The National Defense Authorization Act for Fiscal Year 2012, which President Obama signed on New Year’s Eve, includes amendments to the UCMJ. [The complete text of the UCMJ as amended is available here.]
The statute amended four UCMJ articles and created two new ones — though the amendments to two articles (Articles 43 and 118) were merely conforming amendments.
The statute fixed one clerical error while creating another. Section 542 of the statute fixed a misspelling in Article 47, amending Article 47(A) “by striking ‘subpenaed’ both places it appears and inserting ‘subpoenaed’.” But section 541 of the statute, in enacting a new Article 120(f), referred to ”the Rules for Court-Martial” rather than “the Rules for Courts-Martial.” Perhaps some future DOD Authorization Act will include a technical amendment fixing that mistake.
As previously noted, one section of the statute (section 542) amends Article 47 to allow subpoenas duces tecum to be issued for Article 32 investigations. This portion of the statute is now in effect. But the most important UCMJ change included in the statute is the amendment of Article 120 and creation of two new UCMJ articles dealing with sex offenses.
It wouldn’t be accurate to say that the statute repeals the 2006 version of Article 120, since that will remain in effect for offenses committed between 1 October 2007 and 27 June 2012. But for acts committed from 28 June 2012 on, Article 120 will be different.
Before the 2006 amendment (Pub. L. No. 109-163, § 552, 119 Stat. 3136, 3257) , Article 120 was a 196-word statute covering rape and what was then known as “carnal knowledge.” The portion dealing with rape was only 50 words:
(a) Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.
. . . .
(c) Penetration, however slight, is sufficient to complete either of these offenses.
The 2006 amended version ballooned to 2,830 words. It covered rape, rape of a child, aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual contact, aggravated sexual abuse of a child, aggravated sexual contact with a child, abusive sexual contact, abusive sexual contact with a child, indecent liberty with a child, indecent act, forcible pandering, wrongful sexual contact, and indecent exposure. One military judge famously likened the revised Article 120 to what 100 monkeys at typewriters might produce. And CAAF held that the statute “results in an unconstitutional burden shift.” United States v. Prather, 69 M.J. 338, 340 (C.A.A.F. 2011).
The 2011 amended version of Article 120 weighs in at 1,074 words. It covers rape, sexual assault, aggravated sexual contact, and abusive sexual contact. The statute creates two new UCMJ articles that are a combined 1,330 words. The first, Article 120b, covers rape of a child, sexual assault of a child, and sexual abuse of a child. The second, Article 120c, is titled “Other sexual misconduct” and covers indecent viewing, visual recording, or broadcasting; forcible pandering; and indecent exposure.
I plan to post a couple of thoughts about the revision to Article 120, so stay tuned to this same bat channel.