Navy-Marine Court of Criminal Appeals holds that victim’s right to not be excluded from an Article 32 hearing has limits.

Recently, in A.M. v. United States and Densford, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) reviewed a claim from an alleged sexual assault victim that she was excluded from parts of the preliminary Article 32 hearing in violation of Article 6b of the UCMJ. Under Article 6b(a)(3), the alleged victim of a UCMJ offense has:

“The right not to be excluded from any public hearing or proceeding described in paragraph (2) [which includes an Article 32, UCMJ, preliminary hearing relating to the offense] unless the military judge or investigating officer, as applicable, after receiving clear and convincing evidence, determines that testimony by the victim of an offense under this chapter would be materially altered if the victim heard other testimony at that hearing or proceeding.”

A.M. made her initial sexual assault allegations against Marine Corps Major Densford. The allegations were reviewed at an Article 32 hearing by a Preliminary Hearing Officer (PHO). The Article 32 hearing only lasted about thirty minutes and almost entirely consisted of both side passing documentary evidence to the PHO for consideration. A.M. alongside her counsel attended the hearing and was there through the entirety. Later, after the hearing some written comments were made by both sides to the PHO regarding evidentiary issues. A.M. and her counsel requested copies of the written comments as well as copies of all of the defense’s evidentiary documents. The request was denied and defense claimed that she had no right to the written comments or the evidence. The NMCCA agreed. The NMCCA understood that if the written comments had been made orally at the hearing, A.M. would have had the right to be present to hear them under Article 6b. However, Article 6b does not state that she is entitled to these written comments occurring after the hearing but prior to the PHO making a determination about the case. Further, the NMCCA held that an alleged victim has no more of a right to the documentary evidence submitted by the defense than any other member of the public observing the preliminary hearing. In other words, Article 6b provides an alleged victim the right to be present and not excluded from the preliminary hearing, however, the NMCCA made it clear that the alleged victim’s rights do not extend further than that. In MAJ Densford’s case, the PHO determined that probable cause did not exist to charge him with the Article 120 offenses alleged. This case shows that while military law has extended the rights of alleged sexual assault victims, their rights have limits. A fair hearing and court-martial must be afforded to an accused. If you or your loved one is facing a court-martial or appeal and needs help from someone who will ensure that their rights are protected, call me. I have a great deal of experience at the court-martial level and the appellate level. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

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