I am Vanessa Guillén Act of 2021

II 117TH CONGRESS 1ST SESSION S. 1611 To amend title 10, United States Code, to improve the responses of the Department of Defense to sex-related offenses, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 13, 2021 Ms. HIRONO (for herself, Mr. BOOKER, Mr. COONS, Mr. LEAHY, Ms. BALD- WIN, Mr. LUJA´N, and Mrs. GILLIBRAND) introduced the following bill; which was read twice and referred to the Committee on Armed Services A BILL To amend title 10, United States Code, to improve the responses of the Department of Defense to sex-related offenses, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘I am Vanessa Guille´n 4 Act of 2021’’. 5 VerDate Sep 11 2014 21:56 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1611.IS S1611 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 1611 IS SEC. 2. MODIFICATION OF AUTHORITY TO DETERMINE TO 1 PROCEED TO TRIAL BY COURT-MARTIAL ON 2 CHARGES INVOLVING SEX-RELATED OF- 3 FENSES. 4 (a) ROLE OF OFFICE OF THE CHIEF PROSECUTOR 5 IN DETERMINATION TO PROCEED TO TRIAL ON CHARGE 6 INVOLVING SEX-RELATED OFFENSE.— 7 (1) REVIEW AND DETERMINATIONS BY OFFICE 8 OF THE CHIEF PROSECUTOR.—Section 834 of title 9 10, United States Code (article 34 of the Uniform 10 Code of Military Justice) is amended— 11 (A) in subsection (a)(1), by striking ‘‘Be- 12 fore referral’’ and inserting ‘‘Except as provided 13 in subsection (c), before referral’’; 14 (B) in subsection (b), by striking ‘‘Before 15 referral’’ and inserting ‘‘Except as provided in 16 subsection (c), before referral’’; 17 (C) by redesignating subsections (c) and 18 (d) as subsections (d) and (e) respectively; and 19 (D) by inserting after the subsection (b) 20 the following new subsection (c): 21 ‘‘(c) REFERRAL AND DETERMINATIONS BY OFFICE 22 OF THE CHIEF PROSECUTOR.— 23 ‘‘(1) In the case of a charge relating to a sex- 24 related offense, instead of submitting the charge, 25 and any accompanying charges and specifications, to 26 VerDate Sep 11 2014 21:56 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1611.IS S1611 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 1611 IS the staff judge advocate under subsection (a), the 1 convening authority shall submit, as soon as reason- 2 ably practicable, the charge and accompanying 3 charges and specifications to the Office of the Chief 4 Prosecutor of the armed force of which the accused 5 is a member to make the determination required by 6 subsection (a). The advice and recommendations of 7 the Office of the Chief Prosecutor regarding disposi- 8 tion of charges by court-martial shall be free of un- 9 lawful or unauthorized influence or coercion. 10 ‘‘(2) For purposes of this subsection, the term 11 ‘sex-related offense’ means any of the following: 12 ‘‘(A) An offense covered by section 920, 13 920a, 920b, 920c, or 920d of this title (article 14 120, 120a, 120b, 120c, or 120d). 15 ‘‘(B) A conspiracy to commit an offense 16 specified in subparagraph (A) as punishable 17 under section 881 of this title (article 81). 18 ‘‘(C) A solicitation to commit an offense 19 specified in subparagraph (A) as punishable 20 under section 882 of this title (article 82). 21 ‘‘(D) An attempt to commit an offense 22 specified in subparagraphs (A) through (C) as 23 punishable under section 880 of this title (arti- 24 cle 80). 25 VerDate Sep 11 2014 21:56 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1611.IS S1611 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 1611 IS ‘‘(3) If the Office of the Chief Prosecutor deter- 1 mines any specification under a charge should be 2 disposed of at court-martial, the Office of the Chief 3 Prosecutor also shall determine whether to try the 4 charge by a general court-martial convened under 5 section 822 of this title (article 22) or a special 6 court-martial convened under section 823 of this 7 title (article 23). 8 ‘‘(4) A determination under paragraph (3) to 9 try a charge relating to a sex-related offense by 10 court-martial shall include a determination to try all 11 known offenses, including lesser included offenses. 12 ‘‘(5) The Office of the Chief Prosecutor’s deter- 13 mination to dispose of any reviewed charge by court- 14 martial under paragraph (3), and by type of court- 15 martial, shall be transmitted to the convening au- 16 thority established in section 822(a)(8) of this title, 17 and shall be binding on any applicable convening au- 18 thority. The Office of the Chief Prosecutor will no- 19 tify the original convening authority of the deter- 20 mination. 21 ‘‘(6) A determination under paragraph (3) not 22 to proceed to trial on a charge by general or special 23 court-martial shall not operate to terminate or oth- 24 erwise alter the authority of commanding officers to 25 VerDate Sep 11 2014 21:56 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1611.IS S1611 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 1611 IS refer such charge for trial by summary court-martial 1 convened under section 824 of this title (article 24), 2 to impose non-judicial punishment in connection 3 with the conduct covered by the charge as author- 4 ized by section 815 of this title (article 15), or to 5 take other administrative action. 6 ‘‘(7) This subsection does not apply to the 7 Coast Guard when it is not operating as a service 8 in the Department of the Navy.’’. 9 (2) APPOINTMENT OF CHIEF PROSECUTOR.— 10 For any Armed Force (other than the Coast Guard) 11 for which the position of Chief Prosecutor does not 12 exist as of the date of the enactment of this Act, the 13 Judge Advocate General of that Armed Force shall 14 establish the position of Chief Prosecutor and ap- 15 point as the Chief Prosecutor a judge advocate in 16 the grade of O–6 or above who meets the require- 17 ments set forth in paragraphs (1) and (2) of section 18 827(b) of title 10, United States Code (article 27(b) 19 of the Uniform Code of Military Justice), and who 20 has significant experience prosecuting sexual assault 21 trials by court-martial. 22 (b) CHIEF PROSECUTOR AUTHORITY TO CONVENE 23 ARTICLE 32 PRELIMINARY HEARINGS.—Section 832(a) of 24 title 10, United States Code (article 32(a) of the Uniform 25 VerDate Sep 11 2014 21:56 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1611.IS S1611 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 1611 IS Code of Military Justice), is amended by adding at the 1 end the following new paragraph: 2 ‘‘(3) The Office of the Chief Prosecutor of an armed 3 force may order a preliminary hearing under this section 4 in the event of an allegation of a sex-related offense (as 5 defined in section 834(c)(2) of this title (article 34(c)(2))) 6 involving a member of that armed force. This paragraph 7 does not apply to the Coast Guard when it is not operating 8 as a service in the Department of the Navy.’’. 9 (c) MODIFICATION OF OFFICERS AUTHORIZED TO 10 CONVENE GENERAL AND SPECIAL COURTS-MARTIAL.— 11 (1) IN GENERAL.—Section 822(a) of title 10, 12 United States Code (article 22(a) of the Uniform 13 Code of Military Justice) is amended— 14 (A) by redesignating paragraphs (8) and 15 (9) as paragraphs (9) and (10), respectively; 16 and 17 (B) by inserting after paragraph (7) the 18 following new paragraph (8): 19 ‘‘(8) an officer in the grade of O–6 or higher 20 who is assigned such responsibility by the Chief of 21 Staff of the Army, the Chief of Naval Operations, 22 the Chief of Staff of the Air Force, the Com- 23 mandant of the Marine Corps, or the Chief of Space 24 VerDate Sep 11 2014 21:56 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1611.IS S1611 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 1611 IS Operations, except that an officer designated as a 1 convening authority under this paragraph— 2 ‘‘(A) may convene a court-martial only 3 with respect to a sex-related offense (as defined 4 in section 834(c)(2) of this title (article 5 34(c)(2))) and any accompanying charges and 6 specifications; and 7 ‘‘(B) may not convene a court-martial if 8 such officer is in the chain of command of the 9 accused or the victim;’’. 10 (2) OFFICES OF CHIEFS OF STAFF ON COURTS- 11 MARTIAL.— 12 (A) OFFICES REQUIRED.—The Chief of 13 Staff of the Army, the Chief of Naval Oper- 14 ations, the Chief of Staff of the Air Force, the 15 Commandant of the Marine Corps, and the 16 Chief of Space Operations shall each establish 17 or designate an office to do the following: 18 (i) To convene general and special 19 courts-martial under sections 822 and 823 20 of title 10, United States Code (articles 22 21 and 23 of the Uniform Code of Military 22 Justice), pursuant to paragraph (8) of sec- 23 tion 822(a) of title 10, United States Code 24 (article 22(a) of the Uniform Code of Mili- 25 VerDate Sep 11 2014 21:56 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1611.IS S1611 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 1611 IS tary Justice), as amended by paragraph 1 (1), with respect to a sex-related offense 2 (as defined in section 834(c)(2) of title 10, 3 United States Code (article 34(c)(2) of the 4 Uniform Code of Military Justice)) and 5 any accompanying charges and specifica- 6 tions. 7 (ii) To detail under section 825 of 8 title 10, United States Code (article 25 of 9 the Uniform Code of Military Justice), 10 members of courts-martial convened as de- 11 scribed in clause (i). 12 (B) PERSONNEL.—The personnel of each 13 office established under subparagraph (A) shall 14 consist of such members of the Armed Forces 15 and civilian personnel of the Department of De- 16 fense as may be detailed or assigned to the of- 17 fice by the service chief concerned. The mem- 18 bers and personnel so detailed or assigned, as 19 the case may be, shall be detailed or assigned 20 from personnel billets in existence on the date 21 of the enactment of this Act. 22 (d) IMPLEMENTATION AND EFFECTIVE DATE.— 23 (1) FUNDING SOURCE.—The Secretaries of the 24 military departments shall carry out subsections (a), 25 VerDate Sep 11 2014 21:56 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1611.IS S1611 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 1611 IS (b), and (c) (and the amendments made by such 1 subsections) using funds appropriated after the date 2 of enactment of this Act and otherwise available to 3 the Secretary of the military department concerned. 4 (2) POLICIES AND PROCEDURES.— 5 (A) IN GENERAL.—The Secretaries of the 6 military departments shall revise policies and 7 procedures as necessary to comply with this sec- 8 tion. 9 (B) UNIFORMITY.—The General Counsel 10 of the Department of Defense shall review the 11 policies and procedures revised under this para- 12 graph in order to ensure that any lack of uni- 13 formity in policies and procedures, as so re- 14 vised, among the military departments does not 15 render unconstitutional any policy or procedure, 16 as so revised. 17 (3) MANUAL FOR COURTS-MARTIAL.—The Sec- 18 retary of Defense shall recommend such changes to 19 the Manual for Courts-Martial as are necessary to 20 ensure compliance with this section. 21 (4) EFFECTIVE DATE AND APPLICABILITY.— 22 The amendments made by this section shall take ef- 23 fect on the first day of the first month beginning 24 after the 2-year period following the date of the en- 25 VerDate Sep 11 2014 21:56 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1611.IS S1611 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 1611 IS actment of this Act, and shall apply with respect to 1 charges preferred under section 830 of title 10, 2 United States Code (article 30 of the Uniform Code 3 of Military Justice), on or after such effective date. 4 SEC. 3. PUNITIVE ARTICLE ON SEXUAL HARASSMENT AND 5 RELATED INVESTIGATION MATTERS. 6 (a) PUNITIVE ARTICLE ON SEXUAL HARASSMENT.— 7 (1) IN GENERAL.—Subchapter X of chapter 47 8 of title 10, United States Code (the Uniform Code 9 of Military Justice), is amended by inserting after 10 section 920c (article 120c) the following new section 11 (article): 12 ‘‘§ 920d. Art. 120d. Sexual harassment 13 ‘‘(a) IN GENERAL.—Any person subject to this chap- 14 ter who commits sexual harassment against another per- 15 son shall be punished as a court-martial may direct. 16 ‘‘(b) SEXUAL HARASSMENT DEFINED.— 17 ‘‘(1) In this section, the term ‘sexual harass- 18 ment’ means conduct that takes place in a cir- 19 cumstance described in paragraph (2) that takes the 20 form of— 21 ‘‘(A) a sexual advance; 22 ‘‘(B) a request for sexual favors; or 23 ‘‘(C) any other conduct of a sexual nature. 24 VerDate Sep 11 2014 21:56 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1611.IS S1611 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 1611 IS ‘‘(2) A circumstance described in this para- 1 graph is a situation in which— 2 ‘‘(A) submission to the conduct involved is 3 made either explicitly or implicitly a term or 4 condition of employment; 5 ‘‘(B) submission to or rejection of such 6 conduct is used as the basis for an employment 7 decision affecting an individual’s employment; 8 or 9 ‘‘(C) such conduct unreasonably alters an 10 individual’s terms, conditions, or privileges of 11 employment, including by creating an intimi- 12 dating hostile, or offensive work environment, 13 as determined in accordance with paragraph 14 (3). 15 ‘‘(3) In determining, for purposes of paragraph 16 (2)(C), whether conduct constitutes sexual harass- 17 ment because the conduct unreasonably alters an in- 18 dividual’s terms, conditions, or privileges of employ- 19 ment, including by creating an intimidating, hostile, 20 or offensive work environment, the following rules 21 shall apply: 22 ‘‘(A) The determination shall be made on 23 the basis of the record as a whole, according to 24 VerDate Sep 11 2014 21:56 Jun 08, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1611.IS S1611 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 1611 IS the totality of the circumstances. A single inci- 1 dent may constitute sexual harassment. 2 ‘‘(B) Incidents that may be sexual harass- 3 ment shall be considered in the aggregate, 4 with— 5 ‘‘(i) conduct of varying types (such as 6 expressions of sex-based hostility, requests 7 for sexual favors, and denial of employ- 8 ment opportunities due to sexual orienta- 9 tion) viewed in totality, rather than in iso- 10 lation; and 11 ‘‘(ii) conduct based on multiple pro- 12 tected characteristics (such as sex and 13 race) viewed in totality, rather than in iso- 14 lation. 15 ‘‘(C) The factors specified in this subpara- 16 graph are among the factors to be cons [Text truncated for display. Full text available on Congress.gov.]