OLD WINE INTO NEW BOTTLES: THE ARTICLE 32 PROCESS AFTER THE NATIONAL DEFENSE AUTHORIZATION ACT OF 2014

THE CHANGES TO ARTICLE 32, UCMJ As part of the National Defense Authorization Act of 2014 (2014 NDAA), Congress altered the language of Article 32, UCMJ.3 It did so in an effort to limit the scope of Article 32 hearings, which were deemed to be abusive and unnecessarily broad.4 Comments on the Senate floor recounted recent high visibility cases and heart-wrenching anecdotes that illustrated the excessiveness of Article 32 hearings.5 These anecdotes echoed the public perception that in sexual assault cases, defense counsel were using the Article 32 process to intimidate and bully victims.6 Media commentators assumed the cross-examination that occurred in these high-profile Article 32 hearings was well outside the scope of what was required for a probable cause determination and portrayed these excessive cross-examinations as a common defense tactic in sexual assault cases.7 Legal scholars were quoted as supporting this narrative and calling for dramatic change: "If this is what Article 32 has come to be, then it is time to either get rid of it or put real restrictions on the conduct during them,"8 and "An Article 32 is a needlessly complex and lengthy 'trial before a trial.' [...]the new language of Article 32 uses the term "limited" in four instances to describe the purpose of the hearing and matters to be presented.16 To further truncate the hearing and reduce its invasive nature, Congress eliminated any requirement that victims testify in person by making them presumptively unavailable if they choose not to testify.17 The hearing officer can instead consider prior qualifying sworn statements in lieu of live testimony, such as statements made to law enforcement during the initial complaint and investigation.18 The purpose of this amendment was to "[m]ake the Article 32 process more like a grand jury proceeding,"19 and exempt victims of sexual assault from having to endure rigorous and often humiliating cross-examination prior to trial.20 Congress wanted to focus away from victims of crime and reorient to the question of probable cause.