In enacting the National Defense Authorization Act for Fiscal Year 2014, Congress has now provided for alleged victims of sexual assaults to have distinct legal rights.
A "victim" is defined under the law as a person who has "suffered a direct physical, emotional, or pecuniary harm as a result of the commission of an offense under the [Uniform Code of Military Justice]."
The enumerated rights include the right to notice of the following:
- a public hearing regarding the continuation of confinement prior to trial of the accused;
- a preliminary hearing under Article 32 relating to the offense;
- the court-martial relating to the offense;
- the clemency and parole hearings related to the offense;
- the release or escape of the accused.
This all sounds very reasonable and appropriate. However, Congress didn't stop there. Now, alleged victims have the right to hear the testimony of all other witnesses unless a military judge or investigating officer determines-after receiving clear and convincing evidence-that the alleged victim's testimony "would be materially altered if the victim heard other testimony at that hearing or proceeding." If that doesn't scare you, it should.
Unlike every other witness at a court-martial who does not have the benefit of hearing other witnesses' testimony, alleged victims will now have the right to hear the testimony of others and one can only imagine how this will conveniently mold itself into the testimony of the alleged victim. This is frightening.
Congress went even further. While victims are allowed to receive restitution as provided for by law, incredibly, Congress is now studying whether or not to allow victims to receive the forfeited wages of incarcerated members of the Armed Forces. What's in it for a disgruntled service member who makes an accusation of sexual assault? Potentially a very large paycheck, among other things, and that should frighten everyone.
It is commendable that Congress has made it a priority to address the very serious issue of sexual assault in the military. But the law must be drawn in a way that prevents unintended abuses and preserves the important right to a fair trial. Unfortunately, it does not appear that Congress has struck the right balance.