Victim and Witness Assistance, 23473-23486 [2020-07608]

Agencies

• DEPARTMENT OF DEFENSE
• Office of the Secretary

[Federal Register Volume 85, Number 82 (Tuesday, April 28, 2020)]
[Rules and Regulations]
[Pages 23473-23486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07608]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 114

[Docket ID: DOD-2014-OS-0131]
RIN 0790-AJ31


Victim and Witness Assistance

AGENCY: Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)), DoD.

ACTION: Final rule.

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SUMMARY: This final rule adds a part to the Code of Federal Regulations 
which assists victims and witnesses of alleged crimes committed in 
violation of the Uniform Code of Military Justice (UCMJ), and discusses 
the rights of crime victims under the UCMJ which are more extensive 
than those of witnesses. The rule also describes notification and 
assistance available to victims and witnesses of crime from initial 
contact with the local responsible official, law enforcement officer, 
or criminal investigation officer through the investigation of the 
crime and the prosecution, acquittal or confinement, and release of the 
accused. Finally, the rule includes annual reporting requirements for 
assistance provided across the DoD to victims of and witnesses to sex-
related crime, and legal assistance for sex-related crime victims.

DATES: This rule is effective on May 28, 2020.

FOR FURTHER INFORMATION CONTACT: Lt Col Ryan A. Hendricks, Office of 
Legal Policy, 703-571-9301.

SUPPLEMENTARY INFORMATION: 

Background

    The Military Services are required to provide legal counsel, known 
as Special Victims' Counsel/Victims' Legal Counsel (SVC/VLC), to assist 
victims of alleged sex-related offenses under Articles 120, 120a, 120b, 
120c, and 125 of the UCMJ, to include victims of alleged attempts to 
commit the enumerated offenses, who are eligible for legal assistance. 
The Military Services are also required to establish a special victim 
capability comprised of specially trained criminal investigators, judge 
advocates, paralegals, and victim/witness assistance personnel to 
support victims of covered special victim offenses. To de-conflict with 
victims' counsel programs, this distinct group of recognizable 
professionals will be referred to, at the DoD level, as the ``Special 
Victim Investigation and Prosecution (SVIP)'' capability.

Authority

    This rule implements all of the following requirements under law: 
10 U.S.C. chapter 47, the UCMJ; 10 U.S.C. 1034, 1044, 1044e 1058, 1059, 
and 1408; 18 U.S.C. 1514; and section 573 of Public Law 112-239, 
requiring the Military Services to establish a special victim 
capability comprised of specially trained investigators, judge 
advocates, paralegals, and victim witness assistance personnel to 
support victims of covered alleged offenses. Sections 1701 and 1716 of 
Public Law 113-66 strengthened the rights of victims of alleged crimes 
committed under the UCMJ, and provided for the designation of SVC/VLC 
for victims of covered offenses. Section 533 of Public Law 113-291 
extended eligibility for SVC/VLC services to members of a reserve 
component of the armed forces.

Major Provisions of the Regulatory Action

    This rule describes the responsibilities that the USD(P&R), 
Inspector General of the Department of Defense, and other DoD component 
heads have when dealing with the procedures described in the regulatory 
text. The rule also discusses procedures involving local responsible 
officials, comprehensive information and services to be provided to 
victims and witnesses, SVIP capability, legal assistance for crime 
victims, and special victims' counsel programs.
    This regulation: (1) Provides a complete victim and witness 
assistance policy, to ensure the consistent and effective management of 
DoD victim and witness assistance programs operated by DoD Components. 
The final rule implements statutory requirements for the DoD victim 
assistance programs. It revises the rights for crime victims of alleged 
offenses committed under the UCMJ, requires the Military Services to 
create enforcement mechanisms, provides for legal assistance for crime 
victims entitled to legal services, requires that Military Services 
provide SVC/VLC to assist victims of covered alleged offenses, and 
further implements the SVIP capability, which provides enhanced support 
to victims of sexual assault, serious domestic violence, and child 
abuse alleged offenses. VWAP provides guidance for assisting victims 
and witnesses of alleged crimes from initial contact through 
investigation, prosecution, confinement, and release, until the victim 
specifies to the local responsible official that he or she no longer 
requires or desires services. Particular attention is paid to victims 
of serious and violent alleged crimes, including child abuse, domestic 
violence, and sexual assault.
    (2) Strengthens the rights of crime victims in the military justice 
system and requires the establishment mechanisms for enforcement of 
these rights in each Military Department, in accordance with section 
1701 of Public Law 113-66. These provisions ensure victims have a right 
to be reasonably heard at public hearings concerning the continuation 
of confinement before the trial of the accused, preliminary hearings 
under section 832 (Article 32) of the UCMJ, and court-martial 
proceedings relating to the Military Rules of Evidence (M.R.E.) 412, 
513, and 514 of the Manual for Courts-Martial (MCM) (available at 
https://www.apd.army.mil/pdffiles/mcm.pdf) and that all victims are 
treated with fairness and respect for their dignity and privacy.
    (3) Orients victims and witnesses to the military justice system, 
about the military criminal justice process, on the role of the victim 
or witness in the process, and how the victim or witness can obtain 
additional information concerning the process and the case.
    (4) Provides for timely notification of information and assistance 
available to victims and witnesses of alleged crimes from initial 
contact through investigation, prosecution, and confinement.

[[Page 23474]]

    (5) Enables victims to confer with the attorney for the U.S. 
Government in the case before preliminary and trial proceedings, and to 
express their views to the commander or convening authority as to 
disposition of the case.
    (6) Assists victims with prompt return of personal property held as 
evidence during a military criminal investigation and court-martial.
    (7) Provides eligible victims and military families with access to 
transitional compensation in accordance with Federal law and 32 CFR 
part 111, ``Transitional Compensation for Abused Dependents.'' Internal 
DoD policy related to that program is contained in DoD Instruction 
1342.24 of the same name (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/134224p.pdf).
    (8) Ensures victims are aware of procedures to receive restitution 
as provided in accordance with State, local, and Federal crime victims' 
funds, and the procedures for applying for such funds. Restitution may 
also be available from, or offered by, an accused as a condition in the 
terms of a pretrial agreement, during the sentencing process, or as a 
part of post-trial clemency requests under Rule for Courts-Martial 
1105, of the MCM. Under Article 139, UCMJ, victims may also be provided 
with relief if the property loss or damage resulted from wrongful 
taking or willful damage by a member of the Armed Forces due to 
riotous, violent, or disorderly conduct.
    (9) Mandates compliance with DoD standards for victim assistance 
services in the military community established in DoD Instruction 
6400.07 ``Standards for Victim Assistance Services in the Military 
Community,'' November 25, 2013, as revised (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/640007p.pdf?ver=2018-07-06-073608-400).
    (10) Provides that crime victims who are entitled to military legal 
assistance under sections 1044 and 1044e of title 10, U.S.C., and as 
further prescribed by the Military Departments and National Guard 
Bureau policies, may consult with a military legal assistance attorney.
    (11) Provides legal counsel, known as Special Victims' Counsel or 
Victims' Legal Counsel (SVC/VLC), to assist victims of alleged sex-
related offenses in violation of Articles 120, 120a, 120b, 120c, and 
125 (before January 1, 2019) of the UCMJ, and attempts to commit any of 
these offenses under Article 80 of the UCMJ, regardless of whether the 
report of the offense is restricted or unrestricted. Individuals 
entitled to SVC/VLC representation include any of the following:
    (a) Individuals eligible for military legal assistance under 
sections 1044 and 1044e of title 10, U.S.C., and as further prescribed 
by the Military Departments' and National Guard Bureau policies.
    (b) Members of a reserve component of the armed forces, in 
accordance with section 533 of the National Defense Authorization Act 
for Fiscal Year 2015, and as further prescribed by the Military 
Departments and National Guard Bureau policies.
    (12) Establishes a SVIP capability in each Military Service 
comprised of specially trained criminal investigators, judge advocates, 
paralegals, and victim and witness assistance personnel to work with 
specially trained military criminal investigators to support victims of 
alleged adult sexual assault, domestic violence, and child abuse. To 
de-conflict with the names of SVC/VLC programs, this distinct group of 
recognizable professionals will be referred to as SVIP at the DoD 
level. Ensures SVIP training programs meet established DoD and Military 
Service standards for special prosecutors, paralegals, VWAP 
coordinators and providers, and legal support personnel.
    (13) Establishes local Victim and Witness Assistance Councils, when 
practicable, at each military installation, to ensure victim and 
witness service providers follow an interdisciplinary approach. This 
will ensure effective coordination between VWAP coordinators and DoD 
personnel providing related services, including sexual assault 
prevention and response coordinators, family advocacy personnel, 
military treatment facility health care providers and emergency room 
personnel, family service center personnel, chaplains, military equal 
opportunity personnel, judge advocates, SVC/VLCs, unit commanding 
officers, corrections personnel, and other persons designated by the 
Secretaries of the Military Departments.
    (14) Maintains annual reporting requirements on assistance provided 
across the DoD to victims and witnesses of alleged crimes, which will 
be provided to the Department of Justice Office of Victims of Crime and 
the Bureau of Justice Statistics.

Comments and Responses

    On May 22, 2015, the Department of Defense published a proposed 
rule titled ``Victim and Witness Assistance'' (80 FR 29571-29582) for a 
60-day public comment period. This section addresses the three public 
comments received. No changes were made to the rule based on public 
comment.
    Comment: Two respondents argued for extension of legal assistance 
to civilian victims with no military connection to ensure all victims 
can enforce their rights in the military justice process, not just 
those eligible for Special Victims' Counsel/Victims' Legal Counsel 
(SVC\VLC).
    Response: Congress amended 10 U.S.C. 1044e in the National Defense 
Authorization Act for Fiscal Year 2016 (section 532, Pub. L. 114-92) to 
specifically authorize Military Departments to provide civilian 
employees of the Department, who are victims of a sex-related offense, 
with SVC services. The proposed rule included the eligibility of 
civilian employees to receive SVC/VLC services at Sec.  114.6, 
paragraph (d)(i), because they are eligible under 10 U.S.C. 1044e. This 
content is located in this final rule at Sec.  114.6, paragraph (e)(i) 
due to the correction of a formatting error in the proposed rule.
    Comment: One respondent suggested amending the policy statement in 
Sec.  114.4, paragraph (c) to require each DoD Component to provide 
particular attention and support to victims of ``serious or violent 
crimes'' instead of ``serious, violent crimes.'' The respondent 
expressed concern that victims of serious financial crimes suffer grave 
harm and should be afforded the same basic rights of notification as 
other violent crimes. The respondent further recommended expressly 
including stalking as a crime and requested DoD require training on the 
dynamics and impact of stalking.
    Response: The rights of victims and witnesses are generally the 
same except that sexual assault victims have been granted some 
additional rights in recent years. Financial crime victims, therefore, 
have the same rights as other non-sexual assault victims. The list of 
training requirements is also not exhaustive and stalking could be 
included within the training on sexual assaults, domestic violence, or 
in the section on identifying safety concerns and specific needs of a 
victim. No changes were made to the rule text because the Department 
believes this rule sets minimum standards and permits the Military 
Departments some flexibility to tailor training as needed to maximize 
effectiveness for target populations and locations.
    Comment: One respondent called for dedicated Victim-Witness 
Liaisons (VWLs) in each prosecution office in order to relieve over-
burdened prosecutors from VWL duties.
    Response: The Department believes the Military Departments are 
well-suited

[[Page 23475]]

to determine the best allocation of their resources to fulfill 
requirements.
    Comment: One respondent requested clarification on the interaction 
between the Freedom of Information Act and the Privacy Act, and 
specific identification of what documents may be provided to victims.
    Response: The comment is too broad and encompasses too many 
variable possibilities to provide a narrow answer. The Department 
prioritizes protecting personally identifying information, and/or 
sensitive personal information. However, the Department shall comply 
with the established law under both the Freedom of Information Act and 
the Privacy Act in responding to requests for information related to 
the former. Additional information about the Department's 
implementation of the Freedom of Information Act is available at 32 CFR 
part 286, and its implementation of the Privacy Act is available at 32 
CFR part 310.
    Comment: One respondent expressed concern that the forms referenced 
in this policy blur the rights of victims and witnesses and 
insufficiently distinguish trial rights from those that may exist in 
administrative forums.
    Response: The Department appreciates this feedback on the forms and 
will consider it when the forms are next revised.
    Comment: One respondent requested further guidance on designations 
of guardians when there are no appropriate family members to be 
designated.
    Response: The Department believes the final rule provides 
sufficient guidance and considerations for the appropriate designations 
of guardians. This guidance can be found in Sec.  114.6(c)(11)(ii) of 
this final rule.

Additional Edits

    Following further coordination within the Department of Defense, 
edits were made to correct citations, clarify provisions, improve the 
accuracy of the sample letter in Figure 1, and harmonize the rule with 
the following Department of Defense Forms: DD Form 2701, ``Initial 
Information for Victims and Witnesses of Crime'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2701.pdf); DD Form 
2702, ``Court-Martial Information for Victims and Witnesses of Crime 
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2702.pdf); DD Form 2703, ``Post-Trial Information for Victims and 
Witnesses of Crime'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2703.pdf); DD Form 2704, ``Victim/Witness 
Certification and Election Concerning Prisoner Status'' (available at 
https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2704.pdf); 
DD Form 2704-1, ``Victim Election of Post-Trial Rights'' (one 
finalized, will be made available at https://www.esd.whs.mil/Directives/forms/dd2500_2999/); DD Form 2705, ``Notification to Victim/
Witness of Prisoner Status'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2705.pdf); and DD Form 2706, 
``Annual Report on Victim and Witness Assistance'' (available at 
https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2706.pdf).
    Additional edits to the provision regarding who can assume the 
rights of a victim who is under 18 years of age, incompetent, 
incapacitated, or deceased were made to comply with the National 
Defense Authorization Act (NDAA) for Fiscal Year 2017 (section 5105, 
Pub. L. 114-328). Previously, NDAA Fiscal Year 2015 language required a 
military judge to make such a designation even if a civilian judge 
already made a legal designation, or if there are already legal 
guardians and no one disputes who should act for the victim. The NDAA 
Fiscal Year 2017 language removes the requirement of the military judge 
designation, and Sec.  114.6(c)(11) was edited to remove text relating 
to the military judge.
    Section 114.6(b)(1), ``Rights of crime victims,'' was also amended 
to include additional victims' rights provided by 18 U.S.C. 3772 and 
page 758 of the NDAA Fiscal Year 2015. These rights pertain to medical 
forensic examinations, sexual assault evidence collection kits, and the 
victim's preference for whether prosecution occurs in a military or 
civilian court. Publishing these amendments for public comment is 
impracticable, unnecessary, and contrary to public interest because the 
amendments are based upon a decision made by Congress which DoD has no 
discretion to alter or expand upon.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule is not a ``significant regulatory action,'' 
under Section 3(f) of E.O. 12866 and was reviewed by the Office of 
Management and Budget.

Executive Order 13771, ``Reducing Regulation and Controlling Regulatory 
Costs''

    The rule is not expected to be an E.O. 13771 regulatory action, 
because it is not significant under E.O. 12866.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. We will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. This final rule is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
(Pub. L. 104-4) requires agencies assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any 1 year 
of $100 million in 1995 dollars, updated annually for inflation. This 
rule will not mandate any requirements for State, local, or tribal 
governments, nor will it affect private sector costs.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    The Department of Defense certifies that this final rule is not 
subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it 
would not, if promulgated, have a significant economic impact on a 
substantial number of small entities. Therefore, the Regulatory 
Flexibility Act, as amended, does not require DoD to prepare a 
regulatory flexibility analysis.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3520) applies to 
collections of information using

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identical questions posed to, or reporting or recordkeeping 
requirements imposed on, ten or more members of the public. This rule 
does not impose requirements under the PRA.

Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a final rule that imposes 
substantial direct requirement costs on State and local governments, 
preempts State law, or otherwise has Federalism implications. This 
final rule will not have a substantial effect on State and local 
governments.

List of Subjects in 32 CFR Part 114

    Child welfare, Military law, Uniform Code of Military Justice.


0
Accordingly, 32 CFR part 114 is added to read as follows:

PART 114--VICTIM AND WITNESS ASSISTANCE

Sec.
114.1 Purpose.
114.2 Applicability.
114.3 Definitions.
114.4 Policy.
114.5 Responsibilities.
114.6 Procedures.

    Authority:  10 U.S.C. chapter 47; 10 U.S.C. 113, 1034, 1044, 
1044e, 1058, 1059, and 1408; 18 U.S.C. 1512 through 1514; section 
573 of Pub. L. 112-239, 126 Stat. 1632; sections 1701 and 1706 of 
Pub. L. 113-66, 127 Stat. 672; and section 533 of Pub. L. 113-291, 
128 Stat. 3292.


Sec.  114.1   Purpose.

    This part:
    (a) Establishes policy, assigns responsibilities, and prescribes 
procedures to assist victims and witnesses of alleged crimes committed 
in violation of 10 U.S.C. chapter 47, also known and referred to in 
this part as the Uniform Code of Military Justice (UCMJ).
    (b) Establishes policy, assigns responsibilities, and prescribes 
procedures for:
    (1) The rights of crime victims under the UCMJ and required 
mechanisms for enforcement, in accordance with section 1701 of Public 
Law 113-66, ``National Defense Authorization Act for Fiscal Year 
2014,'' and in accordance with DoD standards for victim witness 
assistance services in the military community established in DoD 
Instruction 6400.07, ``Standards for Victim Assistance Services in the 
Military Community,'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/640007p.pdf?ver=2018-07-06-073608-400).
    (2) Providing timely notification of information and assistance 
available to victims and witnesses of crime from initial contact 
through investigation, prosecution, and confinement in accordance with 
18 U.S.C. 1512 through 1514, 32 CFR part 286, ``DoD Freedom of 
Information Act (FOIA) Program,'' 32 CFR part 111, ``Transitional 
Compensation for Abused Dependents,'' DoD Instruction 1325.07, 
``Administration of Military Correctional Facilities and Clemency and 
Parole Authority,'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/132507p.pdf?ver=2019-02-19-075650-100), DoD 
Directive 7050.06, ``Military Whistleblower Protection,'' (available at 
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/705006p.pdf), and 10 U.S.C. 113, 1034, 1059, and 1408; and section 1706 
of Public Law 113-66.
    (3) Annual reporting requirements on assistance provided across the 
DoD to victims and witnesses of alleged crimes.
    (c) Provides for legal assistance for crime victims entitled to 
such services pursuant to 10 U.S.C. 1044 and 1044e, and in accordance 
with Under Secretary of Defense for Personnel and Readiness (USD(P&R)) 
Memorandum, ``Legal Assistance for Victims of Crimes'' (available at 
https://www.sapr.mil/public/docs/directives/Legal_Assistance_for_Victims_of_Crime-Memo.pdf), and 10 U.S.C. 1565b, 
and as further prescribed by the Military Departments and National 
Guard Bureau policies.
    (d) Adopts section 573 of Public Law 112-239, ``The National 
Defense Authorization Act for Fiscal Year 2013,'' January 2, 2013, 
requiring each Military Service to establish a special victim 
capability comprised of specially trained criminal investigators, judge 
advocates, paralegals, and victim and witness assistance personnel to 
support victims of covered special victim offenses. To de-conflict with 
victims' counsel programs, this distinct group of recognizable 
professionals will be referred to, at the DoD level, as the Special 
Victim Investigation and Prosecution (SVIP) capability.
    (e) Adopts the victim and witness portion of the special victim 
capability in accordance with) DoDI 5505.19, ``Establishment of Special 
Victim Investigation and Prosecution (SVIP) Capability within the 
Military Criminal Investigative Organizations (MCIOs),'' March 23, 2017 
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/550519p.pdf?ver=2019-08-12-152401-387), and Directive-
type Memorandum (DTM) 14-003, ``DoD Implementation of Special Victim 
Capability (SVC) Prosecution and Legal Support,'' February 12, 2014, 
Incorporating Change 6, August 15, 2019 (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dtm/DTM-14-003.pdf?ver=2019-08-15-102432-590).
    (f) Adopts section 1716 of Public Law 113-66, and section 533 of 
the National Defense Authorization Act for 2015 (NDAA 2015), requiring 
the Military Services to provide legal counsel, known as Special 
Victims' Counsel or Victims' Legal Counsel, (SVC/VLC) to assist victims 
of alleged sex-related offenses in violation of Articles 120, 120a, 
120b, 120c, 125 (before January 1, 2019) of the UCMJ, and attempts to 
commit any of these offenses under Article 80 of the UCMJ, who are 
eligible for legal assistance in accordance with 10 U.S.C. 1044 and 
1044e, and as further prescribed by the Military Departments and 
National Guard Bureau policies.


Sec.  114.2   Applicability.

    This part applies to any military or civilian victims or witnesses 
of alleged offenses under the UCMJ. This part also applies to OSD, the 
Military Departments, the Office of the Chairman of the Joint Chiefs of 
Staff and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the Department of Defense, the Defense Agencies, 
the DoD Field Activities, and all other organizational entities within 
the DoD (referred to collectively in this part as the ``DoD 
Components'').


Sec.  114.3   Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this part:
    _Central repository. A headquarters office, designated by Service 
regulation, to serve as a clearinghouse of information on a confinee's 
status and to collect and report data on the delivery of victim and 
witness assistance, including notification of confinee status changes.
    _Confinement facility victim witness assistance coordinator. A 
staff member at a military confinement facility who is responsible for 
notifying victims and witnesses of changes in a confinee's status and 
reporting those notifications to the central repository.
    _Court proceeding. A preliminary hearing held pursuant to Article 
32 of the UCMJ; a hearing under Article 39(a) of the UCMJ; a court-
martial; a military presentencing hearing; or a military appellate 
hearing. Conferences, such as those between attorneys and the military 
judge pursuant to Rule for

[[Page 23477]]

Courts-Martial (R.C.M.) 802 or between attorneys and preliminary 
hearing officers pursuant to Article 32, are not court proceedings for 
purposes of this part. If all or part of a court proceeding has been 
closed to the public by the military judge, preliminary hearing 
officer, or other official, the victims and witnesses will still be 
notified of the closed hearing as provided in this part, and of the 
reasons for the closure. In such a case, the military judge, 
preliminary hearing officer, or other official may place reasonable 
limits on the reasons disclosed, if such limits are necessary to 
protect the safety of any person, the fairness of the proceeding, or 
are otherwise in the interests of national security.
    _DoD Component responsible official. Person designated by each DoD 
Component head to be primarily responsible in the DoD Component for 
coordinating, implementing, and managing the victim and witness 
assistance program established by this part.
    _Equal opportunity. The right of all persons to participate in, and 
benefit from, programs and activities for which they are qualified. 
These programs and activities will be free from social, personal, or 
institutional barriers that prevent people from rising to the highest 
level of responsibility possible. Persons will be evaluated on 
individual merit, fitness, and capability, regardless of race, color, 
sex, national origin, or religion.
    _Local responsible official. Person designated by the DoD Component 
responsible official who has primary responsibility for identifying 
victims and witnesses of crime and for coordinating the delivery of 
services described in this part through a multidisciplinary approach. 
The position or billet of the local responsible official will be 
designated in writing by Service regulation. The local responsible 
official may delegate responsibilities in accordance with this part.
    _Local Victim and Witness Assistance Council. A regular forum held 
at the DoD installation, or regional command level, that promotes 
efficiencies, coordinates victim assistance-related programs, and 
assesses the implementation of victim assistance standards and victim 
assistance-related programs, in accordance with this part, DoD 
Instruction 6400.07, and any other applicable Service guidance.
    _Military Department Clemency and Parole Board. In accordance with 
DoD Instruction 1325.07, a board which assists the Military Department 
Secretary as the primary authority for administration and execution of 
clemency, parole, and mandatory supervised release policy and programs.
    _Military services. Refers to the Army, the Navy, the Air Force, 
and the Marine Corps, the Coast Guard, and the Reserve Components, 
which include the Army and Air National Guards of the United States.
    _Protected communication. (1) Any lawful communication to a Member 
of Congress or an IG.
    (2) A communication in which a member of the Armed Forces 
communicates information that the member reasonably believes evidences 
a violation of law or regulation, including a law or regulation 
prohibiting sexual harassment or unlawful discrimination, gross 
mismanagement, a gross waste of funds or other resources, an abuse of 
authority, or a substantial and specific danger to public health or 
safety, when such communication is made to any of the following:
    (i) A Member of Congress, an IG, or a member of a DoD audit, 
inspection, investigation, or law enforcement organization.
    (ii) Any person or organization in the chain of command; or any 
other person designated pursuant to regulations or other established 
administrative procedures to receive such communications.
    _Reprisal. Taking or threatening to take an unfavorable personnel 
action, or withholding or threatening to withhold a favorable personnel 
action, for making or preparing to make a protected communication.
    _Restricted reporting. Defined in 32 CFR part 103.
    _Special victim investigation and prosecution (SVIP) capability. A 
distinct, recognizable group of appropriately skilled professionals, 
consisting of specially trained and selected military criminal 
investigative organization (MCIO) investigators, judge advocates, 
victim witness assistance personnel, and administrative paralegal 
support personnel who work collaboratively to:
    (1) Investigate allegations of adult sexual assault, domestic 
violence involving sexual assault and/or aggravated assault with 
grievous bodily harm, and child abuse involving sexual assault and/or 
aggravated assault with grievous bodily harm.
    (2) Provide support for the victims of such covered offenses.
    _Special victim offenses. The designated criminal offenses of 
sexual assault, domestic violence involving sexual assault, and/or 
aggravated assault with grievous bodily harm, and child abuse involving 
sexual assault and/or aggravated assault with grievous bodily harm, in 
violation of the UCMJ. Sexual assault includes offenses under Articles 
120 (rape and sexual assault in general), 120b (rape and sexual assault 
of a child), and 120c (other sexual misconduct), or forcible sodomy 
under Article 125 (before January 1, 2019) of the UCMJ or attempts to 
commit such offenses under Article 80 of the UCMJ. Aggravated assault 
with grievous bodily harm, in relation to domestic violence and child 
abuse cases, includes an offense as specified under Article 128 of the 
UCMJ (assault). The Military Services and National Guard Bureau may 
deem other UCMJ offenses appropriate for SVIP support, based on the 
facts and circumstances of specific cases, and the needs of victims.
    _Special Victims' Counsel/Victims' Legal Counsel (SVC/VLC). Legal 
counsel provided to assist eligible victims of alleged sex-related 
offenses in violation of Articles 120, 120a, 120b, 120c, and 125 
(before January 1, 2019) of the UCMJ and attempts to commit any of 
these offenses under Article 80 of the UCMJ (or other offenses as 
defined by the Military Services), in accordance with 10 U.S.C. 1044, 
1044e, and 1565b; section 1716 of Public Law 113-66; and section 533 of 
Public Law 113-291.
    _Specially trained prosecutors. Experienced judge advocates 
detailed by Military Department Judge Advocates Generals (TJAGs), the 
Staff Judge Advocate to the Commandant of the Marine Corps, or other 
appropriate authority to litigate or assist with the prosecution of 
special victim cases and provide advisory support to MCIO investigators 
and responsible legal offices. Before specially trained prosecutors are 
detailed, their Service TJAG, Staff Judge Advocate to the Commandant of 
the Marine Corps, or other appropriate authority has determined they 
have the necessary training, maturity, and advocacy and leadership 
skills to carry out those duties.
    _Unrestricted reporting. Defined in 32 CFR part 103.
    _Victim. A person who has suffered direct physical, emotional, or 
pecuniary harm as a result of the commission of a crime committed in 
violation of the UCMJ. Victim assistance is limited to individuals 
eligible for military legal assistance under 10 U.S.C. 1044 and 1044e, 
and as further prescribed by the Military Departments' and National 
Guard Bureau's policies. Federal Departments and State and local 
agencies, as entities, are not eligible for services available to 
individual victims.

[[Page 23478]]

    _Victim assistance personnel. Personnel who are available to 
provide support and assistance to victims of alleged crimes consistent 
with their assigned responsibilities and in accordance with this part. 
They include part-time, full-time, collateral duty, and other 
authorized individuals, and may be domestic violence or sexual assault 
prevention and response coordinators (to include unit and uniformed 
victim advocates), Sexual Assault Response Coordinators, victim-witness 
assistance personnel, or military equal opportunity advisors.
    _Victim assistance-related programs. The SAPR Program; FAP; and the 
VWAP. A complainant under the DoD MEO Program may be referred by the 
MEO office to one of the victim assistance-related programs for 
additional assistance.
    _Witness. A person who has information or evidence about a criminal 
offense within the investigative jurisdiction of a DoD Component and 
who provides that knowledge to a DoD Component. When the witness is a 
minor, that term includes a parent or legal guardian, or other person 
responsible for the child. The term does not include an individual 
involved in the crime as an alleged perpetrator or accomplice.


Sec.  114.4   Policy.

    It is DoD policy that:
    (a) The DoD is committed to protecting the rights of victims and 
witnesses of alleged crimes and supporting their needs in the criminal 
justice process. The DoD Components will comply with all statutory and 
policy mandates and will take all additional actions within the limits 
of available resources to assist victims and witnesses of alleged 
crimes without infringing on the constitutional or other legal rights 
of a suspect or an accused.
    (b) DoD victim assistance services will focus on the victim and 
will respond, protect, and care for the victim from initiation of a 
report through offense disposition, if applicable, and will continue 
such support until the victim is no longer eligible for such services 
or the victim specifies to the local responsible official that he or 
she no longer requires or desires services.
    (c) Each DoD Component will provide particular attention and 
support to victims of serious, violent alleged crimes, including child 
abuse, domestic violence, and sexual assault. In order to ensure the 
safety of victims, and their families, victim assistance personnel 
shall respect the dignity and the privacy of persons receiving 
services, and carefully observe any safety plans and military or 
civilian protective orders in place.
    (d) Victim assistance services must meet DoD competency, ethical, 
and foundational standards established in DoD Instruction 6400.07, 
``Standards for Victim Assistance Services in the Military Community,'' 
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/640007p.pdf).
    (e) Making or preparing to make or being perceived as making or 
preparing to make a protected communication, to include reporting a 
violation of law or regulation, including a law or regulation 
prohibiting rape, sexual assault, or other sexual misconduct, in 
violation of 10 U.S.C. 920 through 920c, sexual harassment, or unlawful 
discrimination, in accordance with 10 U.S.C. 1034, section 1709 of 
Public Law 113-66, and DoD Directive 7050.06, ``Military Whistleblower 
Protection,'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/705006p.pdf), shall not result in reprisal 
activity from management officials.
    (f) This part is not intended to, and does not, create any 
entitlement, cause of action, or defense at law or in equity, in favor 
of any person or entity arising out of the failure to accord to a 
victim or a witness the assistance outlined in this part. No 
limitations are hereby placed on the lawful prerogatives of the DoD or 
its officials.


Sec.  114.5   Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)):
    (1) Establishes overall policy for victim and witness assistance 
and monitors compliance with this part.
    (2) Approves procedures developed by the Secretaries of the 
Military Departments that implement and are consistent with this part.
    (3) Maintains the DoD Victim Assistance Leadership Council, in 
accordance with DoD Instruction 6400.07, which advises the Secretary of 
Defense on policies and practices related to the provision of victim 
assistance and provides a forum that promotes efficiencies, coordinates 
victim assistance-related policies, and assesses the implementation of 
victim assistance standards across the DoD's victim assistance-related 
programs.
    (4) Submits an annual report to the Office for Victims of Crime, 
Department of Justice, identifying the number of specified 
notifications made to victims and witnesses of alleged crimes.
    (b) The Director, DoD Human Resources Activity, through the Defense 
Manpower Data Center, and under the authority, direction, and control 
of the USD(P&R), assists in formulating a data collection mechanism to 
track and report victim notifications from initial contact through 
investigation to disposition, to include prosecution, confinement, and 
release.
    (c) The Inspector General of the Department of Defense (DoD IG):
    (1) Establishes investigative policy and performs appropriate 
oversight reviews of the management of the Victim Witness Assistance 
Program (VWAP) by the DoD military criminal investigative organizations 
(MCIOs). This is not intended to substitute for the routine managerial 
oversight of the program provided by the MCIOs, the USD(P&R), the DoD 
Component heads, the DoD Component responsible officials, or the local 
responsible officials.
    (2) Investigates and oversees DoD Component Inspector General 
investigations of allegations or reprisal for making or preparing to 
make or being perceived as making or preparing to make a protected 
communication, in accordance with 10 U.S.C. 1034.
    (d) The DoD Component heads:
    (1) Ensure compliance with this part, and establish policies and 
procedures to implement the VWAP within their DoD Components.
    (2) Designate the DoD Component responsible official for the VWAP, 
who will report annually to the USD(P&R) using DD Form 2706, ``Victim 
and Witness Assistance Annual Report'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2706.pdf)
    (3) Provide for the assignment of personnel in sufficient numbers 
to enable those programs identified in the 10 U.S.C. 113 note to be 
carried out effectively.
    (4) Designate a central repository for confinee information for 
each Military Service, and establish procedures to ensure victims who 
so elect are notified of changes in inmate status.
    (5) Maintain a Victim and Witness Assistance Council, when 
practicable, at each military installation, to ensure victim and 
witness service providers follow an interdisciplinary approach. These 
providers may include chaplains, sexual assault prevention and response 
personnel, family advocacy personnel, military treatment facility 
health care providers and emergency room personnel, family service 
center personnel, military equal opportunity personnel, judge 
advocates, SVC/VLCs, unit commanding officers, corrections personnel, 
and other persons designated by the Secretaries of the Military 
Departments.

[[Page 23479]]

    (6) Maintain training programs to ensure Victim Witness Assistance 
Program (VWAP) providers receive instruction to assist them in 
complying with this part. Training programs will include specialized 
training for VWAP personnel assigned to the SVIP capability, in 
accordance with Sec.  114.6(c).
    (7) Designate local responsible officials in writing in accordance 
with Military Service regulations and Sec.  114.6(a)(1).
    (8) Maintain oversight procedures to ensure establishment of an 
integrated support system capable of providing the services outlined in 
Sec.  114.6, and meet the competency, ethical, and foundational 
standards established in DoD Instruction 6400.07. Such oversight may 
include coverage by DoD Component Inspectors General, staff assistance 
visits, surveys, and status reports.
    (9) Establish mechanisms for ensuring that victims are notified of 
and afforded the rights specified in the UCMJ, including the rights 
specified in Article 6b of the UCMJ (10 U.S.C. 806b) and R.C.M. 306.
    (10) Establish mechanisms for the enforcement of the rights 
specified in the UCMJ, including mechanisms for the application for 
such rights and for consideration and disposition of applications for 
such rights. At a minimum, such enforcement mechanisms will include the 
designation of an authority within each Military Service to receive and 
investigate complaints relating to the provision or violation of such 
rights and the establishment of disciplinary sanctions for responsible 
military and civilian personnel who wantonly fail to comply with the 
requirements relating to such rights.


Sec.  114.6   Procedures.

    (a) Local responsible officials. Local responsible officials:
    (1) Will coordinate to ensure that systems are in place at the 
installation level to provide information on available benefits and 
services, assist in obtaining those benefits and services, and provide 
other services required by this section.
    (2) May delegate their duties as appropriate, but retain 
responsibility to coordinate the delivery of required services.
    (3) May use an interdisciplinary approach involving the various 
service providers listed in paragraph (b)(7) of this section, to 
coordinate the delivery of information and services to be provided to 
victims and witnesses.
    (b) Comprehensive information and services to be provided to 
victims and witnesses--(1) Rights of crime victims. Personnel directly 
engaged in the prevention, detection, investigation, and disposition of 
offenses, to include courts-martial, including law enforcement and 
legal personnel, commanders, trial counsel, and staff judge advocates, 
will ensure that victims are accorded their rights in accordance with 
Article 6b of UCMJ. A crime victim has the right to:
    (i) Be reasonably protected from the accused offender.
    (ii) Be provided with reasonable, accurate, and timely notice of:
    (A) A public hearing concerning the continuation of confinement 
before the trial of the accused.
    (B) A preliminary hearing pursuant to Article 32 of the UCMJ 
relating to the offense.
    (C) A court-martial relating to the offense.
    (D) A public proceeding of the Military Department Clemency and 
Parole Board hearing relating to the offense.
    (E) The release or escape of the accused, unless such notice may 
endanger the safety of any person.
    (iii) Be present at, and not be excluded from any public hearing or 
proceeding described in paragraph (b)(1)(ii) of this section, unless 
the military judge or preliminary hearing officer of a hearing 
conducted pursuant to Article 32 of the UCMJ determines, after 
receiving clear and convincing evidence, that testimony by the victim 
would be materially altered if the victim observed that hearing or 
proceeding.
    (iv) Be reasonably heard, personally or through counsel at:
    (A) A public hearing concerning the continuation of confinement 
before the court-martial of the accused.
    (B) Preliminary hearings conducted pursuant to Article 32 of the 
UCMJ and court-martial proceedings relating to Rules 412, 513, and 514 
of the Military Rules of Evidence (M.R.E.) or regarding other rights 
provided by statute, regulation, or case law.
    (C) A public sentencing hearing relating to the offense.
    (D) A public Military Department Clemency and Parole Board hearing 
relating to the offense. A victim may make a personal appearance before 
the Military Department Clemency and Parole Board or submit an audio, 
video, or written statement.
    (v) Confer with the attorney for the U.S. Government in the case. 
This will include the reasonable right to confer with the attorney for 
the U.S. Government at any proceeding described in paragraph (b)(1)(ii) 
of this section.
    (A) Crime victims who are eligible for legal assistance may consult 
with a military legal assistance attorney in accordance with paragraph 
(c)(1) of this section.
    (B) Victims of an alleged offense under Articles 120, 120a, 120b, 
or 120c or forcible sodomy under the UCMJ or attempts to commit such 
offenses under Article 80 of the UCMJ, who are eligible for legal 
assistance per Military Department or National Guard Bureau policies or 
in accordance with 10 U.S.C. 1044 or 1044e, may consult with a SVC/VLC 
in accordance with paragraph (d)(1) of this section. Victims of these 
covered alleged offenses shall be informed by a sexual assault response 
coordinator (SARC), victim advocate, victim witness liaison, military 
criminal investigator, trial counsel, or other local responsible 
official that they have the right to consult with a SVC/VLC as soon as 
they seek assistance from the individual in accordance with 10 U.S.C. 
1565b, and as otherwise authorized by Military Department and National 
Guard Bureau policy.
    (C) All victims may also elect to seek the advice of a private 
attorney, at their own expense.
    (vi) Receive restitution as provided in accordance with State and 
Federal law.
    (vii) Proceedings free from unreasonable delay.
    (viii) Be treated with fairness and respect for his or her dignity 
and privacy.
    (ix) Express his or her views to the commander or convening 
authority as to disposition of the case.
    (x) Be prevented from, or charged for, receiving a medical forensic 
examination.
    (xi) Have a sexual assault evidence collection kit or its probative 
contents preserved, without charge.
    (xii) Be informed of any result of a sexual assault evidence 
collection kit, including a DNA profile match, toxicology report, or 
other information collected as part of a medical forensic examination, 
if such disclosure would not impede or compromise an ongoing 
investigation.
    (xiii) Be informed in writing of policies governing the collection 
and preservation of a sexual assault evidence collection kit.
    (xiv) Upon written request, receive written notification from the 
appropriate official with custody not later than 60 days before the 
date of the intended destruction or disposal.
    (xv) Upon written request, be granted further preservation of the 
kit or its probative contents.

[[Page 23480]]

    (xvi) Express a preference regarding whether the offense should be 
prosecuted by court-martial or in a civilian court with jurisdiction 
over the offense (for a victim of an alleged sex-related offense that 
occurs in the United States).
    (A) Victims expressing a preference for prosecution of the offense 
in a civilian court shall have the civilian authority with jurisdiction 
over the offense notified of the victim's preference for civilian 
prosecution by the convening authority.
    (B) The convening authority shall notify the victim of any decision 
by the civilian authority to prosecute or not prosecute the offense in 
a civilian court, if the convening authority learns of any decision.
    (2) Initial information and services. (i) Immediately after 
identification of a crime victim or witness, the local responsible 
official, law enforcement officer, or criminal investigation officer 
will explain and provide information to each victim and witness, as 
appropriate, including:
    (A) The DD Form 2701, ``Initial Information for Victims and 
Witnesses of Crime'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2701.pdf) or computer-generated equivalent will 
be used as a handout to convey basic information. Specific points of 
contact will be recorded on the appropriate form authorized for use by 
the particular Military Service.
    (B) Proper completion of this form serves as evidence that the 
local responsible official or designee, law enforcement officer, or 
criminal investigative officer notified the victim or witness of his or 
her rights, as described in paragraph (b)(1) of this section. The date 
the form is given to the victim or witness shall be recorded by the 
delivering official. This serves as evidence the victim or witness was 
timely notified of his or her statutory rights.
    (ii) The local responsible official will explain the form to 
victims and witnesses at the earliest opportunity. This will include:
    (A) Information about available military and civilian emergency 
medical and social services, victim advocacy services for victims of 
domestic violence or sexual assault, and, when necessary, assistance in 
securing such services.
    (B) Information about restitution or other relief a victim may be 
entitled to, and the manner in which such relief may be obtained.
    (C) Information to victims of intra-familial abuse offenses on the 
availability of limited transitional compensation benefits and possible 
entitlement to some of the active duty Service member's retirement 
benefits pursuant to 10 U.S.C. 1059 and 1408 and 32 CFR part 111.
    (D) Information about public and private programs available to 
provide counseling, treatment, and other support, including available 
compensation through Federal, State, and local agencies.
    (E) Information about the prohibition against intimidation and 
harassment of victims and witnesses, and arrangements for the victim or 
witness to receive reasonable protection from threat, harm, or 
intimidation from an accused offender and from people acting in concert 
with or under the control of the accused offender.
    (F) Information concerning military and civilian protective orders, 
as appropriate.
    (G) Information about the military criminal justice process, the 
role of the victim or witness in the process, and how the victim or 
witness can obtain additional information concerning the process and 
the case in accordance with section 1704 of Public Law 113-66. This 
includes an explanation of:
    (1) Victims' roles and rights during pretrial interviews with law 
enforcement, investigators, government counsel, and defense counsel and 
during preliminary hearings pursuant to Article 32 of the UCMJ, and 
section 1702 of Public Law 113-66.
    (2) Victims' rights when action is taken by the convening authority 
pursuant to Article 60 of the UCMJ, and during the post-trial/clemency 
phase of the process.
    (H) If necessary, assistance in contacting the people responsible 
for providing victim and witness services and relief.
    (I) If necessary, how to file a military whistleblower complaint 
with an Inspector General regarding suspected reprisal for making, 
preparing to make, or being perceived as making or preparing to make a 
protected communication in accordance with 10 U.S.C. 1034 and DoD 
Directive 7050.06.
    (J) Information about the victim's right to seek the advice of an 
attorney with respect to his or her rights as a crime victim pursuant 
to Federal law and DoD policy. This includes the right of Service 
members and their dependents to consult a military legal assistance 
attorney in accordance with paragraph (d)(1) of this section, or a SVC/
VLC in accordance with paragraph (e)(1) of this section.
    (3) Information to be provided during investigation of a crime. (i) 
If a victim or witness has not already received the DD Form 2701 from 
the local responsible official or designee, it will be provided by a 
law enforcement officer or investigator.
    (ii) Local responsible officials or law enforcement investigators 
and criminal investigators will inform victims and witnesses, as 
appropriate, of the status of the investigation of the crime, to the 
extent providing such information does not interfere with the 
investigation.
    (4) Information and services to be provided concerning the 
prosecution of a crime. (i) The DD Form 2702, ``Court-Martial 
Information for Victims and Witnesses of Crime'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2702.pdf) will be 
used as a handout to convey basic information about the court-martial 
process. The date it is given to the victim or witness shall be 
recorded by the delivering official. If applicable, the following will 
be explained and provided by the U.S. Government attorney, or designee, 
to victims and witnesses:
    (A) Notification of crime victims' rights, to include the victim's 
right to express views as to disposition of the case to the responsible 
commander and convening authority.
    (B) Notification of the victim's right to seek the advice of an 
attorney with respect to his or her rights as a crime victim pursuant 
to Federal law and DoD policy. This includes the right of service 
members and their dependents to consult a military legal assistance 
attorney in accordance with paragraph (d)(1) of this section or a SVC/
VLC in accordance with paragraph (e)(1) of this section.
    (C) Consultation concerning the decisions to prefer or not prefer 
charges against the accused offender and the disposition of the offense 
if other than a trial by court-martial.
    (D) Consultation concerning the decision to refer or not to refer 
the charges against the accused offender to trial by court-martial and 
notification of the decision to pursue or not pursue court-martial 
charges against the accused offender.
    (E) Notification of the initial appearance of the accused offender 
before a reviewing officer or military judge at a public pretrial 
confinement hearing or at a preliminary hearing in accordance with 
Article 32 of the UCMJ.
    (F) Notification of the release of the suspected offender from 
pretrial confinement.
    (G) Explanation of the court-martial process.
    (H) Before any court proceedings (as defined to include preliminary 
hearings conducted pursuant to Article 32 of the

[[Page 23481]]

UCMJ, pretrial hearings conducted pursuant to Article 39(a) of the 
UCMJ, trial, and presentencing hearings), help with locating available 
services such as transportation, parking, child care, lodging, and 
courtroom translators or interpreters that may be necessary to allow 
the victim or witness to participate in court proceedings.
    (I) During the court proceedings, a private waiting area out of the 
sight and hearing of the accused and defense witnesses. In the case of 
proceedings conducted aboard ship or in a deployed environment, provide 
a private waiting area to the greatest extent practicable.
    (J) Notification of the scheduling, including changes and delays, 
of a preliminary hearing conducted pursuant to Article 32 of the UCMJ, 
and each court proceeding the victim is entitled to or required to 
attend will be made without delay. On request of a victim or witness 
whose absence from work or inability to pay an account is caused by the 
alleged crime or cooperation in the investigation or prosecution, the 
employer or creditor of the victim or witness will be informed of the 
reasons for the absence from work or inability to make timely payments 
on an account. This requirement does not create an independent 
entitlement to legal assistance or a legal defense against claims of 
indebtedness.
    (K) Notification of the recommendation of a preliminary hearing 
officer when an Article 32 preliminary hearing is held.
    (L) Consultation concerning any decision to dismiss charges or to 
enter into a pretrial agreement.
    (M) Notification of the disposition of the case, to include the 
acceptance of a plea of ``guilty,'' the rendering of a verdict, the 
withdrawal or dismissal of charges, or disposition other than court-
martial, to specifically include non-judicial punishment under Article 
15 of the UCMJ, administrative processing or separation, or other 
administrative actions.
    (N) Notification to victims of the opportunity to present to the 
court at sentencing, in compliance with applicable law and regulations, 
a statement of the impact of the crime on the victim, including 
financial, social, psychological, and physical harm suffered by the 
victim. The right to submit a victim impact statement is limited to the 
sentencing phase and does not extend to the providence (guilty plea) 
inquiry before findings.
    (O) Notification of the offender's sentence and general information 
regarding minimum release date, parole, clemency, and mandatory 
supervised release.
    (P) Notification of the opportunity to receive a copy of 
proceedings. The convening authority or subsequent responsible official 
must authorize release of a copy of the record of trial without cost to 
a victim of sexual assault as defined in R.C.M. 1104 of the MCM and 
Article 54(e) of the UCMJ. Victims of offenses other than sexual 
assault, and witnesses of any offenses, may also receive a copy of the 
record of trial, without cost, as determined by the Military 
Departments, which may be on a case-by-case basis, in categories of 
cases, or on the basis of particular criteria, for example, when it 
might lessen the physical, psychological, or financial hardships 
suffered as a result of a criminal act.
    (ii) After court proceedings, the local responsible official will 
take appropriate action to ensure that property of a victim or witness 
held as evidence is safeguarded and returned as expeditiously as 
possible.
    (iii) Except for information that is provided by law enforcement 
officials and U.S. Government counsel in accordance with paragraphs 
(b)(3) and (4) of this section, requests for information relating to 
the investigation and prosecution of a crime (e.g., investigative 
reports and related documents) from a victim or witness will be 
processed in accordance with 32 CFR part 286.
    (iv) Any consultation or notification required by paragraph 
(b)(5)(i) of this section may be limited to avoid endangering the 
safety of a victim or witness, jeopardizing an ongoing investigation, 
disclosing classified or privileged information, or unduly delaying the 
disposition of an offense. Although the victim's views should be 
considered, this part is not intended to limit the responsibility or 
authority of the Military Service or the Defense Agency officials to 
act in the interest of good order and discipline.
    (5) Information and services to be provided on conviction. (i) 
Trial counsel will explain and provide services to victims and 
witnesses on the conviction of an offender in a court-martial. The DD 
Form 2703, ``Post-Trial Information for Victims and Witnesses of 
Crime'' (https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2703.pdf), will be used as a handout to convey basic information 
about the post-trial process.
    (ii) When appropriate, the following will be provided to victims 
and witnesses:
    (A) General information regarding the convening authority's action, 
the appellate process, the corrections process, work release, furlough, 
probation, parole, mandatory supervised release, or other forms of 
release from custody, and eligibility for each.
    (B) Specific information regarding the election to be notified of 
further actions in the case, to include the convening authority's 
action, hearings and decisions on appeal, changes in inmate status, and 
consideration for parole. The DD Form 2704, ``Victim/Witness 
Certification and Election Concerning Prisoner Status'' (available at 
https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2704.pdf) 
will be explained and used for victims and appropriate witnesses to 
elect to be notified of these actions, hearings, decisions, and changes 
in the offender's status in confinement. The DD Form 2704-1, ``Victim 
Election of Post-Trial Rights'' (under development, will be available 
at https://www.esd.whs.mil/Directives/forms/dd2500_2999/ once finalized) 
will be explained and used for victims to make elections about records 
of trial, submission of matters in clemency, and notifications of 
certain appellate proceedings.
    (1) For all cases resulting in a sentence to confinement, the DD 
Form 2704 will be completed and forwarded to the Service central 
repository, the gaining confinement facility, the local responsible 
official, and the victim or witness, if any, with appropriate 
redactions made by the delivering official.
    (i) Incomplete DD Forms 2704 received by the Service central 
repository must be accompanied by a signed memorandum detailing the 
reasons for the incomplete information, or they will be sent back to 
the responsible legal office for correction.
    (ii) Do not allow an inmate access to DD Forms 2704 or attach a 
copy of the forms to any record to which the inmate has access. Doing 
so could endanger the victim or witness.
    (2) For all cases resulting in conviction but no sentence to 
confinement, the DD Form 2704 will be completed and forwarded to the 
Service central repository, the local responsible official, and the 
victim or witness, if any.
    (3) For all convictions with a qualifying victim, a DD Form 2704-1 
will be completed for each victim and forwarded to the appropriate 
points of contact, as determined by the Military Department. This form 
may be included in the record of trial with appropriate redactions. If 
a qualifying victim personally signs and initials a declination to 
receive the record of trial or to submit matters in clemency, this form 
may satisfy the requirement for a

[[Page 23482]]

written waiver. See. Rules for Courts-Martial 1103(g)(3)(C) and 
1105A(f)(3).
    (4) The DD Forms 2704, 2704-1, and 2705, ``Notification to Victim/
Witness of Prisoner Status'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2705.pdf), are exempt from release 
in accordance with 32 CFR part 286.
    (C) Specific information regarding the deadline and method for 
submitting a written statement to the convening authority for 
consideration when taking action on the case in accordance with Article 
60 of the UCMJ and R.C.M. 1105A.
    (6) Information and services to be provided on entry into 
confinement facilities. (i) The victim and witness assistance 
coordinator at the military confinement facility will:
    (A) On entry of an offender into post-trial confinement, obtain the 
DD Form 2704 to determine victim or witness notification requirements. 
If the form is unavailable, ask the Service central repository whether 
any victim or witness has requested notification of changes in inmate 
status in the case.
    (B) When a victim or witness has requested notification of changes 
in inmate status on the DD Form 2704, and one of the events listed in 
paragraph (b)(6) of this section occurs, use the DD Form 2705, 
``Notification to Victim/Witness of Prisoner Status,'' to notify the 
victim or witness.
    (1) The date the DD Form 2705 is given to the victim or witness 
shall be recorded by the delivering official. This serves as evidence 
that the officer notified the victim or witness of his or her statutory 
rights.
    (2) Do not allow the inmate access to DD Form 2705 or attach a copy 
of the forms to any record to which the inmate has access. Doing so 
could endanger the victim or witness.
    (C) Provide the earliest possible notice of:
    (1) The scheduling of a clemency or parole hearing for the inmate.
    (2) The results of the Service Clemency and Parole Board.
    (3) The transfer of the inmate from one facility to another.
    (4) The escape, immediately on escape, and subsequent return to 
custody, work release, furlough, or any other form of release from 
custody of the inmate.
    (5) The release of the inmate to supervision.
    (6) The death of the inmate, if the inmate dies while in custody or 
under supervision.
    (7) A change in the scheduled release date of more than 30 days 
from the last notification due to a disposition or disciplinary and 
adjustment board.
    (D) Make reasonable efforts to notify all victims and witnesses who 
have requested notification of changes in inmate status of any 
emergency or special temporary home release granted an inmate.
    (E) On transfer of an inmate to another military confinement 
facility, forward the DD Form 2704 to the gaining facility, with an 
information copy to the Service central repository.
    (ii) The status of victim and witness notification requests will be 
reported annually to the Service central repository.
    (7) Information and services to be provided on appeal. (i) When an 
offender's case is docketed for review by a Court of Criminal Appeals, 
or is granted review by the Court of Appeals for the Armed Forces 
(C.A.A.F.) or by the U.S. Supreme Court, the U.S. Government appellate 
counsel or appropriate Military Service designee will ensure that all 
victims who have indicated a desire to be notified receive this 
information, if applicable:
    (A) Notification of the scheduling, including changes and delays, 
of each public court proceeding that the victim is entitled to attend.
    (B) Notification of the decision of the court.
    (ii) When an offender's case is reviewed by the Office of the Judge 
Advocate General (TJAG) of the Military Department concerned, pursuant 
to Article 69 and Article 73 of the UCMJ, TJAG will ensure that all 
victims who have indicated a desire to be notified on DD Form 2704-1 
receive notification of the outcome of the review.
    (iii) The Military Services may use the sample appellate 
notification letter found at Figure 1 of this section, or develop their 
own templates to keep victims informed of appellate court proceedings 
and decisions.
    (8) Information and services to be provided on consideration for 
parole or supervised release. (i) Before the parole or supervised 
release of a prisoner, the military confinement facility staff will 
review the DD Form 2704 to ensure it has been properly completed. If 
there is a question concerning named persons or contact information, it 
will be immediately referred to the appropriate staff judge advocate 
for correction.
    (ii) When considering a prisoner for release on supervision, the 
military confinement facility commander will ensure that all victims 
and witnesses on the DD Form 2704 indicating a desire to be notified 
were given an opportunity to provide information to the Military 
Department Clemency and Parole Board in advance of its determination, 
as documented in the confinement file.
    (9) Reporting procedures. (i) The DoD Component responsible 
official will submit an annual report using the DD Form 2706 to: Office 
of the Under Secretary of Defense for Personnel and Readiness, 
Attention: Legal Policy Office, 4000 Defense Pentagon, Washington, DC 
20301-4000.
    (ii) The report will be submitted by March 15 for the preceding 
calendar year and will address the assistance provided to victims and 
witnesses of crime.
    (iii) The report will include:
    (A) The number of victims and witnesses who received a DD Form 2701 
from law enforcement or criminal investigations personnel.
    (B) The number of victims and witnesses who received a DD Form 2702 
from U.S. Government counsel, or designee.
    (C) The number of victims and witnesses who received a DD Form 2703 
from U.S. Government counsel or designee.
    (D) The number of victims and witnesses who elected via the DD Form 
2704 to be notified of changes in inmate status.
    (E) The number of victims who received a DD Form 2704-1 from U.S. 
Government counsel or designee.
    (F) The number of victims and witnesses who were notified of 
changes in inmate status by the confinement facility victim witness 
assistance coordinators via the DD Form 2705 or a computer-generated 
equivalent.
    (G) The cumulative number of inmates in each Military Service for 
whom victim witness notifications must be made by each Service's 
confinement facilities. These numbers are derived by totaling the 
number of inmates with victim or witness notification requirements at 
the beginning of the year, adding new inmates with the requirement, and 
then subtracting those confinees who were released, deceased, or 
transferred to another facility (e.g., Federal, State, or sister 
Military Service) during the year.
    (iv) The Office of the USD(P&R) will consolidate all reports 
submitted by each Military Service, and submit an annual report to the 
Bureau of Justice Statistics, and Office for Victims of Crime, 
Department of Justice.
    (c) Special victim investigation and prosecution (SVIP) capability. 
(1) In accordance with DTM 14-003, section 573 of Public Law 112-239, 
and DoD Instruction 5505.19, the Military Services will maintain a 
distinct, recognizable group of professionals to provide effective, 
timely, and

[[Page 23483]]

responsive worldwide victim support, and a capability to support the 
investigation and prosecution of special victim offenses within the 
respective Military Departments.
    (2) Covered special victim offenses include:
    (i) Unrestricted reports of adult sexual assault.
    (ii) Unrestricted reports of domestic violence involving sexual 
assault and/or aggravated assault with grievous bodily harm.
    (iii) Child abuse involving child sexual abuse and/or aggravated 
assault with grievous bodily harm.
    (3) Military Service SVIP programs will include, at a minimum, 
specially trained and selected:
    (i) Investigators from within MCIOs of the Military Departments.
    (ii) Judge advocates to serve as prosecutors.
    (iii) VWAP personnel.
    (iv) Paralegal or administrative legal support personnel.
    (4) Each Military Service will maintain standards for the 
selection, training, and certification of personnel assigned to provide 
this capability. At a minimum, SVIP training must:
    (i) Focus on the unique dynamics of sexual assault, aggravated 
domestic violence, and child abuse cases.
    (ii) Promote methods of interacting with and supporting special 
victims to ensure their rights are understood and respected.
    (iii) Focus on building advanced litigation, case management, and 
technical skills.
    (iv) Ensure that all SVIP legal personnel understand the impact of 
trauma and how this affects an individual's behavior and the memory of 
a traumatic incident when interacting with a victim.
    (v) Train SVIP personnel to identify any safety concerns and 
specific needs of victims.
    (vi) Ensure SVIP personnel understand when specially trained 
pediatric forensic interviewers are required to support the 
investigation and prosecution of complex child abuse and child sexual 
abuse cases.
    (5) Each Military Service will maintain and periodically review 
measures of performance and effectiveness to objectively assess Service 
programs, policies, training, and services. At a minimum, these 
Service-level review measures will include:
    (i) Percentage of all preferred court-martial cases that involve 
special victim offenses in each fiscal year.
    (ii) Percentage of special victim offense courts-martial tried by, 
or with the direct advice and assistance of, a specially trained 
prosecutor.
    (iii) Compliance with DoD VWAP informational, notification, and 
reporting requirements specified in paragraphs (b)(1) through (9) of 
this section, to ensure victims are consulted with and regularly 
updated by special victim capability legal personnel.
    (iv) Percentage of specially trained prosecutors and other legal 
support personnel having received additional and advanced training in 
topical areas.
    (6) The Military Services will also consider victim feedback on 
effectiveness of special victim prosecution and legal support services 
and recommendations for possible improvements, as provided in DoD 
survivor experience surveys or other available feedback mechanisms. 
This information will be used by the Military Services to gain a 
greater understanding of the reasons why a victim elected to 
participate or declined to participate at trial, and whether SVIP, 
VWAP, and other legal support services had any positive impact on this 
decision.
    (7) Designated SVIP capability personnel will collaborate with 
local DoD SARCs, sexual assault prevention and response victim 
advocates, Family Advocacy Program (FAP) managers, and domestic abuse 
victim advocates during all stages of the military justice process to 
ensure an integrated capability.
    (8) To support this capability, active liaisons shall be 
established at the installation level with these organizations and key 
individuals:
    (i) Local military and civilian law enforcement agencies.
    (ii) SARCs.
    (iii) Victim advocates.
    (iv) FAP managers.
    (v) Chaplains.
    (vi) Sexual assault forensic examiners and other medical and mental 
health care providers.
    (vii) Unit commanding officers.
    (viii) Other persons designated by the Secretaries of the Military 
Departments necessary to support special victims.
    (9) In cases of adult sexual assault the staff judge advocate or 
designated representative of the responsible legal office will 
participate in case management group meetings, in accordance with 32 
CFR part 105, on a monthly basis to review individual cases. Cases 
involving victims who are assaulted by a spouse or intimate partner 
will be reviewed by FAP.
    (10) The staff judge advocate or designated representative of the 
responsible legal office will participate in FAP case review or 
incident determination meetings of domestic violence, spouse or 
intimate partner sexual assault, and child abuse cases in accordance 
with DoD Instruction 6400.06, ``Domestic Abuse Involving DoD Military 
and Certain Affiliated Personnel'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/640006p.pdf).
    (11) In the case of a victim who is under 18 years of age and not a 
member of the Military Services, or who is incompetent, incapacitated, 
or deceased, the legal guardians of the victim or the representatives 
of the victim's estate, family members, or any other person designated 
as suitable by proper authority, may assume the victim's legal rights. 
Under no circumstances will an individual designated as representative 
have been accused of any crime against the victim.
    (i) The Secretaries of the Military Departments may publish 
additional guidance or regulation regarding who, before referral, may 
designate an appropriate representative, such as the convening 
authority or other qualified local responsible official.
    (ii) In making a decision to appoint a representative, the 
designating authority should consider:
    (A) The age and maturity, relationship to the victim.
    (B) The physical proximity to the victim.
    (C) The costs incurred in effecting the appointment.
    (D) The willingness of the proposed designee to serve in such a 
role.
    (E) The previous appointment of a guardian by a court of competent 
jurisdiction or appropriate designating authority.
    (F) The preference of the victim, if known.
    (G) Any potential delay in any proceeding that may be caused by a 
specific appointment.
    (H) Any other relevant information.
    (iii) The representative, legal guardian, or equivalent of a victim 
who is eligible, or in the case of a deceased victim, was eligible at 
the time of death for legal assistance provided by SVC/VLC, may elect 
legal representation for a SVC/VLC on behalf of the victim.
    (iv) A military judge's responsibilities for designating a 
representative are listed in R.C.M. 801(a)(6).
    (v) In the absence of an appointment of a legal representative, the 
victim may exercise his/her own legal and regulatory rights, as 
described herein. Where an appointment is required or discretionary, 
nothing in this policy precludes a victim from being appointed as his/
her own legal representative, as appropriate.
    (d) Legal assistance for crime victims--(1) Eligibility. Active and 
retired Service members and their

[[Page 23484]]

dependents are eligible to receive legal assistance pursuant to 10 
U.S.C. 1044 and 1565b and Under Secretary for Defense for Personnel and 
Readiness Memorandum, ``Legal Assistance for Sexual Assault Victims,'' 
October 17, 2011.
    (2) Information and services. Legal assistance services for crime 
victims will include confidential advice and assistance for crime 
victims to address:
    (i) Rights and benefits afforded to the victim under law and DoD 
policy.
    (ii) Role of the VWAP coordinator or liaison.
    (iii) Role of the victim advocate.
    (iv) Privileges existing between the victim and victim advocate.
    (v) Differences between restricted and unrestricted reporting, if 
applicable.
    (vi) Overview of the military justice system.
    (vii) Services available from appropriate agencies for emotional 
and mental health counseling and other medical services.
    (viii) The right to an expedited transfer, if applicable.
    (ix) Availability of and protections offered by civilian and 
military protective orders.
    (e) Special Victims' Counsel/Victims' Legal Counsel programs--(1) 
Eligibility. In accordance with 10 U.S.C. 1044, 1044e, and 1565b, 
section 1716 of Public Law 113-66, and section 533 of the Public Law 
113-291, the Military Services provide legal counsel, known as SVC/VLC, 
to assist victims of alleged sex-related offenses including Articles 
120, 120a, 120b, and 120c, forcible sodomy under Article 125 (before 
January 1, 2019) of the UCMJ, attempts to commit such offenses under 
Article 80 of the UCMJ, or other crimes under the UCMJ as authorized by 
the Service, who are eligible for legal assistance pursuant to 10 
U.S.C. 1044e and as further prescribed by the Military Departments and 
National Guard Bureau policies. Individuals eligible for SVC/VLC 
representation include any of the following:
    (i) Individuals entitled to military legal assistance under 10 
U.S.C. 1044 and 1044e, and as further prescribed by the Military 
Departments and National Guard Bureau policies.
    (ii) Members of a reserve component of the armed forces, in 
accordance with section 533 of Public Law 113-291, and as further 
prescribed by the Military Departments and National Guard Bureau 
policies.
    (iii) Civilian employees of the Department of Defense not otherwise 
entitled to legal assistance, as provided for in section 532 of Public 
Law 114-92.
    (2) Attorney-client information and services. The types of legal 
services provided by SVC/VLC programs in each Military Service will 
include:
    (i) Legal consultation regarding the VWAP, including:
    (A) The rights and benefits afforded the victim.
    (B) The role of the VWAP liaison.
    (C) The nature of communication made to the VWAP liaison in 
comparison to communication made to a SVC/VLC or a legal assistance 
attorney pursuant to 10 U.S.C. 1044.
    (ii) Legal consultation regarding the responsibilities and support 
provided to the victim by the SARC, a unit or installation sexual 
assault victim advocate, or domestic abuse advocate, to include any 
privileges that may exist regarding communications between those 
persons and the victim.
    (iii) Legal consultation regarding the potential for civil 
litigation against other parties (other than the DoD).
    (iv) Legal consultation regarding the military justice system, 
including, but not limited to:
    (A) The roles and responsibilities of the military judge, trial 
counsel, the defense counsel, and military criminal investigators.
    (B) Any proceedings of the military justice process in which the 
victim may observe or participate in person or through his or her SVC/
VLC.
    (v) Accompanying or representing the victim at any proceedings when 
necessary and appropriate, including interviews, in connection with the 
reporting, investigation, and prosecution of the alleged sex-related 
offense.
    (vi) Legal consultation regarding eligibility and requirements for 
services available from appropriate agencies or offices for emotional 
and mental health counseling and other medical services.
    (vii) Legal representation or consultation and assistance:
    (A) In personal civil legal matters in accordance with 10 U.S.C. 
1044.
    (B) In any proceedings of the military justice process in which a 
victim can participate as a witness or other party.
    (C) In understanding the availability of, and obtaining any 
protections offered by, civilian and military protecting or restraining 
orders.
    (D) In understanding the eligibility and requirements for, and 
obtaining, any available military and veteran benefits, such as 
transitional compensation benefits found in 10 U.S.C. 1059, 32 CFR part 
111, ``Transitional Compensation for Abused Dependents,'' and other 
State and Federal victims' compensation programs.
    (E) The victim's rights and options at trial, to include the option 
to state a preference to decline participation or withdraw cooperation 
as a witness and the potential consequences of doing so.
    (viii) Legal representation or consultation regarding the potential 
criminal liability of the victim stemming from or in relation to the 
circumstances surrounding the alleged sex-related offense (collateral 
misconduct), regardless of whether the report of that offense is 
restricted or unrestricted in accordance with 32 CFR part 105. Victims 
may also be referred to the appropriate defense services organization 
for consultation on the potential criminal implications of collateral 
misconduct.
    (ix) Other legal assistance as the Secretary of Defense or the 
Secretaries of the Military Departments may authorize.

[[Page 23485]]

[GRAPHIC] [TIFF OMITTED] TR28AP20.021



[[Page 23486]]


    Dated: April 7, 2020.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2020-07608 Filed 4-27-20; 8:45 am]
 BILLING CODE 5001-06-P