I Am Vanessa Guillén Act

II 116TH CONGRESS 2D SESSION S. 4600 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 SEPTEMBER 16, 2020 Ms. HIRONO (for herself and Mr. BOOKER) 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’’. 5 VerDate Sep 11 2014 00:42 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4600.IS S4600 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 4600 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) REFERRAL AND DETERMINATIONS BY OF- 8 FICE OF THE CHIEF PROSECUTOR.—Section 834 of 9 title 10, United States Code (article 34 of the Uni- 10 form Code of Military Justice), is amended— 11 (A) by redesignating subsection (d) as sub- 12 section (e); and 13 (B) by inserting after the subsection (c) 14 the following new subsection (d): 15 ‘‘(d) REFERRAL TO OFFICE OF THE CHIEF PROS- 16 ECUTOR.—(1) In the case of a charge relating to a sex- 17 related offense, in addition to referring the charge to the 18 staff judge advocate under subsection (a), the convening 19 authority shall refer, as soon as reasonably practicable, the 20 charge to the Office of the Chief Prosecutor of the armed 21 force of which the accused is a member to make the deter- 22 mination required by paragraph (3). The actions of the 23 Office of the Chief Prosecutor under this subsection 24 whether or not to try charges by court-martial shall be 25 free of unlawful or unauthorized influence or coercion. 26 VerDate Sep 11 2014 00:42 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4600.IS S4600 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 4600 IS ‘‘(2) For purposes of this subsection, the term ‘sex- 1 related offense’ means any of the following: 2 ‘‘(A) An offense covered by section 920, 920a, 3 920b, 920c, or 920d of this title (article 120, 120a, 4 120b, 120c, or 120d). 5 ‘‘(B) A conspiracy to commit an offense speci- 6 fied in subparagraph (A) as punishable under sec- 7 tion 881 of this title (article 81). 8 ‘‘(C) A solicitation to commit an offense speci- 9 fied in subparagraph (A) as punishable under sec- 10 tion 882 of this title (article 82). 11 ‘‘(D) An attempt to commit an offense specified 12 in subparagraphs (A) through (C) as punishable 13 under section 880 of this title (article 80). 14 ‘‘(3) The Office of the Chief Prosecutor shall make 15 a determination regarding whether a charge relating to a 16 sex-related offense should be referred to trial. If the Office 17 of the Chief Prosecutor makes a determination to try the 18 charge by court-martial, the Office of the Chief Prosecutor 19 also shall determine whether to try the charge by a general 20 court-martial convened under section 822 of this title (ar- 21 ticle 22) or a special court-martial convened under section 22 823 of this title (article 23). 23 ‘‘(4) A determination under paragraph (3) to try a 24 charge relating to a sex-related offense by court-martial 25 VerDate Sep 11 2014 00:42 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4600.IS S4600 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 4600 IS shall include a determination to try all known offenses, 1 including lesser included offenses. 2 ‘‘(5) The determination to try a charge relating to 3 a sex-related offense by court-martial under paragraph 4 (3), and by type of court-martial, shall be binding on any 5 applicable convening authority for a trial by court-martial 6 on the charge. 7 ‘‘(6) A determination under paragraph (3) not to pro- 8 ceed to trial on a charge relating to a sex-related offense 9 by general or special court-martial shall not operate to ter- 10 minate or otherwise alter the authority of commanding of- 11 ficers to refer such charge for trial by summary court- 12 martial convened under section 824 of this title (article 13 24), or to impose non-judicial punishment in connection 14 with the conduct covered by the charge as authorized by 15 section 815 of this title (article 15). 16 ‘‘(7) Nothing in this subsection shall be construed to 17 alter or affect the disposition of charges under this chapter 18 (the Uniform Code of Military Justice) that allege an of- 19 fense triable by court-martial under this chapter for which 20 the maximum punishment authorized under this chapter 21 includes confinement for one year or less. 22 ‘‘(8) This subsection does not apply to the Coast 23 Guard when it is not operating as a service in the Depart- 24 ment of the Navy.’’. 25 VerDate Sep 11 2014 00:42 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4600.IS S4600 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 4600 IS (2) APPOINTMENT OF CHIEF PROSECUTOR.— 1 For any Armed Force (other than the Coast Guard) 2 for which the position of Chief Prosecutor does not 3 exist as of the date of the enactment of this Act, the 4 Judge Advocate General of that Armed Force shall 5 establish the position of Chief Prosecutor and ap- 6 point as the Chief Prosecutor a commissioned officer 7 in the grade of O–6 or above who has significant ex- 8 perience prosecuting sexual assault trials by court- 9 martial. 10 (b) CHIEF PROSECUTOR AUTHORITY TO CONVENE 11 ARTICLE 32 PRELIMINARY HEARINGS.—Section 832(a) of 12 title 10, United States Code (article 32(a) of the Uniform 13 Code of Military Justice), is amended by adding at the 14 end the following new paragraph: 15 ‘‘(3) The Office of the Chief Prosecutor of an armed 16 force may order a preliminary hearing under this section 17 in the event of an allegation of a sex-related offense (as 18 defined in section 834(d)(2) of this title (article 34(d)(2))) 19 involving a member of that armed force. This paragraph 20 does not apply to the Coast Guard when it is not operating 21 as a service in the Department of the Navy.’’. 22 (c) MODIFICATION OF OFFICERS AUTHORIZED TO 23 CONVENE GENERAL AND SPECIAL COURTS-MARTIAL.— 24 VerDate Sep 11 2014 00:42 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4600.IS S4600 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 4600 IS (1) IN GENERAL.—Section 822(a) of title 10, 1 United States Code (article 22(a) of the Uniform 2 Code of Military Justice), is amended— 3 (A) by redesignating paragraphs (8) and 4 (9) as paragraphs (9) and (10), respectively; 5 and 6 (B) by inserting after paragraph (7) the 7 following new paragraph (8): 8 ‘‘(8) the officers in the offices established pur- 9 suant to section 2(c)(3) of the Justice for SPC 10 Vanessa Guille´n Act, or officers in the grade of O– 11 6 or higher who are assigned such responsibility by 12 the Chief of Staff of the Army, the Chief of Naval 13 Operations, the Chief of Staff of the Air Force, or 14 the Commandant of the Marine Corps, but only with 15 respect to a sex-related offense (as defined in section 16 834(d)(2) of this title (article 34(d)(2)));’’. 17 (2) NO EXERCISE BY OFFICERS IN CHAIN OF 18 COMMAND OF ACCUSED OR VICTIM.—Section 822 of 19 title 10, United States Code (article 22 of the Uni- 20 form Code of Military Justice), is amended by add- 21 ing at the end the following new subsection: 22 ‘‘(c) An officer specified in subsection (a)(8) may not 23 convene a court-martial under this section if the officer 24 is in the chain of command of the accused or the victim.’’. 25 VerDate Sep 11 2014 00:42 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4600.IS S4600 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 4600 IS (3) OFFICES OF CHIEFS OF STAFF ON COURTS- 1 MARTIAL.— 2 (A) OFFICES REQUIRED.—The Chief of 3 Staff of the Army, the Chief of Naval Oper- 4 ations, the Chief of Staff of the Air Force, or 5 the Commandant of the Marine Corps shall es- 6 tablish an office to do the following: 7 (i) To convene general and special 8 courts-martial under sections 822 and 823 9 of title 10, United States Code (articles 22 10 and 23 of the Uniform Code of Military 11 Justice), pursuant to paragraph (8) of sec- 12 tion 822(a) of title 10, United States Code 13 (article 22(a) of the Uniform Code of Mili- 14 tary Justice), as amended by paragraph 15 (1), with respect to a sex-related offense 16 (as defined in section 834(d)(2) of title 10, 17 United States Code (article 34(d)(2) of the 18 Uniform Code of Military Justice)). 19 (ii) To detail under section 825 of 20 title 10, United States Code (article 25 of 21 the Uniform Code of Military Justice), 22 members of courts-martial convened as de- 23 scribed in clause (i). 24 VerDate Sep 11 2014 00:42 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4600.IS S4600 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 4600 IS (B) PERSONNEL.—The personnel of each 1 office established under subparagraph (A) shall 2 consist of such members of the Armed Forces 3 and civilian personnel of the Department of De- 4 fense as may be detailed or assigned to the of- 5 fice by the Chief of Staff or Commandant con- 6 cerned. The members and personnel so detailed 7 or assigned, as the case may be, shall be de- 8 tailed or assigned from personnel billets in ex- 9 istence on the date of the enactment of this 10 Act. 11 (d) IMPLEMENTATION AND EFFECTIVE DATE.— 12 (1) FUNDING SOURCE.—The Secretaries of the 13 military departments shall carry out subsections (a), 14 (b), and (c) (and the amendments made by such 15 subsections) using funds appropriated after the date 16 of enactment of this Act and otherwise available to 17 the Secretary of the military department concerned. 18 (2) POLICIES AND PROCEDURES.— 19 (A) IN GENERAL.—The Secretaries of the 20 military departments shall revise policies and 21 procedures as necessary to comply with this sec- 22 tion. 23 (B) UNIFORMITY.—The General Counsel 24 of the Department of Defense shall review the 25 VerDate Sep 11 2014 00:42 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4600.IS S4600 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 4600 IS policies and procedures revised under this para- 1 graph in order to ensure that any lack of uni- 2 formity in policies and procedures, as so re- 3 vised, among the military departments does not 4 render unconstitutional any policy or procedure, 5 as so revised. 6 (3) MANUAL FOR COURTS-MARTIAL.—The Sec- 7 retary of Defense shall recommend such changes to 8 the Manual for Courts-Martial as are necessary to 9 ensure compliance with this section. 10 (4) EFFECTIVE DATE AND APPLICABILITY.— 11 This section and the amendments made by this sec- 12 tion shall take effect on the date designated by the 13 President, which shall not be later than the first day 14 of the first calendar month that begins two years 15 after the date of the enactment of this Act. 16 SEC. 3. PUNITIVE ARTICLE ON SEXUAL HARASSMENT AND 17 RELATED INVESTIGATION MATTERS. 18 (a) PUNITIVE ARTICLE ON SEXUAL HARASSMENT.— 19 (1) IN GENERAL.—Subchapter X of chapter 47, 20 United States Code (the Uniform Code of Military 21 Justice), is amended by inserting after section 920c 22 (article 120c) the following new section (article): 23 VerDate Sep 11 2014 00:42 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4600.IS S4600 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 4600 IS ‘‘§ 920d. Art. 120d. Sexual harassment 1 ‘‘(a) IN GENERAL.—Any person subject to this chap- 2 ter who commits sexual harassment against another per- 3 son shall be punished as a court-martial may direct. 4 ‘‘(b) SEXUAL HARASSMENT DEFINED.— 5 ‘‘(1) In this section term ‘sexual harassment’ 6 means conduct that takes place in a circumstance 7 described in paragraph (2) that takes the form of— 8 ‘‘(A) a sexual advance; 9 ‘‘(B) a request for sexual favors; or 10 ‘‘(C) any other conduct of a sexual nature. 11 ‘‘(2) A circumstance described in this para- 12 graph is a situation in which— 13 ‘‘(A) submission to the conduct involved is 14 made either explicitly or implicitly a term or 15 condition of employment; 16 ‘‘(B) submission to or rejection of such 17 conduct is used as the basis for an employment 18 decision affecting an individual’s employment; 19 or 20 ‘‘(C) such conduct unreasonably alters an 21 individual’s terms, conditions, or privileges of 22 employment, including by creating an intimi- 23 dating hostile, or offensive work environment, 24 as determined in accordance with paragraph 25 (3). 26 VerDate Sep 11 2014 00:42 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4600.IS S4600 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 4600 IS ‘‘(3) In determining, for purposes of paragraph 1 (2)(C), whether conduct constitutes sexual harass- 2 ment because the conduct unreasonably alters an in- 3 dividual’s terms, conditions, or privileges of employ- 4 ment, including by creating an intimidating, hostile, 5 or offensive work environment, the following rules 6 shall apply: 7 ‘‘(A) The determination shall be made on 8 the basis of the record as a whole, according to 9 the totality of the circumstances. A single inci- 10 dent may constitute sexual harassment. 11 ‘‘(B) Incidents that may be sexual harass- 12 ment shall be considered in the aggregate, 13 with— 14 ‘‘(i) conduct of varying types (such as 15 expressions of sex-based hostility, requests 16 for sexual favors, and denial of employ- 17 ment opportunities due to sexual orienta- 18 tion) viewed in totality, rather than in iso- 19 lation; and 20 ‘‘(ii) conduct based on multiple pro- 21 tected characteristics (such as sex and 22 race) viewed in totality, rather than in iso- 23 lation. 24 VerDate Sep 11 2014 00:42 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4600.IS S4600 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 4600 IS ‘‘(C) The factors specified in this subpara- 1 graph are among the factors to be considered in 2 determining whether conduct constitutes sexual 3 harassment and are not meant to be exhaustive. 4 Not one of those factors shall be considered to 5 be determinative in establishing whether con- 6 duct constitutes sexual harassment. Such fac- 7 tors are each of the following: 8 ‘‘(i) The frequency of the conduct. 9 ‘‘(ii) The duration of the conduct. 10 ‘‘(iii) The l [Text truncated for display. Full text available on Congress.gov.]