Hearing of the Senate Armed Services Committee - Markup of the National Defense Authorization Act for Fiscal Year 2014

Hearing

Senator MCCASKILL. The first amendment that I would like to talk about is Amendment Number 17. Right now during the clemency phase of the trial, the convening authority receives a packet of materials prepared by defendant's counsel. There are no limitations on what can appear in that packet. It presents an opportunity for the defendant to attack the victim, which occurs almost in every case, except this time, without any ability to rebut.

This amendment does two things. First, it gives the victim the same opportunity as the defendant to provide information for clemency consideration. It gives a voice to the victim during the clemency phase. Second, this amendment prohibits the convening authority from reviewing any material that speaks to the character of the victim if that information was not presented as evidence at trial. This keeps the convening authority from being able to review materials the jury was not allowed to hear.

We have a rape shield statute in UCMJ, and the rape shield statute is that where the prosecutor and the defense lawyer argue to the judge whether or not prior sexual or post-sexual contact of the victim is relevant, and the judge makes a decision.

I learned in the Aviano case and many others that after the judge ruled that none of that was admissible, it went in the clemency pack, totally inappropriate. So this amendment would not only give a voice to the victim during the clemency process. It would make sure that no one is reading anything about that victim that was not deemed admissible in trial.

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