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The Army Lawyer | Issue 2 2021View PDF

No. 4: Juvenile Misconduct Overseas

Written By
Hannah Zeigler
Tags
2024-06-06
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No. 4

Juvenile Misconduct Overseas

By R. Peter Masterton

In 2015, a six-year-old girl told her mother that she was sexually assaulted by a boy in her American military elementary school in Grafenwoehr, Germany. The girl said that the boy forced kisses on her, penetrated her with his finger, and coaxed her into touching him. The next day, the girl’s father—an Army Soldier—and mother reported the sexual assault. However, they were told that the offices set up to investigate sexual assaults and assist victims could not do anything because the victim and the offender were both minors. The parents were shocked when they later learned that the military elementary school principal had received several other reports of sexual assaults by the same juvenile offender six months previously. Ultimately, the offender was removed from school, but no criminal investigation or prosecution was initiated. The girl’s mother later told a reporter, “We expected some kind of justice. It was really discouraging and kind of disheartening to know the military kids, especially overseas, have no protection.”1

Juvenile misconduct is a significant problem on many military bases.2 Such misconduct ranges from the sexual assault case described above to shoplifting, illegal drug and alcohol use, and vandalism.3 These cases are rarely prosecuted. The Associated Press documented nearly 600 sexual assaults committed by military children between 2007 and 2018; its analysis of these cases at Navy and Marine Corps bases showed that federal prosecutors pursued only one in seven.4 These reports led to a Department of Defense (DoD) Inspector General (IG) investigation5 and legislation designed to address the problem.6

Juvenile misconduct in American military communities overseas poses an even greater problem. In the United States, local American civilian authorities can investigate and prosecute misconduct by children of American military personnel. However, American authorities have limited power over such children overseas, and host nation prosecutors may be unwilling or unable to investigate their misconduct.7

This article examines how the American military deals with misconduct by juveniles that accompany its forces overseas. It first looks at how juvenile misconduct is investigated, both by American and host nation agencies. It then looks at the disciplinary options for resolving such misconduct, both under American and host nation law. Finally, it discusses some of the unique challenges posed by juvenile misconduct overseas and provides tips for attorneys who deal with these cases.

Investigative Options

A number of American and host nation organizations investigate misconduct by juveniles accompanying the U.S. Forces overseas. In foreign countries where large numbers of American troops and family members are stationed, a status of forces agreement (SOFA) normally defines the investigative purview of the United States and the host nation. These treaties generally provide the U.S. military the authority to investigate crimes occurring on American installations—including those involving juveniles—and require coordination with and assistance from the host nation to investigate crimes that occur off American installations. In Europe, for example, the North Atlantic Treaty Organization (NATO) SOFA states that:

  1. Regularly constituted military units or formations of a force shall have the right to police any camps, establishment or other premises which they occupy as the result of an agreement with the receiving State [host nation]. The military police of the force may take all appropriate measures to ensure the maintenance of order and security on such premises.
  2. Outside these premises, such military police shall be employed only subject to arrangements with the authorities of the receiving State [host nation] and in liaison with those authorities, and in so far as such employment is necessary to maintain discipline and order among the members of the force.8

In addition, the NATO SOFA requires the United States and the host nation to assist each other in investigating offenses.9 In Korea, the SOFA with the United States has nearly identical provisions.10

In many foreign countries, supplemental agreements provide more detail on this investigative authority. For example, in Germany a supplement to the NATO SOFA provides American authorities slightly greater investigative powers. Among other things, it provides the right to patrol public areas that are not located on American installations. Specifically, it allows American military police the right to:

Patrol on public roads, on public transport, in restaurants (Gastätten) and in all other places to which the public has access and to take such measures with respect to the members of a force, of a civilian component or dependents as are necessary to maintain order and discipline. Insofar as it is necessary or expedient the details of this right shall be agreed upon between the German authorities and the authorities of the force who shall maintain close mutual liaison.11

American criminal investigative organizations face special challenges when investigating juveniles. Juveniles have many of the same constitutional rights as adults, even though juvenile delinquency proceedings are fundamentally different from adult criminal trials. The Supreme Court has extended the search and seizure protections of the Fourth Amendment to juveniles.

Investigations by American Military Criminal Investigative Organizations

American military criminal investigative organizations generally investigate crimes committed by American juveniles overseas. Each service has its own regulations covering these investigations, and, depending on the seriousness of the offense, different organizations may be involved. In the Army, the military police investigate minor offenses committed by juveniles12 while the Army Criminal Investigation Command investigates serious incidents.13 Air Force policy creates a similar division of responsibilities between the security police (which investigate minor offenses) and the Air Force Office of Special Investigations (which investigates serious offenses).14 Navy policy also divides investigative responsibility between the Navy and Marine Corps commands’ organic investigators (which investigate minor offenses) and the Naval Criminal Investigative Service (which investigates serious offenses).15

As mentioned, the applicable SOFA and supplemental agreements with the host nation may limit the ability of military criminal investigative organizations to investigate, especially off the installation.16 Each of the Services requires their criminal investigative organizations to maintain liaison with host nation law enforcement agencies to facilitate investigations requiring help from the host nation.17

American criminal investigative organizations face special challenges when investigating juveniles. Juveniles have many of the same constitutional rights as adults, even though juvenile delinquency proceedings are fundamentally different from adult criminal trials. The Supreme Court has extended the search and seizure protections of the Fourth Amendment to juveniles.18 The Court has also held that police must read juveniles their Miranda rights19 before interrogating them while in custody.20 If police know or reasonably should know a juvenile’s age, they must take that age into account in deciding whether the juvenile is in “custody” and, therefore, must receive Miranda warnings.21 The American Academy of Child and Adolescent Psychiatry goes further by recommending that juveniles always have an attorney present before they are interrogated.22 The Air Force requires its Security Forces to allow a parent or guardian to be present at such interrogations.23

Investigations by Other Military Agencies

A number of other American military agencies also investigate juvenile misconduct. Most of these investigations focus on treatment, although some can lead to disciplinary actions as well.

Family Advocacy Program

The military Family Advocacy Program mandates identification of child abuse and neglect.24 The 2019 National Defense Authorization Act (NDAA) required this program to also consider juvenile-on-juvenile “problematic sexual behavior” committed on U.S. military installations.25 As a result, the directive establishing the program now mandates investigation of “problematic sexual behavior in children and youth.”26 In addition, the Family Advocacy Program investigates other forms of juvenile misconduct, since their acts may be evidence of parental neglect. While such investigations focus on the parents, they must also deal with the underlying juvenile misconduct.27

The program requires creation of a multidisciplinary “incident determination committee” to “assess incidents of alleged abuse and make incident status determinations.”28 The Army, Navy, and Air Force each have regulations implementing the Family Advocacy Program, although the details vary.29 The Army multidisciplinary committees include representatives from the military treatment facility, the legal office, the social work services office, installation law enforcement agencies, the Army substance abuse program office, the child and youth services office, the installation chaplain, and the public affairs office. The committee’s “purpose is to coordinate medical, legal, law enforcement, and social work assessment, identification, command intervention, and investigation and treatment functions from the initial report of . . . child abuse to case closure.”30 The Navy and Marine Corps committees are tasked to “review all available case material and make a case status determination.”31 The Air Force created a “central registry board” at each installation which includes representatives from the command, the legal office, installation law enforcement agencies, and the military medical treatment facility.32 The board “makes administrative determinations for suspected . . . child maltreatment” that require entry into an Air Force central registry.33

The Family Advocacy Program committees do not conduct criminal investigations; their focus is on identification, treatment, counseling, and rehabilitation.34 However, the committees must also protect victims and report juvenile misconduct to other agencies. Problematic sexual behavior by children requires the team to monitor “the risk to and safety of all children and youth involved” and make “recommendations for treatment, supportive services, and case management.”35 Other misconduct demonstrating child abuse or neglect requires the team to “assess incidents” and “make incident status determinations.”36 Installation Family Advocacy Programs are required to “immediately report . . . any criminal allegations” to the appropriate law enforcement authority.37

While they are not criminal investigators, Family Advocacy Program committees gather evidence and identify misconduct.38 As a result, committee members who gather evidence, including health care providers, arguably should be required to provide Miranda warnings in appropriate circumstances.39 The team’s focus on treatment makes it difficult for them to effectively investigate misconduct with a view toward discipline of juvenile offenders.40

DoDEA Schools

At schools run by the DoD Education Activity (DoDEA), special reporting requirements apply to juvenile misconduct. A 2016 directive requires DoDEA personnel, including teachers and support staff, to report and document serious incidents related to the school and its activities—including student violations of the law.41 The 2019 NDAA requires DoDEA schools to report juvenile-on-juvenile problematic sexual behavior.42 As a result, new DoDEA regulations specifically require reporting sexual misconduct to the Family Advocacy Program and other outside agencies.43 In addition, the DoDEA must report any “potential criminal activity . . . to law enforcement . . . such as military police . . . host nation law enforcement, other local child protective services . . . installation command, or any other outside enforcement agency with jurisdiction over the type and nature of incident reported.”44

Recent legislation also addressed the tracking of juvenile misconduct in military schools. The 2019 NDAA requires DoDEA to develop a comprehensive database of all juvenile misconduct within DoDEA schools.45 One of the new DoDEA regulations mentioned above requires child abuse reports to be submitted electronically through a case management system within twenty-four hours.46 Department of Defense Education Activity teachers and principals who interrogate student offenders may be required to read them their Miranda rights, especially if U.S. law enforcement agents are present during the interrogation.47 School officials must also respect students’ Fourth Amendment rights to privacy when conducting searches.48 If the school official has reasonable grounds to believe the student has evidence of a violation of the law or school rules, and if the search is not excessively intrusive, searches of students will normally comply with Fourth Amendment requirements.49

Other Officials and Agencies

Other American military officials and agencies may also investigate juvenile misconduct overseas. For example, the commander of the juvenile’s sponsoring parent may decide to conduct a preliminary inquiry under the Uniform Code of Military Justice if the misconduct involved child endangerment.50 While such inquiries focus on the Service member (the juvenile’s sponsor), they should also deal with the underlying juvenile misconduct. Commanders may also conduct administrative investigations if juvenile misconduct affects their unit. The Army, Air Force, and Navy all provide commanders broad authority to inspect their units. Army commanders can order administrative investigations into matters within their “area of responsibility.”51 Air Force commanders can conduct investigations to “improve and evaluate the state of conformance, discipline, economy, efficiency, readiness, and resource management” in the unit.52 Navy commanders can initiate administrative inquiries into “incidents occurring within, or involving personnel of, the command.”53 These broad mandates would, for example, authorize investigation of juvenile vandalism in the unit area or a juvenile assault occurring during a unit function.

If a juvenile commits a sex crime, the military’s Sexual Assault Prevention and Response Program can become involved. This program is designed to support the victim and only applies when the victim is a Service member, a DoD civilian employee, or a dependent of a Service member or Civilian employee over the age of eighteen.54 The program does not apply when the victim is a dependent under the age of eighteen; these victims are covered by the Family Advocacy Program, discussed above.55 Each of the Services has regulations implementing the Sexual Assault Prevention and Response Program.56 Because of its focus on the victim, this program is ill-suited to gathering evidence against an offender.57 The victim has a right to make a “restricted report,” which will preclude commanders or police from initiating a criminal investigation.58

As mentioned at the beginning of this article, a military IG may also investigate juvenile misconduct.59 The Inspector General Act established offices of the IG to “conduct and supervise audits and investigations relating to the programs and operations” of the federal government.60 The DoD has its own IG,61 as does each of the military services.62 The DoD IG is “an independent and objective unit within DoD to conduct and supervise audits, investigations, evaluations, and inspections relating to the programs and operations of the DoD.”63 It can investigate juvenile misconduct within schools run by the DoD and on installations under the control of its services.64 The Army, Navy, and Air Force IG offices work in a similar fashion.65

While IGs can investigate specific cases, they also provide policy guidance.66 As a result, IG investigations will usually focus on trends in juvenile misconduct rather than individual juvenile offenders. For example, the DoD IG investigation mentioned in the introduction of this article examined juvenile misconduct in DoDEA schools world-wide.67 In addition, restrictions on the use of evidence from IG reports can limit their usefulness in subsequent disciplinary action.68

Host Nation Investigations

The host nation where the juvenile’s offense occurs normally has the greatest power to investigate. This authority comes from the host nation’s authority to prosecute the case. Under most SOFAs, the host nation retains the authority to prosecute offenses occurring within its territory, even if the offender is a juvenile accompanying visiting forces. For example, the NATO SOFA provides that:

the authorities of the receiving State [host nation] shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving State [host nation] and punishable by the law of that State.69

The United States–Korea SOFA has a similar provision.70

The host nation will frequently need assistance from American forces to complete the investigation, especially when American witnesses are involved or the offense occurred on an American installation. Most SOFAs require U.S. forces to provide this assistance. As mentioned at the beginning of this section, the NATO SOFA provides that the host nation and the American forces “shall assist each other in the carrying out of all necessary investigations into offences, and in the collection and production of evidence.”71 The United States–Korea SOFA contains nearly identical language.72

Supplemental agreements can clarify the power of host nation authorities to investigate on American installations. For example, the German supplement to the NATO SOFA provides that the German police may “exercise their authority” within American installations “to the extent that the public order and safety of the Federal Republic [of Germany] are jeopardized or violated.”73 German police may enter American installations only after full consultation with American forces.74

American Disciplinary Options

The ability of the U.S. military to discipline juvenile offenders overseas is limited. Most American criminal laws do not apply outside the United States.75 While the Military Extraterritorial Jurisdiction Act (MEJA) may be used to prosecute felonies committed by juveniles “accompanying the Army Force overseas,”76 prosecutions under this Act are rare.77 As a result, military commanders often only take administrative action against juvenile offenders in their communities.78 If the misconduct occurred in a DoDEA school, that agency may be able to take disciplinary action as well.79

Military Extraterritorial Jurisdiction Act

Most SOFAs allow visiting forces to conduct their own prosecutions in the territory of the host nation. This principle allows the American forces to prosecute its personnel for crimes committed overseas.80 However, the American military has limited jurisdiction over civilians.

The Uniform Code of Military Justice has long allowed military courts to try civilians “accompanying the armed forces” overseas.81 In 1953, a military court used this authority to convict Clarice Covert of murdering her husband, an American Air Force sergeant, at a U.S. air base in England. In the same year, another military court relied on the same authority to convict Dorothy Smith of murdering her husband, an Army officer, at an American post in Japan. In its 1957 decision in Reid v. Covert, the Supreme Court overturned both convictions, ruling that the Uniform Code of Military Justice could not be constitutionally applied to the capital trial of American civilian dependents overseas in peacetime. As a result, no court had jurisdiction to try Mrs. Covert and Mrs. Smith for their crimes.82

The Military Extraterritorial Jurisdiction Act was passed in 2000 to address this jurisdictional gap.83 It enables the Federal Government to prosecute persons “accompanying” the American armed forces overseas when they engage in conduct “outside the United States that would constitute an offense punishable by imprisonment for more than [one] year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States.”84 Those accompanying the armed forces include dependents of American Service members and dependents of DoD Civilian employees and contractors. For MEJA to apply, the dependent must reside with the member, employee, or contractor. Dependents who are ordinarily resident in the host nation are excluded from this definition.85 There is no age limitation,86 so juveniles who commit offenses punishable by more than one-year imprisonment (felonies) can be tried under this statute.

Military Extraterritorial Jurisdiction Act prosecutions are limited to federal offenses that specifically state that they apply to the special maritime and territorial jurisdiction of the United States.87 There are a number of offenses that include such language including assault,88 maiming,89 theft,90 homicide,91 kidnapping,92 damage to property,93 and sexual abuse.94 The Assimilative Crimes Act, which is often used to prosecute cases on exclusive federal jurisdiction military installations in the United States, does not apply because there is no U.S. state law to assimilate overseas.95

Most SOFAs divide offenses committed by visiting forces personnel into three categories: 1) those where the host nation has exclusive jurisdiction, 2) those where the visiting forces have exclusive jurisdiction, and 3) those where the host nation and the visiting forces have concurrent jurisdiction.96 In the first category (host nation exclusive jurisdiction), an individual violates a host nation criminal law—but there is no corresponding provision under visiting forces’ criminal law.97 For example, an American Service member stationed in Germany who commits the German crime of “public insult” by using his middle finger to disparage another person98 is subject to exclusive host nation jurisdiction because there is no corresponding American criminal law prohibiting this act. In the second category (visiting forces exclusive jurisdiction), an individual violates the law of the visiting forces—but not the law of the host nation.99 For example, an American Service member stationed in Korea who is absent without leave100 is subject to the exclusive jurisdiction of the American forces because there is no corresponding Korean offense. The last category (concurrent jurisdiction) encompasses cases where an individual violates both host nation and visiting forces’ criminal laws.101 The vast majority of crimes—including larceny, sexual assault, and murder—fall into this category.

Airplane

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American juveniles who commit offenses that can be prosecuted by the host nation and under MEJA are subject to concurrent jurisdiction.102 Since MEJA is limited to felonies,103 this means that only serious juvenile offenses are subject to concurrent jurisdiction. Less serious offenses by American juveniles are subject to exclusive host nation jurisdiction.

For concurrent jurisdiction cases, most SOFAs define which country has the primary right to exercise jurisdiction. For example, the NATO SOFA provides that:

  1. The military authorities of the sending State [visiting forces] shall have the primary right to exercise jurisdiction over a member of a force [Service member] or of a civilian component [Civilian employee] in relation to (i) offences solely against the property or security of that State, or offences solely against the person or property of another member of the force or civilian component of that State or of a dependent [and] (ii) offences arising out of any act or omission done in the performance of official duty.
  2. In the case of any other offence, the authorities of the receiving State [host nation] shall have the primary right to exercise jurisdiction.”104

    The United States–Korea SOFA has nearly identical language.105 Because the visiting forces’ primary jurisdiction extends only to Service members and Civilian employees, and not to dependents, the United States does not have primary jurisdiction over American juveniles accompanying the American forces overseas. Therefore, if an American juvenile accompanying the force in Korea commits a felony (such as sexual assault) against another member of the American forces, Korea would have primary jurisdiction. An American prosecution of such a juvenile could proceed only if Korea waived its primary right to jurisdiction.106 Similarly, MEJA provides that an American prosecution may not commence if the host nation has prosecuted or is prosecuting the case.107 This underscores the importance of close cooperation with host nation prosecutors.

    Under MEJA and American federal law, those under the age of eighteen can be tried as an adult for certain violent crimes and drug offenses.108 Other federal crimes committed by juveniles are tried as acts of juvenile delinquency.109 However, there are limitations on federal delinquency proceedings in addition to the general limitations contained in MEJA.110 For example, under the Federal Juvenile Delinquency Act, a U.S. Attorney must certify to the appropriate federal district court that 1) the state juvenile court does not have jurisdiction or refuses to exercise jurisdiction; 2) the state does not have available “programs and services adequate for the needs of juveniles;” or 3) the juvenile committed a “crime of violence” or a drug offense and that there is a “substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.”111 Unfortunately, this certification is seldom sought.112

    Although the Federal Juvenile Delinquency Act establishes procedures for federal prosecutions of juveniles, there is officially no federal juvenile justice system; instead, the Act envisions federal prosecutions of juveniles as a last option when states are unable to prosecute.113 In addition, there are no federal institutions for juvenile prisoners; rather, the Bureau of Prisons rents beds for such prisoners in public and private juvenile facilities.114 As a result, MEJA prosecutions of juveniles are rare.

    Military Extraterritorial Jurisdiction Act prosecutions are conducted in the United States, so the juvenile offender must be returned to an appropriate federal district court before the prosecution can proceed.115 Commanders and their legal advisors who wish to initiate a MEJA prosecution must coordinate with both the Department of Justice (DoJ) and the Department of State.116 The Human Rights and Special Prosecutions Section of the U.S. DoJ Criminal Division is responsible for these prosecutions.117

    Discipline by American Military Commanders

    Many overseas American military commands have developed specific procedures for dealing with civilian misconduct. These procedures differ from country to country and may be Service-specific or apply to all civilians accompanying the Army, Air Force, Navy, and Marines in a particular overseas area.

    Overseas military commanders’ ultimate disciplinary option is barring civilians from the installation and withholding logistic support. A commander’s ability to bar civilians from an installation is based both on the commander’s inherent authority118 and the military’s authority to regulate the security of its property.119 In some overseas areas, commanders have the authority to bar individuals from all American military installations.120 The authority to grant and deny logistic support comes from a number of sources,121 some of which are unique to each country where U.S. troops are stationed.122

    A number of overseas commands have created administrative agencies responsible for taking action in response to civilian misconduct. These agencies are similar to the juvenile review boards set up on some exclusive federal jurisdiction installations in the United States.123 The U.S. Forces in Korea are covered by a single regulation establishing procedures for dealing with misconduct by all civilians and family members accompanying the American armed forces in that country.124 Under this regulation, the Area Commander is designated as the Civilian Misconduct Action Authority and is responsible for imposing administrative discipline for civilian misconduct.125 The Area Commander is assisted by a Civilian Misconduct Officer (who tracks civilian misconduct) and a Civilian Misconduct Board (which provides nonbinding recommendations on discipline).126 In Europe, the Army has established a similar regulation to deal with civilian personnel under its control.127 Army garrison commanders in Europe are designated as Civilian Misconduct Action Authorities with the authority to discipline civilians and family members who engage in misconduct.128 These officials are assisted in their duties by an Assistant Civilian Misconduct Action Authority.129

    These civilian misconduct agencies have a number of disciplinary options that depend on the consent of the offender. These options include requiring the offender to pay the victim damages, perform community service, attend counseling, remain confined at home, or periodically report to a community supervision officer.130 If the offender refuses or fails to complete the requirement, more severe discipline can be imposed.131 Civilian misconduct agencies can only enforce these voluntary options based on the threat to impose the ultimate discipline of an installation bar or withdrawal of logistic support, as previously discussed.

    Tables of suggested penalties provide uniformity in punishment.132 For example, in Korea the suggested penalty for a juvenile’s first offense of assault is fifty hours of community service, referral to counseling, and two 1000-word essays.133

    Discipline by American Military Schools

    In addition to those mentioned above, special disciplinary options exist for juvenile misconduct occurring in DoDEA schools. The ultimate punishment is suspension or expulsion from school.134 However, schools must apply discipline progressively. Before resorting to suspension or expulsion, school administrators must consider “verbal reprimands, conferences, detention, time-out, alternative in-school placements, school service programs, community service and counseling programs, and other behavior management techniques.”135 Corporal punishment is prohibited.136

    Grounds for suspension and expulsion from school include: assault; possession of dangerous weapons; possession of alcohol, tobacco, and drugs; robbery; vandalism; theft; lewd acts; gambling; fighting; bullying; cheating; and truancy.137 A school principal may remove a student for up to ten consecutive school days only after conducting an informal conference with the student.138 Removal for more than ten days requires a formal hearing before a school disciplinary committee.139 The student has a right to be represented at the hearing, present a defense,140 and to appeal the final decision.141 Expelled students must still be provided an opportunity to obtain an education, either through correspondence courses or other educational programs.142

    Trial in Host Nation Courts

    Host nation courts are often in the best position to prosecute juvenile misconduct. As mentioned above, under most SOFAs, the host nation retains authority to prosecute offenses that occur within its territory.143 In many cases, the host nation will have exclusive jurisdiction because prosecution under MEJA is not authorized.144 In other cases, the host nation and the United States may both have jurisdiction (concurrent jurisdiction), but the host nation will have the primary right to try the case (primary jurisdiction).145 Even if a prosecution under MEJA is authorized and the host nation is willing to waive its primary jurisdiction,146 the Americans may be unable to prosecute because the DoJ declines to take the case.147

    Many host nations do not permit criminal prosecutions of children under a certain age. In Germany, for example, children under the age of fourteen are considered to lack criminal capacity.148 As a result, when children under fourteen commit crimes, the German government is unable to prosecute.149 The age of criminal responsibility around the world varies from seven to eighteen.150 The host nation laws establishing these ages are often criticized, especially when juveniles commit serious crimes. In 1993, a court in England convicted two eleven-year-old boys of the murder of a two-year-old toddler, causing some to argue that the age of criminal responsibility in that country (ten years) is too low.151 A recent gang-rape in Germany involving two twelve-year-old offenders who were immune from criminal prosecution under German law caused many to question whether the German age of criminal liability (fourteen) is too high.152 But there are a number of other challenges involved in host nation trials.

    The American forces are required to “assist” the host nation with the collection and production of evidence.153 This includes the production of American witnesses at host nation trials.154 The local American military legal office should coordinate this production and ensure that the witnesses understand the limitations on their testimony. Service regulations require coordination of these requests at various levels. The Army requires the appropriate Staff Judge Advocate to review and approve the production of American military personnel to appear as witnesses at foreign tribunals.155 The Air Force requires coordination with the Staff Judge Advocate and the DoJ.156 The Navy requires the relevant General Court-Martial Convening Authority to approve such requests for witnesses.157

    Juveniles accompanying U.S. forces tried by host nation courts receive significant support. For juveniles accompanying the American armed forces overseas, U.S. law authorizes the military to “employ counsel, and pay counsel fees, court costs, bail, and other expenses incident to the representation, before the judicial tribunals and administrative agencies of any foreign nation.”158 The Government can also pay charges for copies of records, printing and filing fees, interpreter and witness fees, and similar expenses.159 These fees can be paid for pretrial, trial, appellate, and post-trial criminal proceedings in host nation courts. However, payment is only authorized when the sentence normally imposed includes confinement (whether or not suspended), there appears to have been a “denial of the substantial rights of the accused,” or the case “is considered to have a significant impact on the relations of U.S. forces with the host country, or involve[s] any other particular U.S. interest.”160

    Status of forces agreements usually stipulate that Americans pending criminal trial in foreign courts be granted certain basic rights. For example, the NATO SOFA provides:

    Whenever a member of a force or civilian component or a dependent is prosecuted under the jurisdiction of a receiving State [host nation] he shall be entitled:

    1. to a prompt and speedy trial;
    2. to be informed, in advance of trial, of the specific charge or charges made against him;
    3. to be confronted with the witnesses against him;
    4. to have compulsory process for obtaining witnesses in his favour, if they are within the jurisdiction of the receiving State;
    5. to have legal representation of his own choice for his defence or to have free or assisted legal representation under the conditions prevailing for the time being in the receiving State;
    6. if he considers it necessary, to have the services of a competent interpreter . . . .”161

    In Korea, the SOFA with the United States has nearly identical provisions.162

    Status of Forces Agreements also normally authorize the United States to send an observer to the criminal trials of American personnel in host nation courts. For example, the NATO SOFA provides that the accused in a foreign criminal trial will have the right “to communicate with a representative of the Government of the sending State and when the rules of the court permit, to have such a representative present at his trial.” 163 The SOFA in Korea has similar language.164

    Other Issues

    Whether a juvenile is being investigated or disciplined by U.S. or host nation officials, a number of collateral issues may arise. In addition to the underlying misconduct, attorneys dealing with these cases must be prepared to deal with these issues.

    Custody

    Most SOFAs have provisions dealing with pre-trial custody. For example, the NATO SOFA provides that the “authorities of the [host nation] and the [visiting forces] shall assist each other in the arrest of . . . dependents in the territory of the [host nation] and in handing them over to the authority which is to exercise jurisdiction.”165 The United States–Korea SOFA has nearly identical language.166 This means that when juveniles accompanying U.S. forces are pending trial in host nation courts, the host nation will decide whether to confine them prior to trial. In some countries, supplemental agreements allow the U.S. forces to take custody of civilians, including juveniles, prior to trial when they are being prosecuted by the host nation.167 However, even where supplemental agreements allow it, American correctional facilities are generally not authorized to hold such civilians.168 Therefore, such juveniles serving pretrial confinement will likely be housed in a host nation jail or similar facility.

    American military personnel will normally visit Americans confined in host nation jails on a monthly basis.169 The visits are designed to ensure the American prisoner receives “the same or similar treatment, rights, privileges, and protections of personnel confined in U.S. military facilities. Such rights, privileges, and protections . . . include (but are not limited to) legal assistance, visitation, medical attention, food, bedding, clothing, and other health and comfort supplies.”170

    American juveniles sentenced to post-trial confinement by a foreign court may be eligible for the federal prison transfer program. Authorized by federal statute171 and a number of bilateral and multilateral treaties,172 this program allows certain Americans imprisoned in foreign jails to be transferred to an appropriate correctional facility in the United States. The DoJ Office of International Affairs is responsible for this program.173

    Special problems arise when juveniles pending American prosecution under MEJA must be placed in pretrial confinement. As mentioned above, American military confinement facilities are not authorized to hold them,174 so commands have to contract with host nation facilities. Under federal law, such juveniles must be confined separately from adults, preferably in a foster home or community-based facility.175

    Foster and In-Patient Psychiatric Care

    When juveniles accompanying the U.S. force misbehave, American military or host nation authorities may decide that the offender should be placed in foster care because the parent or guardian is unable to provide adequate supervision. The Army has an emergency placement care program where volunteer families provide such children with short-term care, normally not exceeding ninety days.176 The Air Force has a similar program, but the focus is on returning the offender and their family to the United States.177 The Navy program requires return of children needing foster care to the United States.178 If American foster care is unavailable, such children may be placed in host nation foster care. Unfortunately, this may lead to language and cultural barriers. Only a host nation court can normally order involuntary placement in foster care, since no American courts exist overseas that can make involuntary placements.179

    In extreme cases, American children may need in-patient treatment at a psychiatric facility. American military treatment facilities may be unable to provide this care.180 Host nation medical treatment may not be appropriate for American juveniles because they do not understand the language. In addition, the cost of medical treatment may not be fully covered by American health insurance such as TRICARE, the health care available to dependents of Service members.181 Host nation medical facilities may be concerned that they will not receive compensation from the juvenile’s family.

    The United States is generally unable to directly compensate host nations for medical treatment or foster care they provide to juveniles accompanying the U.S. force. At least one host nation argued that the United States is liable for such treatment and foster care under a mistaken view of its supplementary SOFA.182 Such misunderstandings can result in disputes and a loss of host nation cooperation in cases involving juveniles accompanying the U.S. force.

    Returning Juveniles to the United States

    As mentioned above, prosecution under MEJA requires return of the juvenile offender to the United States.183 There may be other circumstances where return to the United States for treatment is in the best interest of the command and the juvenile. Arranging this return may be a complex process.

    The American military has a process to return dependents to the United States before their sponsor’s overseas tour expires. This “early return of dependents” can be used to return juvenile offenders to the United States where they can receive care at American treatment facilities or from relatives.184 Unfortunately, unless a juvenile is being returned for prosecution under MEJA,185 American officials have no authority to force a juvenile to board an aircraft for the return to the United States—even if an early return of dependents is approved. However, it may be possible to encourage juvenile offenders to leave the country by barring them from American installations or denying them logistical support.186

    Tips for Attorneys

    If you have been assigned to provide legal advice in an overseas juvenile misconduct case, there are a myriad of issues to consider. There are limited investigative and disciplinary options, and the rules are bewilderingly complex. However, there are a few tips that can assist you in navigating these difficult cases.

    Command legal advisors should coordinate closely with law enforcement agencies investigating the case. Host nation law enforcement agencies may be reluctant to investigate, believing that the Americans will handle the case. American military criminal investigation organizations may also be reluctant to investigate because they are confused as to their investigative jurisdiction187 or they do not believe an American prosecution under MEJA is possible.188 Legal advisors can help sort out this confusion and ensure that the investigation is done properly. An effective investigation is critical to a successful prosecution.189

    Command legal advisors should maintain liaison with host nation prosecutors, since the host nation is often in the best position to prosecute these cases. This liaison is required by regulation190 and assists in developing effective solutions for juvenile misconduct. Most overseas American military legal offices maintain regular contact with host nation prosecutors, youth welfare workers, and similar officials by conducting joint legal conferences and events. Many commands are able to obtain official representation funds for these events.191 If a command legal advisor’s first interaction with host nation prosecutors is after they contact that advisor about an American juvenile in their custody, it may be difficult to gain their trust. It is easier to develop relations with foreign officials before problems arise.

    Command legal advisors should engage with the DoJ as early as possible on serious juvenile misconduct when a prosecution under MEJA may be appropriate. This coordination should be made through command legal channels and include appropriate Department of State officials.192 Include sufficient facts and the offender’s last known address in the United States so the DoJ can determine where the MEJA prosecution should be pursued.193 Convincing the DoJ to take a MEJA case can be difficult,194 so be prepared to explain the importance of prosecution, the adverse effects of failure to pursue the case, and the lack of other options. Early coordination with the DoJ can help keep all options open, including an American prosecution.

    Coordination with American agencies involved in juvenile misconduct is also critical. Command attorneys assigned to the Family Advocacy Program multi-disciplinary team should take an active role to ensure that juvenile misconduct is investigated and handled appropriately. Attorneys who advise civilian misconduct boards should ensure such cases receive appropriate resolution.

    The word 'misconduct'

    (Credit: Feng Yu – stock.adobe.com)

    Legal assistance attorneys and others who represent victims of serious juvenile misconduct should aggressively assert their clients’ rights under federal and host nation law. Under the Victims’ Rights and Restitution Act, victims of federal crimes are entitled to know the status of the investigation and to receive protection from the offender.195 The Crime Victims’ Rights Act provides a number of additional rights, including the right to confer with the prosecuting attorney; the right to notice of and to be heard at court hearings involving the case; the right to full and timely restitution; and the right to proceedings free from unreasonable delay.196 If the DoJ declines to pursue prosecution under MEJA, victims may want to pursue injunctive or similar relief.197 Many host nations also provide victims with a number of rights. For example, Germany has a crime victims’ compensation law that allows foreign national victims to receive compensation for damages and injuries.198

    Draw on the institutional knowledge of the installation. Cases similar to the one you are dealing with have probably occurred before. Most American legal offices overseas have host nation attorneys, who can often provide invaluable advice based on their recollection of these prior cases.

    Expect the unexpected. It is not unusual for juveniles who engage in misconduct to have a number of legal problems unrelated to the original misconduct. For example, in a recent case involving an American child offender in Germany, a number of collateral issues complicated resolution. The juvenile initially ran away from the home of his mother, an American Civilian employee, alleging that his mother abused him. Because American foster care was not available, German officials placed the child in German foster care. The child assaulted others in foster care and was eventually placed in an expensive German in-patient facility where he did not understand the language. The child’s military sponsor, who had divorced the child’s mother several years earlier, failed to enroll the child in the military health-care system—the Defense Enrollment Eligibility Reporting System (DEERS); as a result, there was no insurance to pay for the child’s treatment.199 In addition, the child could not be returned to the United States because his passport expired. The attorneys working on this case found these collateral issues more difficult to resolve than the child’s misconduct.200

    Be creative. In the scenario described above, the attorneys and social workers found innovative ways to obtain the appropriate documentation to enroll the child in DEERS so his treatment in Germany could be paid for. This required extensive coordination with the commander of the child’s military sponsor and the employer of the child’s mother. They also were able to renew the child’s passport on an expedited basis so the child could be removed to an in-patient facility in the United States that was better equipped to handle him. This required extensive coordination with the child’s sponsor, the child’s mother, and the U.S. Consulate in Frankfurt.201 The best solution for juvenile misconduct will usually involve a combination of treatment and discipline, and it will often involve a number of members of the multi-disciplinary juvenile misconduct team.

    Be persistent. A proper solution to juvenile misconduct may take a great deal of time and work. Investigation of juvenile misconduct may take more time than a normal criminal investigation and involve a number of parties, to include parents, guardians, teachers and school administrators. Resolution may also take a long time and involve many agencies. It is important to track each stage of the investigation and disciplinary proceedings to obtain the best result for the juvenile and the community.

    Keep abreast of changes in the law. While this advice applies to all legal issues, it is particularly important here. Recent media attention, to include the story mentioned at the beginning of this article, have led to many changes in the regulations and statutes related to juvenile misconduct.202 Media attention is also creating pressure to change host nation laws related to juveniles, especially those involving the age of criminal responsibility.203

    Conclusion

    Dealing with juvenile misconduct on military installations is difficult. However, the problems are exacerbated overseas because of the limited authority of American officials and the inability or unwillingness of host nation officials to resolve such misconduct.

    Many agencies are responsible for investigating juvenile misconduct overseas, including American and host nation law enforcement, Family Advocacy Program teams, and DoDEA schools. Ensuring that the investigation is conducted properly can be difficult. One agency may fail to investigate because it assumes another is handling the case. Attorneys advising and liaising with these agencies must ensure the investigation is completed appropriately and promptly.

    Attorneys working on juvenile misconduct cases overseas must know all of the disciplinary options available, both under U.S. and host nation law. The host nation is normally in the best position to prosecute the offender, although a U.S. prosecution under MEJA may be appropriate in serious cases. A number of U.S. administrative disciplinary options, to include bars from the installation and expulsion from military schools, may also be available. The attorneys handling these cases can assist in pursing the options that are most appropriate for the military community and the juvenile offender.

    A number of collateral issues may arise when dealing with juvenile misconduct. If a juvenile must be placed in custody prior to trial, coordination with host nation officials is critical since the juvenile will probably be housed in one of their jails. Similarly, involuntary placement of such children in foster care will require coordination with host nation officials. While U.S. officials can order an “early return” of juvenile offenders to the United States, they may have little authority to force the offenders to get on the airplane.

    Effectively handling misconduct by juveniles accompanying U.S. forces overseas requires a great deal of work. Coordination with U.S. and host nation investigators, prosecutors, and others involved in juvenile misconduct is critical. If handled poorly, these cases may irreparably harm morale within the military community and damage relations with the host nation. Careful research, flexibility, creativity, and persistence will help ensure these cases are properly resolved. TAL

    Mr. Masterton is the Chief of the International Law Division for the 21st Theater Sustainment Command in Kaiserslautern, Germany.

    Notes

    1. Reese Dunklin & Justin Pritchard, Military Families Feel Deserted After Sex Assaults at Base School, Mil. Times (Mar. 14, 2018), https://www.militarytimes.com/news/your-military/2018/03/15/military-families-feel-deserted-after-sex-assaults-at-base-school/.

    2. Id.; Justin Pritchard & Reese Dunklin, US Military Overlooks Sex Abuse Among Service Members’ Kids, Army Times (Mar. 13, 2018), https://www.armytimes.com/news/pentagon-congress/2018/03/13/ap-investigation-us-military-overlooks-sex-abuse-among-kids/.

    3. Vince Little, Yokota Commander Lays Out Expectations for Teenagers, Stars & Stripes (Sept. 3, 2005), https://www.stripes.com/news/yokota-commander-lays-out-expectations-for-teenagers-1.37814.

    4. Pritchard & Dunklin, supra note 2. See also Major Emily M. Roman, Where There’s a Will, There’s a Way: Command Authority over Juvenile Misconduct on Areas of Exclusive Federal Jurisdiction, and the Utilization of Juvenile Review Boards, Army Law., May 2015, at 35.

    5. Memorandum from Principal Deputy Inspector Gen. Performing Duties of the Inspector Gen. to Sec’ys of Mil. Dep’ts et al., subject: Evaluation of the Department of Defense and DoD Education Activity Response to Incidents of Serious Student Misconduct on Military Installations (Project No. 2018C011) (July 12, 2018) [hereinafter DoD Inspector General Memorandum].

    6. See infra notes 25, 42, and accompanying text.

    7. John Vandiver, DODEA Must Do More to Protect Students from Sexual Assaults, Lawmakers Say, Stars & Stripes (July 25, 2018), https://www.stripes.com/news/dodea-must-do-more-to-protect-students-from-sexual-assaults-lawmakers-say-1.539353.

    8. Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces art. VII, para. 10, June 19, 1951, 4 U.S.T. 1792, T.I.A.S. 2846 [hereinafter NATO SOFA].

    9. Id. art. VII, para. 6(a).

    10. Agreement under Article IV of the Mutual Defense Treaty Between the United States of America and the Republic of Korea, Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea art. XXII, paras. 6(a), 10, July 9, 1966, 17 U.S.T. 1677, T.I.A.S. 6127, 674 U.N.T.S. 163 [hereinafter United States–Republic of Korea SOFA].

    11. Agreement to Supplement the Agreement between the Parties to the North Atlantic Treaty regarding the Status of Their Forces with respect to Foreign Forces Stationed in the Federal Republic of Germany (Revised Supplementary Agreement), Aug. 3, 1959, amended Oct. 21, 1971, amended May 18, 1981, amended Mar. 18, 1993, art. 28, para. 1, 14 U.S.T. 689; T.I.A.S. 5352; 490 U.N.T.S. 30, [hereinafter German Supplementary Agreement].

    12. U.S. Dep’t of Army, Reg. 190-30, Military Police Investigations para. 4-2a (1 Nov. 2005) [hereinafter AR 190-30].

    13. Id. para. 4-2f. The U.S. Army Criminal Investigation Command is generally responsible for investigating felonies. U.S. Dep’t of Army, Reg. 195-2, Criminal Investigation Activities paras. 1-8a, 3-2b (21 July 2020) [hereinafter AR 195-2].

    14. U.S. Dep’t of Air Force, Instr. 71-101V1, Criminal Investigations Program para. 2.1.2 (1 July 2019) [hereinafter AFI 71-101].

    15. U.S. Dep’t of Navy, Sec’y of Navy Instr. 5430.107A, Mission and Functions of the Naval Criminal Investigative Service encl. 4, para. 2d (19 June 2019) [hereinafter SECNAVINST 5430.107A].

    16. NATO SOFA, supra note 8, art VII, para. 10; United States–Republic of Korea SOFA, supra note 10, art. XXII, para. 10. See also AR 190-30, supra note 12, para. 4-5b (off-post incidents can only be investigated in accordance with an appropriate status of forces agreements (SOFA) or similar agreement).

    17. AR 195-2, supra note 13, paras. 1-7c, 3-2b; AFI 71-101, supra note 14, para. 1.4.1; SECNAVINST 5430.107A, supra note 15, encl. 4, para. 19.

    18. New Jersey v. T.L.O., 469 U.S. 325, 333 (1985).

    19. Miranda v. Arizona, 384 U.S. 436 (1966).

    20. J.D.B. v. North Carolina, 564 U.S. 261 (2011).

    21. Id. at 275.

    22. Interviewing and Interrogating Juvenile Suspects, Am. Acad. of Child & Adolescent Psychiatry (Mar. 7, 2013), https://www.aacap.org/AACAP/Policy_Statements/2013/Interviewing_and_Interrogating_Juvenile_Suspects.aspx.

    23. U.S. Dep’t of Air Force, Instr. 31-115, Law and Order Operations para. 6.4.4 (18 Aug. 2020).

    24. U.S. Dep’t of Def., Instr. 6400.01, Family Advocacy Program (FAP) para. 1-2e (1 May 2019) [hereinafter DoDI 6400.01].

    25. John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. 115-232, § ١٠٨٩, ١٣٢ Stat. ١٦٣٥, ١٩٩٦ (2018) [hereinafter 2019 NDAA].

    26. DoDI 6400.01, supra note 24, para. 3.1c.

    27. The Department of Defense Instruction defines child abuse to include “neglect of a child by a parent, guardian, foster parent, or by a caregiver, whether the caregiver is intrafamilial or extrafamilial, under circumstances indicating the child’s welfare is harmed or threatened.” Id. Glossary. The Army’s regulation implementing this Family Advocacy Program is slightly broader; it defines child abuse to include “injury or serious threat of injury to another person because the child’s behavior was not properly monitored.” U.S. Dep’t of Army, Reg. 608-18, The Army Family Advocacy Program Glossary (30 Oct. 2007) (RAR 13 Sept. 2011) [hereinafter AR 608-18]. The federal statute requiring child abuse to be reported defines child abuse as “physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child.” 34 U.S.C. § 20341(c)(1) (2019). This definition does not limit abuse to parents and caregivers; it is broad enough to include juvenile on juvenile abuse. Id.

    28. DoDI 6400.01, supra note 24, para. 3.1b(1).

    29. See AR 608-18, supra note 27; U.S. Dep’t of Air Force, Instr. 40-301, Family Advocacy (5 July 2018) [hereinafter AFI 40-301]; U.S. Dep’t of Navy, Sec’y of Navy Instr. 1752.3B, Family Advocacy Program (FAP) (10 Nov. 2005) [hereinafter SECNAVINST 1752.3B].

    30. AR 608-18, supra note 27, para. 2-3b(1).

    31. SECNAVINST 1752.3B, supra note 29, para. 8h(2).

    32. AFI 40-301, supra note 29, para. 2.2.4.5.1.2.

    33. Id. para. 2.2.4.5.1.1.

    34. DoDI 6400.01, supra note 24, para. 3.1.

    35. Id. para. 3.1c(2).

    36. Id. para. 3.1b(1).

    37. Id. para. 2.4f(3).

    38. Major Toby N. Curto, The Case Review Committee: Purpose, Players, and Pitfalls, Army Law., Sept. 2010, at 45.

    39. Captain Joseph L. Falvey, Jr., Health Care Professionals and Rights Warning Requirements, Army Law., Oct. 1991, at 21, 28.

    40. The teams also have difficulty recommending discipline of parents responsible for child neglect. Major Lisa M. Schenck, Child Neglect in the Military Community: Are We Neglecting the Child?, 148 Mil. L. Rev. 1, 12–15 (1995).

    41. U.S. Dep’t of Def. Educ. Activity, Reg. 4700.04, Serious Incident Reporting para. 1.2a (20 June 2016). This reporting requirement is largely internal. Id. paras. 3.1–3.2.

    42. 2019 NDAA, supra note 25, § 1089(b)(1).

    43. U.S. Dep’t of Def. Educ. Activity, Reg. 3030.01, DoDEA Incident Reporting Program para. 3.5b (21 May 2019) [hereinafter DoDEA Reg. 3030.01]; U.S. Dep’t of Def. Educ. Activity, Admin. Instr. 1443.02, Prohibited Sexual, Sex-Based, and Other Related Abusive Misconduct Reporting and Response para. 6.1 (21 Feb. 2019).

    44. Id. para 6.1b.

    45. 2019 NDAA, supra note 25, § 563.

    46. DoDEA Reg. 3030.01, supra note 43, para. 3.2a.

    47. J.D.B. v. North Carolina, 564 U.S. 261 (2011).

    48. New Jersey v. T.L.O., 469 U.S. 325 (1985).

    49. Id. at 337.

    50. Commanders may conduct preliminary inquiries to investigate potential violations of the Uniform Code of Military Justice (UCMJ). Manual for Courts-Martial, United States, R.C.M. 303 (2019). Child endangerment is an offense under Article 119b, UCMJ. UCMJ art. 119b (2019). See also United States v. Vaughan, 58 M.J. 29 (C.A.A.F. 2003).

    51. U.S. Dep’t of Army, Reg. 15-6, Procedures for Administrative Investigations and Boards of Officers para. 2-1b (1 Apr. 2016).

    52. U.S. Dep’t of Air Force, Instr. 90-201, The Air Force Inspection System para. 1.1.6 (20 Nov. 2018) (C1, 29 Jan. 2021) [hereinafter AFI 90-201].

    53. U.S. Dep’t of Navy, JAG Instr. 5800.7F, Manual of the Judge Advocate General (JAGMAN) sec. 0205 (26 June 2012).

    54. I U.S. Dep’t of Def., Instr. 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures para. 2a (28 Mar. 2013) (C5, 9 Apr. 2021) [hereinafter DoDI 6495.02]. Limited services are available to DoD civilian employees and their dependents overseas. Id. para. 2a(4). In addition, many such victims are entitled to representation by a Special Victims’ Counsel. Special Victims’ Counsel for Victims of Sex-Related Offenses, 10 U.S.C. § 1044e. There are special services in addition to the Special Victims’ Counsel available for juvenile victims who are dependents—including services available from legal assistance attorneys, medical personnel, chaplains, and a number of other organizations.; however, the topic is outside the scope of this article.

    55. DODI 6495.02, supra note 54, para. 2b.

    56. U.S. Dep’t of Army, Reg. 600-20, Army Command Policy ch. 7 (24 July 2020); U.S. Dep’t of Navy, Sec’y of Navy Instr. 1752.4C, Sexual Assault Prevention and Response Program Procedures (10 Aug. 2018); U.S. Dep’t of Air Force, Instr. 90-6001, Sexual Assault Prevention and Response (SAPR) Program (15 July 2020).

    57. See Major Katherine A. Krul, The Sexual Assault Prevention and Response (SAPR) Program—in Need of More Prevention, Army Law., Nov. 2008, at 41.

    58. Id. at 45.

    59. See supra note 5 and accompanying text.

    60. Inspector General Act of 1978, 5 U.S.C. app. § 2(1).

    61. 10 U.S.C. § 141.

    62. 10 U.S.C. §§ 7020, 8020, 9020 (Section 7020 pertains to the Army, section 8020 to the Navy, and section 9020 to the Air Force.).

    63. U.S. Dep’t of Def., Dir. 5106.01, Inspector General of the Department of Defense (IG DoD) para. 3 (20 Apr. 2012) (C2, 29 May 2020) [hereinafter DoDD 5106.01].

    64. Id. para. 5b; Inspector General Act, 5 U.S.C. app. § 8(c)(2).

    65. U.S. Dep’t of Army, Reg. 20-1, Inspector General Activities and Procedures (23 Mar. 2020); U.S. Dep’t of Navy, Sec’y of Navy Instr. 5430.57H, Mission and Functions of the Naval Inspector General (17 Dec. 2019); AFI 90-201, supra note 52. Note that Army IG are prohibited from investigating complaints when a command elects to resolve them using a commander’s investigation or inquiry. AR 20-1, supra, para. 7-1i(3).

    66. See, e.g., DoDD 5106.01, supra note 63, paras. 5c, 5h; 5 U.S.C. app. § ٨(c)(٣), (٥).

    67. DoD Inspector General Memorandum, supra note 5.

    68. Protected Communications, Prohibition of Retaliatory Personnel Actions, 10 U.S.C. § 1034.

    69. NATO SOFA, supra note 8, art. VII, para. 1(b).

    70. United States–Republic of Korea SOFA, supra note 10, art. XXII, para. 1(b).

    71. NATO SOFA, supra note 8, art. VII, para. 6(a).

    72. United States–Republic of Korea SOFA, supra note 10, art. XXII, para. 6(a).

    73. German Supplementary Agreement, supra note 11, art. 28.

    74. Id.

    75. U.S. Dep’t of Def., Instr. 5525.11, Criminal Jurisdiction Over Civilians Employed By or Accompanying the Armed Forces Outside the United States, Certain Service Members, and Former Service Members para. 2.4 (3 Mar. 2005) [hereinafter DoDI 5525.11]. See Julie R. O’Sullivan, The Extraterritorial Application of Federal Criminal Statutes: Analytical Roadmap, Normative Conclusions, and a Plea to Congress for Direction, 106 Geo. L.J. 1021, 1048–56 (2018).

    76. 18 U.S.C. §§ 3261–3267.

    77. Andrew D. Fallon & Captain Theresa A. Keene, Closing the Legal Loophole? Practical Implications of the Military Extraterritorial Jurisdiction Act of 2000, 51 A.F. L. Rev. 271, 271 (2001).

    78. See, e.g., U.S. Army in Europe, Reg. 27-9, Misconduct by Civilians (22 Nov. 2011) [hereinafter AER 27-9].

    79. U.S. Dep’t of Def., Education Activity Reg. 2051.1, Disciplinary Rules and Procedures (4 Apr. 2008) (C2, 23 Mar. 2012) [hereinafter DoDEA Reg. 2015.1].

    80. Serge Lazareff, Status of Military Forces Under Current International Law 128 (1971); NATO SOFA, supra note 8, art. VII, para. 1(a); United States–Republic of Korea SOFA, supra note 10, art. XXII, para. 1(a).

    81. The initial version of the UCMJ provided that the following persons fell under military jurisdiction: “Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States.” UCMJ art. 2(11) (1950). The current version of the UCMJ has a nearly identical provision. UCMJ art. 2(a)(11) (2016).

    82. Reid v. Covert, 354 U.S. 1 (1957). At the time of Ms. Covert’s offense, an executive agreement granted American military courts exclusive jurisdiction over offenses committed in Great Britain by American Service members and their dependents. The same situation applied to Ms. Smith’s offense in Japan. Id. at 15–16. See generally Captain Brittany Warren, The Case of the Murdering Wives: Reid v. Covert and the Complicated Question of Civilians and Courts-Martial, 212 Mil. L. Rev. 133, 182–184 (2012).

    83. DoDI 5525.11, supra note 75, para. 2.5; Fallon & Keene, supra, note 77, at 271.

    84. 18 U.S.C. § 3261(a).

    85. 18 U.S.C. § 3267(2).

    86. Id.

    87. 18 U.S.C. § 3261(a).

    88. 18 U.S.C. § 113.

    89. 18 U.S.C. § 114.

    90. 18 U.S.C. § 661.

    91. 18 U.S.C. §§ 1111–1113.

    92. 18 U.S.C. § 1202.

    93. 18 U.S.C. § 1362.

    94. 18 U.S.C. §§ 2241–2244, 2252.

    95. 18 U.S.C. § 13.

    96. See, e.g., NATO SOFA, supra note 8, art. VII, paras. 2–3; United States–Republic of Korea SOFA, supra note 10, art. XXII, paras. 2–3.

    97. See, e.g., NATO SOFA, supra note 8, art. VII, para. 2(b); United States–Republic of Korea SOFA, supra note 10, art. XXII, para. 2(b).

    98. Strafgesetzbuch [StGB] [German Penal Code], §185, https://www.gesetze-im-internet.de/englisch_stgb/index.html. Many Americans and other foreigners are not aware that using profanity or the middle finger to disparage another person in public is a crime under German law. Erik Kirschbaum, In Germany, It Can Be a Crime to Insult Someone in Public, L.A. Times (Sept. 6, 2016, 6:37 AM), https://www.latimes.com/world/europe/la-fg-germany-insult-law-snap-story.html.

    99. See, e.g., NATO SOFA, supra note 8, art. VII, para. 2(a); United States–Republic of Korea SOFA, supra note 10, art. XXII, para. 2(a).

    100. 10 U.S.C. § 886.

    101. See, e.g., NATO SOFA, supra note 8, art. VII, para. 3; United States–Republic of Korea SOFA, supra note 10, art. XXII, para. 3.

    102. See Fallon & Keene, supra note 77, at 285; The Handbook of the Law of Visiting Forces 225 (Dieter Fleck ed., 2d ed. 2018). The application of a SOFA to prosecutions under the Military Extraterritorial Jurisdiction Act (MEJA) depends on the language of the SOFA. For example, both the NATO SOFA and the United States–Republic of Korea SOFA permit the visiting forces to exercise criminal jurisdiction over persons “subject to military law.” See NATO SOFA, supra note 8, art. VII, para. 1a; United States–Republic of Korea SOFA, supra note 10, art. XXII, para. 1a. The Military Extraterritorial Jurisdiction Act can be described as a “military law” under these SOFA provisions because it is limited to prosecutions of military personnel, including civilians “accompanying the armed forces overseas.” 18 U.S.C. § 3261(a). Furthermore, MEJA was designed to fill the jurisdictional gap left after the UCMJ section that permitted prosecution of civilians overseas was ruled unconstitutional. Fallon & Keene, supra note 77, at 271–72. Therefore, these SOFAs permit American prosecutions under MEJA.

    103. 18 U.S.C. § 3261(a).

    104. NATO SOFA, supra note 8, art. VII, para. 3.

    105. United States–Republic of Korea SOFA, supra note 10, art. XXII, para. 3.

    106. NATO SOFA, supra note 8, art. VII, para. 3(c); United States–Republic of Korea SOFA, supra note 10, art. XXII, para. 3(c).

    107. 18 U.S.C. § 3261(b).

    108. 18 U.S.C. § 13; United States v. Welch, 15 F.3d 1202, 1207 (1st Cir. 1993).

    109. 18 U.S.C. § 5031.

    110. DoDI 5525.11, supra note 75, para. 6.1.6.4.

    111. 18 U.S.C. § 5032. Arguably, the first two prongs are irrelevant overseas since there is no American “state” available to exercise jurisdiction or administer programs. The statute requires certification by the U.S. Attorney General, but this authority has been delegated to U.S. Attorneys. U.S. Dep’t of Just., Justice Manual § 9-8.110 (2020).

    112. Major George R. Lavine III, Protect Our Military Children: Congress Must Rectify Jurisdiction on Military Installations to Address Juvenile-on-Juvenile Sexual Assault, 18 Wyo. L. Rev. 116, 125 (2018).

    113. Addie C. Rolnick, Untangling the Web: Juvenile Justice in Indian Country, 19 N.Y.U. J. Legis. & Pub. Pol’y 49, 122 (2016).

    114. Id. at 123.

    115. 18 U.S.C. § 3262(b).

    116. DoDI 5525.11, supra note 75, para. 5.5.

    117. The section’s website is available online. See Human Rights and Special Prosecutions Section (HRSP), U.S. Dep’t of Just., https://www.justice.gov/criminal-hrsp (last visited May 4, 2021).

    118. Cafeteria and Rest. Workers Union v. McElroy, 367 U.S. 886 (1961).

    119. 50 U.S.C. § 797; 32 C.F.R. § 809a.5 (2020).

    120. In Europe, an inter-service agreement requires all services to recognize theater-wide bar orders issued by other Services. Memorandum of Agreement Between the Commanding General, United States Army, Europe and Seventh Army (USAREUR/7A), Commander, United States Air Forces in Europe, Commander in Chief, United States Naval Forces, Europe, & Commander, United States Marine Corps Forces, Europe, subject: Interservice Memorandum of Agreement for a Theater-Wide Bar (26 Apr. 2002); AER 27-9, supra note 78, app. C.

    121. See, e.g., U.S. Dep’t of Army, Reg. 215-8/U.S. Dep’t of Air Force, Instr. 34-211(I), Army and Air Force Exchange Service Operations (5 Oct. 2012); U.S. Dep’t of Def., Instr. 1330.17, DoD Commissary Program (18 June 2014) (C2, 14 Sept. 2018).

    122. See, e.g., U.S. Army in Europe, Reg. 600-700, Identification Cards and Individual Logistic Support (19 Dec. 2018).

    123. See Roman, supra note 4, at 35.

    124. U.S. Forces Korea, Reg. 600-52, Civilian/Family Member Overseas Misconduct (17 Feb. 2014) [hereinafter USFK Reg. 600-52].

    125. Id. para. 1-4c.

    126. Id. paras. 1-4c, 2-5.

    127. AER 27-9, supra note 78.

    128. Id. para. 4.

    129. Id. para. 4c.

    130. Id. para. 11a; USFK Reg. 600-52, supra note 124, para. 3-3a.

    131. AER 27-9, supra note 78, para 11a; USFK Reg. 600-52, supra note 124, para. 3-3b.

    132. AER 27-9, supra note 78, app. D; USFK Reg. 600-52, supra note 124, app. C.

    133. Id.

    134. DoDEA Reg. 2051.1, supra note 79, para. 4.3.

    135. Id. para. 4.2.

    136. Id. para. 4.4.

    137. Id. encl. 3, para. E3.5.

    138. Id. encl. 4, para. E4.5.

    139. Id. encl. 5, para. E5.1.

    140. Id. paras. E5.2.2.6 to –.7.

    141. Id. paras. E5.6 to –.7.

    142. Id. para. E5.8.4.

    143. See supra notes 69–70 and accompanying text.

    144. See NATO SOFA, supra note 8, art. VII, para. 2(b); United States–Republic of Korea SOFA, supra note 10, art. XXII, para. 2(b).

    145. See NATO SOFA, supra note 8, art. VII, para. 3(b); United States–Republic of Korea SOFA, supra note 10, art. XXII, para. 3(b).

    146. See NATO SOFA, supra note 8, art. VII, para. 3(c); United States–Republic of Korea SOFA, supra note 10, art. XXII, para. 3(c).

    147. See supra notes 109–114 and accompanying text.

    148. Strafgesetzbuch [StGB] [German Penal Code], §19, https://www.gesetze-im-internet.de/englisch_stgb/index.html.

    149. Id.

    150. Cecilia Polizzi, The Crime of Terrorism: An Analysis of Criminal Justice Processes and Accountability of Minors Recruited by the Islamic State of Iraq and Al-Sham, 24 U.C. Davis J. Int’l L. & Pol’y 1, 6 (2018). The Child Rights International Network publishes an online interactive map showing the minimum ages of criminal responsibility around the world. See The Minimum Age of Criminal Responsibility, Child Rts. Int’l Network, https://home.crin.org/issues/deprivation-of-liberty/minimum-age-of-criminal-responsibility (last visited May 4, 2021).

    151. See Stephanie J. Millet, The Age of Criminal Responsibility in an Era of Violence: Has Great Britain Set a New International Standard?, 28 Vand. J. Transnat’l L. 295, 304 (1995).

    152. See Germany: Rape Case Sparks Debate on Age of Criminal Liability, Deutche Welle (July 9, 2019), https://www.dw.com/en/germany-rape-case-sparks-debate-on-age-of-criminal-liability/a-49517917.

    153. NATO SOFA, supra note 8, art. VII, para. 6(a); United States–Republic of Korea SOFA, supra note 10, art. XXII, para. 6(a).

    154. Lazareff, supra note 80, at 236 n.188.

    155. U.S. Dep’t of Army, Reg. 27-40, Litigation para. 7-17 (19 Sept. 1994).

    156. U.S. Dep’t of Air Force, Instr. 51-301, Civil Litigation (2 Oct. 2018).

    157. U.S. Dep’t of Navy, Sec’y of Navy Instr. 5820.8A, Release of Official Information for Litigation Purposes and Testimony by Department of Navy (DON) Personnel encl. 3, para. 4 (27 Aug. 1991) (C1, 10 Jan. 2005).

    158. 10 U.S.C. § 1037(a).

    159. U.S. Dep’t of Army, Reg. 27-50/U.S. Dep’t of Navy, Sec’y of Navy Instr. 5820.4G/U.S. Dep’t of Air Force, Instr. 51-706, Status of Forces Policies, Procedures and Information para. 2-7 (15 Dec. 1989) [hereinafter Joint SOFA Reg.].

    160. Id. para. 2-4.

    161. NATO SOFA, supra note 8, art. VII, para. 9.

    162. United States–Republic of Korea SOFA, supra note 10, art. XXII, para. 9.

    163. NATO SOFA, supra note 8, art. VII, para. 9(g).

    164. United States–Republic of Korea SOFA, supra note 10, art. XXII, para. 9(g). See also Joint SOFA Reg., supra note 159, para. 1-8.

    165. NATO SOFA, supra note 8, art. VII, para. 5(a).

    166. United States–Republic of Korea SOFA, supra note 10, art. XXII, para. 5(a).

    167. See, e.g., German Supplementary Agreement, supra note 11, art. 22, paras. 1(b), 2.

    168. Except in time of war and contingency operations, Army, Air Force, and Navy correctional facilities are only authorized to hold civilians briefly. U.S. Dep’t of Army, Reg. 190-47, The Army Corrections System para. 16-3b (15 June 2006); I U.S. Dep’t of Air Force, Manual 31-115, Air Force Corrections System para. 5.1.2 (28 Aug. 2019); U.S. Dep’t of Navy, Sec’y Navy Manual 1640.1, Department of the Navy Corrections Manual sec. 7103(2)(e) (15 May 2019).

    169. Joint SOFA Reg., supra note 159, para. 3-4b.

    170. Id. para. 3-1.

    171. 18 U.S.C. §§ 4100–4155.

    172. See, e.g., Convention on the Transfer of Sentenced Persons, Mar. 21, 1983, 35 U.S.T. 2847, T.I.A.S. No. 10823, E.T.S. 112.

    173. See International Prisoner Transfer Program, U.S. Dep’t of Just., https://www.justice.gov/criminal-oia/iptu (Nov. 24, 2020).

    174. Supra note 168.

    175. 18 U.S.C. §5035; DoDI 5525.11, supra note 75, para. 5.5.

    176. AR 608-18, supra note 27, ch. 9.

    177. AFI 40-301, supra note 29, attach. 5.

    178. U.S. Dep’t of Navy, Chief, Naval Operations Instr. 1752.2C, Family Advocacy Program, ch. 16, para. 4 (20 May 2020) [hereinafter OPNAVINST 1752.2C].

    179. AR 608-18, supra note 27, para. 9-1a; AFI 40-301, supra note 29, attach. 5, para. A5.2.1; OPNAVINST 1752.2C, supra note 178, ch. 16, para. 2c(3).

    180. See 10 U.S.C. § 1073d. Active duty Service members have priority for care over dependents. 32 C.F.R. § 199.17(d)(1)(i) (2020).

    181. See 10 U.S.C. § 1079; 32 C.F.R. pt. 199 (2020); U.S. Dep’t of Def., Dir. 6010.04, Healthcare for Unformed Services Members and Beneficiaries (17 Aug. 2015) (C1, 1 June 2018).

    182. The German government argued that Article 13 of the German Supplementary Agreement, supra note 11, which excludes visiting forces from the obligation to pay into German social welfare programs, obligates visiting forces to pay for the benefits they receive from such programs. Letter from Michael Ohliger, Chief of the Child and Social Division of the Administrative Office of Kaiserslautern, Zusatzabkommen zum NATO-Truppenstatut und dessen Auswirkungen auf die Bestimmungen des SGB VIII (Supplementary Agreement to NATO SOFA and Its Effect on the Provisions of the Code of Social Laws VIII) (Jan. 11, 2019) (on file with author).

    183. 18 U.S.C. § 3262(b).

    184. U.S. Dep’t of Def., The Joint Travel Regulations (JTR) paras. 050804 (Dependents of Service Members), 053805 (Dependents of Civilian Employees) (1 May 2021).

    185. The procedures for removal to the United States for prosecution under MEJA are described in 18 U.S.C. §§ 3262(b) and 3264(b). See also DoDI 5525.11, supra note 75, para. 6.5.

    186. Supra notes 118–122 and accompanying text.

    187. See Dunklin & Pritchard, supra note 1.

    188. See Lavine, supra note 112, at 126.

    189. See DoDI 5525.11, supra note 75, para. 5.3.1.

    190. Joint SOFA Reg., supra note 159, para. 1-7.

    191. U.S. Dep’t of Def., Instr. 7250.13, Use of Appropriated Funds for Official Representation Purposes (30 June 2009) (C1, 27 Sept. 2017).

    192. DoDI 5525.11, supra note 75, para. 6.2.2.1.

    193. Id. para. 6.2.2.3.

    194. See Lavine, supra note 112, at 124.

    195. 34 U.S.C. § 20141.

    196. 18 U.S.C. § 3771.

    197. See Lavine, supra note 112, at 136.

    198. 18 U.S.C. § 3771; Gesetz über die Entschädigung für Opfer von Gewalttaten [Crime Victims Compensation Act], Jan. 7, 1985, BGBl I at 1, last amended by Gesetz [G], Apr. 15, 2020, BGBl I at 811 (Ger.), https://www.gesetze-im-internet.de/englisch_oeg/index.html.

    199. 32 C.F.R. § 199.1(c)(2)(v) (2020.

    200. E-mail from Molly R. Stoner, Social Worker, Landstuhl Reg’l Med. Ctr., to Joerg C. Moddelmog, Att’y, 21st Theater Sustainment Command (June 16, 2019, 15:39 CET) (on file with author).

    201. E-mail from Lieutenant Colonel Christina M. Buchner, Troop Commander, Landstuhl Reg’l Med. Ctr., to Charlene Hoobler, Chief Operations Officer, Barry Robinson Ctr. (Aug. 21, 2019, 08:43 CET) (on file with author).

    202. See supra notes 1, 25, 42, and accompanying text.

    203. See supra notes 151–52 and accompanying text.