensure that all
victims who have indicated a desire to be notified receive this
information, if applicable:
(A) Notification of the scheduling, including changes and delays,
of each public court proceeding that the victim is entitled to attend.
(B) Notification of the decision of the court.
(ii) When an offender's case is reviewed by the Office of the Judge
Advocate General (TJAG) of the Military Department concerned, pursuant
to Article 69 and Article 73 of the UCMJ, TJAG will ensure that all
victims who have indicated a desire to be notified on DD Form 2704-1
receive notification of the outcome of the review.
(iii) The Military Services may use the sample appellate
notification letter found at Figure 1 of this section, or develop their
own templates to keep victims informed of appellate court proceedings
and decisions.
(8) Information and services to be provided on consideration for
parole or supervised release. (i) Before the parole or supervised
release of a prisoner, the military confinement facility staff will
review the DD Form 2704 to ensure it has been properly completed. If
there is a question concerning named persons or contact information, it
will be immediately referred to the appropriate staff judge advocate
for correction.
(ii) When considering a prisoner for release on supervision, the
military confinement facility commander will ensure that all victims
and witnesses on the DD Form 2704 indicating a desire to be notified
were given an opportunity to provide information to the Military
Department Clemency and Parole Board in advance of its determination,
as documented in the confinement file.
(9) Reporting procedures. (i) The DoD Component responsible
official will submit an annual report using the DD Form 2706 to: Office
of the Under Secretary of Defense for Personnel and Readiness,
Attention: Legal Policy Office, 4000 Defense Pentagon, Washington, DC
20301-4000.
(ii) The report will be submitted by March 15 for the preceding
calendar year and will address the assistance provided to victims and
witnesses of crime.
(iii) The report will include:
(A) The number of victims and witnesses who received a DD Form 2701
from law enforcement or criminal investigations personnel.
(B) The number of victims and witnesses who received a DD Form 2702
from U.S. Government counsel, or designee.
(C) The number of victims and witnesses who received a DD Form 2703
from U.S. Government counsel or designee.
(D) The number of victims and witnesses who elected via the DD Form
2704 to be notified of changes in inmate status.
(E) The number of victims who received a DD Form 2704-1 from U.S.
Government counsel or designee.
(F) The number of victims and witnesses who were notified of
changes in inmate status by the confinement facility victim witness
assistance coordinators via the DD Form 2705 or a computer-generated
equivalent.
(G) The cumulative number of inmates in each Military Service for
whom victim witness notifications must be made by each Service's
confinement facilities. These numbers are derived by totaling the
number of inmates with victim or witness notification requirements at
the beginning of the year, adding new inmates with the requirement, and
then subtracting those confinees who were released, deceased, or
transferred to another facility (e.g., Federal, State, or sister
Military Service) during the year.
(iv) The Office of the USD(P&R) will consolidate all reports
submitted by each Military Service, and submit an annual report to the
Bureau of Justice Statistics, and Office for Victims of Crime,
Department of Justice.
(c) Special victim investigation and prosecution (SVIP) capability.
(1) In accordance with DTM 14-003, section 573 of Public Law 112-239,
and DoD Instruction 5505.19, the Military Services will maintain a
distinct, recognizable group of professionals to provide effective,
timely, and
[[Page 23483]]
responsive worldwide victim support, and a capability to support the
investigation and prosecution of special victim offenses within the
respective Military Departments.
(2) Covered special victim offenses include:
(i) Unrestricted reports of adult sexual assault.
(ii) Unrestricted reports of domestic violence involving sexual
assault and/or aggravated assault with grievous bodily harm.
(iii) Child abuse involving child sexual abuse and/or aggravated
assault with grievous bodily harm.
(3) Military Service SVIP programs will include, at a minimum,
specially trained and selected:
(i) Investigators from within MCIOs of the Military Departments.
(ii) Judge advocates to serve as prosecutors.
(iii) VWAP personnel.
(iv) Paralegal or administrative legal support personnel.
(4) Each Military Service will maintain standards for the
selection, training, and certification of personnel assigned to provide
this capability. At a minimum, SVIP training must:
(i) Focus on the unique dynamics of sexual assault, aggravated
domestic violence, and child abuse cases.
(ii) Promote methods of interacting with and supporting special
victims to ensure their rights are understood and respected.
(iii) Focus on building advanced litigation, case management, and
technical skills.
(iv) Ensure that all SVIP legal personnel understand the impact of
trauma and how this affects an individual's behavior and the memory of
a traumatic incident when interacting with a victim.
(v) Train SVIP personnel to identify any safety concerns and
specific needs of victims.
(vi) Ensure SVIP personnel understand when specially trained
pediatric forensic interviewers are required to support the
investigation and prosecution of complex child abuse and child sexual
abuse cases.
(5) Each Military Service will maintain and periodically review
measures of performance and effectiveness to objectively assess Service
programs, policies, training, and services. At a minimum, these
Service-level review measures will include:
(i) Percentage of all preferred court-martial cases that involve
special victim offenses in each fiscal year.
(ii) Percentage of special victim offense courts-martial tried by,
or with the direct advice and assistance of, a specially trained
prosecutor.
(iii) Compliance with DoD VWAP informational, notification, and
reporting requirements specified in paragraphs (b)(1) through (9) of
this section, to ensure victims are consulted with and regularly
updated by special victim capability legal personnel.
(iv) Percentage of specially trained prosecutors and other legal
support personnel having received additional and advanced training in
topical areas.
(6) The Military Services will also consider victim feedback on
effectiveness of special victim prosecution and legal support services
and recommendations for possible improvements, as provided in DoD
survivor experience surveys or other available feedback mechanisms.
This information will be used by the Military Services to gain a
greater understanding of the reasons why a victim elected to
participate or declined to participate at trial, and whether SVIP,
VWAP, and other legal support services had any positive impact on this
decision.
(7) Designated SVIP capability personnel will collaborate with
local DoD SARCs, sexual assault prevention and response victim
advocates, Family Advocacy Program (FAP) managers, and domestic abuse
victim advocates during all stages of the military justice process to
ensure an integrated capability.
(8) To support this capability, active liaisons shall be
established at the installation level with these organizations and key
individuals:
(i) Local military and civilian law enforcement agencies.
(ii) SARCs.
(iii) Victim advocates.
(iv) FAP managers.
(v) Chaplains.
(vi) Sexual assault forensic examiners and other medical and mental
health care providers.
(vii) Unit commanding officers.
(viii) Other persons designated by the Secretaries of the Military
Departments necessary to support special victims.
(9) In cases of adult sexual assault the staff judge advocate or
designated representative of the responsible legal office will
participate in case management group meetings, in accordance with 32
CFR part 105, on a monthly basis to review individual cases. Cases
involving victims who are assaulted by a spouse or intimate partner
will be reviewed by FAP.
(10) The staff judge advocate or designated representative of the
responsible legal office will participate in FAP case review or
incident determination meetings of domestic violence, spouse or
intimate partner sexual assault, and child abuse cases in accordance
with DoD Instruction 6400.06, ``Domestic Abuse Involving DoD Military
and Certain Affiliated Personnel'' (available at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/640006p.pdf).
(11) In the case of a victim who is under 18 years of age and not a
member of the Military Services, or who is incompetent, incapacitated,
or deceased, the legal guardians of the victim or the representatives
of the victim's estate, family members, or any other person designated
as suitable by proper authority, may assume the victim's legal rights.
Under no circumstances will an individual designated as representative
have been accused of any crime against the victim.
(i) The Secretaries of the Military Departments may publish
additional guidance or regulation regarding who, before referral, may
designate an appropriate representative, such as the convening
authority or other qualified local responsible official.
(ii) In making a decision to appoint a representative, the
designating authority should consider:
(A) The age and maturity, relationship to the victim.
(B) The physical proximity to the victim.
(C) The costs incurred in effecting the appointment.
(D) The willingness of the proposed designee to serve in such a
role.
(E) The previous appointment of a guardian by a court of competent
jurisdiction or appropriate designating authority.
(F) The preference of the victim, if known.
(G) Any potential delay in any proceeding that may be caused by a
specific appointment.
(H) Any other relevant information.
(iii) The representative, legal guardian, or equivalent of a victim
who is eligible, or in the case of a deceased victim, was eligible at
the time of death for legal assistance provided by SVC/VLC, may elect
legal representation for a SVC/VLC on behalf of the victim.
(iv) A military judge's responsibilities for designating a
representative are listed in R.C.M. 801(a)(6).
(v) In the absence of an appointment of a legal representative, the
victim may exercise his/her own legal and regulatory rights, as
described herein. Where an appointment is required or discretionary,
nothing in this policy precludes a victim from being appointed as his/
her own legal representative, as appropriate.
(d) Legal assistance for crime victims--(1) Eligibility. Active and
retired Service members and their
[[Page 23484]]
dependents are eligible to receive legal assistance pursuant to 10
U.S.C. 1044 and 1565b and Under Secretary for Defense for Personnel and
Readiness Memorandum, ``Legal Assistance for Sexual Assault Victims,''
October 17, 2011.
(2) Information and services. Legal assistance services for crime
victims will include confidential advice and assistance for crime
victims to address:
(i) Rights and benefits afforded to the victim under law and DoD
policy.
(ii) Role of the VWAP coordinator or liaison.
(iii) Role of the victim advocate.
(iv) Privileges existing between the victim and victim advocate.
(v) Differences between restricted and unrestricted reporting, if
applicable.
(vi) Overview of the military justice system.
(vii) Services available from appropriate agencies for emotional
and mental health counseling and other medical services.
(viii) The right to an expedited transfer, if applicable.
(ix) Availability of and protections offered by civilian and
military protective orders.
(e) Special Victims' Counsel/Victims' Legal Counsel programs--(1)
Eligibility. In accordance with 10 U.S.C. 1044, 1044e, and 1565b,
section 1716 of Public Law 113-66, and section 533 of the Public Law
113-291, the Military Services provide legal counsel, known as SVC/VLC,
to assist victims of alleged sex-related offenses including Articles
120, 120a, 120b, and 120c, forcible sodomy under Article 125 (before
January 1, 2019) of the UCMJ, attempts to commit such offenses under
Article 80 of the UCMJ, or other crimes under the UCMJ as authorized by
the Service, who are eligible for legal assistance pursuant to 10
U.S.C. 1044e and as further prescribed by the Military Departments and
National Guard Bureau policies. Individuals eligible for SVC/VLC
representation include any of the following:
(i) Individuals entitled to military legal assistance under 10
U.S.C. 1044 and 1044e, and as further prescribed by the Military
Departments and National Guard Bureau policies.
(ii) Members of a reserve component of the armed forces, in
accordance with section 533 of Public Law 113-291, and as further
prescribed by the Military Departments and National Guard Bureau
policies.
(iii) Civilian employees of the Department of Defense not otherwise
entitled to legal assistance, as provided for in section 532 of Public
Law 114-92.
(2) Attorney-client information and services. The types of legal
services provided by SVC/VLC programs in each Military Service will
include:
(i) Legal consultation regarding the VWAP, including:
(A) The rights and benefits afforded the victim.
(B) The role of the VWAP liaison.
(C) The nature of communication made to the VWAP liaison in
comparison to communication made to a SVC/VLC or a legal assistance
attorney pursuant to 10 U.S.C. 1044.
(ii) Legal consultation regarding the responsibilities and support
provided to the victim by the SARC, a unit or installation sexual
assault victim advocate, or domestic abuse advocate, to include any
privileges that may exist regarding communications between those
persons and the victim.
(iii) Legal consultation regarding the potential for civil
litigation against other parties (other than the DoD).
(iv) Legal consultation regarding the military justice system,
including, but not limited to:
(A) The roles and responsibilities of the military judge, trial
counsel, the defense counsel, and military criminal investigators.
(B) Any proceedings of the military justice process in which the
victim may observe or participate in person or through his or her SVC/
VLC.
(v) Accompanying or representing the victim at any proceedings when
necessary and appropriate, including interviews, in connection with the
reporting, investigation, and prosecution of the alleged sex-related
offense.
(vi) Legal consultation regarding eligibility and requirements for
services available from appropriate agencies or offices for emotional
and mental health counseling and other medical services.
(vii) Legal representation or consultation and assistance:
(A) In personal civil legal matters in accordance with 10 U.S.C.
1044.
(B) In any proceedings of the military justice process in which a
victim can participate as a witness or other party.
(C) In understanding the availability of, and obtaining any
protections offered by, civilian and military protecting or restraining
orders.
(D) In understanding the eligibility and requirements for, and
obtaining, any available military and veteran benefits, such as
transitional compensation benefits found in 10 U.S.C. 1059, 32 CFR part
111, ``Transitional Compensation for Abused Dependents,'' and other
State and Federal victims' compensation programs.
(E) The victim's rights and options at trial, to include the option
to state a preference to decline participation or withdraw cooperation
as a witness and the potential consequences of doing so.
(viii) Legal representation or consultation regarding the potential
criminal liability of the victim stemming from or in relation to the
circumstances surrounding the alleged sex-related offense (collateral
misconduct), regardless of whether the report of that offense is
restricted or unrestricted in accordance with 32 CFR part 105. Victims
may also be referred to the appropriate defense services organization
for consultation on the potential criminal implications of collateral
misconduct.
(ix) Other legal assistance as the Secretary of Defense or the
Secretaries of the Military Departments may authorize.
[[Page 23485]]
[GRAPHIC] [TIFF OMITTED] TR28AP20.021
[[Page 23486]]
Dated: April 7, 2020.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2020-07608 Filed 4-27-20; 8:45 am]
BILLING CODE 5001-06-P