It began a year ago, in January 2013, when Representative Jackie Speier (D-CA) introduced the “Protect Our Military Trainees Act” that, according to her press release, was “in response to the widespread sexual abuse by Air Force training instructors at a San Antonio Base,” and would “protect trainees from assault and sexual advances by instructors.”
Never mind that sexual harassment in the military is prohibited by innumerable regulations, or that coerced sexual activity “through the use or abuse of military position, rank, or authority” has met the statutory definition of a sexual assault since October 2007, or even that this definition was expanded in 2012 to include “a[ny] communication or action that is of sufficient consequence to cause a reasonable fear . . . [of] being subjected to the wrongful action contemplated by the communication or action.” Congress was getting curious about sexual assault in the military, and it didn’t like what it saw.
Actually, it really began a year before the Congresswoman’s proposal, when we encountered the “uninformed, dishonest, or both” propaganda film “The Invisible War,” and the politicization of the military’s response to sexual assaults became #1 military justice story of 2012. And these days, “you never want a serious crisis to go to waste.”
So there was Congress, geared up to address the military sexual assault crisis, when the Wilkerson case (our #5 story of this year) threw gasoline onto the bonfire. An explosion of legislative proposals soon followed, with Representative Speier and Senator McCaskill each introducing bills to limit a commander’s post-trial powers, and the Senate Armed Services Committee conducting hearings on March 13 and June 4.
The House Armed Services Committee was also concerned, with leaders writing a letter in March to the recently-appointed Secretary of Defense, Chuck Hagel, on the topic. A veteran of Vietnam and a two-term Republican U.S. Senator from Nebraska, Secretary Hagel replied in April with his own proposal to limit the Article 60 authority of commanders, including “eliminating the discretion for a convening authority to change the findings of a court-martial, except for certain minor offenses that would not ordinarily warrant trial by court-martial.”
Senator Hagel’s April proposal was prophetic, but before the prophecy would be fulfilled, the Naval Academy checked in. In June we first noted a sexual assault allegation involving three male members of the Academy’s football team, an intoxicated female midshipman, and an off-campus house party in 2012. The allegation led to an Article 32 investigation that more closely resembled a three-ring-circus than a quasi-judicial proceeding. Press reports say that the midshipman was grilled for over 30 hours by defense counsel, with absurd questions such as “how wide she opened her mouth during oral sex and whether she had apologized to another midshipman with whom she had intercourse ‘for being a ho.'” Soon after, both the House and the Senate put Article 32 in their sights with proposals to limit the scope of the investigation and to change it from a full-blown investigation to a mere preliminary hearing.
So, about that prophecy. On December 26, 2013, it came true.
That’s the day the President signed the National Defense Authorization Act for Fiscal Year 2014, enacting into law its 38 military justice provisions, including ten changes to the Uniform Code of Military Justice. Of these ten changes to the Code, nine appear in Title XVII of the legislation, under the caption “SEXUAL ASSAULT PREVENTION AND RESPONSE AND RELATED REFORMS.”
The new laws are simultaneously broad and cautious. For instance, Congress rewrote Article 32, eliminating the pretrial investigation that has been part of military law since it was added to Article 70 of the Articles of War in 1920, and replacing it with a lesser “preliminary hearing.” But that change won’t be effective until a year from now. Congress also eliminated the convening authority’s unfettered ability to modify the findings or sentence of a court-martial as a matter of “command prerogative,” limiting what General Dwight Eisenhower called “a terrific burden” in 1947 (about six years before he became the 34th President). General Eisenhower assured Congress in 1947 that such a change would lead to “resentment–and very deep resentment.” We’ll see what happens after that provision takes effect, six months from now.
Ultimately, of the ten different ways Congress changed the text of the UCMJ, five won’t have immediate impact. Of these five, one doesn’t take effect for a year (the new Art. 32), and three don’t take effect for six months (restriction of post-trial discretion, and the mandatory minimum provisions). The fifth (allowing appointment of an active duty retiree to CAAF) is effective immediately but won’t matter until the next vacancy at the court; hopefully to occur no earlier than the end of Chief Judge Baker’s term in September, 2015.
The five remaining changes take effect immediately. They are:
Creation of Article 6b, establishing 14 “Rights of a Victim of an Offense Under [the UCMJ].” These rights parallel the eight rights identified in the Crime Victims’ Rights Act (18 U.S.C. § 3771). The new Art. 6b is effective now, but the Secretary of Defense has a year to recommend pertinent changes to the Manual for Courts-Martial, and to implement his own governing regulations.
Elimination of the 5-year statute of limitations for the offenses of sexual assault (Art. 120(b)) and sexual assault of a child (Art. 120b(b)). This provision is effective now, but only for offenses committed on or after December 26, 2013.
Modification of the requirement of Article 46 for “equal opportunity to obtain witnesses and other evidence” to explicitly require that “defense counsel shall make any request to interview the victim through trial counsel.” The new rule also provides that if an alleged victim so requests, then “any interview of the victim by defense counsel shall take place only in the presence of trial counsel, a counsel for the victim, or a Sexual Assault Victim Advocate.” This rule is effective now.
Creation of a new subparagraph (d) to Article 60, providing the victim the “opportunity to submit matters for consideration by the convening authority.” Congress also prohibited consideration of any matters “that relate to the character of a victim unless such matters were presented as evidence at trial and not excluded at trial.” These rules became effective at enactment on December 26, 2013, and will likely cause significant post-trial delay in cases tried before that date but not yet acted upon by the convening authority.
The long-overdue repeal of the prohibition against consensual sodomy in Article 125. Forcible sodomy is still prohibited, and the offense of “bestiality” is added (perhaps in recognition of the weirdest military justice story of 2011).
Of everything that happened over the past year, these new laws enacted in the last days of December are our #1 military justice story of 2013. As the sun rose on 2014 this morning, and 2013 began its fade into history, we’re taking stock of these new provisions and watching to see of they will extinguish the flames of crisis sparked two years ago. Stay tuned.