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Code · BILL · 116th Congress · H.R. 2500 (Reported in House) — To authorize appropriations for fiscal year 2020 for military activities of the Department of Defense and for militar... · Sec. 538

Sec. 538. Pilot program on prosecution of special victim offenses committed by attendees of military service academies

1,296 words·~6 min read·/bill/116/hr/2500/rh/section-538·

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Beginning not later than January 1, 2020, the Secretary of Defense shall carry out a pilot program (referred to in this section as the Pilot Program ) under which the Secretary shall establish, in accordance with this section, an independent authority to— review each covered special victim offense; and determine whether such offense shall be referred to trial by an appropriate court-martial convening authority. As part of the Pilot Program, the Secretary shall establish, within the Office of the Secretary of Defense, an Office of the Chief Prosecutor.
The head of the Office shall be known as the Chief Prosecutor. The Secretary shall appoint as the Chief Prosecutor a commissioned officer in the grade of O–7 or above who— has significant experience prosecuting sexual assault trials by court-martial; and is outside the chain of command of any cadet or midshipman described in subsection (f)(2). The Chief Prosecutor shall exercise the authorities described in subsection
(c)but only with respect to covered special victim offenses. Notwithstanding any other provision of law, the military service from which the Chief Prosecutor is appointed is authorized an additional billet for a general officer or a flag officer for each year in the two year period beginning with the year in which the appointment is made. The Office of the Chief Prosecutor shall terminate on the date on which the Pilot Program terminates under subsection (e). A military criminal investigative organization that receives an allegation of a covered special victim offense shall provide to the Chief Prosecutor and the commander of the military service academy concerned— timely notice of such allegation; and any information and evidence obtained as the result a subsequent investigation into the allegation. A trial counsel assigned to a case involving a covered special victim offense shall, during the investigative phase of such case, provide the Chief Prosecutor with the information necessary to enable the Chief Prosecutor to make the determination required under paragraph (3). In the case of a charge relating to a covered special victim offense, in addition to referring the charge to the staff judge advocate under subsection
(a)or
(b)of section 834 of title 10, United States Code (article 34 of the Uniform Code of Military Justice), the convening authority of the Armed Force of which the accused is a member shall refer, as soon as reasonably practicable, the charge to the Chief Prosecutor to make the determination required by paragraph (3). The Chief Prosecutor shall make a determination regarding whether a charge relating to a covered special victim offense shall be referred to trial. If the Chief Prosecutor makes a determination that the charge shall be tried by court-martial, the Chief Prosecutor also shall determine whether the charge shall be tried by a general court-martial convened under section 822 of title 10, United States Code (article 22 of the Uniform Code of Military Justice) or a special court-martial convened under section 823 of such title (article 23 of the Uniform Code of Military Justice). The determination of whether to try a charge relating to a covered special victim offense by court-martial shall include a determination of whether to try any known offenses, including any lesser included offenses. Subject to subparagraph
(C)determination to try a charge relating to a covered special victim offense by court-martial under paragraph (3), and the determination as to the type of court-martial, shall be binding on any convening authority under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice) for a trial by court-martial on the charge. Subject to subparagraph
(C)determination under paragraph
(3)not to proceed to trial on a charge relating to a covered special victim offense by general or special court-martial shall be binding on any convening authority under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice) except that such determination shall not operate to terminate or otherwise alter the authority of the convening authority— to proceed to trial by court-martial on charges of collateral misconducted related to the special victim offense; or to impose non-judicial punishment in connection with the conduct covered by the charge as authorized by section 815 of such title (article 15 of the Uniform Code of Military Justice). In a case in which a convening authority and the staff judge advocate advising such authority disagree with the determination of the Chief Prosecutor under paragraph (3), the convening authority and staff judge advocate may jointly appeal the determination to the General Counsel of the Department of Defense. The determination of the General Counsel with respect to such appeal shall be binding on the Chief Prosecutor and the convening authority concerned. After the Chief Prosecutor makes a determination under paragraph
(3)to proceed to trial on a charge relating to a covered special victim offense, the matter shall be tried by a court-martial convened within the Armed Force of which the accused is a member in accordance with the applicable provisions of chapter 47 of title 10, United States Code (the Uniform Code of Military Justice) except that, when convening a court-martial that is a general or special court-martial involving a covered special victim offense in which the accused elects a jury trial, the convening authority shall detail members of the Armed Forces as members thereof at random unless the obtainability of members of the Armed Forces for such court-martial prevents the convening authority from detailing such members at random. The actions of the Chief Prosecutor under this subsection whether or not to try charges by court-martial shall be free of unlawful or unauthorized influence or coercion. This section shall supersede any provision of chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), that is inconsistent with this section, but only to the extent of the inconsistency. The authority of the Secretary to carry out the Pilot Program shall terminate four years after the date on which the Pilot Program is initiated. The Secretary shall take such actions as are necessary to ensure that, on the date on which the Pilot Program terminates under paragraph (1), any matter referred to the Chief Prosecutor under subsection (c)(2), but with respect to which the Chief Prosecutor has not made a determination under subsection (c)(3), shall be transferred to the appropriate convening authority for consideration. In this section: The term Armed Force has the meaning given that term in section 101(a)(4) of title 10, United States Code. The term covered special victim offense means a special victim offense— alleged to have been committed on or after the date of the enactment of this Act by a cadet of the United States Military Academy or the United States Air Force Academy, without regard to the location at which the offense was committed; or alleged to have been committed on or after the date of the enactment of this Act by a midshipman of the United States Naval Academy, without regard to the location at which the offense was committed. The term Secretary means the Secretary of Defense. The term special victim offense means any of the following: An offense under section 917a, 920, 920b, 920c, or 930 of title 10, United States Code (article 117a, 120, 120b, 120c, or 130 of the Uniform Code of Military Justice). A conspiracy to commit an offense specified in subparagraph
(A)as punishable under section 881 of such title (article 81 of the Uniform Code of Military Justice). A solicitation to commit an offense specified in subparagraph
(A)as punishable under section 882 of such title (article 82 of the Uniform Code of Military Justice). An attempt to commit an offense specified in subparagraph
(A)as punishable under section 880 of such title (article 80 of the Uniform Code of Military Justice).
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