Michael Doyle and Marisa Taylor of McClatchy Newspapers have written a series of articles on the military justice system.  Here’s a link to their latest, which is about the “new” Article 120.  Michael Doyle & Marisa Taylor, ‘Flawed’ new rape law roils military justice system, McClatchy Newspapers (Sept. 21, 2011).

8 Responses to “McClatchy article on Article 120”

  1. Ama Goste says:

    Great quotes! Don is one of the best litigators and officers in the military. Of course, the article fails to note Col Christensen’s ironic current gig.

  2. Charles Gittins says:

    Hopefully McLatchey will let Marissa continue to work military justice issues. She is one of the few reporters I have come across who has made an effort to learn about the UCMJ and how military justice functions in practice and she is doing a public service by writing these articles. Since Congress only acts in response to headlines these days, perhaps these articles will motivate the Congress to change this abomination of a law.

  3. soonergrunt says:

    So now the clueless eternal newbie has another question–

    For now, the military has directed military judges to essentially ignore the troublesome portions of the law when they instruct juries. This still leaves judges in what an appellate court called an “impossible position” as they choose between the law Congress wrote and the instructions the military provides.

    If some Judges are essentially bypassing the current statutory language of Art. 120 and substituting bench instructions to the members that were used under the old Art. 120, aren’t they essentially trying the accused for violating something that isn’t actually the law? How can that possibly be legal or constitutional?

  4. Cheap Seats says:

    Soonergrunt – See, you don’t have to be a lawyer to see how this thing is so messed up! Practitioners on both the prosecution and defense (and the judiciary for that matter) want the statute fixed. Articles like this one may help sway Congress to action.

    Still don’t know how the Judges get around Model Rule 1.1 of the ABA Model Code of Judicial Conduct:
    RULE 1.1
    Compliance with the Law
    A judge shall comply with the law,* including the Code of Judicial Conduct.

    Anyone out there voir dire the MJ on this and how the new Article 120 Benchbook (Change 11-02A) requires them to say they are ignoring the law? In essence, they say they are committing error, but non-prejudicial error. Can a judge knowingly continue to commit error?

  5. Silence Dogood says:


    Exactly. The separation of powers argument. In light of both Prather and Medina, I do not see how only “some” judges can opt to stray from the statute when instructing. I would think all judges would have to stray from it.

    Has anyone encountered a MJ who, after Prather and Medina, figured out a way to instruct consistent with the statute and without drafting new law from the bench by going with the Benchbook? Probably not, but I am curious.

    Of course, the counter from the G is that the error actually helps the appellant by adding another element to the G burden. However, I do not see this. Generally, the G argues that they must now prove a lack of consent, but this ignores the definition of the second element in 120(c)(2) cases.

    The G has to prove a sexual act and either incapacitation or incapability. By statutory definition, when either incapacitation or incapability has been proved, consent is not available (i.e., a lack of consent exists). I.e., the G has already proved a lack of consent if it can successfully prove BRD the second element. If this is the case, isn’t the Benchbook instruction simply restating the second element, and therefore surplusage?

    If so, and if the evidence raises the defense of consent, and if MJ has not already determined that the defense has been proved by a preponderance which makes it impossible for the G to win, doesn’t this mean that the Benchbook instruction fails to allow the members to decide whether consent is proved by the appropriate evidentiary standard? Doesn’t that deprive the accused American citizen, whose liberty is in jeopardy, of the statutory construction devised (I prefer “gerrymandered.”) by the legislature?

    I am not married to this argument, but it at least strikes me as a question to be asked and considered. As for the McClatchy piece and its mention of the Senate bill, I still have to do my homework on it. However, as a woman dedicated to the idea of gender equality, I hope the Senate bill hits the nail on the head.

    I am insulted by the implication in current law that someone like me, a mentally competent woman of the age of majority, suddenly becomes unaware of her potential bad decisions when she knowingly and willfully consumes alcohol, and therefore renders herself legally unaccountable for her actions. Men do not have that carte blanche, so why should we?


    (To be clear, I am not talking about the woman who is certifiably comatose or involuntarily intoxicated. Obviously, guys, if we are unresponsive, that is a signal to waveoff or face the consequences.)

  6. anon says:

    Reflecting back on this legislation, its clear that the JAG community (to include myself) did not sufficiently raise their concerns when the statute was being drafted, proposed, and voted on. I recall looking at the proposed 120 with shock and awe, commenting on how the JAG school diagram looked like Picture Pages, and sitting at various conferences befuddled about the burden-shifting. I still don’t understand how an otherwise legal act under Lawrence — I think called coitus in Big Lebowski terms — that implicitly requires some degree of force is not facially unconstitutional when there is no consent element. AAR from my perspective is be the uppity junior officer and voice your concerns when you see proposed UCMJ legislation come across your desk. . . and then have congress still do whatever it wants.

  7. Silence Dogood says:


    Be neither daunted nor guilt-ridden over a perceived drinking of the Kool-Aid or of a lemming-like discipleship of Big G in the past. The fact is that a body of much greater authority than we placed Congress on notice of its fool’s errand to “fix” 120.

    We have all seen the report. In February 2005, the JSC’s subcommittee explicitly advised the legislature to abandon its “reform” of 120 and further explicitly and presciently warned our elected officials of the greater likelihood of reversals [report below].

    You can lead a horse to water…


    [Sex Crimes and the UCMJ: A Report for the Joint Service Committee on Military Justice]

  8. soonergrunt says:

    Thanks, CS and SD! Here’s another question (I know, I know–I should just go to Law School already)
    How can the MJ knowingly commit error (instructing something that is in the statute nor supported by the statutory language) and have it not be harmless?
    I don’t understand how the CCAs and CAAF can claim with straight faces that ignoring the law as it is written is harmless error.
    Art 120 may be stupid law that is poorly conceived and written, but it IS the law until the CCAs, CAAF, or SCOTUS declares it unconstitutional or better yet, Congress rewrites it.