Sec. 1744. REVIEW OF DECISIONS NOT TO REFER CHARGES OF CERTAIN SEX-RELATED OFFENSES FOR TRIAL BY COURT-MARTIAL
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## SEC. 1744 REVIEW OF DECISIONS NOT TO REFER CHARGES OF CERTAIN SEX-RELATED OFFENSES FOR TRIAL BY COURT-MARTIAL **[**[10 U.S.C. 834 note](/us/usc/t10/s834)**]** ###
(a)Review Required ####
(1)In general The Secretary of Defense shall require the Secretaries of the military departments to provide for review of decisions not to refer charges for trial by court-martial in cases where a sex-related offense has been alleged by a victim of the alleged offense. ####
(2)Specific review requirements As part of a review conducted pursuant to paragraph (1), the Secretary of a military department shall require that— #####
(A)consideration be given to the victim’s statement provided during the course of the criminal investigation regarding the alleged sex-related offense perpetrated against the victim; and #####
(B)a determination be made whether the victim’s statement and views concerning disposition of the alleged sex-related offense were considered by the convening authority in making the referral decision. ###
(b)Sex-related Offense Defined In this section, the term “sex-related offense” means any of the following: ####
(1)Rape or sexual assault under subsection
(a)or
(b)of section 920 of title 10, United States Code (article 120 of the Uniform Code of Military Justice). ####
(2)Forcible sodomy under section 925 of such title (article 125 of the Uniform Code of Military Justice). ####
(3)An attempt to commit an offense specified in paragraph
(1)or
(2)as punishable under section 880 of such title (article 80 of the Uniform Code of Military Justice). ###
(c)Review of Certain Cases Not Referred to Court-martial ####
(1)Cases not referred following staff judge advocate recommendation for referral for trial In any case where a staff judge advocate, pursuant to section 834 of title 10, United States Code (article 34 of the Uniform Code of Military Justice), recommends that charges of a sex-related offense be referred for trial by court-martial and the convening authority decides not to refer any charges to a court-martial, the convening authority shall forward the case file to the Secretary of the military department concerned for review as a superior authorized to exercise general court-martial convening authority. ####
(2)Cases not referred by convening authority upon request for review by chief prosecutor #####
(A)In general In any case where a convening authority decides not to refer a charge of a sex-related offense to trial by court-martial, the Secretary of the military department concerned shall review the decision as a superior authority authorized to exercise general court-martial convening authority if the chief prosecutor of the Armed Force concerned, in response to a request by the detailed counsel for the Government, requests review of the decision by the Secretary. #####
(B)Chief prosecutor defined In this paragraph, the term “**chief prosecutor**” means the chief prosecutor or equivalent position of an Armed Force, or, if an Armed Force does not have a chief prosecutor or equivalent position, such other trial counsel as shall be designated by the Judge Advocate General of that Armed Force, or in the case of the Marine Corps, the Staff Judge Advocate to the Commandant of the Marine Corps. ###
(d)Review of Cases Not Referred to Court-martial Following Staff Judge Advocate Recommendation Not to Refer for Trial In any case where a staff judge advocate, pursuant to section 834 of title 10, United States Code (article 34 of the Uniform Code of Military Justice), recommends that charges of a sex-related offense should not be referred for trial by court-martial and the convening authority decides not to refer any charges to a court-martial, the convening authority shall forward the case file for review to the next superior commander authorized to exercise general court-martial convening authority. ###
(e)Elements of Case File A case file forwarded to higher authority for review pursuant to subsection
(c)or
(d)shall include the following: ####
(1)All charges and specifications preferred under section 830 of title 10, United States Code (article 30 of the Uniform Code of Military Justice). ####
(2)All reports of investigations of such charges, including the military criminal investigative organization investigation report and the report prepared under section 832 of title 10, United States Code (article 32 of the Uniform Code of Military Justice), as amended by section 1702. ####
(3)A certification that the victim of the alleged sex-related offense was notified of the opportunity to express views on the victim’s preferred disposition of the alleged offense for consideration by the convening authority. ####
(4)All statements of the victim provided to the military criminal investigative organization and to the victim’s chain of command relating to the alleged sex-related offense and any statement provided by the victim to the convening authority expressing the victim’s view on the victim’s preferred disposition of the alleged offense. ####
(5)The written advice of the staff judge advocate to the convening authority pursuant to section 834 of title 10, United States Code (article 34 of the Uniform Code of Military Justice). ####
(6)A written statement explaining the reasons for the convening authority’s decision not to refer any charges for trial by court-martial. ####
(7)A certification that the victim of the alleged sex-related offense was informed of the convening authority’s decision to forward the case as provided in subsection
(c)or (d). ###
(f)Notice on Results or Review The victim of the alleged sex-related offense shall be notified of the results of the review conducted under subsection
(c)or
(d)in the manner prescribed by the victims and witness assistance program of the Armed Force concerned. ###
(g)Victim Allegation of Sex-related Offense The Secretary of Defense shall require the Secretaries of the military departments to develop a system to ensure that a victim of a possible sex-related offense under the Uniform Code of Military Justice is given the opportunity to state, either at the time of making an unrestricted report of the allegation or during the criminal investigation of the allegation, whether or not the victim believes that the offense alleged is a sex-related offense subject to the requirements of this section.
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Sec. 1744
REVIEW OF DECISIONS NOT TO REFER CHARGES OF CERTAIN SEX-RELATED OFFENSES FOR TRIAL BY COURT-MARTIAL
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