Here’s an advance copy of Rep. Jackie Speier’s (D-Cal.) bill to amend Article 120 to expressly criminalize instructors having sex with servicemembers in basic training, which we previously discussed here.

24 Responses to “Text of Rep. Speier’s bill to prevent sex between DIs and recruits”

  1. John O'Connor says:

    Calling the consensual sex acts between a recruit and an insructor a sexual assault is a mistake.  It’s an abhorrent act to be sure, one that is already criminalized and I have no problem with a UCMJ article criminalizing it.  Calling it an assalt is gilding the lily and will invite member nullification.  They should house the provision outside of Article 120 (do I hear Aericle 120A?).  Also, it will make it harder to get pleas because a sexaul assault surely woulod require registration as a sex offender.
     
    Also, not sure this covers OCS candidates, but it should because the same power imbalances exist.

  2. Zachary Spilman says:

    A military instructor who (commits a sexual act) (causes sexual contact) upon a member of the armed forces while the member is undergoing basic training (or its equivalent) or within 30 days after completing such training—

    is guilty of (sexual assault) (abusive sexual contact) if the military instructor exercised any supervisory authority over the member during such training;

    Should military instructors engage in sexual relations with their students? Certainly not. Do all such sexual relations constitute some type of sexual assault? No.

    “Power imbalances” exist in all sorts of places: private employer-employee relationships, student-teacher relationships, President of the United States-White House Intern relationships… These relationships are generally inappropriate and can reflect (at least) a lack of discipline and professionalism. But they’re not necessarily sexual assaults.

  3. Charlie Gittins says:

    If you want to see how this statute can be misused and be completely BS, read the CAAF decision in US v. Bright.  The trainee rented hotel rooms, ordered pizza, brought beer, smoked ciggys after sex and  . . .  in what can only be a represwntation of the most incompetence by a military judge ever, the MJ let the case go to the jury.  CAAF — not guilty as a matter of law of rape.  TRAINEES CAN CONSENT, madam Congresswoman.  You can criminalize an orders violation but it is a perversion of the law to characterize consensual acts as sexual assault.  Just sayin . . . .

  4. Charlie Gittins says:

    If you want to see how this statute can be misused and be completely BS, read the CAAF decision in US v. Bright.  The trainee rented hotel rooms, ordered pizza, brought beer, smoked ciggys after sex and  . . .  in what can only be a represntation of the most incompetence by a military judge ever, the MJ let the case go to the jury.  CAAF — not guilty as a matter of law of rape.  TRAINEES CAN CONSENT, madam Congresswoman.  You can criminalize an orders violation but it is a perversion of the law to characterize consensual acts as sexual assault.  Just sayin . . . .

  5. John S says:

    In the civilian world there are plenty of examples of people taking advantage of a power imbalance to obtain sexual favors from subordinate employees.  Should those supervisors be fired and face a potential lawsuit?  Absolutely.  Should they be forced to register as sex offenders?  I think not.  This proposed amendment would basically treat every recruit as if they were 12 years old in the eyes of the law.  If passed, I predict Article 120 to be held unconstitutional again. 

  6. Bill C says:

    So everybody on this blog knows this is absurd.  But wanna put a wager on whether it passes?

  7. Phil Cave says:

    Agree with Charlie.  We’ve all had cases where it is the recruit or trainee who is the aggressor, sometimes because of a challenge to count coup.
    I think this is meant to be a legislative fix to advocates dislike of United States v. Leak.61 M.J. 234; 2005
    I don’t have a problem with the prohibition,  The older and supposedly mature instructor should say no.  But I do have a problem with basing this on Victorian notions of sexual inequality and gender politics.  I don’t think it will be unconstitutional in the same way that the courts have not found anti sex regulations unlawful orders.

  8. SFC V says:

    I don’t have any problem with congress specifically creating a prohibition.  But calling it a sexual assault crosses the line. 
     
    Why add it to 120?  Why not just a new article called “Innapropriate relationships between trainers and trainees”?  By calling it a sexual assault and putting it under 120 you are taking what is a purely military offense and turning it into something that requires lifetime S/O registration.
     
     

  9. k fischer says:

    Georgia, where the age of consent is 16, passed a sexual assault law criminalizing teacher/student sexual relationships and provided that consent was not a valid defense.  A teacher was convicted and the Supreme Court reversed the conviction in 2009 because the consent portion of the code did not apply to the teacher/student part of the code.  The Georgia legislature changed the statute to make consent an invalid defense for the entire code section.  It has yet to be challenged.
     
    I think that Congresswoman Speier’s amendment to the UCMJ very well could be held constitutional.  
     

  10. Lieber says:

    It’s not going to be unconstitutional for Congress to determine that as a matter of law a trainee cannot consent to sex with a DI.  (Neither do I really have a problem with Congress doing so.  It’s absolutely no different than statutory rape statutes.  It doesn’t matter that a 15 year old can come on to a 30 year old.  A state legislature can still criminalize it.)  I realize that most of the commenters here work exclusively on the defense side but sometimes you need to step back and think a bit objectively.

  11. Charlie Gittins says:

    15 year olds cannot enlist in the service.  At 18 years old, you are adult and capable of making legally binding decisions, even bad ones.   Creating a law that says an adult of sound mind cannot consent to sex is absurd and I doubt would pass.  Pass a law of prohibition on frat with recruits/trainees; that is fine, and I get it, but don’t create a fictional zone of adult incapacity — that is just stupid law-making and contiunuation of the “nanny state.” 

  12. k fischer says:

    I’m not saying that I agree with this amendment, but I think that laws have been enacted in the past that would support this particular amendment being constitutional.  Statutory rape laws are not a good comparison, and Charlie and John are correct that we are treating trainees like 12 and 15 year olds when they are 18 year-olds (although I was 17 when I shipped to basic training) and capable of making decisions.  
     
    Charlie’s right.  This is continuation of the nanny state, and I think that codifying the criminalization of fraternization for those relationships where there is consent and leaving Article 120 as it is for those relationships where there is not consent would be far more prudent.  That way, you can take care of the General Sinclair, Major Thompson, etc., which the current amendment does nothing for.
     
    Playing devil’s advocate, the proponent of this law would be better suited making the argument that this amendment is more akin to laws criminalizing a sexual relationship between a psychotherapist and patient or a Teacher and Student.  The shrink is far better able to psychologically manipulate the patient into a sexual relationship, just like a Drill Sergeant.  Is it possible that the trainee could consent to a sexual relationship?  Yes, but like the shrink/psychotherapist & Teacher/Student relationships, its far too difficult to determine whether some sort of psychological coercion was going on and the shrink and teacher should know better, so they are just going to make it a strict liability offense.  
     
     

  13. Matt says:

    This law essentially states that a soldier is competant enough to make a decision about joining the military and possibly dying for their country, but they are legally incompetent to make decisions about having sex.  I agree that the possibility that basic training environments can be coercive, and can lead to sexual assaults, but those cases should be prosecuted as they arise. 
    I also do not have an issue with codifying a prohibition on sexual relationships between trainers and trainees.  However, I think the better analogy would be the prohibitions against sex between inmates and guards.  In most places it is illegal for guards to have sex with inmates, but it is not considered a sexualt assault. 
    Putting the “prohibited relationships” section of AR 600-20 into the UCMJ (possibly as an amended version of the fraternization prohibition), would seem a better route than categorically stating that such conduct is a sexual assault.

  14. Lieber says:

    17 year olds can enlist.  And in some states they can’t consent to sex.  And you can’t drink until 21 in any state (and in many states 21 is the age of emancipation). 

  15. k fischer says:

    Matt, 
     
    In Georgia, if a guard has intercourse with an inmate, it is sexual assault requiring sex offender registration and consent is not a defense.  But, I agree that Congresswoman Speier, if she has to do anything at all, should amend the UCMJ to criminalize fraternization and leave Article 120 alone to prosecute nonconsensual trainer/trainee intercourse under Article 120.
     
    I think that deep down what victim advocates really wanted is a system where when a man is accused of sexual assault, he has the burden of proving his innocence. They got that system by removing consent as an element from Article 120 and making consent an affirmative defense.  However, this amendment is even more of a win for them because it makes sexual assault strict liability once the Government proves intercourse occurred between a trainer and trainee.  
     
    So, why not make Officer/Enlisted fraternization sexual assault under Article 120?  You have a similar  power dynamic.  And, I’ll be interested in seeing the case where a gay Serviceman accuses a drunk Servicewoman of sexual assault when she grabs his junk.  I wonder if the panel would feel cathartic convicting her of abusive sexual contact and making her a sex offender for life.
     
     

  16. Phil Cave says:

    Because you are on the “defense side,” you are not “a bit objective[.]”  Huuuuuum.  Because you are on the prosecution side you are not thinking rationally, therefore your comment is worthless?  Huuuuuum.  

  17. Lieber says:

    Phil,  the assumption that criminalizing trainee/DI sex would be unconstitutional showed an inability on the part of some commenters to step back and see the big picture (as has been pointed out there are plenty of analogous statutes).
    Officer/enlisted frat is different…in most cases that I’ve seen the ranks are not that dissimilar (an O-4 with an E-7 is pretty common).  But sure, a three-star with an E-2 would be analogous.

  18. Michael Keyes says:

    Sometimes the punishment comes anyway <G>
    A number of years ago I was in charge of a Reserve medical clinic supporting ROTC training at Ft. Riley. We had a female cadet come in with a severe case of the crabs one morning and her instructor come in later that day with the same complaint.  Not much was said as we were in the midst of a mass cal of heat injuries and poison ivy rash, but I suspect that the liason did not occur a second time.

  19. stewie says:

    Well, since I am currently on the government side, perhaps my opinion will be more balanced. ;)  I am sure it would be constitutional to pass such a law.  I am also sure it would be horribly unfair, unbalanced, wrong, and ridiculous to make some stupid D/S a registered sex offender because he succumbed to the advances of a 20 (or 30, or 35) year old female recruit.  I went to basic training and AIT, one of my best female friends in AIT told me she had sex with her D/S and it was completely consensual. She wasn’t 18, she was mid 20s, mature, intelligent.  This is ridiculous, and I hope it doesn’t pass, and if it does, I hope jury nullification is the new word of the day (and/or SJA/CG nullification).
     
    Side note, the reported cases of sexual assault will skyrocket obviously if this becomes law.

  20. Lieber says:

    If trainee/DI sex really is that common then I think you’re making a case for the law, not against it.

  21. k fischer says:

    Lieber, 
     
    I think Stewie makes quite the opposite point.  The “reported” cases will skyrocket when a DS/trainee relationship is exposed.  However, once the consensual nature of the relationship is determined, then we will have a reported “sexual assault,” with more than likely a GOMOR or Article 15 disposition.  This will increase the military’s poor prosecution rate of sexual assault.  So basically, Congresswoman Speier getting this law passed will result in the military looking even more like it sweeps sexual assault under the rug.  That is assuming Commanders handle the offense at the lowest appropriate disposition as they are required by the R.C.M. 

  22. Lieber says:

    k fischer,  if trainee/DI sex becomes essentially a strict liability 120 offense, then GOMORs and Article 15s would be unlikely to be the appropriate disposition.
    further, if trainee/DI sex is really that rampant, then maybe we do need to come down harder on it since apparently current law isn’t good enough.  look, I’m completely turned off by the military’s puritanism when it comes to sexual matters.  adultery, consensual sodomy and indecent acts should not be in the UCMJ.  In fact, we shouldn’t even be giving GOMORs for them.  I could rant all day on that.  but I don’t have a problem with saying to DIs that of the entire universe of people you can bang (they’re not deployed after all), the two groups that you will go to prison for having sex with are children and trainees.  It’s really not asking that much. 

  23. Phil Cave says:

    I am with Lieber on this.  Except for making it a registration offense.

  24. Lieber says:

    Oh I’m not sure it should be a registration offense…(of course there’s not much we can do about how individual states may define that)