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Jurisdiction of SOFA criminal cases in Japan now clarified

US Marine Corps News

By Sgt. Rebekka S. Heite, Marine Corps Bases Japan

CAMP FOSTER, OKINAWA, Japan -- The governments of the United States and Japan reached a new agreement regarding criminal jurisdiction in cases involving status of forces agreement members Nov. 23.

Previously, SOFA members who were arrested off-base while in an official-duty status could not be tried by the Japanese authorities because jurisdiction remained with the U.S. military.

In a criminal case involving a SOFA member, it is important to determine whether that individual was in an official-duty status.

Under the SOFA, a person is in official-duty status when they are doing something on behalf of the U.S. government, such as commuting between home and a work function.

The Determination of the Scope of Official Duty memorandum, which resulted from the Nov. 23 meeting, has changed this for two types of cases: the first is when a SOFA member is driving under the influence of alcohol and the second is when a SOFA member is in an official-duty status, but U.S. authorities are unable to prosecute the case.

For the first type of case, according to the DSOD memorandum, whenever alcohol is consumed, whether during an official function or not, the SOFA members’ official-duty status is removed, and the Japanese government has primary jurisdiction to try the case. This means that in any case where an individual is caught drinking and driving off-base, that person will be tried in a Japanese court even if the drinking took place at an official function, such as a work dinner or mess night.

For the second type of case, the new changes are aimed at civilian SOFA members who are alleged to have committed crimes in Japan.

“Unlike military members, civilians cannot be tried in a military court because they are not subject to the Uniform Code of Military Justice,” said Capt. Jonathan P. Stevens, trial counsel with Combat Logistics Regiment 37, 3rd Marine Logistics Group, III Marine Expeditionary Force.

As a result, civilians must be tried in a civilian court. However, there are no U.S. civilian courts in Japan. Therefore, when civilians were in an official-duty status, U.S. authorities had jurisdiction to try the case, but had a very difficult time pursuing a prosecution.

In roughly nine out of 10 cases involving civilian SOFA members who break Japanese law, this issue never comes up because the Japanese government has jurisdiction outright, said Stevens. However, in that tenth case, there was a possibility that the case would never get heard because no one had the ability to try the case.

There have been previous attempts to address this issue by sending people back to the states to try the case there.

Under the Military Extraterritorial Jurisdiction Act, SOFA civilians who commit certain crimes overseas can be extradited to the states to be tried in their local U.S. district court.

“The problem with that is it is hard to work,” said Stevens. “All the witnesses and evidence are here, and you have to try to move it all to the states. Sometimes we’re unable to do that.”

Additionally, a MEJA prosecution is reserved for serious felonies, said Stevens.

The Jurisdiction over Members of the Civilian Component memorandum, which also resulted from the Nov. 23 meeting, was accepted to try to address this situation, said Stevens.

With the JMCC memorandum, the Japanese government now can request to try cases not prosecuted by the U.S. government.

The U.S. government still gets the ‘first bite of the apple’ when the civilian is in official-duty status according to the SOFA, said Stevens.

“In other words, the U.S. Authorities are still going to use every means available to make sure that these cases are tried in U.S. courts,” he explained. “The changes only apply in the narrow set of cases where there is no way to try the case in a U.S. court.”

Under the new changes, in cases where the alleged offense caused death, a life-threatening injury or permanent disability, and no criminal prosecution was conducted by the U.S. Authorities, the government of Japan may request to prosecute the case themselves, according to the memorandum.

In lesser cases, the government of Japan may request secondary jurisdiction, but the U.S. is more likely to keep jurisdiction and try the case in U.S. courts, said Stevens.

U.S. and Japanese courts are very similar, with a lot of the same protections for defendants as far as rights to counsel and rights to appeal, said Stevens. So, no matter which court a person ends up in, he is going to get a fair trial.

“If jurisdiction is given to the Japanese court that does not necessarily mean that the person is guilty,” said Stevens. “It only means that the court will have a chance to look at the case and decide what happened.”

“The only thing the jurisdiction changes did was give the Japanese an opportunity to try cases that would not otherwise be heard,” he said.

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