No. An alleged victim is not required to participate in an Article 32 preliminary hearing. This is one of the most consequential features of modern military pretrial practice, and it is the product of deliberate statutory reform. A named victim may decline to testify, and that choice does not stall the hearing or count against the government’s ability to proceed. Understanding how this works, and what it means for both sides, is essential to understanding what an Article 32 hearing actually looks like today.
What changed and why
Before the reforms of the mid-2010s, the Article 32 proceeding was an investigation, and alleged victims were routinely called to testify and could be subjected to extensive cross-examination at this early stage. Congress changed that through the National Defense Authorization Acts for fiscal years 2014 and 2015, which rewrote Article 32 of the Uniform Code of Military Justice. The proceeding was renamed a preliminary hearing, its purpose was narrowed, and the hearing officer’s broad investigative role was stripped down to a focused screening function.
Part of that overhaul was a protection for alleged victims. Congress concluded that requiring victims to relive the events and submit to early cross-examination, before any decision to refer charges, was both unnecessary to the limited purpose of the hearing and harmful. The reforms therefore gave the alleged victim a right not to participate.
The right to decline
Article 32 and its implementing rule in Rule for Courts-Martial (RCM) 405 provide that an alleged victim may not be required to testify at the preliminary hearing. For an alleged victim of a sexual offense, the right to decline is treated as essentially absolute. A victim who declines to testify is deemed not available for purposes of the hearing, which means the preliminary hearing officer simply proceeds without that testimony rather than treating the absence as a problem to be solved.
This is not a privilege the victim has to justify. The victim need not show good cause, fear, or hardship. The choice is the victim’s to make, and the defense cannot compel attendance. A defense request for the victim to appear is, in practical effect, a request directed to the victim, who is free to say no.
How the hearing proceeds without the victim
A natural question is how the preliminary hearing officer can assess probable cause if the central witness does not testify. The answer lies in the limited purpose of the hearing and the relaxed evidentiary standards that apply to it. The officer’s job under RCM 405 is to determine whether each specification states an offense, whether there is probable cause to believe the accused committed it, whether the court-martial has jurisdiction, and what disposition to recommend. This is a screening determination, not a trial on the merits.
To make that determination, the preliminary hearing officer may consider evidence that would not necessarily be admissible at trial, including the victim’s prior statements. A sworn statement, an investigative report containing the victim’s account, or other documentary evidence can supply the factual basis for a probable-cause finding without live testimony. Because the standard is probable cause rather than proof beyond a reasonable doubt, the hearing can fairly proceed on that record.
What this means in practice
Since the reforms took hold, the share of alleged victims who actually testify at Article 32 hearings has fallen dramatically, and proceeding on the victim’s prior statements has become the norm rather than the exception. For the defense, this changes strategy significantly. Counsel cannot count on cross-examining the complaining witness at this early stage and must instead test the government’s case through the documentary record, through any other witnesses who do appear, and later through trial confrontation. The Article 32 stage is no longer a discovery and impeachment opportunity built around the victim’s live testimony.
For the government, the change removes a former obstacle. A victim’s reluctance to testify early no longer threatens the path to referral, because the case can move forward on prior statements and other evidence.
Distinguishing participation from rights
It is worth separating two ideas. The victim is not required to participate, but the victim does have affirmative rights connected to the proceeding, such as the right to be reasonably heard, to confer with the government’s representative, and to be treated with fairness and respect. Declining to testify does not strip a victim of these participation rights; it simply means the victim cannot be forced to give testimony. A victim may choose to make a statement or be heard on certain matters while still declining live testimony subject to cross-examination.
The bottom line
Victim participation is not required at the Article 32 stage. The alleged victim has a right to decline to testify, that right is treated as absolute for sexual-offense allegations, and a declining victim is deemed unavailable so the hearing proceeds on prior statements and other evidence. This reflects a deliberate congressional choice to limit the burden the preliminary hearing places on alleged victims while preserving its narrow screening function. Both sides need to plan around it, because the live testimony that once anchored these hearings is now the exception rather than the rule.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.