From the folks that brought you the Art. 31(b)log, here is a 9-page primer on the new Art. 120.  For anyone that has Lexis-Nexis, just login and it should be free.  I think that leaves our baby blue brethren out in the cold, no?  From the Lexis-Nexis website, here’s a description of the primer:

Congress defines military sexual crimes in Article 120 of the Uniform Code of Military Justice (UCMJ). 10 U.S.C.S. § 920 et.seq. Effective on June 28, 2012, the newest version of military sexual crimes more successfully shifts the focus to the offender, but is not without its problems. This Emerging issues Analysis by Jim Clark, professor of Criminal Law at The Judge Advocate General’s Legal Center and School, the US Army’s ABA-accredited legal center in Charlottesville, Va., explores the changes effected by the new, new Article 120.

Sadly, I didn’t know there was a civilian professor at the Army JAG School.

18 Responses to “New, New Art. 120 Guidance From TJAGS”

  1. Jim Clark says:

    The Lexis/Nexis piece is now available to the public on 31(b)log.

  2. Mike "No Man" Navarre says:

    Thanks Prof. C!  The link to the 31(b)log entry is here and the primer is here–for those that are internet challenged (the 31(b)log is linked on the right in case you missed it).

  3. Dew_Process says:

    Thanks to you both!!

  4. stewie says:

    Not sure I agree that the changes to what is a sexual act is “unlikely to be controversial.” My reading is that one could technically put their finger into another person’s mouth with the intent to degrade and have that be a sexual act.

  5. Jim Clark says:

    Yup. If you do that with the requisite intent, Congress wants it to be criminal. Why would that be a problem? If someone intends to degrade another, why NOT hold them liable? (Except for sex offender registration. But then, that should act as a deterrent.)

  6. stewie says:

    you can hold them liable without it being a sexual act for which you could be charged and convicted with an offense under 120. A simple assault for example. Maltreatment is another example. It’s way overbroad to make ANY penetration of ANY orifice by ANY(thing) a sexual act, particularly when it doesn’t even have to be done for a sexually-related reason.

    the next question becomes, is an ear an orifice? Nostril? I get and applaud the idea of expanding rapes to encompass men and women, and anal/oral in addition to the historical definition. Great idea. But this goes well beyond that, and much too far IMO.

  7. k fischer says:

    Stewie,

    Better put out a memo that if your TC’s give each other a wet willy, then they might have to register as a sex offender. 

    ksf

  8. John Harwood says:

    Stewie’s got a great point – if someone is seen picking their nose in their car, could they be charged with a lewd act in public?  Gives a bit more gravity to Seinfeld’s “It wasn’t a pick! It was a scratch! Not a pick!” sketch.

  9. stewie says:

    I guess you really CANT pick your friend’s nose (but you can pick your friends and/or your nose…maybe).

  10. BDG says:

    How long as their been a civilian prawf at TJAGLCS? 

  11. John Harwood says:

    Jim, I agree about Congress criminalizing certain conduct, except that putting your finger into someone’s mouth when they don’t want you to is already a crime.  It’s an assault consummated by a battery, which I think is a better fit for the gravity of the offense vs a sex offense conviction.  If putting one’s finger in another’s mouth is done as part of a sexual offense, then it would also constitute an offense that already exists – assault with intent to commit rape. 

    And I don’t buy the deterrent effect basis – if we’re going to make someone register as a sex offender for putting their finger in another’s mouth for the sake of deterrence, why not make adulterers register as sex offenders – or even drug offenders?  That’d certainly be a big deterrent to adultery and drug use, I’d reckon.

  12. Jim Clark says:

    Several answers: The civilian was hired Sept. 2010. 3 year appointment in connection with expanded focus on sexual assault cases.
    The key to the finger-in-the-mouth is “with an intent to abuse, humiliate,harass, or degrade any person or to arouse or gratify the sexual desire of any person.” The first phrase does not necessarily make it a sex crime, but it is a common offender motivation in committing sexual assault. The second phrase is clearly a sex offense. I don’t find a theoretical problem with criminalizing these acts, even if they could be charged under another section of the UCMJ. But of course, Congress didn’t ask me what should be in the law. I just try to understand what they did write.
    I’ll pass on commenting on the other scenarios.

  13. Peanut Gallery says:

    I’m becoming more libertarian by the minute.  Now where did I put that flyer advertising cheap land in Idaho/Montana?

  14. Mike "No Man" Navarre says:

    KSF–Thanks for that imagery.

  15. stewie says:

    no the first absolutely does necessarily make it a sex crime because the statute makes “with an intent to abuse, humiliate,harass, or degrade any person…” a sexual act.
    No one is objecting to “criminalizing these acts” they object to making these acts which lead to a result where someone spends years or decades registering as a sex offender for what in no way should be a sexual offense.
    IF the statute only had “to arouse or gratify the sexual desire of any person” as the sole intent involved, then while it would still be overbroad IMO it would at least be on the right track. But now a humiliating prank, with no sexual gratification intent, with no other sexual acts, and with anything (finger, foreign object, pie in the face) can now become a sexual act.
    One hopes that no one will ever be foolish enough to actually charge it, but that’s often a hope that goes unfounded in my experience.

  16. k fischer says:

    No Man,

    My pleasure.  When I worked my first assignment in Legal Assistance at 8th Army in Korea, one of my buddies would chew a Slim Jim like bubble gum until it became a sinewy white hunk of fat.  When I would step out of my office for a smoke, I would return to my office to find this hunk of fat on my computer keyboard.  After about a month of this, during a 5 mile run, my toenail became dislocated from my toe and turned black.  I finally ripped it off one morning, which caused a minimal amount of bleeding.  It smelled because I neglected to wash it for about a week because it was almost completely dispalced and it hurt when I touched it.  I got to work early and placed the bloody black smelly ripped off toenail on his computer keyboard.  He couldn’t believe that I would commit such a heinous act.  The shock and awe of my counterstrike had its intended effect, and I never found a chewed up Slim Jim on my keyboard again. 

    ksf

  17. Mike "No Man" Navarre says:

    KSF–Didn’t need that one.  You Army guys are just freaking disgusting, I can;t imagine anything like that ever happening in the sea services.

  18. k fischer says:

    I was stationed at Little Creek NAB, been to GITMO twice, and knew a Navy Lt Commander in Korea, so I can only say this, “You very funny Sailor!”