Questions and answers regarding Kentucky's updated state Uniform Code of Military Justice, which now allows the Kentucky National Guard to conduct a criminal investigation into sex assaults. With Charles Lay, victim advocate coordinator, Kentucky National Guard.
When did the reforms go through?
The new Kentucky Revised Statutes Chapter 35 (the Kentucky Code of Military Justice) were voted on and passed in the 2013 legislative meeting. They were signed and became law in 2013.
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Why? Was there a particular motivation, or an individual who pushed for it?
The last update to the Kentucky Code of Military Justice was in the 1950s, with some statutes being repealed between then and now. The state JAG office was in the process of updating/revising it to bring it in line with the current Uniform Code of Military Justice governing Active Duty Service Members in 2012.
In Kentucky, it was noticed by the new staff in the Sexual Assault Prevention and Response Office that all statutes pertaining to sexual assault in the Kentucky Code of Military Justice had been repealed in 1970. The SAPR office contacted the JAG office requesting the inclusion of statutes pertaining to sexual assault during the revision of the Kentucky Code of Military Justice.
This was the most detailed and updated portion of the new code that was put in place. The new Code of Military Justice applies to Kentucky National Guard Service Members at all times and in all places, unlike that previous one which applied only when they were on military orders.
After the first full year of the new Kentucky Code of Military Justice being in place, the JAG office is looking at doing additional revisions. The update in 2013 used a model code of military justice to base the update on. The new proposed revision is to use language more specific to the Kentucky needs, and to incorporate new changes to the sexual assault statutes, such as trying to repeal the statute of limitations for sexual assaults.
Can the Kentucky National Guard now investigate a sex crime similar to the federal system or do you rely on civilian police to do that?
The Kentucky National Guard does not have organic assets to investigate sex crimes. We determine who has jurisdiction of the case, and then contact that agency to conduct the investigation after we receive a report of a sex crime.
For cases where the victim was on Title 10 (Federal) Orders, then we contact that branch's military criminal investigative organization, such as the Criminal Investigation Division for the Army. For cases occurring in a Title 32 or non-duty status (when not on any type of military order, cases that occurred prior to joining the military, etc), then we contact the local law enforcement agency that has jurisdiction in the area the sexual assault occurred.
For cases that local law enforcement declines to investigate or that they fail to indict at a grand jury, then our JAG office reviews the case facts as known at that point and any investigation documentation from local law enforcement, and advises the Adjutant General, who then makes requests the Office of Complex Investigations at the National Guard Bureau Headquarters to assign investigators from outside the state to conduct an investigation.
The OCI will only conduct investigations in which the military has jurisdiction over the accused (such as when they are a service member).
We've been told you can now do the equivalent of an Article 32 hearing? Is that true? How is it similar to the federal system and how does it differ?
Yes. It is called a court of inquiry. It is run functionally the same, has the power to call witnesses and take testimony. One difference is the whole process does not have the same level of detail spelled out in the statute as the Article 32 process in its regulation. It does not specify all of the steps that the Article 32 does.
Do these same reforms apply to other major violent crimes (murder, etc) or were they specific to sexual assaults?
It does, but most of the major crimes would be handled by law enforcement in the civilian community that would have jurisdiction over those cases. With sexual assaults, we have other means of conducting the investigation, such as OCI at NGB, and would be able to prosecute through the military judicial system if the Kentucky National Guard has jurisdiction over the accused.
Do you have a statute of limitations on sexual assault against military service members? California got rid of its statute of limitations.
We do because we adopted a military model code. Our intent is to seek removal of the statute of limitation in a revision. The goal is to catch up to the current Article 120 of the UCMJ. Current statute of limitations is three years.