Not Helping - How Congressional Tinkering Harms Victims during the Post-Trial Phase of a Court-Martial

Abstract

Congress made many changes to the Uniform Code of Military Justice (UCMJ) in the National Defense Authorization Act for Fiscal Year 2014. Among these are two changes to Article 60 of the UCMJ that address the participation of victims in the post-trial phase of a court-martial.The first change enacts an explicit requirement that a victim have the opportunity to submit matters to a convening authority (the military commander who acts on the results of a court-martial). The second change prohibits a convening authority from considering any submitted matter that relates to the character of a victim unless that matter was admitted into evidence during the trial.Broadly captioned as enabling victim participation in the clemency phase of a court-martial, these two changes add little while subtracting much. Victim submissions to a convening authority are nothing new; the UCMJ has always permitted such submissions as part of a convening authority’s review of the sentence imposed by a court-martial. But the censorship of submissions that relate to a victim’s character is a unique limitation on the scope of that review. As such, these changes impose significant costs while yielding few benefits, and rather than helping victims of offenses tried by courts-martial they will prove detrimental to both victims and their victimizers.