Clinton Signs Executive Orders on Military Anti-Gay Crimes

DoD

Honor the Contract

For Immediate Release October 7, 1999

EXECUTIVE ORDER

– – – – – – –

1999 AMENDMENTS TO THE MANUAL

FOR COURTS-MARTIAL, UNITED STATES

By the authority vested in me

as President by the Constitution and

the laws of the United States of

America, including chapter 47 of title

10, United States Code (Uniform Code

of Military Justice, 10 U.S.C.

801-946), in order to prescribe

amendments to the Manual for

Courts-Martial, United States,

prescribed by Executive Order , as

amended by Executive Order ,

Executive Order , Executive Order

, Executive Order ,

Executive Order , Executive Order

, Executive Order ,

Executive Order , and Executive Order

, it is hereby ordered as follows:

Section 1. Part II of the

Manual for Courts-Martial, United States,

is amended as follows:

a. R.C.M. 502 is amended

to read as follows:

” Qualifications of

military judge. A military judge shall

be a commissioned officer of

the armed forces who is a member

of the bar of a Federal court

or a member of the bar of the

highest court of a State and

who is certified to be qualified

for duty as a military judge

by the Judge Advocate General of

the armed force of which such

military judge is a member. In

addition, the military judge

of a general court-martial shall

be designated for such duties

by the Judge Advocate General or

the Judge Advocate General’s

designee, certified to be

qualified for duty as a

military judge of a general

court-martial, and assigned

and directly responsible to the

Judge Advocate General or the

Judge Advocate General’s

designee. The Secretary

concerned may prescribe additional

qualifications for military

judges in special courts-martial.

As used in this subsection

“military judge” does not include

the president of a special

court-martial without a military

judge.”

b. R.C.M. 804 is amended by

redesignating the current subsection

as subsection (d) and inserting

after subsection (b) the following new

subsection :

” Voluntary absence

for limited purpose of child

testimony.

(1) Election by accused.

Following a determination by the

military judge that remote

live testimony of a child is

appropriate pursuant to Mil.

R. Evid. 611(d)(3), the accused

may elect to voluntarily

absent himself from the courtroom in

order to preclude the use of

procedures described in R.C.M.

914A.

(2) Procedure. The accused’s

absence will be conditional

upon his being able to view

the witness’ testimony from a

remote location. Normally, a

two-way closed circuit

television system will be

used to transmit the child’s

testimony from the courtroom

to the accused’s location. A

one-way closed circuit

television system may be used if deemed

necessary by the military

judge. The accused will also be

provided private,

contemporaneous communication with his

counsel. The procedures

described herein shall be employed

unless the accused has made a

knowing and affirmative waiver

of these procedures.

(3) Effect on accused’s

rights generally. An election by

the accused to be absent

pursuant to subsection (1) shall

not otherwise affect the

accused’s right to be present at the

remainder of the trial in

accordance with this rule.”

c. The following new rule is

inserted after R.C.M. 914:

“Rule 914A. Use of

remote live testimony of a child

(a) General procedures. A

child shall be allowed to

testify out of the presence

of the accused after the military

judge has determined that the

requirements of Mil. R. Evid.

611(d)(3) have been satisfied.

The procedure used to take

such testimony will be

determined by the military judge based

upon the exigencies of the

situation. However, such testimony

should normally be taken via

a two-way closed circuit

television system. At a

minimum, the following procedures

shall be observed:

(1) The witness shall testify

from a remote location

outside the courtroom;

(2) Attendance at the remote

location shall be limited to

the child, counsel for each

side (not including an accused pro

se), equipment operators, and

other persons, such as an

attendant for the child,

whose presence is deemed necessary by

the military judge;

(3) Sufficient monitors shall

be placed in the courtroom

to allow viewing and hearing

of the testimony by the military

judge, the accused, the

members, the court reporter and the

public;

(4) The voice of the military

judge shall be transmitted

into the remote location to

allow control of the proceedings;

and

(5) The accused shall be

permitted private,

contemporaneous communication

with his counsel.

(b) Prohibitions. The

procedures described above shall not

be used where the accused

elects to absent himself from the

courtroom pursuant to R.C.M. 804.”

d. R.C.M. 1001(b)(4) is

amended by inserting the following

sentences between the first and

second sentences:

“Evidence in aggravation

includes, but is not limited to,

evidence of financial,

social, psychological, and medical

impact on or cost to any

person or entity who was the victim

of an offense committed by

the accused and evidence of

significant adverse impact on

the mission, discipline, or

efficiency of the command

directly and immediately resulting

from the accused’s offense.

In addition, evidence in

aggravation may include

evidence that the accused

intentionally selected any

victim or any property as the

object of the offense because

of the actual or perceived race,

color, religion, national

origin, ethnicity, gender,

disability, or sexual

orientation of any person.”

e. R.C.M. 1003(b) is amended:

(1) by striking subsection

(4) and

(2) by redesignating

subsections (5), (6), (7), (8), (9),

(10), and (11) as subsections

(4), (5), (6), (7), (8), (9),

and (10), respectively.

f. R.C.M. 1004(7) is

amended by adding at end the following new

subsection:

“(K) The victim of the

murder was under 15 years of age.”

Sec. 2. Part III of the

Manual for Courts-Martial, United States, is

amended as follows:

a. Insert the following new

rule after Mil. R. Evid. 512:

“Rule 513.

Psychotherapist-patient privilege

(a) General rule of privilege.

A patient has a privilege

to refuse to disclose and to

prevent any other person from

disclosing a confidential

communication made between the

patient and a psychotherapist

or an assistant to the

psychotherapist, in a case

arising under the UCMJ, if such

communication was made for

the purpose of facilitating

diagnosis or treatment of the

patient’s mental or emotional

condition.

(b) Definitions. As used in

this rule of evidence:

(1) A “patient” is

a person who consults with or is

examined or interviewed by a

psychotherapist for purposes of

advice, diagnosis, or

treatment of a mental or emotional

condition.

(2) A

“psychotherapist” is a psychiatrist, clinical

psychologist, or clinical

social worker who is licensed in any

state, territory, possession,

the District of Columbia or

Puerto Rico to perform

professional services as such, or who

holds credentials to provide

such services from any military

health care facility, or is a

person reasonably believed by

the patient to have such

license or credentials.

(3) An “assistant to a

psychotherapist” is a person

directed by or assigned to

assist a psychotherapist in

providing professional

services, or is reasonably believed by

the patient to be such.

(4) A communication is

“confidential” if not intended to

be disclosed to third persons

other than those to whom

disclosure is in furtherance

of the rendition of professional

services to the patient or

those reasonably necessary for such

transmission of the communication.

(5) “Evidence of a

patient’s records or communications” is

testimony of a

psychotherapist, or assistant to the same, or

patient records that pertain

to communications by a patient to

a psychotherapist, or

assistant to the same for the purposes

of diagnosis or treatment of

the patient’s mental or emotional

condition.

Who may claim the

privilege. The privilege may be

claimed by the patient or the

guardian or conservator of the

patient. A person who may

claim the privilege may authorize

trial counsel or defense

counsel to claim the privilege on his

or her behalf. The

psychotherapist or assistant to the

psycho-therapist who received

the communication may claim the

privilege on behalf of the

patient. The authority of such a

psychotherapist, assistant,

guardian, or conservator to so

assert the privilege is

presumed in the absence of evidence to

the contrary.

(d) Exceptions. There is no

privilege under this rule:

(1) when the patient is dead;

(2) when the communication is

evidence of spouse abuse,

child abuse, or neglect or in

a proceeding in which one spouse

is charged with a crime

against the person of the other spouse

or a child of either spouse;

(3) when federal law, state

law, or service regulation

imposes a duty to report

information contained in a

communication;

(4) when a psychotherapist or

assistant to a

psychotherapist believes that

a patient’s mental or emotional

condition makes the patient a

danger to any person, including

the patient;

(5) if the communication

clearly contemplated the future

commission of a fraud or

crime or if the services of the

psychotherapist are sought or

obtained to enable or aid anyone

to commit or plan to commit

what the patient knew or

reasonably should have known

to be a crime or fraud;

(6) when necessary to ensure

the safety and security of

military personnel, military

dependents, military property,

classified information, or

the accomplishment of a military

mission;

(7) when an accused offers

statements or other evidence

concerning his mental

condition in defense, extenuation, or

mitigation, under

circumstances not covered by R.C.M. 706 or

Mil. R. Evid. 302. In such

situations, the military judge

may, upon motion, order

disclosure of any statement made by

the accused to a

psychotherapist as may be necessary in the

interests of justice; or

(8) when admission or

disclosure of a communication is

constitutionally required.

(e) Procedure to determine

admissibility of patient

records or communications.

(1) In any case in which the

production or admission of

records or communications of

a patient other than the accused

is a matter in dispute, a

party may seek an interlocutory

ruling by the military judge.

In order to obtain such a

ruling, the party shall:

(A) file a written motion at

least 5 days prior to entry

of pleas specifically

describing the evidence and stating the

purpose for which it is

sought or offered, or objected to,

unless the military judge,

for good cause shown, requires a

different time for filing or

permits filing during trial; and

(B) serve the motion on the

opposing party, the military

judge and, if practical,

notify the patient or the patient’s

guardian, conservator, or

representative that the motion has

been filed and that the

patient has an opportunity to be heard

as set forth in subparagraph (e)(2).

(2) Before ordering the

production or admission of evidence

of a patient’s records or

communication, the military judge

shall conduct a hearing. Upon

the motion of counsel for

either party and upon good

cause shown, the military judge may

order the hearing closed. At

the hearing, the parties may

call witnesses, including the

patient, and offer other

relevant evidence. The

patient shall be afforded a reasonable

opportunity to attend the

hearing and be heard at the

patient’s own expense unless

the patient has been otherwise

subpoenaed or ordered to

appear at the hearing. However, the

proceedings shall not be

unduly delayed for this purpose. In

a case before a court-martial

composed of a military judge and

members, the military judge

shall conduct the hearing outside

the presence of the members.

(3) The military judge shall

examine the evidence or a

proffer thereof in camera, if

such examination is necessary to

rule on the motion.

(4) To prevent unnecessary

disclosure of evidence of a

patient’s records or

communications, the military judge may

issue protective orders or

may admit only portions of the

evidence.

(5) The motion, related

papers, and the record of the

hearing shall be sealed and

shall remain under seal unless the

military judge or an

appellate court orders otherwise.”

b. Mil. R. Evid. 611 is

amended by inserting the following new

subsection at the end:

(d) Remote live testimony of

a child.

(1) In a case involving abuse

of a child or domestic

violence, the military judge

shall, subject to the

requirements of subsection

(3) of this rule, allow a child

victim or witness to testify

from an area outside the

courtroom as prescribed in

R.C.M. 914A.

(2) The term “child”

means a person who is under the age of

16 at the time of his or her

testimony. The term “abuse of a

child” means the

physical or mental injury, sexual abuse or

exploitation, or negligent

treatment of a child. The term

“exploitation”

means child pornography or child prostitution.

The term “negligent

treatment” means the failure to provide,

for reasons other than

poverty, adequate food, clothing,

shelter, or medical care so

as to endanger seriously the

physical health of the child.

The term “domestic violence”

means an offense that has as

an element the use, attempted

use, or threatened use of

physical force against a person and

is committed by a current or

former spouse, parent, or

guardian of the victim; by a

person with whom the victim

shares a child in common; by

a person who is cohabiting with

or has cohabited with the

victim as a spouse, parent, or

guardian; or by a person

similarly situated to a spouse,

parent, or guardian of the victim.

(3) Remote live testimony

will be used only where the

military judge makes a

finding on the record that a child is

unable to testify in open

court in the presence of the

accused, for any of the

following reasons:

(A) The child is unable to

testify because of fear;

(B) There is substantial

likelihood, established by expert

testimony, that the child

would suffer emotional trauma from

testifying;

The child suffers from a

mental or other infirmity; or

(D) Conduct by an accused or

defense counsel causes the

child to be unable to

continue testifying.

(4) Remote live testimony of

a child shall not be utilized

where the accused elects to

absent himself from the courtroom

in accordance with R.C.M. 804.”

Sec. 3. Part IV of the Manual

for Courts-Martial, United States, is

amended as follows:

a. Insert the following new

paragraph after paragraph 100:

100a. Article 134: (Reckless endangerment)

a. Text. See paragraph 60.

b. Elements.

(1) That the accused did

engage in conduct;

(2) That the conduct was

wrongful and reckless or wanton;

(3) That the conduct was

likely to produce death or

grievous bodily harm to

another person; and

(4) That under the

circumstances, the conduct of the

accused was to the prejudice

of good order and discipline in

the armed forces or was of a

nature to bring discredit upon

the armed forces.

c. Explanation.

(1) In general. This offense

is intended to prohibit and

therefore deter reckless or

wanton conduct that wrongfully

creates a substantial risk of

death or serious injury to

others.

(2) Wrongfulness. Conduct is

wrongful when it is without

legal justification or excuse.

(3) Recklessness.

“Reckless” conduct is conduct that

exhibits a culpable disregard

of foreseeable consequences to

others from the act or

omission involved. The accused need

not intentionally cause a

resulting harm or know that his

conduct is substantially

certain to cause that result. The

ultimate question is whether,

under all the circumstances, the

accused’s conduct was of that

heedless nature that made it

actually or imminently

dangerous to the rights or safety of

others.

(4) Wantonness.

“Wanton” includes “reckless,” but may

connote willfulness, or a

disregard of probable consequences,

and thus describe a more

aggravated offense.

(5) Likely to produce. When

the natural or probable

consequence of particular

conduct would be death or grievous

bodily harm, it may be

inferred that the conduct is “likely”

to produce that result. See

paragraph 54c(4)(a)(ii).

(6) Grievous bodily harm.

“Grievous bodily harm” means

serious bodily injury. It

does not include minor injuries,

such as a black eye or a

bloody nose, but does include

fractured or dislocated

bones, deep cuts, torn members of the

body, serious damage to

internal organs, and other serious

bodily injuries.

(7) Death or injury not

required. It is not necessary that

death or grievous bodily harm

be actually inflicted to prove

reckless endangerment.

d. Lesser included offenses. None.

e. Maximum punishment.

Bad-conduct discharge, forfeiture of

all pay and allowances, and

confinement for 1 year.

f. Sample specification. In

that
(personal

jurisdiction data), did,

(at/on board —

location)(subject-matter

jurisdiction data, if required), on

or about
19
,

wrongfully and recklessly engage

in conduct, to wit:

(he/she)(describe conduct) and that the

accused’s conduct was likely

to cause death or serious bodily

harm to
.”

Sec. 4. These amendments

shall take effect on 1 November 1999,

subject to the following:

a. The amendments made to

Military Rule of Evidence 611, shall

apply only in cases in which

arraignment has been completed on or after

1 November 1999.

b. Military Rule of Evidence

513 shall only apply to communications

made after 1 November 1999.

c. The amendments made to

Rules for Courts-Martial 502, 804, and

914A shall only apply in cases in

which arraignment has been completed

on or after 1 November 1999.

d. The amendments made to

Rules for Courts-Martial 1001(b)(4) and

1004(7) shall only apply to

offenses committed after 1 November 1999.

e. Nothing in these

amendments shall be construed to make

punishable any act done or omitted

prior to 1 November 1999, which was

not punishable when done or omitted.

f. The maximum punishment for

an offense committed prior to 1

November 1999, shall not exceed the

applicable maximum in effect at the

time of the commission of such offense.

g. Nothing in these

amendments shall be construed to invalidate any

nonjudicial punishment proceeding,

restraint, investigation, referral of

charges, trial in which arraignment

occurred, or other action begun

prior to 1 November 1999, and any

such nonjudicial punishment,

restraint, investigation, referral

of charges, trial, or other action

may proceed in the same manner and

with the same effect as if these

amendments had not been prescribed.

WILLIAM J. CLINTON

THE WHITE HOUSE,

October 6, 1999.

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