I am Vanessa Guillén Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 8270 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 HOUSE OF REPRESENTATIVES SEPTEMBER 16, 2020 Ms. SPEIER (for herself, Mr. MULLIN, Ms. GARCIA of Texas, Mr. CARTER of Texas, Ms. ESCOBAR, Mr. OLSON, Mr. CISNEROS, Mr. BALDERSON, Mr. CROW, Mr. HURD of Texas, Mr. KIM, Mr. CASTRO of Texas, Ms. PRESSLEY, Mr. DOGGETT, Mr. HASTINGS, Mr. MALINOWSKI, Mr. VELA, Ms. NORTON, Mr. BEYER, Mr. CUELLAR, Mr. GARAMENDI, Mrs. HAYES, Ms. GABBARD, Ms. OCASIO-CORTEZ, Ms. HAALAND, Mrs. CAROLYN B. MALONEY of New York, Mr. THOMPSON of California, Ms. SHERRILL, Mr. RASKIN, Mr. BROWN of Maryland, Mr. GONZALEZ of Texas, Mr. MCGOVERN, Ms. ROYBAL-ALLARD, Mr. PANETTA, Ms. SCANLON, Ms. ESHOO, Mrs. TRAHAN, Mr. GRIJALVA, Ms. VELA´ZQUEZ, Mr. SIRES, Mrs. WATSON COLEMAN, Ms. KUSTER of New Hampshire, Mr. GALLEGO, Mr. ROSE of New York, Mr. VEASEY, Ms. KENDRA S. HORN of Oklahoma, Ms. CASTOR of Florida, Mr. CARSON of Indiana, Ms. PINGREE, Mr. CA´RDENAS, Ms. LEE of California, Mr. WELCH, Mrs. TORRES of Cali- fornia, Mr. KHANNA, Mr. CORREA, Mrs. DINGELL, Mr. O’HALLERAN, Ms. SPANBERGER, Mr. LYNCH, Mr. LARSON of Connecticut, Mrs. LESKO, Ms. JACKSON LEE, Mr. BLUMENAUER, Mr. GARCI´A of Illinois, Mr. COURTNEY, Mrs. LAWRENCE, Ms. BROWNLEY of California, Ms. FRANKEL, Ms. BONAMICI, Mr. COOPER, Mr. DANNY K. DAVIS of Illinois, Mr. CONNOLLY, Ms. MOORE, Ms. WILSON of Florida, Ms. CLARK of Mas- sachusetts, Mr. HECK, Ms. MENG, Ms. KAPTUR, Mr. LOWENTHAL, Ms. WILD, Mr. RUPPERSBERGER, Ms. MCCOLLUM, Mr. TAKANO, Ms. TLAIB, Mr. BRENDAN F. BOYLE of Pennsylvania, Mr. EVANS, Ms. JAYAPAL, Mr. TRONE, Ms. DELAURO, Mr. ESPAILLAT, Mr. COX of California, Ms. WASSERMAN SCHULTZ, Mrs. BUSTOS, Ms. ADAMS, Mr. HIGGINS of New York, Mr. CRIST, Ms. LOFGREN, Mr. KILDEE, Mr. TED LIEU of Cali- fornia, and Mr. BRINDISI) introduced the following bill; which was re- ferred to the Committee on Armed Services VerDate Sep 11 2014 02:09 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H8270.IH H8270 SSpencer on DSK126QN23PROD with BILLS 2 •HR 8270 IH 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 2020’’. 5 SEC. 2. MODIFICATION OF AUTHORITY TO DETERMINE TO 6 PROCEED TO TRIAL BY COURT-MARTIAL ON 7 CHARGES INVOLVING SEX-RELATED OF- 8 FENSES. 9 (a) ROLE OF OFFICE OF THE CHIEF PROSECUTOR 10 IN DETERMINATION TO PROCEED TO TRIAL ON CHARGE 11 INVOLVING SEX-RELATED OFFENSE.— 12 (1) REFERRAL AND DETERMINATIONS BY OF- 13 FICE OF THE CHIEF PROSECUTOR.—Section 834 of 14 title 10, United States Code (article 34 of the Uni- 15 form Code of Military Justice) is amended— 16 (A) by redesignating subsection (d) as sub- 17 section (e); and 18 (B) by inserting after the subsection (c) 19 the following new subsection (d): 20 VerDate Sep 11 2014 02:09 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8270.IH H8270 SSpencer on DSK126QN23PROD with BILLS 3 •HR 8270 IH ‘‘(d) REFERRAL TO OFFICE OF THE CHIEF PROS- 1 ECUTOR.—(1) In the case of a charge relating to a sex- 2 related offense, in addition to referring the charge to the 3 staff judge advocate under subsection (a), the convening 4 authority shall refer, as soon as reasonably practicable, the 5 charge to the Office of the Chief Prosecutor of the armed 6 force of which the accused is a member to make the deter- 7 mination required by paragraph (3). The actions of the 8 Office of the Chief Prosecutor under this subsection 9 whether or not to try charges by court-martial shall be 10 free of unlawful or unauthorized influence or coercion. 11 ‘‘(2) For purposes of this subsection, the term ‘sex- 12 related offense’ means any of the following: 13 ‘‘(A) An offense covered by section 920, 920a, 14 920b, 920c, or 920d of this title (article 120, 120a, 15 120b, 120c, or 120d). 16 ‘‘(B) A conspiracy to commit an offense speci- 17 fied in subparagraph (A) as punishable under sec- 18 tion 881 of this title (article 81). 19 ‘‘(C) A solicitation to commit an offense speci- 20 fied in subparagraph (A) as punishable under sec- 21 tion 882 of this title (article 82). 22 ‘‘(D) An attempt to commit an offense specified 23 in subparagraphs (A) through (C) as punishable 24 under section 880 of this title (article 80). 25 VerDate Sep 11 2014 02:09 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8270.IH H8270 SSpencer on DSK126QN23PROD with BILLS 4 •HR 8270 IH ‘‘(3) The Office of the Chief Prosecutor shall make 1 a determination regarding whether a charge relating to a 2 sex-related offense should be referred to trial. If the Office 3 of the Chief Prosecutor makes a determination to try the 4 charge by court-martial, the Office of the Chief Prosecutor 5 also shall determine whether to try the charge by a general 6 court-martial convened under section 822 of this title (ar- 7 ticle 22) or a special court-martial convened under section 8 823 of this title (article 23). 9 ‘‘(4) A determination under paragraph (3) to try a 10 charge relating to a sex-related offense by court-martial 11 shall include a determination to try all known offenses, 12 including lesser included offenses. 13 ‘‘(5) The determination to try a charge relating to 14 a sex-related offense by court-martial under paragraph 15 (3), and by type of court-martial, shall be binding on any 16 applicable convening authority for a trial by court-martial 17 on the charge. 18 ‘‘(6) A determination under paragraph (3) not to pro- 19 ceed to trial on a charge relating to a sex-related offense 20 by general or special court-martial shall not operate to ter- 21 minate or otherwise alter the authority of commanding of- 22 ficers to refer such charge for trial by summary court- 23 martial convened under section 824 of this title (article 24 24), or to impose non-judicial punishment in connection 25 VerDate Sep 11 2014 02:09 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8270.IH H8270 SSpencer on DSK126QN23PROD with BILLS 5 •HR 8270 IH with the conduct covered by the charge as authorized by 1 section 815 of this title (article 15). 2 ‘‘(7) Nothing in this subsection shall be construed to 3 alter or affect the disposition of charges under this chapter 4 (the Uniform Code of Military Justice) that allege an of- 5 fense triable by court-martial under this chapter for which 6 the maximum punishment authorized under this chapter 7 includes confinement for one year or less. 8 ‘‘(8) This subsection does not apply to the Coast 9 Guard when it is not operating as a service in the Depart- 10 ment of the Navy.’’. 11 (2) APPOINTMENT OF CHIEF PROSECUTOR.— 12 For any Armed Force (other than the Coast Guard) 13 for which the position of Chief Prosecutor does not 14 exist as of the date of the enactment of this Act, the 15 Judge Advocate General of that Armed Force shall 16 establish the position of Chief Prosecutor and ap- 17 point as the Chief Prosecutor a commissioned officer 18 in the grade of O–6 or above who has significant ex- 19 perience prosecuting sexual assault trials by court- 20 martial. 21 (b) CHIEF PROSECUTOR AUTHORITY TO CONVENE 22 ARTICLE 32 PRELIMINARY HEARINGS.—Section 832(a) of 23 title 10, United States Code (article 32(a) of the Uniform 24 VerDate Sep 11 2014 02:09 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8270.IH H8270 SSpencer on DSK126QN23PROD with BILLS 6 •HR 8270 IH 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(d)(2) of this title (article 34(d)(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) the officers in the offices established pur- 20 suant to section 546(c)(3) of the National Defense 21 Authorization Act for Fiscal Year 2016 or officers in 22 the grade of O–6 or higher who are assigned such 23 responsibility by the Chief of Staff of the Army, the 24 Chief of Naval Operations, the Chief of Staff of the 25 VerDate Sep 11 2014 02:09 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8270.IH H8270 SSpencer on DSK126QN23PROD with BILLS 7 •HR 8270 IH Air Force, or the Commandant of the Marine Corps, 1 but only with respect to a sex-related offense (as de- 2 fined in section 834(d)(2) of this title (article 3 34(d)(2)));’’. 4 (2) NO EXERCISE BY OFFICERS IN CHAIN OF 5 COMMAND OF ACCUSED OR VICTIM.—Section 822 of 6 title 10, United States Code (article 22 of the Uni- 7 form Code of Military Justice) is amended by adding 8 at the end the following new subsection: 9 ‘‘(c) An officer specified in subsection (a)(8) may not 10 convene a court-martial under this section if the officer 11 is in the chain of command of the accused or the victim.’’. 12 (3) OFFICES OF CHIEFS OF STAFF ON COURTS- 13 MARTIAL.— 14 (A) OFFICES REQUIRED.—The Chief of 15 Staff of the Army, the Chief of Naval Oper- 16 ations, the Chief of Staff of the Air Force, or 17 the Commandant of the Marine Corps shall es- 18 tablish an office to do the following: 19 (i) To convene general and special 20 courts-martial under sections 822 and 823 21 of title 10, United States Code (articles 22 22 and 23 of the Uniform Code of Military 23 Justice), pursuant to paragraph (8) of sec- 24 tion 822(a) of title 10, United States Code 25 VerDate Sep 11 2014 02:09 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H8270.IH H8270 SSpencer on DSK126QN23PROD with BILLS 8 •HR 8270 IH (article 22(a) of the Uniform Code of Mili- 1 tary Justice), as amended by paragraph 2 (1), with respect to a sex-related offense 3 (as defined in section 834(d)(2) of title 10, 4 United States Code (article 34(d)(2) of the 5 Uniform Code of Military Justice)). 6 (ii) To detail under section 825 of 7 title 10, United States Code (article 25 of 8 the Uniform Code of Military Justice), 9 members of courts-martial convened as de- 10 scribed in clause (i). 11 (B) PERSONNEL.—The personnel of each 12 office established under subparagraph (A) shall 13 consist of such members of the Armed Forces 14 and civilian personnel of the Department of De- 15 fense as may be detailed or assigned to the of- 16 fice by the Chief of Staff or Commandant con- 17 cerned. The members and personnel so detailed 18 or assigned, as the case may be, shall be de- 19 tailed or assigned from personnel billets in ex- 20 istence on the date of the enactment of this 21 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 02:09 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H8270.IH H8270 SSpencer on DSK126QN23PROD with BILLS 9 •HR 8270 IH (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 02:09 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H8270.IH H8270 SSpencer on DSK126QN23PROD with BILLS 10 •HR 8270 IH 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 United States Code (the Uniform Code of Military 9 Justice), is amended by inserting after section 920c 10 (article 120c) the following new section (article): 11 ‘‘§ 920d. Art. 120d. Sexual harassment 12 ‘‘(a) IN GENERAL.—Any person subject to this chap- 13 ter who commits sexual harassment against another per- 14 son shall be punished as a court-martial may direct. 15 ‘‘(b) SEXUAL HARASSMENT DEFINED.— 16 ‘‘(1) In this section term ‘sexual harassment’ 17 means conduct that takes place in a circumstance 18 described in paragraph (2) that takes the form of— 19 ‘‘(A) a sexual advance; 20 ‘‘(B) a request for sexual favors; or 21 ‘‘(C) any other conduct of a sexual nature. 22 ‘‘(2) A circumstance described in this para- 23 graph is a situation in which— 24 VerDate Sep 11 2014 02:09 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H8270.IH H8270 SSpencer on DSK126QN23PROD with BILLS 11 •HR 8270 IH ‘‘(A) submission to the conduct involved is 1 made either explicitly or implicitly a term or 2 condition of employment; 3 ‘‘(B) submission to or rejection of such 4 conduct is used as the basis for an employment 5 decision affecting an individual’s employment; 6 or 7 ‘‘(C) such conduct unreasonably alters an 8 individual’s terms, conditions, or privileges of 9 employment, including by creating [Text truncated for display. 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