Congress created the Code Committee in Article 146 (10 U.S.C. § 946) and mandated that it “shall meet at least annually and shall make an annual comprehensive survey of the operation of this chapter.” The committee consists of the judges of CAAF, each service JAG and the SJA to the CMC, and two members of the public appointed by SECDEF.

It met on March 11, 2014, the meeting was open to the public, and I attended. Here is a summary of my notes.

The Joint Service Committee opened the meeting with a lengthy brief accompanied by a printed slide deck. I’ve scanned in a copy of the slides here. Notable points included:

  • There are two concurrent reviews of the UCMJ under way:
    • The first is the Response Systems to Adult Sexual Crimes Panel, created by Sec. 576 of the FY13 NDAA. It’s website is here, and the JSC recommended use of its website to keep track of its activities. The Panel is conducting an independent review of the systems in place in the military to address sexual assault offenses.
    • The second is the Military Justice Review Group, which was ordered by the Secretary of Defense in this memorandum (discussed in this post). Senior Judge Effron was just appointed as the director of the Group. It is planning to complete a report on October 20, 2014, recommending statutory changes to the UCMJ, and a second report six months later recommending changes to the Manual for Courts-Martial.
      • Of note, there was some discussion of whether the MJRG was subject to the Federal Advisory Committee Act (meaning it would conduct open meetings, etc.). No clear answer emerged.
  • The Army is printing a supplement to the MCM containing the new Military Rules of Evidence (available in PDF here). With Senator McCaskill’s push to eliminate the general defense of good character (discussed in this post), this project may be delayed.
  • The draft executive order prepared in 2012 (discussed in this post) that was stripped down to just the maximum punishments for Article 120 (2012) and the new rules of evidence (E.O. 13643; discussed in this post), is still floating around. There are additional changes in the works as well. Unfortunately, the JSC has been less than transparent with these proposed (whether the notice and public comment provisions of the Administrative Procedures Act is an open question; discussed in part in my 2012 post that asked: ).
  • The JSC did announce that proposed changes to the MCM include changes to R.C.M. 1106 and 1007 to address victim clemency submissions.
  • It also discussed a proposal to delete the portions of R.C.M. 916 that directly address mistake of fact in the context of sexual offenses. Of note, some of this includes the impossible burden shift (discussed in this post).
  • And it discussed resurrecting the offense of indecent conduct (formerly Article 120(k) (2006)) under Article 134.

The Committee then went around the room with presentations from the senior judge advocate from each service (except the Navy, which sent a deputy due to some sort of scheduling issue). Unsurprisingly, sexual assault prosecutions were the main topic of discussion:

  • Army: There are still over 200 Army judge advocates and legal support staff in Afghanistan. The Army victims’ counsel program is growing.
  • Navy: The Navy is still working on an integrated cradle-to-grave case tracking system. Of victims who sought out a victims’ counsel, 94% made their reports unrestricted. Victims were also referring other victims to the victims’ counsel program.
  • Air Force: 52% of victims who meet with a victims’ counsel convert their restricted reports to unrestricted reports.
  • Marine Corps: There’s an 86% increase in sexual assault reports over last year. But experience and capacity is a big concern for the Marine Corps legal community, which is in the midst of a significant reduction in force.
  • Coast Guard: Significant increase in military justice activity in the Coast Guard. The service has already exceeded the FY13 total for referrals.

There was collective agreement that the victims’ counsel program has prompted a greater number of unrestricted sexual assault reports, including conversions of formerly-restricted reports into unrestricted reports. This will result in more sexual assault prosecutions (and in the case of old reports, a likely increase in the acquittal rate).

Finally, Major General Dunlap, USAF (Ret.), submitted this memorandum for the Committee’s consideration.

4 Responses to “Notes from the 2014 Code Committee Meeting”

  1. RKincaid3 says:

    Z:  Thanks for attending and posting that info.  It bothers me to no end that the committee responsible for making a “comprehensive annual survey” of the UCMJ has not only been so ineffective for so long, but at its most recent meeting used slides from 2012 and still has references to the double burden shift, a legal impossibility per the courts (and common sense), but also apparently still doesn’t realize that the ‘mistake of fact” defense is constitutionally required where mens rea is an essential element of an offense involving criminal law vice public health and welfare laws.  Regarding mens rea:

    Criminal law as a whole can easily be grasped once the concept of mens rea, the mental element of a crime, is mastered.  The unifying principle is that no person should be subjected to the unique sanctions of criminal punishment unless found to be morally blameworthy or culpable–that is, unless he (or she) has performed a voluntary act while possessing a guilty mind or mens rea. Consider the following statement from “The Mistake of Fact Defense and the Reasonableness Requirement,” by Margaret F. Brinig, of the University of Notre Dame Law School, 1978
    The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient motion.   It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.  A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘but I didn’t mean to.’

    Consider also words of the U.S. Supreme Court on this issue, in the case of Morissette v. United States – 342 U.S. 246 (1952).  This is the case where Justice Jackson noted at 251 that crime was “generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand.”  Additionally, the court stated:

    We think presumptive intent has no place in this case. A conclusive presumption which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect. [Footnote 34] In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime. Such incriminating presumptions are not to be improvised by the judiciary. Even congressional power to facilitate convictions by substituting presumptions for proof is not without limit. Tot v. United States,319 U. S. 463.

    And, I am also glad to see MG Dunlap’s latest memo–it reads to me as not only an important objection to what is going on with the this board and how it is being administered, but he is stepping out as questioning all the unusual goings-on with the Congressional tinkering and political agendas.
    Between MG Dunlap’s memo and the SECDEFs establishment of the MJRG, it appears that there is diminishing faith in the integrity of the Code Committee, its purpose, effectiveness and administration, not just recently, but over the last many, many years.  Since we might now be observing signs of an institutional, senior level recognition that substantive changes to the UCMJ must be made with an eye towards “justice” as a process and not a result, I am actually hopeful that the UCMJ is on the verge (over several years, obviously) of undergoing a great many long overdue and necessary improvements.
    Hope does indeed spring eternal!

  2. Zachary D Spilman says:

    Your criticisms are way off base RKincaid3.

    The slides were a handout to supplement the brief from the JSC (about an hour long presentation from a Maj and a LtCol), and there’s a significant amount of material in the handouts that is more recent than 2012 (all the discussion related to the FY14 NDAA, for example). The double burden shift is still in the MCM; in the part discussing the burden for mistake of fact for sex offenses that the JSC proposes to remove (see page 19 of the PDF / RCM 916(b)(4)). That’s different from the general defense of mistake. The JSC did not propose eliminating the defense of mistake in general.

    Notably, the big mission of the JSC is to conduct the annual review of the MCM and propose changes.

    I don’t think it’s remotely fair to call the committee “ineffective.” You can’t honestly expect the judges of CAAF to propose statutory changes. The Committee conducts a survey during which issues emerge. Perhaps the most interesting emerging issue from this year’s meeting was the SJA to the CMC’s concern over experience and capacity, when considered in the context of all the issues the Marine Corps legal community has faced over the past year (i.e., Hornback, Salyer, the Heritage Brief, LtCol Palmer, etc.). Let’s not forget that just a few years ago, the Navy and Marine Corps legal communities were in the Congressional spotlight (see our #6 Story of 2010) (see also the final report of the 506 panel).

  3. RKincaid3 says:

    Z: Sorry for the delayed response.  Been teaching all day.  Just got in.  Where to start?  Well, I will simply state that I respectufully disagree.  The points you raise in response, I submit, are largely drawing distinctions without a significant difference.  I find LTG Dunalps comments (and his objections) highly challenging of the Committee’s actualy record.  And I find the SECDEFs separate, standalone committe on improving the UCMJ to be an indictiment of the current systems in place to effectuate changes to the UCMJ.  So, I stand by my criticism and appreciate the passion of your response wherein you raise

    …all the issues the Marine Corps legal community has faced over the past year (i.e., Hornback, Salyer, the Heritage Brief, LtCol Palmer, etc.). Let’s not forget that just a few years ago, the Navy and Marine Corps legal communities were in the Congressional spotlight (see our #6 Story of 2010) (see also the final report of the 506 panel).

    However, I submit that all those incidents not only reinforce my oft-made call for the continued evolution of the UCMJ, but also support my contention that the Code Committee hasn’t been all that effective at apprising the powers-that-be of the problems with the Code, hence LTG Dunlap’s blunt, appropriate and timely memo, and the SECDEFs new committee.
    It seems to me, possibly, that only those who support the status quo would quibble with the argument that the Code Committee hasn’t done much to prevent or address the current issues/problems.
    But that is just my opinion/point of view, for what it is worth.

  4. Balkan Ghost says:

    RKincaid3 is right on this one. We absolutely should expect the judges of CAAF, along with the rest of the Committee, to fulfill their statutory requirements.