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tv   Sexual Assault in the Military Forum Panel 2  CSPAN  October 8, 2019 4:08pm-5:37pm EDT

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back -- this was pre-2014, but very aware of what's going on and very interested to know why there is a difference. >> i would echo that. that's exactly true. i think it's a very dynamic process, and talking to the sjas in the field, the convening authorities are very detail oriented. they read everything or near everything. they have a lot of questions. this is definitely not just a routine oriented exercise, so i would just suggest that it is dynamic, and a give and take, a back and forth, and they have to feel comfortable with the decisions they're making. >> thank you all very much. i'm going to try to compress our break from 15 minutes to 10 minutes so that we can try to keep staying on track. thank you so much for coming.
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>> great, thank you very much for coming today. we're going to be talking about the per spespectives of the sers special victims counsel, victim's legal counsel program managers regarding conviction and acquittal rates, the case adjudication process and the victim deckly medication in the military process, thank you ms. specht, captain sullivan and colonel hamilton. >> to begin with, talking about the article 32 process. some of the article responses to the committee raised concerns that the judge advocates serving
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as preliminary hearing officers lack extensive experience dealing specifically with sexual assault cases. other responses indicated that due to the limited scope of article 32 preliminary hearing officers do not have all of the information needed to make a probable cause determination that is binding. the overall assessment was that the staff judge advocate who is often more experienced is in a better position to advise the convening authority on probable cause. should a judge advocate sitting as a preliminary hearing officer serve in that role only if he or she has significant litigation experience in sexual assault cases? >> ma'am, the ideal answer would be, yes, you want someone with the requisite skill set to go ahead and serve as a preliminary hearing officer, but unfortunately that's not always
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the ideal case, you know, as we're structured with personnel throughout the army. however, i do believe that the best person for the final determination is the staff judge advocate because of his or her experience and the fact that they have, you know, additional resources available to them starting with the special victims prosecutor, the senior trial counsel, the trial counsel, to advice, you know, what may have or may not have been raised during the 32 process, and then make the requisite or provide the advice to the convening authority. >> good morning, ma'am, yes, absolutely. the preliminary hearing officer should have extensive litigation experience. the navy just recently stood up a reserve unit of preliminary hearing officers to assist in that capacity where we have
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prior active duty judge advocates who in their civilian capacity work in some experience -- have extensive experience in litigation or maybe a u.s. attorney's office, maybe a prosecution or defense. however, unfortunately the numbers in that unit just don't meet the need of the numbers of preliminary hearing officers we have, so in that capacity the navy next step is to use our military justice career track folks who do have extensive litigation experience to sit in that capacity as the preliminary hearing officer. however, again, based on the numbers they're not always available depending on the location or just given the other needs for a prosecution or defense services, filling those roles with our limited number of military justice career track personnel. >> yes, ma'am, we agree. in addition to being a fully trained and certified and sworn judge advocate, to conduct the hearing, it would be very important to the sja to examine and identify a foe that has the
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experience and expertise and knowledge to adequately assess the evidence at the hearing and the only one real key way to do that is the officers will know generally the background, training, experience of potential foes nthat are out there, and the sja would have the opportunity to assess whether or not that officer would be able to conduct a thorough and fair and well thought out hearing with a solid recommendation. >> and i would echo what has already been stated. ideally it would be someone with extensive military justice and criminal justice experience. in the air force we often use military judges, however they are not always available. so a person with extensive knowledge of the system and criminal law would be ideal. but again, sometimes just because of the numbers and availability, they're not always going to be able to have either
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a judge or someone with extensive military justice experience. >> for the coast guard definitely in a perfect world they would have litigation experience. they would have military justice experience. unfortunately, the coast guard being as small as it is, there's just less opportunities for them to get that military justice experience, so if there were to be some sort of requirement, i think it would make sense for the coast guard -- it just couldn't pull from a bench of experienced personnel to at least require some sort of training on sexual assault so they'd be aware of the nuances in sexual assault cases. >> we heard a lot about the change in the article 32, so post that change, 2014, have any of you had clients testify in a 32? let's start with you ms. specht. >> yes, the coast guard's definitely had clients who wanted to and have testified at article 32 hearings. in those instances that i can
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think of right now, they've actually desired the opportunity to speak or they've thought that their attorney has been anxious for them to have that experience first because of various reasons related to what's been relayed to them. >> similar in the air force. we have had some clients who have testified, often it's to add additional information that was not in the original statement of law enforcement or it would be beneficial for them to have the experience of sitting on a stand and going through the process of testifying, although i will say it's probably not the norm. it's a few outlier cases, and the majority of our clients choose not to testify. >> i'm not able to answer that right now, ma'am. i'm not aware of that. i know that my deputy who works for me is -- he came to be the deputy vlc at the headquarters,
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previously served as the rvlc in camp lejeune, north carolina, and his experience and information to me was that his clients did not testify. >> yes, ma'am, for the navy, we have had clients who have testified after consultation with the victims legal counsel, with the trial counsel, for the same reasons articulated by the other panel members. >> ma'am, i'm not sure i'm qualified to answer that question. i've been the program manager for a little over a month, however, from the sja perspective, which i have been in the past, most of the victims have chosen not to participate in article 32, but there have been some cases where they do. >> we saw -- i don't know if you were here for that, i mean, there are pretty high acquittal rates either complete acquittal rates or acquittal rates on all of the sexual assaults, and we certainly read from the victim
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representative perspective how devastating that is, whether they feel they weren't believed or they went through this whole process for nothing. given that, do you think there should be a higher threshold other than probable cause? i think there's the non-binding guidance, but to push a case and refer to it to court-martial? colonel hamilton. >> no, ma'am, i do not believe there should be a higher threshold. victims do not like full acquittals, obviously, however, the process, you know, i believe has significant protections built in. it's not only about the conviction. it's about making sure the process worked fairly and equitably for both the victim and the accused or the -- in that regard.
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but the focusing on the victim and their opportunity to participate with full understanding of the potential consequences of a full acquit l acquittal, i believe, is best for the victim. my experience, what i'm learning in the process is their ability to know that they have been validated and heard through the process is significant for healing and that is something that we need to protect. >> ma'am, i don't think there should be a higher bar. however, i think on one of the other questions we were asked regarding the victim's expectations, given the entire process and understanding at each point in the process the effects and although victims are emotionally devastated, some of them are happy to have gone through the process and to have seen it and to have experienced that that they feel like their voice was heard ultimately by the trier of fact and others do
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not. they as you articulated, and they feel like the system was not fair and that they did not get a fair shake at it. but i don't think that changing the standard would fix that. >> i agree, ma'am, i don't think changing the standard would be beneficial, but continuing to allow, you know, the victim to participate and be educated and informed through the process is what's most important. >> and i would also agree that changing the standard would not be in the best interests. our clients often express that while they are disappointed or devastated, depending on the acquittal, often the way that they perceive how they've been treated throughout the entire process in their interactions with investigators and trial counsel, defense counsel and other individuals involved with the process, that has a great influence in how they perceive
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whether or not they were treated fairly and given an opportunity to present to a finder of fact what happened to them and then how they go through the process. >> i'd just reiterate contaexac what everybody has already said. i think there's value to the victim, there's points throughout the process they have an opportunity to participate. the idea that making a higher determination of probable cause would somehow alleviate the despair or the negative feelings with an acquittal, it's not really the right way to look at it in the sense that they have an svc or a vlc that's helping them the entire time sort of manage expectations and talk about success aside from the ultimate conviction. and if they're working -- if sbc and trial counsel are working together, you can really help the victim understand that what the panel says is not defin t ,
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definitive. there's value in going through this. what the panel says isn't necessarily what the victim actually experienced. >> i'll go. thank you for your service. after the acquittal, the victim how do you see the victim being able to adapt, go back to the unit, get back into the mission of that unit and how many of them do you see that just throw their hands up and say i'm out of here, i'm gone? >> sir, it it really sort of piggy backs on what i just said. i really feel like the quality of the response will lead to the recovery. so if there was an engaged trial counsel. if there was a supportive command. if the victim felt all the way through that he or she was allowed to participate in
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meaningful ways, then i think the recovery process is much easier for them regardless of what the panel might say. no doubt, again, that there's disappointment there, but i don't see across the board victims throwing up their hands and saying, you know, i'm leaving the service as a result of this. >> and i would echo that. it's very individual. it's going to be up to that individual in how he or she perceives how they were supported and what's going on in their life, where they are in their recovery process, so it's very, very individual. very, very specific, and in fact, even when there is a conviction, that healing process is not complete. they're still going through that so an acquittal or a conviction is not necessarily closure for that individual. as far as how many client do we see choosing to separate, i don't have that data available.
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>> i agree, sir, and it's not just the importance of the expectation management and the care and advocacy for your client through the process, but it's also important to remember that that marine's coming from his unit, and that marine is going to have probably for an extensive period of time been suffering through the process procedur procedurally, and so as that unit is there supporting that victim through the process, that includes whatever the result of the trial may be, but where it really is going to be important regardless of the outcome is post-trial. obviously with the impact that a full acquittal can have, you're going to have to have some leadership, some commanders, some ncos take care of that marine and ensure that marine's well being, and similarly, you know, the culmination of a long process even if it was a successful conviction is going to come with some significant
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emotional challenges in and of itself. the concluding this process that's been dominating a large aspect of their life for so long is important to remember that in either case, acquittal or conviction, that marine and service member is going to need some significant help and support afterwards. as for the numbers of how many choose to separate, i don't have those numbers, sir. >> and we like wise do not have the numbers. i don't have the numbers on how many choose to separate or how many choose to remain, and some do choose to leave. and as the others have stated, it's important for even those folks who do choose to leave as they're making that decision that we provide them with the right resources in order to help them make that decision, make sure they're cared for afterwards whether it be under the disability evaluation system or other resources available to those service members who do choose to leave and make that decision with the help of the resources that we have.
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>> i concur with what my colleagues have said, and i think it -- the benefit to the way we're structured right now is the fact that, you know, there's an opportunity for some who choose to leave will go ahead and leave. others will ask for a permanent change of station to get a fresh start somewhere else following it throughout the process or early in the process, some have automatically requested an expedited transfer to, you know, be in a location that is divorce and separate from, you know, the horrors of where the incident occurred and the accused at that point. so those options are available to the victims, and the other benefit is that when they move someplace else, we've improved the process so that we've provided for very good warm handoffs so that the physical, emotional wellbeing of the victims are taken care of at the new installation.
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>> i know you said none of you had those numbers, but do you know if your services are tracking, and not just after court-martial, after filing a complaint? because a lot of the cases don't even go to prefrl. do you know if your services are tracking filing a complaint and fairly shortly after the resolution of the complaint leaving the service, ms. specht? >> i don't believe so. i just got a head shake. >> i am unaware of tracking that information. >> i'm just not sure, ma'am. i can definitely take that back and research it for you. >> and ma'am, i was informed that we do not track that. >> like wise, like ms. specht i looked around too, for my support. we are not tracking those statistics right now, ma'am.
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>> to go back to article 32 for a minute. what difference would it make to your clients if there was no article 32 at all, and whatever you would offer to a 32 case, you offered it to the sja, would it make any difference to your clients? >> conceivably because sj's are in the same area as the victims, everybody though the svc will try to explain the process and the roles of the military justice practitioners, i can envision, i don't know this for sure, i can envision a victim embracing a foe because they believe them to be the neutral individual who's looking at all of the evidence by someone who's sort of, you know, a friend of the command so to speak. >> i think there is some value
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in the article 32 and that the victim is able to attend and watch the proceedings. >> all 15 minutes of it? >> yep. >> if there evidentiary issues that come up, such as perhaps mre 412 issues regarding past sexual history, the svc is able to advocate on behalf of their client's privacy rights at that article 32 and then have that foe look at that issue and make an appropriate determination based upon the law and facts of that particular case. and that they get a copy of the recording at the end as well. so i think there is value to the victim to see that process in work. >> yes, i agree. i think there's value as the line vlcs are sitting and working and explaining the process to the accused. the feedback from the field has been, you know, the trust in the system, the thoroughness,
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despite the conversation earlier about it being a 15-minute paper drill. it is an additional step in the process where you can convey to your client that an independent officer with legal training is going to take a good close look at the evidence and make a recommendation and write a report. with that said, i think some of the answers that we provided to some of the other questions, highlighted the importance to the client and some frustrations that can exist with a delay just to the overall system, and so i think if there was a way to, you know, if there was a system in place that could help expedite the 32 process or in your example just to get rid of it altogether, of course that would potentially shrink the process, and that would be something that would be appealing to a victim potentially. >> yes, sir and i do see value in it to the victim as far as requiring that faith in the process as far as checks and
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balances that there's an analysis of the facts at a hearing or after the hearing, and there's another entity looking at the charges because sometimes the trial counsel may not have presented to the victim all of the information and so then getting that transcript and getting the tape on having that information helps them see the process as it's proceeding forward. >> i absolutely think there's value to it. i think it's the first step towards healing for the victim, going through the process or getting the information, radaring it, understanding what's -- reading it, understanding what's going out there and the finding of the preliminary hearing officer is sort of an acknowledgment that something happened, even though it's a lower threshold of probable cause. something happened. i think that's crucial to victims and their healing. >> one of you had mentiond a ed that there's some frustration about the length of the process.
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if there was a way of expediting the length of the investigation, the process, do you have any suggestions to how this process could be expedited without sacrificing fact gathering? i'm going to start with you colonel hamilton. >> i don't have a clear answer for you, ma'am, on a way to expedite it. i think if we attempt to expedite too quickly, we will rush things to the point where we may not ensure justice is served, either for the victim or the accused. so i think we -- the process while it has its flaws is working and i'm seeing the mere fact that more victims are willing to come forward, and you know, request svc and engage in the process is significant from where -- remembering that the svc program is -- it has reached its foouive-year anniversary fo the army, i mean its six-year
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anniversary. the numbers and increase of how many people are requesting svc shows that the process is becoming more familiar and victims are more willing to engage in the process. so as far as wait to expedite it, i don't have an answer for you specifically other than i know it's working for victims. >> and ma'am, before i answer that question, i'd like to go back to the last answer as well. i think the article 32 is also good for the victims in the case where there is no probable cause finding because, again, they're able to see that, the hearing, the analysis and the input. i don't want it to be thought that we're only looking toward prosecution of the accused for the benefit of the victims healing. i think it also does help with the victim's understanding of no probable cause finding if there is a full article 32 hearing in the sense that we have it now. as far as speeding the process, you' yo of any suggestions for that. our military justice folks have talked about that and
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suggestions on ways to change the system once again to expedite the process, but i know we've all been working very hard at certain steps in the procedure to really get down those processing times. as far as, you know, the trial shop is working prosecutorial merits memo, getting all those time frames shortened. overall, the article 32 i don't have any good suggestions for you. >> yes, ma'am, and i was the one that mentioned it, but unfortunately don't have any recommendations on how to fix it. i mentioned it not just to be clear, not as a critique of the military justice practitioners or the commanders carefully considering these cases in which our investigators offices are diligently and thoroughly investigating. it's very important that they do that, and expediting it just for the sake of expediting it would not be prudent for anybody's
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interests. i think for the vlcs, the reason why i brought it up as an issue of length of time and concern, where the vlcs can be of great value is to really thoroughly and proactively communicate with their clients frequently, daily, week isly at least, sometimes daily just to keep them informed so that their clients know that the process is moving forward even though nothing is happening in a courtroom or no statements are being provided that despite the length of time that the process is moving in the right direction and the feedback from the field is if the -- if the victim's legal counsel will do that with their clients and keep them informed and keep in touch with them, that they're satisfied and feel happy about the fact that they know that someone is still martialing their case.
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>> similar to my colleagues, i don't have any specific comments from an svc perspective. i know our military justice folks are working on ways to improve time lines. i know one initiative within our judiciary is to get our circuit trial counsel. those are more experienced prosecutors, special victims qualified prosecutors involved in the cases at base level earlier in the process to hopefully get better quality investigations earlier in the process to reduce those time lines of having to go back and look at other things that may have been missed during the initial look. there are other things that they are working on to improve those time lines while still getting a quality investigation that looks at all the facts to ensure fairness to everyone involved in the allegations. >> i can speak only for the coast guard, and it's sort of what the air force is talking about. as i mentioned, the coast guard
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doesn't have a lot of experience. we don't have special victims prosecutors, but what the coast guard's trained to do is build experience at its two separate locations. but what has happened sort of as a result of that is that the investigation happens at the district level, and then it's handed over to the people who are actually going to try the case. there's not this ability to really integrate with the investigators, discuss what needs to happen based on the people who are actually going to be prosecuting the case. i wish there was more overlap in the coast guard between investigators and trial counsel. i also think that the way that the coast guard defines restricted reports, they put themselves in a bind because we have a lot of third-party reports then, so you have a very uninterested, unwilling victim having to go through the process. if there was a way just to shut those down in the beginning, then resources could go towards those who are really integrated and interested in moving
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forward. >> thank you. so we've heard a lot this morning about if the pho does a no pc finding, right? so we come out of that and the hearing officer says no pc, but the sja can still find probable cause. what is the advocacy of vlcs and svc's in that window of time, what is a vlc oor's role? >> it's awful that the coast guard and the army are -- >> start in the middle. >> the role of the svc for the army during that time would be just communicating their client's interests and where from their perspective, what their client is looking for through the trial counsel and
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the prosecution team who are the advisers to the sja before he or she goes in and meets with the convening authority. so the svc role is to communicate the client's wishes and desires through the prosecution team. >> and that is the role to continue advocating on behalf of the victim and providing that information that the victim and victim's counsel may have felt that was not fully vetted during the article 32 or not brought up in article 32, communicating that information for the convening authority's benefit. >> yes, ma'am, for the convening authority's benefit is the important point. the vlc is going to continue to represent, advocate, communicate with, explain the process to the client, and importantly whether the foes determination was that
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there was probable cause or that it doesn't reach probable cause, it assures -- the victim is assured that the convenient authority is going to know right up until the sja goes in and advic advis advises, if the vlc is properly communicating with the government and properly communicating in a timely manner the victim's wishes. the victim will know that the convening authority is considering their input right up until his final decision or her final decision. >> it's the same process in the air force. i don't really have much to add. >> same with the coast guard as well. >> have any of you been privy to what's been explained as this post preliminary hearing additional evidence session with the staff judge advocate? if you have been in your role as
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a special victim counsel or victim's legal counsel, what are you telling the sja and why could that not have been presented to the preliminary hearing officer? >> ma'am, i've not been privy to that or discussed that with any of the -- our vlcs. i think similar to what i mentioned in my previous answer, the victim -- because the victim can't be compelled to testify at a 32 or provide a statement, it could be just a situation to where with proper communication that the vlc is communicating with the sja right up until that point, the sja goes into the convening authority. >> doesn't that seem like you're trying to get through the back door through which you're not able to get through the front by having some type of ex parte communication with the staff judge advocate. >> well, the victim has the
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ability to testify at the 32 if they elected to. >> right, assuming they don't. >> yeah. >> they still can have an audience with the sja, correct? >> well, the sja is going to understand, you know, the victim's preference is bag paig of this process, properly understanding at all times what the victim's preference is, and so as an sja i would certainly want to know and verify at any given time, not necessarily by audience with the victim. in my role as an sja, i did not do that, but i would certainly make sure that prior to going in to meet with my commander that i was up to speed and could properly communicate to the commander what the current victim preference feeling was. >> and ma'am, i believe under the new rules under 405k the
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defense has the opportunity to present additional information as well, so it's akin to that. i haven't been privy to any of the conversations, and i don't know that the victim's legal counsel have taken that opportunity under the new vab d availability of that but i think the defense has the ability to provide additional information after the article 32. >> ma'am, from the svc side, i have no experience regarding it, but from the sja side i've never met with the victim, the svc represented by counsel will communicate through the trial team. trial team would brief me on where, you know, what the victim's looking for, what the svc is looking for, the concerns they have or whatever other evidence, information, but i also want to be clear that i haven't had a case where there was no pc finding and no active
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in front of the preliminary hearing officer that we switch going to the convening authority. however, the information, the communication comes through the trial team and the svc to the sja. while there would be an opportunity if the victim wanted to come and see the sja i don't know of my cases, i've never experienced any where the victim wants to come in and meet with the sja and if they did so, they would do so through the svc and there would be something rather significant that is virtually -- you know, it would be novel. >> similar to my colleagues, i don't have any personal knowledge of these discussions with sjas or others. in my prior role as an sja, i can tell you i did get written matters through, again, to trial
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counsel and the svc regarding the victim's preference on disposition, which would then be provided to the convening authority for his or her consideration. >> and just similarly, i've never known of a victim or an svc to provide evidence that was not, you know, included as part of the roi during the 32. it's really just victim preference, and that was afforded to the victims by congress, so it's just them providing, again, saying i'm ready to move forward. i would like to move forward. it's not anything different than what had already been provided. it's what's going to the convening authority already. >> thanks. >> victim advised if a 32 officer hearing officer finds no probable cause and if so what,
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if anything, additional occurs to try and infruns tluence the at all in overcoming that lack of probable cause? >> ma'am, if the svc and the vlc are doing their job, the victim would know exactly the process and what the finding was, and that is first and foremost our charter and our mission to keep the victim informed of things going through the process. as far as what would then -- what strategy, i cannot speak to that. i have no experience as far as what they would attempt to do to change the finding of the preliminary hearing officer or to influence the sja before going to the convening authority. >> and as far as the recommendation of probable cause, i think -- i'm not directly aware of it, but i
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would imagine that they would -- if there was any issue with the actual hearing, any problem with the 32, anything that was left out, then identify that to the trial counsel and we do -- the vlc do inform the victim, you know, of the recommendation and the decision by the convening authority. >> yes, ma'am, the victim would know the results, and continue to communicate and work with the victim's legal counsel. in terms of what next, i think just closed and proper work with the trial counsel and will perhaps some additional information that may have not been presented or conveyed properly or communicated up to that point. you could do that by communicating with the trial counsel as they're preparing documents like case analysis
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memos, prosecution merit memos, that they're going to present. >> again, yes, the victims would be informed of the foe and sja's recommendation. the only time that i have seen anything after that point would be if the spc perceived there was some legal error in the proceedings and they might bring that forward for the consideration of both the sja and the convening authority. but again, that's pretty rare that they would see that kind of error and then bring it to the attention of the appropriate individuals. >> not really anything different, just similar to what everyone said before. really the victim -- what the sja is really concerned about is that the victim's still willing to move forward and what are the victim's desires. >> ma'am, if i could add to what colonel clay and captain sullivan had mentioned, what we
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try to do is we try to get our svc to have already been -- to have already participated as a trial counsel or defense counsel or somewhere in the justice process before becoming svcs. so if for instance the svc were under the 32 and there was something that was wrong or missed by the prosecution team or the trial counsel, who's responsible for, you know, trying the case, and then the svc merely to ensure that his or her clients wishes were being or wishes were being pursued or their rights being protected, would communicate that to the trial team and then the trial team would hopefully do their job, which they are to take you to the sjj which would then be contrary to i guess the finding of the 32 officer. >> so one of the findings of
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research on sexual assault case processing in the civilian context is that the victim's willingness to cooperate in an investigation and prosecution of the case is one of the strongest predictors of whether the police will make an arrest, whether the prosecutor will file charges and whether the case will result in a conviction. and our case review, we've been reviewing cases that have been reported to all of the services, and we discovered that there's a very high rate of victim declination in these cases and that occurs at various stages in the process. and many of you have just now mentioned the importance of the victim's preferences or the victim's willingness to move forward with the case. so in your experience, what are the reasons that motivate victims to decline to cooperate
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after having made an allegation of sexual assault? >> ma'am, the feedback from the field seems to indicate just a strong desire to put the issue behind them them and move on with their lives and with their careers while still acknowledging that something terrible happened. they do just a personal decision that they make on their own, that they just want to move on and it could be influenced by their -- their close-knit team that they're a part of that's supporting them through the process. they do have -- whether or not it remains in the military justice realm or not, i think we have done a tremendous job in the military providing additional resources for victims of these types of crimes to recover and succeed with or without the military justice
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process. it is important to some, but some individuals have just chosen to take the benefit of the resources that are available outside the military justice system and move on with their lives as quickly as they can. >> and i would echo that. it's an individual decision and the reasons are pretty much individual to the person although a desire to move on and heal and get to a better place in their journey after experiencing a trauma and also, we often see a desire to protect their own privacy through that healing process, as well, as common issues, although there are many different reasons and they're as individual as the people involved. >> i would mention again, and i see a lot of times with the coast guard when we define restrictive reporting and a lot
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of individuals are telling friends and it gets reported and then they're sort of pushed forward and that's why they decline to prosecute. and the reasons for the navy victims are similar. every victim is unique and every case is different and they have different represents for wanting to decline and move on, and as far as the resources providing them with the resources that they need to do that is very important for the services to do. so the restrictive reporting is able to do that to have the resource available to them without the need to report if they don't desire to participate in the process. >> yeah. i can cover just about everything everyone said. i think victims go through their own cross benefit analysis of personally continuing on and what pain that would bring to re-live it or just move on and
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put behind them. pcs to a new location, permanent change of station to a new location and heal in their own way. it's too hard to know for sure all of the different reasons. >> i heard
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clawback provision and would you be in favor of a third-party report where the victim says i don't want anything to do with this and being able to shut dunn t down the investigation rather than the fall of talking to the friend, the coworkers and the supervisors and people in the barrack, et cetera? >> um, we've kind of done that in the airors force already. by policy, the office of special investigations, if they have no other leads beyond what a victim can provide to them they will shut down the investigation. so we have given that option to victims within the air force. as far as shutting down an investigation that is because of the victim's preference, i think that's generally a good idea, however, there may be those cases which is a multiple victim case in which it should be investigated anyway because of the other individuals involved in a particular case.
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>> i'm just go going to follow up quickly on that because osi wouldn't know and there were other leads until they did a full-blown investigation, correct? until they talked to everybody and said there was no other way of getting evidence. >> unless tlrthere was a third party complaint or another victim came forward. >> i would support that to clawback while also retaining the availability for the command tore act and respond as needed. obviously, you will always want to continue to provide the resources needed for the victim, continue to allow the expedited transferablity and try to get that victim in a position to recover and adhere to what the preferences are and allow the
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victim to recover from the assault. >> what about the third-party complaint where the victim says i don't want to do anything or nothing happened? >> the inadvertent disclosure -- >> some third party calls in and says i know this person was sexually assaulted and the victim either says no, it wasn't or i just don't want to talk about it? >> i would support the victim, ma'am. >> yes, ma'am, and i would support in the same manner. the one issue that you identify, though, is a difficult question is if -- how do you know if there are other victims until you investigate. so at what point do you stop that investigation, but i think given the limited resources that we have and given the interests of the accused that unless there is really good information as far as going down to a full complaint if the victim does not want to participate and does not want any action on the
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third-party complaint we should provide them with the resources and not pursue that. >> ma'am, from my side, i'm torn. i believe that failing to pursue or remove a cancer within a problem or organization would have a negative impact on good order and discipline. so being able to just shut to down based on the victim poses a problem, and i would just -- let me go back to this in a second, but from now we're in the svc side of the house and the one thing i loathe is to have re-victimize the victim already and empowering the victim with the expedited transfer and begin to shut down the investigation does help with that person's healing. however, when you look at it in the sense which was the note i received of some type of
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recruiter, you know, malfeasance or basic training malfeasance and then the victim says i don't want to participate when you're talking about a drill instructor or recruiter who may have the tendency to repeat and by not going forward short order is there, may put others in harm's way and i think it's a double-edged sword and i'm not sure i have a clear answer for you. i don't want like re-victimizing victim, but i also like to remove problem individuals from the formation because that is what degrades good order and discipline and affects all of us. >> i would agree with colonel hamilton. i think the command has -- needs to have the ability if there's some pervasive issue that's happening within their command, again, coast guard being very small it can really deteriorate
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the ability of the unit to get the mission done. i like the air force's sort of methodology there in that it's only sort of if there is this one time this one person said something and osi sort of brings them in and says do they want to move forward and they say no, i don't, and then the osi has the obligation if more information comes forward that they would still move forward with the investigation. again, i would just like the way that everybody else does restrictive reports, and that would be a success for me. >> i think it was you, colonel clay. forgive me if i'm wrong, you had mentioned that during the 32 both the victim could be there and svcrc can be there and if a victim comes up, most likely a
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512 or 513 or a possible article 6b could present in that moment is the svclc participates. a two-part question. what does that actually look like? and do you think they have sufficient standings to protect rights that might arise in a 32 in the moment and about possible appellate moment? >> generally, the way it looks is if an issue arises during the hearing the svc will stand up and have the opportunity to object or make an oral argument. in some cases thshgs is the ideal situation. trial counsel has talked to the svc, sometimes things resolve before they come in. sometimes they have to object the argument as to why a
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particular issue is affecting their client's rights and argue on behalf to protect their clients' rights. that's typically the way it looks. at trial, obviously, that's going to be a little bit more formal with written motions and everything else, but at the 32 hearing it's usually oral argument, and sorry. the second part of your question? >> just whether it's sufficient standing to protect your rights and the 32? >> yes, we believe that it is sufficient, and that we haven't really had any issues that have risen to the point and we have to actually file an appeal through that avenue and so we haven't actually tried to do that or see what happens to the courts if that type of issue has risen. >> do you have concerns if you had a case that you would be well received at the appellate court or do you think you could move forward? >> think we could move forward if we had the right facts in line with what the law says. >> i would like to hear from
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other, too. >> similar for us, ma'am. i don't have anything to add to that. >> and the process is the same. >> i'm trusting the process to be the same for us. i think the standing piece is a larger issue. the closer you move to trial and being whether or not how i've left speaking to some of the military judges and the judge's course and the role of the svc is not, you know, under case law and statute, the actual party and interest for the svc to stand and make an objection, you know, from the bar. so that is an issue that's still being resolved and you know, through case law or store change, then maybe there would be more of an opportunity for svc to object and interject at
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trial, but as far as the 32, i think we're okay right now. >> very similar in the coast guard. some are the level as to how comfortable they're standing up and making argument extemporaneously and potentially to the foe's report. >> thank you for being here and thank you for your service and taking time out of your day to give us great information to help this committee kind of look at are there areas and gaps that we can improve the process. kind of along the same vein of victim participation, article 32, we heard about collateral misconduct and i guess i was looking for some clarity on when that comes up, i would assume it comes up in the investigate of
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process initially so i'm wondering what is your experience with how that's managed and what does that look like and is that considered a factor sore have you considered as a factor for victims who don't want to participate. basically, i'm looking to see the collateral misconduct and how is that? what does that look like? is it a formal identification of an investigation? is it running up the chain of command that we're going have to report this and what impact does that have on your clients? >> sir, thank you. and in the case to where a line vlc will meet with and consult with and have them be in initial meeting with the victim and if information is presented that there could be collateral
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misconduct and that vlc will arrange for representation from the defense counsel there in the region locally, and you know, the communication and the line vlcs doesn't exist just between them and the government and the trial counsel, but with the defense bar, as well, but in the case where there is potential exposure for that individual and it's not for the victim's legal counsel to represent and advise on potential collateral misconduct and it will be for the victim's defense counsel if one is ultimately made available. >> sure. >> and to the process is similar in the navy and as far as your question regarding how that's dealt with, it really depends on the victim and the collateral misconduct and the duty and sometimes the convening authorities as you heard earlier will dispose of it prior to the
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court-martial and some will hold it until after the court-martial and some victims prefer to have it adjudicated prior if they're going to captain's mass or be getting some type of formal's pri hand and have it taken care of ahead of the time that they're going to testify and the potential to be cross examined on it. it's dependent on the victim and the misconduct that's involved. and the same thing with the factor as far as it's determined for whether you move forward or not and it depends on the victim. i guess it's their job, right? if they have the misconduct that's adjudicated and that's their future in the military and again, we do have them consult with defense counsel on those issues under the military justice misconduct that they'll be facing charges for.
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>> so tds, trial defense services, will take over with the conduct and refer the client with the trial defense services and the protection that i think you're alluding to also are built in in the sense that if their offense of underaged drinking that there was a serious aggravated sexual assault in addition to the underaged drinking and deal with the collateral misconduct with the strength for the victim if, you know, he or she chooses to go forward, will they be able to say yes, that was dealt with and at the time of trial during the cross-examination, oh, you're only here because you were involved in some other offense, and you're not getting prosecuted or charged with that. no, i've already received my reprimand or article 15 for the underaged drinking, but what happened to me is only egregious and that provides the protection in there, but we ask that you do
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separate the special victims' counsel advice when there's misconduct and send them over to the trial defense services. >> is that automatic? as soon as there's information that's received of trial misconduct there, and automatically giving that information for them to manage that? well, i mean, that would be -- it depends on once we -- the special victims' counsel gets information about collateral misconduct and the victim starts raising other collateral misconduct to the special victims' counsel go through the training so they understand when you hear information of another code of military justice violation or something else the victim may have done and okay, it is best for you to seek trial
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defense services in the event the chain of command chooses to come after you or to prosecute or move to some other adverse administrative action for the victim because of the conduct so it's up to the svc to look at that and from the sg aside, if we hear of the collateral misconduct then we're going to look through the chain of command to say what are you recommending for this person who, although a victim also engaged in some other type of violation. did i answer your question, sir? >> in your relationship with your client? >> i think if the svc is doing his or her job, i don't think it impacts it. it's like, hey, i need to protect you. i'm going protect the what your result of the sexual assault, but now to look at added protection for twrou let's go over and meet with trial service
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defenses because you're they're going to discuss things with you that are outside the scope of the representation for the sexual assault. and very similar in the air force it often comes up in the investigation, but it can come from other sources including the victim in the protected conversation with their svc. if the svc becomes aware of collateral misconduct they will talk to their client and with the client's consent, make a referral to the area of defense counsel so they can be represented for those matters by a defense counsel. >> similar to the coast guard to the air force, it's more of a conversation with the client and the svc because generally when we're talking about collateral misconduct in the coast guard it's going to be underaged drinking and it's a fairly low-level offense and it will
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come out because everybody was at the party and everybody saw everybody drinking and it's not necessarily for the defense counsel at that stage or if it's something more serious or something that we think that's potentially a court-martial offense they will are referred to the defense counsel. [ inaudible question ] >> we have a -- >> it sounds like a low-level offense and that would be with the client's consent. >> is there any guidance on that? >> it's within our instruction itself. >> and it's with the client's consent because to seek with the client's defense cycle that's the client's decision whether they wanted to seek the advice of defense counsel. we can't force them to speak to the defense counsel. apart from collateral misconduct, have you personally seen or have you just more
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broadly seen retaliation in the chain of command against somebody or i suppose what client perceived as retaliation apart from social consequences which i don't think people can really control all that well, but have you seen retaliation? >> i'm racking my brain because we see retaliation frequently or what the victim perceives as retaliation and it's difficult because they're in a situation where they don't feel super connected with the command so everything feels like retaliation like anything that might have been normal and the normal koufrs business, but i would say yes, we've seen retaliation and i'll use the cadet at the academy and maybe they don't get to go on their -- their first, second, third order of where they wanted to go over the summer.
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they may feel like that's retaliation in and of itself. i'm trying to think we had one very, very formal retaliation claim and that was investigated and it was substantiated and it was acted upon by the command at that time. >> similar. as far as official chain of command professional retaliation and it's extremely rare and nothing is coming to mind as an example and i'm sure it has come up and i'm not aware of it, but it's extremely rare to have actual professional retaliation through the chain of command. >> i'm not aware of any at this time, ma'am. >> my answer is similar to the air force. it's very rare to see senior-level retaliation. usually members of the command think they're doing something good for the victim that the victim perceives as retaliation, changing a work schedule or something that really isn't necessary from the victim's perspective and the victim
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thinks that's -- that's retaliation or punishment whereas the command was trying to do something to help without communicating effectively, so we always encourage our vlcs to work with the command on that as far as working out those issues. sometimes in the mid-level senior enlisted arena, again, not to level of retaliation, but sometimes with the idea that they're protecting the victim or assisting the victim they do things that are perceived as retaliation and with communication and retaliation our vlc have been able to resolve those issues. >> similar to what the captain is saying. i've not been a party or experience good professional retaliation and the perceived retaliation usually gets dealt with with a phone call or two and once you hear that information you send the trial team back to make sure that no -- you know, it's taken care of and i've yet to hear anything further from it.
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>> hi. thank you for being here. i wanted to go back to the article 32 and the usefulness of it and thinking of some of the comments this morning and your very unique position, i'm wondering if you think that understanding it's been changed that it is stronger when the victim testifies and that it's useful for preparing the victim for trial when victim testimony is involved in that process? >> and colonel hamilton, i guess i would start with you. [ inaudible question ] >> sure. whether at the article 32, having a victim testify, i know it's their choice, but having that testimony, does it make the article 32 hearing stronger and the evidence that goes in
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stronger and is it useful for the victim to get experience testifying from your perspectives now as an svc and others? >> ma'am, from the sja perspective, i'll answer that first. i would prefer more information. learning more about the svc program and the victims and the trauma they go through, i think we're doing the best thing by leaving it up to the victim to go forward with the experience of -- yeah, everyone wants a little bit more experience, but it's one thing when you're putting your personal trauma out there for that experience. i don't know that you learn from having said it, multiple times after 32 or through the investigation and then the 32 and then at trial and with cross-examination and i'm not sure it's beneficial so what we
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train and teach is leave to up to the victim and discuss the process and the svc needs to discuss the process with the victim and let it be the victim's decision at that point so long as they fully understand and appreciate what the process is about and if the svc are doing their job the victim, i believe, are making informed decisions on that. >> and i have the same concern regarding the -- having the victim tell the story again and yet again and again and the parameters of the 32 where the victims were on the stand for days and i think the procedures and processes would need to be changed that there are protections of the victim during that process, and i was chief of defense for a while and from that perspective for the accused and definitely, i would like to have that opportunity to talk to the victim prior to the court-martials and trial
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counselling to get an idea of how the victim is going to react or hold up on the stand, but i don't think testing the victim in that capacity is really useful for the purposes of the ultimate trier of fact at a court-martial and for the dangers and just everything that's involved with revictim iedzing the client and revictim iedzing the victim in that setting with the -- what we see in the past i do not think it's a good idea and i would like to continue to allow it to be what the victim would prefer to do. as part of our training a few weeks ago one instance that stuck with me from hearing of an actual victim and one that was successfully prosecuted was she flat-out said that the actual act of testifying at the trial was worse, felt worse to her and the anxiety and pain and
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suffering of having to read talent was worse than the assault and i was stuck with hearing her, and hearing that action imposed on them again at an article 32. i would not want to see that in terms of victims. as far as getting them ready, the victims' legal counsel and the trial counselor, you can only do the best that they can and preparing that victim to testify through preparation and assurances and education and just trying as best they can to be as ready as they can possibly be during such a difficult event as testifying is. >> and to kind of echo what was already said it should be a victim's choice and a case by case basis. they'll have an opportunity to have the advice of their svc or vlc, an opportunity to consult
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with trial counsel ahead of time so the victim in consultation with the svc is in the best position to make a decision as to whether they should or should not testify in an article 32 and again, depending on the victim and the nature of the alleged assault it may be more emotionally damaging to them to testify twice versus just at the trial itself. >> just pretty much the same as what everybody else has said and it will be a conversation between the svc and the client and it will depend on the specifics of the case. >> so -- i'm sorry. i didn't see you, meg. the two megs. so we talked a little bit about collateral misconduct and i don't know if everyone was here this morning when we had the panel talking about it, but one of the things that we discussed were the differences that came from each of the services as they were trying to collect the data, and as we were unpacking
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that a little bit we talked about the differences in adverse action. and so i'm just curious what your opinions, if you have them might be something you need to think about. if we're going to try to help folks come up with definitions in order to respond to those types of queries and encourage congress to be more specific when they give certain things, would you all from the svc vlc perspective have a definition of adverse action that a survivor might suffer in terms of collateral misconduct and because what we were talking about this morning was formal adverse action and informal adverse action. i'm seeing a lot of furrowed brows which probably means either my question was inarticulate or you'll be graceful and say you need time to think about it. >> ma'am, an excellent question. [ laughter ]
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i was here this morning -- >> not paying attention. >> sir, i was. i promise. but it is something, ma'am, honestly that i would like to think a little bit more about. thank you. >> yes, the same. think about it because it could be very broad so we would need to -- >> let me help a little bit. this morning it seemed like there was a general consensus and a court-martial is adverse and administrative discharge is adverse, and so then you get to other measures that are -- that could be labeled non-punitive measures so i'm going to give you a letter, okay? if i'm going to give you a letter and send a copy for your official file that may look largely adverse. if i'm going to give you a fitness report or whatever you call it and in it i'm going to
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be less than glowing and i haven't said anything bad, but i haven't glowed very much like we normally lie or embellish, some people might perceive that as are as adverse. others might not. if i'm going to give you a letter and stick it in my drawer because it's a non-punitive letter and it's a corrective measure and maybe you don't consider that adverse and as a recipient of those i would consider them adverse. so i think we're looking at the low end of things and the top end of things it's probably pretty easy and we're getting towards the low end of -- any thought jause thoughts you have on that? >> the reprimand -- >> i'm sorry, sir. the official file which is basically in the drawer as far as where especially for the victim as a form of the
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collateral misconduct and what i'm hesitant to do which i would ask for more time to look at this is having something and directive put out in that and i'm always fearful of when you take that option away from commanders to take away from good order and discipline within the order at that time and also considering the victim and the trauma that he or she has endured and what is the best way to ensure good order and discipline across the form aegz as to what degree because some would say because if you're junior enough in rank in article 15 may be survivable as a -- because it's non-traditional punishment and however, like you said, sir, it's adverse and an official reprimand is adverse, in a draw and it's a reprimand so it is adverse and it may be
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able to survive so that he or she may have a successful career there after. >> so i'm thinking of other things like something deeper into the weeds as far as possible if you're up for a certain school and because you were found guilt of drinking under -- under aged drinking. you lose that school and that can affect your career path and military instructions and the other thing that's deeper into the weeds as progressing into the career path because of the collateral misconduct. >> and the program. yes, sir. yes, sir. or even being set back for a couple of mocks so you're not on the same track now as your peers. >> absolutely, sir. absolutely, sir. >> and capsule van mentioned and the military justice proceedings
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and there's the potential of certain hang-up or delay or awkwardness that as very member's record will look like even with no adverse material at all and if somebody on a from motion board or school board would look at that individual's record there may be consequences and the board member doesn't have the benefit of knowing what happened, but it just looks odd and it's the odd career progression and it could due to the delay and it could be that that individual victim felt that in addition to an expedited transfer to avoid this particular area that it could be the field of practice that required them to get out of that field and it's too small and everybody knows any they do a lateral move into the additional mls and you get into a situation where a career advisers would recommend and how would you get that victim with a new mos into
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a position to get mos job credibility in a completely new and different job, and so those are the type of challenging adverse actions that aren't adverse in terms of formal written counsels that are in someone's record and in terms of a victim's career progression and overall standing over a 20-year career and it could be a one to two-year blip that looks very odd that could have negative impacts on them. just something that until this morning i hadn't thought about much sir. >> in the responses by sbcs and vlcs for the request of information for this particular speaker group, was there an indication that even though the reaction of victims vary case by case, and many of them expressed devastation and acquittal. so my question is, do you think
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based on the very high acquittal rate in the military that we're saying as a group through the case review working group and the actual raw data that we're seeing from analyzing cases in the field and it's a very high acquittal rate in the military and the devastation and the feelings of deaf station from the victim that there should be a higher standard for referral of cases to trial. so what do you think that should be? >> if you'd just waited on -- >> we're similar in some ways. ma'am, i do not think there should be a higher standard.
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i, obviously, feel for and empathize for victims who feel devastated and who wouldn't? however, i think the process -- i think some victims, although devastated, at least feel through the process if the svc is doing their job and the chain of command and the resources and the treatment and care was there for the victim, at least i think there is some healing in the fact that they -- their story was heard, their trauma was heard and while it may not have reached a level of beyond a reasonable doubt for conviction there was some, you know, empathy through the process for the victims. so while they're disappointed with the result, i think that they have taken a giant step toward healing by having had the
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opportunity to tell their story, and i think if we just look at conviction rates for these victims as a means of success or making it more of a challenge to get them to the opportunity to have that healing, i think we're missing the boat on, you know, the trauma that these victims experience through the sexual assault. ma'am, i read through the responses of the military justice folks and as far as the acquittal rate is really difficult to judge on because every case is different and the reason for the acquittal is different and these casers tough. these, many times are two people in a room and something happens and there are different reports of what happened, so i think it would be very changing the standard that i don't know would fix that and i don't think that basing the decisions on the
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acquittal rate would just really help the system. but again, i defer back to the answers that i read to this question from our military justice folks. i would defer them. >> in in theory changing the standard to proof beyond a reasonable doubt could kill cases there. true? >> it could. >> yes. >> that's right, it could and although it might not be to the same level and i agree with colonel hamilton's feedback or comments to this point, but you raised the standard and you used the term killing it that would sort of expedite the devastation from the victim at that point rather than having them wait until the trial after all of the factors were considered by the article 32 officer and then the trial counsel and they made that determination of which
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sustaining the conviction is one of the factors to consider and i think if you made it a higher standard and it precluded it from moving forward at all, much of the benefit that our field vlcs have communicated to us about willing participants who want to go forward, who have the opportunity with their vlc to work through the case, that would be gone at that point. >> and i would agree that there is a will have yvalue from the perspective to tell the jury or the judge what they experienced. it does come back to managing expectations of the client and as we all know it's not a result that the client wants at the end of the day, and i do believe there is a value to the victim to state that i was wronged and this that made known.
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>> just foot stamp on what everyone else has said. there is value to the victims and i think they want to have it heard by a panel member and if the svc is working well especially with the tc, they will be aware of the potential consequences of moving forward. >> no, ma'am. thank you so much for coming. we'll adjourn for lunch and be back at 2:00. if anyone is going out, it's absolutely pouring out there.
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>> weeknights this week we're featuring american history tv programs as a preview of what's available every weekend on c-span3. tonight, biographer george nash recalls the work done by herbert hoover who saved millions of lives and set the stage for the white house run and this begins a night of programs from a conference on hoover's humanitarian efforts as presidential library and west branch, iowa is the host of this event and you can see it on c-span3 and enjoy american history tv every weekend also on c-span3. and this week we're showing you book tv programs and show casing what's available every weekend on c-span 2. tonight the theme is national defense and general james mattis recalls his military career and offers thoughts on leadership and calls on chaos. then ashton carter, another former defense secretary talks
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about his work on working in the pentagon, inside the five-sided box. and eyes in the sky, journalist arthur holland michelle reports on the pentagon's aerial surveillance system, and that's tonight beginning at 8:00 eastern on c-span2 and enjoy book tv every weekend also on c-span2. i saw things about president trump's leadership trial that i had never seen in the fbi. i saw the way that his staff and advisers would sit at attention in a small row of chairs gathered in front of the resolute desk. i saw the way that he tried to -- he and his advisors tried to manipulate me to invite him to speak at hoover building that week. i saw the way he reflexively again and again, came back to my wife's failed political campaign in the state of virginia in
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2015, and consistently referred to that mistake that i made. leaders don't -- this was -- this was not a leader who was creating an environment of trust. these were obvious effort toscoes to coerce me to shift it to a loyalty to a person rather than to an ideal rather to the constitution. >> tonight, at 9:00 p.m. eastern on c-span former acting fbi director andrew mccabe who was fired by president trump. he speaks about his career in the fbi, the investigation into russian interference in the fent 16 election and his interactions with president bush. >> and we have more now from the defense department's advisory committee on sexual assault in the military. in this next portion the committee hears from a few of


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