As the new year dawns, it is more than appropriate to review Congress' latest tinkering with the Uniform Code of Military Justice. The latest changes to the UCMJ will create a new landscape for those facing the most serious offenses. The Article 32 hearing, long analogized to a grand jury, but with attendant rights given to an accused, will be dramatically different especially for crimes related to sexual assault.
While Congress still allows for an accused to cross-examine witnesses who testify at the preliminary hearing and present additional evidence in defense and mitigation, a "victim" now need only "decline" to testify and will thereafter be deemed to be "unavailable." 10 U.S.C. § 832(d)(3)-(4). A "victim" is defined under the law as a person who is "alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification." And while the law was amended to address systemic concerns with prosecuting sexual assault cases in the military, it seems that one need only meet the definition of victim, notwithstanding the offense alleged, to be able to decline to testify at an Article 32 hearing. In short, defense teams will be effectively prevented from cross-examining an "alleged victim" at all preliminary hearings merely because the prosecutrix refuses to testify.
Presumably, savvy defense attorneys will preserve the ability to obtain the alleged victims sworn testimony by requesting the alleged victim at the Article 32 hearing so as to obtain a deposition down range if-and this is a big if-a military judge or a convening authority grants a defense request. But don't hold your breath. In the current climate, every alleged touching rises to the level of a sexual assault and now rather than a search for justice, the system begins to reflect a victim-centered panacea. It should make all service members very concerned for those they serve with and with those they serve.