The Judicial Proceedings Panel was established in 2014 to conduct an independent review and assessment of judicial proceedings under the UCMJ involving adult sexual assault and related offenses since enactment of the 2012 version of Article 120. The panel released its initial report in February, and then it formed a subcommittee to review seventeen specific issues regarding Article 120.
That subcommittee released its report on Friday. The report is available here.
The subcommittee recommends some significant changes to Article 120, including removing penetration of the mouth by other than a sex organ as a possible sexual act, rewriting the definition of consent, and adding a statutory definition of the term incapable of consenting.
The report’s executive summary is reproduced after the jump.
Disclaimer: I testified before the subcommittee in May and am cited a number of times in the report.
In its February 2015 assessment of the 2012 version of Article 120 of the Uniform Code of Military Justice (UCMJ), the Judicial Proceedings Panel (JPP) recommended that seventeen issues should be referred to a subcommittee for further evaluation. Eleven of these issues related to the definitions of terms, elements of offenses, defenses, and enumerated offenses under the statute. Some presenters testified to the JPP that a lack of clarity or specificity in certain definitions in Article 120 could create difficulty or uncertainty in prosecuting cases under the statute. Conversely, others told the JPP that further revisions to Article 120—a statute significantly revised twice in recent years— would make prosecutions more complex.
The JPP also recommended that a subcommittee further assess how the military prosecutes crimes under the UCMJ involving abuse of position, rank, or authority, including relationships between trainers and trainees, recruits and recruiters, and senior and subordinate military members in the same chain of command. The JPP heard testimony about whether the 2012 version of Article 120 and other articles of the UCMJ provide sufficient means for the prosecution of coercive sexual offenses, inappropriate relationships, and maltreatment, and the JPP heard proposals to amend Article 120 to more specifically address offenses committed by training instructors against trainees. The JPP recommended that a subcommittee examine these issues and provide recommendations for possible amendments.
To review the issues referred to it by the JPP, the JPP Subcommittee (hereinafter “the Subcommittee”) held seven meetings from April 2015 to October 2015. Members of the Subcommittee heard from more than forty witnesses, considered more than one-hundred sources of written material, and deliberated extensively on each issue. In accord with the JPP’s directives, the Subcommittee discussed and deliberated on each issue regarding whether amendments to Article 120 of the UCMJ should be recommended, and, if so, what form such amendments should take. This analysis included detailed discussion and debate over specific statutory language and various proposals prepared by the Subcommittee members.
Overall, the Subcommittee determined that Article 120 of the UCMJ provides a reasonably effective statutory framework for prosecution of sexual assault offenses in the military, but that some definitions and terms used in Article 120 are sufficiently confusing or vague as to create uncertainty or concern regarding the effects of these terms on standards of conduct among Service members or on court-martial prosecution of sexual assault offenses. Accordingly, the Subcommittee determined that amendments to Article 120 of the UCMJ and the Manual for Courts-Martial are warranted to address seven issues it reviewed. For ten of the issues it reviewed, the Subcommittee determined that change or amendment is not warranted.