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. 

Executive Summary

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.

4 Responses to “Report of the Judicial Proceedings Panel Subcommittee”

  1. DCGoneGalt says:

    Recommendation 9 is that Congress amend the definition of sexual contact to include touching with an object.  (Sarcasm alert). I thought CAAF already rewrote the statute to include objects?  

  2. Totality, Schmotality says:

    A few thoughts on  the suggested list of factors for inclusion with the proposed definition of “incapable of consenting.”
    “Decision-making ability”—I thought that was the question we were trying to answer; this factor seems circular and unhelpful.
    “Ability to foresee and understand consequences”—This one’s a bit concerning. Literally applied, it’s no problem (i.e., the fact that one chooses not to heed consequences doesn’t mean one couldn’t foresee and understand them.). However, it seems to invite the importation of a post hoc assessment of whether CW’s actions were wise into the question of whether CW could consent. The question of whether it was wise to consent is and should remain immaterial to the question of whether CW could consent. This factor would call into question a lot of yootful sex.
    “Awareness of the identity of the person with whom they are engaging in the conduct”—Fine.
    “Level of consciousness”—Conscious/unconscious is a different theory of criminality from incapable of consenting. It’s also binary. If the intent is to inject more clarity and certainty into the incapable-of-consent analysis, why invoke language from a different theory of criminality in a different way from how it is used in that theory of criminality? Do we want members musing as to whether CW was “sort of unconscious” or “kind of unconscious.”
    “Amount of alcohol or other intoxicants ingested” and “Tolerance to the ingestion of alcohol or other intoxicants”—Number of drinks and tolerance for drinking are only relevant insofar as they ultimately lead to impairment, which, as it happens, is addressed directly in the next factor (and above, in “awareness of the identity…”)
    “Ability to walk, talk, and engage in other purposeful physical movements.”—This one is good.

  3. stewie says:

    Well, there are levels of consciousness.
    So it’s not binary, although it is going to be pretty confusing to a layperson to figure out the differences between “confused” and “somnolent” although “stuporous” seems rather easy to understand. I think members already do the differentiating between sort of unconscious and whatnot…they just call it “how drunk was she?”
    But I share your concern that this manner of labeling is likely to cause more confusion than clarity.
    I don’t have a problem with “ability to foresee and understand consequences” IF it the focus is on ability, and ability means not that they are smart enough to do so, or mature enough to do so (mentally, not age) but that they are at a sufficient level of “undrunkenness” that a reasonable person in their state could do so.  I certainly don’t want a you can’t have consensual sex with immature or not too smart person standard.

  4. Lieber says:

    Unfortunately, there are military prosecutors, panel members, SHARP folks and probably judges, that have a “if you wouldn’t have done it if you were sober” standard.  As in the 80’s with porn, what we have here is an unholy alliance of the religious right with the radical left, criminalizing normal, everyday, risk-taking fun.  It’s also patriarchal in the extreme (which is why the religious right loves it — along with criminalizing premarital sex) — why the left falls for this is beyond me.