Article 32 Hearing In Sexual Assault Cases
One of the first decisions a Soldier will have to make when facing a sexual assault court martial is whether to waive the Article 32 hearing or not. Your military defense attorney has likely told you that the Article 32 is not an important event. You may be wondering why your military defense attorney is telling you the Article 32 is not important. The reality is that Congress has stripped away many of the historically important Article 32 procedural protections for an accused.
An Article 32 used to be an important event for a Soldier charged with a sexual assault. The Article 32 would enable you to discover evidence in the Government’s case, call witnesses that may testify at the court martial to secure their testimony, and most importantly subject the alleged victim to a cross-examination in order to undercut the validity of their allegations. The Article 32 hearing process was originally intended to help protect Soldiers from baseless charges. It was not uncommon for a Soldier to avoid a court martial after an Article 32 hearing was completed, and the hearing officer made their recommendations to the convening authority.
After Congress changed the rules as part of the 2014 National Defense Authorization Act, an alleged victim can now refuse to testify at an Article 32 hearing. In order to further hamper the defense in sexual assault cases, Congress also recommended a change to the rules for court martial in order to eliminate the ability to order a deposition of an alleged victim prior to a court martial. The recommendation was approved, and is now part of the amended Rule for Court Martial 702.
As a result of the many changes to the Article 32 hearing process, and other amendments to the rules impacting a court martial, your military counsel is correct that an Article 32 hearing is no longer an important event for a Soldier accused of sexual assault. As such, you are likely not losing anything by waiving the Article 32 hearing.