116th CONGRESS 2d Session |
To amend title 10, United States Code, to authorize military judges and military magistrates to issue military court protective orders, and to direct the Secretary of Defense to establish a military-civilian task force on domestic violence and related information collection activities.
July 24, 2020
Ms. Speier (for herself and Mr. Connolly) introduced the following bill; which was referred to the Committee on Armed Services
To amend title 10, United States Code, to authorize military judges and military magistrates to issue military court protective orders, and to direct the Secretary of Defense to establish a military-civilian task force on domestic violence and related information collection activities.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. Authority of military judges and military magistrates to issue military court protective orders.
(a) Judge-Issued military court protective orders.—Chapter 80 of title 10, United States Code, is amended by adding at the end the following new section.
Ҥ 1567b. Authority of military judges and military magistrates to issue military court protective orders
“(a) Authority To issue military court protective orders.—The President shall prescribe regulations authorizing military judges and military magistrates to issue protective orders in accordance with this section. A protective order issued in accordance with this section shall be known as a ‘military court protective order’. Under the regulations prescribed by the President, military judges and military magistrates shall have exclusive jurisdiction over the issuance, appeal, renewal, and termination of military court protective orders and such orders may not be issued, appealed, renewed, or terminated by State, local, territorial, or tribal courts.
“(b) Enforcement by civilian authorities.—
“(1) IN GENERAL.—In prescribing regulations for military court protective orders, the President shall seek to ensure that the protective orders are issued in a form and manner that is enforceable by State, local, territorial, and tribal civilian law enforcement authorities.
“(2) FULL FAITH AND CREDIT.—Any military court protective order, should be accorded full faith and credit by the court of a State, local, territorial, or tribal jurisdiction (the enforcing jurisdiction) and enforced by the court and law enforcement personnel of that jurisdiction as if it were the order of the enforcing jurisdiction.
“(3) RECIPROCITY AGREEMENTS.—Consistent with paragraphs (1) and (2), the Secretary of Defense shall seek to enter into reciprocity agreements with State, local, territorial, and tribal civilian law enforcement authorities under which—
“(A) such authorities agree to enforce military court protective orders; and
“(B) the Secretary agrees to enforce protective orders issued by such authorities that are consistent with section 2265(b) of title 18.
“(c) Purpose and form of issuance.—A military court protective order may be issued for the purpose of protecting a victim of an alleged sex or domestic violence offense, or a family member or associate of the victim, from a person subject to chapter 47 of this title (the Uniform Code of Military Justice) who is alleged to have committed such an offense.
“(d) Timing and manner of issuance.—A military court protective order may be issued—
“(1) by a military magistrate, before referral of charges and specifications to court-martial for trial, at the request of—
“(A) a victim of an alleged sex or domestic violence offense; or
“(B) a Special Victims’ Counsel or other qualified counsel acting on behalf of the victim; or
“(2) by a military judge, after referral of charges and specifications to court-martial for trial, at the request of qualified counsel, which may include a Special Victims’ Counsel acting on behalf of the victim or trial counsel acting on behalf of the prosecution.
“(e) Duration and renewal of protective order.—
“(1) DURATION.—A military court protective order shall be issued for an initial period of thirty days and may be reissued for one or more additional periods of thirty days in accordance with paragraph (2).
“(2) EXPIRATION AND RENEWAL.—Before the expiration of any 30-day period during which a military court protective order is in effect, a military judge or military magistrate shall review the order to determine whether the order will terminate at the expiration of such period or be reissued for an additional period of 30 days.
“(3) NOTICE TO PROTECTED PERSONS.—If a military judge or military magistrate determines under paragraph (2) that a military court protective order will terminate, the judge or magistrate concerned shall provide to each person protected by the order reasonable, timely, and accurate notification of the termination.
“(f) Review of magistrate-Issued orders.—
“(1) REVIEW.—A military judge, at the request of the person subject to a military court protective order that was issued by a military magistrate, may review the order to determine if the order was properly issued by the magistrate.
“(2) STANDARDS OF REVIEW.—A military judge who reviews an order under paragraph (1) shall terminate the order if the judge determines that—
“(A) the military magistrate’s decision to issue the order was an abuse of discretion, and there is not sufficient information presented to the military judge to justify the order; or
“(B) information not presented to the military magistrate establishes that the military court protective order should be terminated.
“(1) PROTECTION OF DUE PROCESS.—Except as provided in paragraph (2), a protective order authorized under subsection (a) may be issued only after reasonable notice and opportunity to be heard, directly or through counsel, is given to the person against whom the order is sought sufficient to protect that person's right to due process.
“(2) EMERGENCY ORDERS.—A protective order on an emergency basis may be issued on an ex parte basis under such rules and limitations as the President shall prescribe. In the case of ex parte orders, notice and opportunity to be heard must be provided within a reasonable time after the order is issued, sufficient to protect the respondent's due process rights.
“(h) Rights of victim.—The victim of an alleged sex or domestic violence offense who seeks a military court protective order has, in addition to any rights provided under section 806b (article 6b), the following rights with respect to any proceeding involving the protective order:
“(1) The right to reasonable, accurate, and timely notice of the proceeding and of any change in the status of the protective order resulting from the proceeding.
“(2) The right to be reasonably heard at the proceeding.
“(3) The right to appear in person, with or without counsel, at the proceeding.
“(4) The right be represented by qualified counsel in connection with the proceeding, which may include a Special Victims’ Counsel.
“(5) The reasonable right to confer with a representative of the command of the accused and counsel representing the government at the proceeding, as applicable.
“(6) The right to submit a written statement, directly or through counsel, for consideration by the military judge or military magistrate presiding over the proceeding.
“(i) Restrictions on access to firearms.—
“(1) IN GENERAL.—Notwithstanding any other provision of law—
“(A) a military court protective order issued on an ex parte basis shall restrain a person from possessing, receiving, or otherwise accessing a firearm; and
“(B) a military court protective order issued after the person to be subject to the order has received notice and opportunity to be heard on the order, shall restrain such person from possessing, receiving, or otherwise accessing a firearm in accordance with section 922 of title 18.
“(2) NOTICE TO ATTORNEY GENERAL.—Not later than 72 hours after the issuance of an order described in paragraph (1), the Secretary of Defense shall submit to the Attorney General a record of the order.
“(j) Treatment as lawful order.—A military court protective order shall be treated as a lawful order for purposes of the application of section 892 (article 92) and a violation of such an order shall be punishable under such section (article).
“(1) INCLUSION IN PERSONNEL FILE.—Any military court protective order against a member shall be placed and retained in the military personnel file of the member.
“(2) NOTICE TO CIVILIAN LAW ENFORCEMENT OF ISSUANCE.—Any military court protective order against a member shall be treated as a military protective order for purposes of section 1567a including for purposes of mandatory notification of issuance to civilian law enforcement as required by that section.
“(l) Relationship to other authorities.—Nothing in this section may be construed as prohibiting—
“(1) a commanding officer from issuing or enforcing any otherwise lawful order in the nature of a protective order to or against members of the officer’s command;
“(2) pretrial restraint in accordance with Rule for Courts-Martial 304 (as set forth in the Manual for Courts-Martial, 2019 edition, or any successor rule); or
“(3) pretrial confinement in accordance with Rule for Courts-Martial 305 (as set forth in the Manual for Courts-Martial, 2019 edition, or any successor rule).
“(m) Delivery to certain persons.—A physical and electronic copy of any military court protective order shall be provided, as soon as practicable after issuance, to the following:
“(1) The person or persons protected by the protective order or to the guardian of such a person if such person is under the age of 18 years.
“(2) The person subject to the protective order.
“(3) To such commanding officer in the chain of command of the person subject to the protective order as the President shall prescribe for purposes of this section.
“(n) Definitions.—In this section:
“(1) CONTACT.—The term ‘contact’ includes contact in person or through a third party, or through gifts.
“(2) COMMUNICATION.—The term ‘communication’ includes communication in person or through a third party, and by telephone or in writing by letter, data fax, or other electronic means.
“(3) COVERED SEX OR DOMESTIC VIOLENCE OFFENSE.—The term ‘covered sex or domestic violence offense’ means—
“(A) an alleged sex-related offense (as defined in section 1044e(h)); or
“(B) an alleged offense of domestic violence under section 928b of this title (article 128b of the Uniform Code of Military Justice) or an attempt to commit such an offense that is punishable under section 880 of this title (article 80 of the Uniform Code of Military Justice).
“(4) MILITARY JUDGE AND MILITARY MAGISTRATE.—The terms ‘military judge’ and ‘military magistrate’ mean a commissioned officer of the armed forces who is a member of the bar of a Federal court or a member of the bar of the highest court of a State and who is certified to be qualified, by reason of education, training, experience, and judicial temperament, for duty as a military judge or magistrate by the Judge Advocate General of the armed force of which the officer is a member.
“(5) PROTECTIVE ORDER.—The term ‘protective order’ means an order that—
“(A) restrains a person from harassing, stalking, threatening, or otherwise contacting or communicating with a victim of an alleged sex or domestic violence offense, or a family member or associate of the victim, or engaging in other conduct that would place such other person in reasonable fear of bodily injury to any such other person; and
“(B) by its terms, explicitly prohibits—
“(i) the use, attempted use, or threatened use of physical force by the person against a victim of an alleged sex or domestic violence offense, or a family member or associate of the victim, that would reasonably be expected to cause bodily injury;
“(ii) the initiation by the person restrained of any contact or communication with such other person; or
“(iii) actions described by both clauses (i) and (ii).
“(6) SPECIAL VICTIMS’ COUNSEL.—The term ‘Special Victims Counsel’ means a Special Victims’ Counsel described in section 1044e and includes a Victims’ Legal Counsel of the Navy.”.
(b) Clerical amendment.—The table of sections at the beginning of such chapter is amended by adding at the end the following new item:
“1567b. Authority of military judges and military magistrates to issue military court protective orders.”.
(c) Implementation.—The President shall prescribe regulations implementing section 1567b of title 10, United States Code, not later than one year after the date of the enactment of this Act.
SEC. 2. Military-civilian task force on domestic violence and related information collection activities.
(a) Military-Civilian task force on domestic violence.—
(1) ESTABLISHMENT.—The Secretary of Defense shall establish a military-civilian task force on domestic violence (in this section, referred to as the “Task Force”).
(2) DUTIES.—The duties of the Task Force shall be to analyze and develop recommendations, for implementation by the Secretary, with respect to each of the following:
(A) The risk of domestic violence at various stages of military service, including identification of—
(i) stages at which there is a higher than average risk of domestic violence; and
(ii) stages at which the implementation of domestic violence prevention strategies may have the greatest preventive effect.
(B) The use and dissemination of domestic violence prevention resources throughout the stages of military service including providing new servicemembers with training in domestic violence prevention.
(C) How to best target prevention resources to address those with a higher risk of domestic violence.
(D) The implementation of strategies to prevent domestic violence by training, educating, and assigning prevention-related responsibilities to—
(i) commanders;
(ii) medical, behavioral, and mental health service providers;
(iii) family advocacy representatives;
(iv) Military Family Life Consultants; and
(v) other individuals and entities with responsibilities that may be relevant to addressing domestic violence.
(E) The efficacy of providing survivors of domestic violence with the option to request expedited transfers, and the effects of such transfers.
(F) Improvements to procedures for reporting appropriate legal actions to the National Crime Information Center and the efficacy of such procedures.
(G) The effects of domestic violence on—
(i) housing for military families;
(ii) the education of military dependent children;
(iii) servicemember work assignments and careers; and
(iv) the health of servicemembers and their families, including short-term and long-term health effects and effects on mental health.
(H) Age-appropriate training and education programs for students attending schools operated by the Department of Defense Education Activity that are designed to assist such students in learning positive relationship behaviors in families and with intimate partners.
(I) The potential effects of requiring military protective orders to be issued by a military judge and whether such a requirement would increase the enforcement of military protective orders by civilian law enforcement agencies outside the boundaries of military installations.
(J) Whether prevention of domestic violence would be enhanced by raising the disposition authority for offenses of domestic violence to an officer who is—
(i) in the grade of 0–6 or above;
(ii) in the chain of command of the accused; and
(iii) authorized by chapter 47 of title 10, United States Code (the Uniform Code of Military Justice) to convene special courts-martial.
(K) Consideration of any other matters that the Task Force determines to be relevant to—
(i) decreasing the frequency of domestic violence committed by or upon members of the covered Armed Forces and their dependents; and
(ii) reducing the severity of such violence.
(3) MEMBERSHIP.—The Task Force shall be composed of the following members:
(A) One or more representatives of family advocacy programs of the Department of Defense.
(B) One or more representatives of the Defense Advisory Committee on Women in the Services.
(C) One or more medical personnel of the Department of Defense.
(D) One or more Judge Advocates General.
(E) One or more military police or other law enforcement personnel of the covered Armed Forces.
(F) One or more military commanders.
(G) One or more individuals whose duties include planning, executing, and evaluating training of the covered Armed Forces.
(H) Civilians who are experts on domestic violence or who provide services relating to domestic violence, including—
(i) not fewer than two representatives from the national domestic violence resource center and the special issue resource centers referred to in section 310 of the Family Violence Prevention and Services Act (42 U.S.C. 10410);
(ii) not fewer than two representatives from national domestic violence organizations;
(iii) not fewer than two representatives from State domestic violence and sexual assault coalitions; and
(iv) not fewer than two domestic violence service providers who provide services in communities located near military installations.
(I) One or more representatives who are subject matter experts on—
(i) scientific and other research relating to domestic violence; and
(ii) science-based strategies for the prevention, intervention, and response to domestic violence.
(J) Civilian law enforcement personnel.
(K) One or more representatives from the Office on Violence Against Women of the Department of Justice.
(L) One or more representatives of the Family Violence Prevention and Services Program of the Department of Health and Human Services.
(M) One or more representatives from the Centers for Disease Control and Prevention.
(4) APPOINTMENT BY SECRETARY OF DEFENSE.—
(A) IN GENERAL.—The Secretary of Defense shall appoint the members of the Task Force specified in subparagraphs (A) through (M) of paragraph (3).
(i) CONSULTATION WITH ATTORNEY GENERAL.—In appointing members under subparagraph (K) of paragraph 3, the Secretary of Defense shall consult with the Attorney General.
(ii) CONSULTATION WITH SECRETARY OF HHS.—In appointing members under subparagraphs (L) and (M) of such paragraph, the Secretary shall consult with the Secretary of Health and Human Services.
(C) INCLUSION OF CERTAIN PERSONNEL.—The Secretary shall ensure that the members appointed by the Secretary under this subparagraph include—
(i) representatives of the Office of the Secretary of Defense;
(ii) general and flag officers;
(iii) noncommissioned officers; and
(iv) other enlisted personnel of the covered Armed Forces.
(5) TOTAL NUMBER OF MEMBERS.—The total number of members appointed to the Task Force shall be not more than 25.
(A) NOMINEE LIST.—On an annual basis, the Task Force shall submit to the Secretary a list of members of the Task Force who may be considered for the position of chairperson of the Task Force.
(B) SELECTION.—From the list submitted to the Secretary under subparagraph (A) for each year, the Secretary of Defense shall designate one member of the Task Force to serve as the chairperson of the Task Force.
(C) TERM.—The chairperson designated by the Secretary under subparagraph (B) shall serve for a term of one year and may serve for additional terms of one year if redesignated as the chairperson by the Secretary under such subparagraph.
(7) MEETINGS.—The first meeting of the Task Force shall convene not later than 180 days after the date of the enactment of this Act. Thereafter, the task Force shall meet in plenary session not less frequently than once annually.
(8) COMPENSATION AND TRAVEL EXPENSES.—Each member of the Task Force shall serve without compensation (other than the compensation to which such member may be entitled as a member of the covered Armed Forces or an officer or employee of the United States, as the case may be), but shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code, while away from the member’s home or regular places of business in the performance of services for the Task Force.
(9) SITE VISITS.—In the carrying out the duties described in paragraph (2), members of the Task Force shall—
(A) on an annual basis, visit one or more military installations outside the United States; and
(B) on a semiannual basis, visit one or more military installations within the United States.
(10) OVERSIGHT AND ADMINISTRATION.—The Secretary of Defense shall designate an appropriate organization within the Office of the Secretary of Defense to—
(A) provide oversight of the Task Force;
(B) provide the Task Force with the personnel, facilities, and other administrative support that is necessary for the performance of the Task Force’s duties; and
(C) on a rotating basis, direct the Secretary of each military department to—
(i) coordinate visits of the Task Force to military installations; and
(ii) provide administrative, logistical, and other support for the meetings of the Task Force.
(i) INITIAL REPORT.—Not later than one year after the date on which the members of the Task Force are appointed under paragraph (3), the Task Force shall submit to the Secretary of Defense recommendations with respect to each matter described in paragraph (2).
(ii) SUBSEQUENT REPORTS.—After submitting the initial report under subparagraph (A), the Task Force shall, from time to time, submit to the Secretary of Defense such analyses and recommendations as the Task Force considers appropriate to improve the effectiveness of the covered Armed Forces in responding to and preventing domestic violence.
(B) REPORTS TO CONGRESS.—On an annual basis until the date on which the Task Force terminates under paragraph (12), the Task Force shall submit to Congress a report that includes—
(i) a description of any improvements in the response of the covered Armed Forces to domestic violence over the preceding year;
(ii) an explanation of any pending research on domestic violence that may be relevant to domestic violence involving members of the covered Armed Forces; and
(iii) such analyses and recommendations as the Task Force considers appropriate to improve the effectiveness of the covered Armed Forces in responding to and preventing domestic violence.
(A) IN GENERAL.—Except as provided in subparagraph (B), the Task Force shall terminate on the date that is five years after the date of the first meeting of the Task Force.
(i) IN GENERAL.—Subject to clause (ii), the Secretary of Defense may continue the Task Force for a period of up to two years after the termination date applicable under subparagraph (A) if the Secretary determines that continuation of the Task Force is advisable and appropriate.
(ii) NOTICE TO CONGRESS.—If the Secretary determines to continue the Task Force under clause (i), not later than 90 days before the termination date applicable under subparagraph (A) and annually thereafter until the new date of the termination of the Task Force, the Secretary shall submit to the Committees on Armed Services of the Senate and the House of Representatives a notice describing the reasons for the continuation and confirming the new termination date.
(13) IMPLEMENTATION OF RECOMMENDATIONS.—
(A) IN GENERAL.—Except as provided in subparagraph (B), not later than 180 days after the date on which the Secretary of Defense receives the initial report of the Task Force under paragraph (11)(A)(i), the Secretary shall, in consultation with the Task Force, implement the recommendations of the Task Force with respect to each matter described in paragraph (2).
(B) WAIVER.—The Secretary of Defense may waive the requirement under subparagraph (A) with respect to a recommendation of the Task force by submitting to the Committees on Armed Services of the Senate and the House of Representatives a written notification setting forth the reasons for the Secretary’s decision not to implement the recommendation.
(b) Information collection and reporting.—
(A) REGULAR INFORMATION COLLECTION.—Using the mechanism developed under subparagraph (B), the Secretary of Defense shall regularly collect information to measure the prevalence of domestic violence involving members of the covered Armed Forces, their intimate partners, and immediate family members.
(B) MECHANISM TO MEASURE DOMESTIC VIOLENCE.—The Secretary of Defense, in coordination with the Centers for Disease Control and civilian organizations with expertise in conducting informational surveys, shall develop a mechanism to carry out the information collection required under subparagraph (A).
(2) ANNUAL REPORT ON DOMESTIC VIOLENCE.—
(A) REPORT REQUIRED.—On an annual basis, the Secretary of Defense shall submit to the congressional defense committees a report on domestic violence in the covered Armed Forces.
(B) ELEMENTS.—The report required under subparagraph (A) shall include, with respect to the year covered by the report, the following:
(i) Based on the information collected under paragraph (1), an assessment of the prevalence of domestic violence involving members of the covered Armed Forces, their intimate partners, and immediate family members.
(ii) The number of convictions under section 928b of title 10, United States Code (article 128b of the Uniform Code of Military Justice).
(iii) The recidivism rate for members of the covered Armed Forces convicted of domestic violence offenses.
(iv) The number of instances in which a member of the covered Armed Forces received an administrative discharge as a result of the member’s involvement in a domestic violence incident.
(v) The number of instances in which a member of the covered Armed Forces was prohibited from possessing firearms as a result of the member’s conviction for a domestic violence offense.
(vi) Of the incidents described in clause (v), the number of instances in which the member received a waiver of such prohibition or was otherwise allowed to access firearms for duty purposes.
(vii) An explanation of the status of data sharing between the Department of Defense and civilian law enforcement agencies on matters relating to domestic violence.
(c) Covered Armed Forces defined.—In this section, the term “covered Armed Forces” means the Army, the Navy, the Air Force, and the Marine Corps.