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.
- 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: Is there a Victim Advocate Privilege (Mil. R. Evid. 514)?).
- 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.