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President Approves Changes to Manual for Courts-Martial

By Paul Stone
American Forces Press Service

WASHINGTON, Oct. 19, 1999 – ident Clinton recently signed an executive order making four significant changes to the Manual for Courts-Martial.

The new rules are designed to bring the military court system in line with changes made in federal laws in recent years, according to Air Force Colonel Robert Reed, associated deputy general counsel in the Office of the General Counsel. The changes will be effective for any crimes committed after Nov. 1, 1999.

The four changes:

o Allow evidence to be presented during the sentencing phase of a trial that a violent crime was a hate crime.

o Provide special protections and procedures for cases in which there are allegations of child abuse and children are called to testify.

o Provide that most statements between a patient and psychotherapist are privileged and cannot be entered into evidence.

o Create the offense of reckless endangerment as a crime under the Uniform Code of Military Justice.

Reed said the changes have been under consideration since 1997 and are the result of an annual DoD-level reviews of the Manual for Courts- Martial. The Manual for Courts-Martial is the guiding force for prosecuting crimes in the Uniform Code of Military Justice.

The reviews are conducted by the Joint Service Committee on Military Justice. The committee includes a representative from each service, DoDs Office of the General Counsel and a member from the Court of Appeals of the Armed Services. After a lengthy review process, drafting of proposed changes and coordination with other federal agencies, the changes are then submitted to the President for his approval, Reed explained.

Reed said the hate crimes provision specifically states that a judge may consider whether an offense was motivated by the victims race, color, religion, national origin, ethnicity, gender or sexual orientation when weighing punishment for a violent crime.

Federal sentencing guidelines include this provision and we thought it was appropriate the military court system include it as well, he said. During the sentencing phase of trial, prosecutors will now be able to present evidence that the crime was a hate crime in hopes of obtaining a stiffer penalty.

The special protection for children allows them to testify from a remote location, usually using a two-way closed circuit television system. Reed said this is not an automatic protection, but will be determined by judges on a case-by-case basis.

This protection is most likely to come into play when a judge determines that a child who was a victim of abuse would have difficulty testifying in front of the accused or would be traumatized by the event, Reed explained.

Additionally, instead of the child testifying from a remote location, the change also allows for the defendant to be excused from the trial while the child is testifying. But Reed emphasized that the request to be excused must come from the defendant.

Both avenues are designed to reduce the possibility of further trauma to children and are similar to provisions applied in most civilian courts, Reed said.

The protection for communication between a patient and psychotherapist is an extension of other communication protections already recognized by the military court system.

The military recognizes a privilege for communication between attorneys and clients, clergyman and clients and husbands and wives, Reed said. But up to now there hasnt been one for those seeking psychotherapy.

He emphasized, however, that the protection is limited to psychotherapist-client communication that might be entered into courts- martial proceedings.

This is really intended as a victims rights protection, he explained. The goal, he said, was to give crime victims the freedom to seek psychological counseling without concern that what they discussed would be brought out in court.

There is no privilege for routine psychotherapist-client communication that could affect administrative actions. Other exceptions include:

o When the communication is evidence of spouse or child abuse and neglect, or when one spouse is charged with a crime against the other.

o When a psychotherapist believes the patients mental or emotional condition makes the patient a danger to any person, including the patient.

o When the communication indicates the patient is considering committing a crime in the future.

o When necessary to ensure the safety and security of military personnel, family members, property, classified information or the accomplishment of military missions.

While recognizing there are unique circumstances in which confidentiality should prevail, this change also recognizes the special needs of the military and our obligation to protect national security, Reed said.

The addition of reckless endangerment as an offense of the Uniform Code of Military Justice stems from a case involving an HIV-positive service member who was charged with having unsafe sex with others.

In that case, there wasnt any one offense under the UCMJ that really fit the circumstances, Reed said. So based upon that case this offense was added, recognizing that there might be other scenarios in which people act recklessly and place people in danger of death or grievous bodily harm.

Under this change, Reed said that a prosecutor will not have to prove that harm or injury took place, only that the defendant acted in a way to place a person in jeopardy of being harmed or injured. It is an offense also found in most state criminal codes.

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