The Judicial Proceedings Panel has released two more reports (in addition to its report from earlier this month, discussed here).

The first report is on Article 120 and is available here. The report makes six recommendations (drawn primarily from the subcommittee’s report that is discussed here). The recommendations are:

Recommendation 18: Congress should amend the definition of “consent” in Article 120(g)(8) of the Uniform Code of Military Justice.

Recommendation 19: The President should amend the Manual for Courts-Martial to specifically state that consent (as an attack on proof) and mistake of fact as to consent (as a clearly delineated defense) may be raised in any case in which they are relevant.

Recommendation 20: Congress should amend Article 120 of the Uniform Code of Military Justice to provide a definition of the term “incapable of consenting” for cases under Article 120(b) and (d), and the President should provide further executive guidance about the circumstances to consider when considering whether a victim was incapable of consenting.

Recommendation 21: Congress should amend and replace the reference in Article 120(b)(1)(B) of the Uniform Code of Military Justice to “causing bodily harm” and should remove the definition of “bodily harm” from Article 120(g)(3).

Recommendation 22: Congress should amend the definitions of “sexual act” and “sexual contact” in Article 120(g)(1)–(2) of the Uniform Code of Military Justice.

Recommendation 23: Congress should adopt a new theory of liability in Article 120(b)(1)(E) of the Uniform Code of Military Justice for coercive sexual acts or contact in which a perpetrator has used position, rank, or authority to obtain compliance by the other person.

The second report is on retaliation related to sexual assault offenses and is available here. The report makes 13 recommendations:

Recommendation 24: In the Department of Defense’s strategy addressing retaliation related to sexual assault, the Secretary of Defense specify (1) processes for reporting and investigating retaliation, (2) responsibility for the collection and monitoring of reports, and (3) mechanisms for tracking retaliation complaints and outcomes.

Recommendation 25: The Secretary of Defense and Service Secretaries develop a standardized form for reporting retaliation. The standardized form should be linked to DD Form 2910 in the Defense Sexual Assault Incident Database to properly track retaliation allegations related to sexual assault offenses, should provide victims of retaliation with the option to file an informal or formal retaliation report, and should be updated throughout the investigative and judicial process to ensure that the retaliation allegation is monitored and resolved.

Recommendation 26: The Secretary of Defense and Service Secretaries continue to provide multiple channels for Service members to report retaliation. In addition, the Secretary of Defense and Service Secretaries formally task installation sexual assault response coordinators (SARCs) with consolidating information from reports on retaliation, recording information on retaliation reports in the Defense Sexual Assault Incident Database, and ensuring that information about the investigation and resolution of retaliation claims is properly and fully monitored.

Recommendation 27: Congress require the Secretary of Defense and Service Secretaries to track retaliation allegations related to sexual assault offenses and publish information regarding retaliation complaints, investigations, and final dispositions in the Department’s annual report to Congress on sexual assault prevention and response.

Recommendation 28: The Secretary of Defense establish a policy that requires the DoD Office of Inspector General to investigate all complaints of professional retaliation related to sexual assault. The Secretary of Defense ensure that these investigations are prioritized and conducted by personnel with specialized training. The Secretary of Defense require the inspectors general to report the status of the investigations to the installation sexual assault response coordinators (SARCs) prior to each monthly case management group meeting.

Recommendation 29: The Service Secretaries establish policies to ensure that personnel assigned by commanders to investigate retaliation complaints are properly trained on issues regarding retaliation relating to sexual assault.

Recommendation 30: The Secretary of Defense and Service Secretaries expand the expedited transfer program to include job retraining for Service members who belong to small specialty branches and to be made available, on a case-by-case basis, to bystanders and witnesses of sexual assault who experience retaliation.

Recommendation 31: The Secretary of Defense establish specific guidelines clarifying what information can be released to a person who files a retaliation complaint related to a sexual assault.

Recommendation 32: The Secretary of Defense begin tracking the Services’ implementation of the statutory requirement that general or flag officers review proposed involuntary separations of Service members who made unrestricted reports of sexual assault within the preceding year.

Recommendation 33: The Service Secretaries revise their regulatory definitions of maltreatment, which currently contain an overly narrow intent requirement.

Recommendation 34: Congress refrain from creating an enumerated offense prohibiting social retaliation in the Uniform Code of Military Justice.

Recommendation 35: The Secretary of Defense and Service Secretaries develop innovative and effective training on retaliation for commanders and all other Service members, including targeted training that may be used in response to problems of retaliation within an organization.

Recommendation 36: The Secretary of Defense revise the elements and burdens of proof for reprisal claims made under the Military Whistleblower Protection Act so that they parallel the elements and burdens of proof outlined in the Whistleblower Protection Act for DoD civilians.

I’ve assembled all of our coverage of the Judicial Proceedings Panel into a new category available at this link.

21 Responses to “Judicial Proceedings Panel releases two additional reports”

  1. Advocaat says:

    The Retaliation Report is perhaps the greatest example of a self-licking ice cream cone I have ever read.  It accepts and propagates vague and overly broad definitions, it then relies on a few anecdotes of perceived retaliation rather than first defining the scope of the issue with reliable data (the JPP admitted it needs such information but bravely pressed on to slay the dragon), and it finally manages to make a host of recommendations to greatly expand the training, tracking, tools, and punishment of a problem that by virtue of the report, now officially exists.  What about the isolation, shunning, and stigmatization of those accused of sexual assault?

  2. k fischer says:

    Didn’t you read the memo?  Nobody cares about the accused’s rights anymore.  In fact, University of Tennessee is being sued because it uses the Tennessee Uniform Administrative Procedures Act to adjudicate claims of sexual assault and allows accused students the right to an attorney, right to cross examine witnesses, and right to have their case heard by an administrative law judge.  It is the only college in the country to permit that kind of support that overwhelmingly favors the accused. 

  3. Zeke says:

    The retaliation report’s assertion that, in the name of fighting retaliation, the military services should prosecute, under Art. 92, cases of “ostracism,” is crazy talk.  The report states that “ostracism” is already prohibited in service regulations, and is therefore already primed for Art 92 prosecutions, and that the term is defined in those regulations as “the exclusion, from social acceptance, privilege or friendship with the intent to discourage reporting of a criminal offense or otherwise discourage the due administration of justice.”  
    The idea of punishing a person for not starting or maintaining a friendship, or not extending some social privilege to a person, is crazy.  For the government to tell someone they must accept another person into their personal lives and extend them privileges incidental to that sort of relationship, on pain of criminal prosecution, runs flatly afoul of Constitutional free association rights.  It’s one thing to criminally prosecute a person because they’ve taken some action against someone that they have no right to take.  It’s quite another thing to prosecute a person for not doing something – like not starting, or not maintaining, a friendship or social relationship – that they had no obligation to otherwise engage in.  The government does not own our friendships, and does not get to tell us whether we have good cause for not starting or maintaining them.  If you don’t have the freedom to choose your friends, according to whatever criteria you choose to employ, then are you free at all?

  4. Zachary D Spilman says:

    On the retaliation issue, it’s important to note the evidence the JPP received. From page 21 of the retaliation report: 

    The JPP heard testimony from 13 victims, each of whom had experienced extensive retaliation after reporting a sexual assault.59 Most of them recounted social retaliation. An Air Force master sergeant, after reporting a sexual assault by a captain, testified that he was “regularly mocked, threatened, and . . . tormented by the captain who was allowed to walk by [his] office and look in on [him] and make fun of [him].”60 According to another victim, retaliation became “an integral part of [his] career”; he added, “I have had my manhood questioned for not defending myself during the sexual assault. I have had my intelligence insulted.”61 Although he transferred to a new unit, his story of reporting a sexual assault reached the new unit even before he had. He testified, “[T]he treatment I received when I arrived was unbearable. I was isolated . . . and considered a snitch[.]”62

    Several victims also encountered professional retaliation. One victim testified that after his sexual assault report, he was assigned menial jobs not appropriate to his pay grade and experience. For example, for three months he was forced to wear a reflective vest and pick up trash on the base beautification detail.63 Another victim, a former Army officer, told the JPP that the perpetrator of her sexual assault was the officer responsible for the entire battalion’s training and mission readiness evaluations.64 After she reported his inappropriate touching, the officer delayed the scheduling of her unit’s evaluations and trainings, thereby affecting not only her own career advancement but also that of others within her unit.65 A third victim reported that after she reported a sexual assault, she “began receiving counseling and disciplinary actions for minor mistakes that would not normally bear a formal punishment.”66

    All those numbers are footnotes citing to the transcript of the testimony received by the JPP on May 19, 2015. That transcript is available here.

  5. Zeke says:

    The second JPP report, on p. 63, premises that there are three types of retaliation – “ostracism, maltreatment, and professional retaliation.”  I think those categorizations make good sense, and I don’t have a problem with criminalizing maltreatment or professional retaliation.  The JPP’s recommendation to criminalize “ostracism” under Art. 92, though, is extremely concerning.
    The testimonial anecdotes the JPP provided on p. 21 of its report offer a convenient set of scenarios to demonstrate the differences between the three types of retaliation.  Assuming the complainant’s testimony could withstand cross-examination and the presumption of innocence, I would have no problem with pursuing disciplinary action against an individual who has “regularly mocked, threatened, and . . . tormented” a fellow servicemember.  That’s “maltreatment.”  Assuming it could be proven, I’d also have no problem with punishing an individual who retaliated against a victim by assigning them “menial jobs not appropriate to his pay grade and experience” or delaying “the scheduling of her unit’s evaluations.”  Assuming the government could prove its case, I could also see prosecuting a person for retaliating by giving the victim “disciplinary actions for minor mistakes that would not normally bear a formal punishment.”   That’s “professional retaliation.”
    The remaining claim chronicled on p. 21 of the JPP report, however, is not a crime.  It’s reprehensible that the members of a unit would “isolate” a sexual assault victim, or that they would consider that victim to be “a snitch.”  The JPP report, at p. 21, called that “social retaliation,” and another good description of conduct that the report also calls “ostracism.”  Ostracism/social retaliation is immoral.  But, it is legally suspect to say it is a crime.   It is unconstitutional to say it is a crime.  The government has no right to tell a free person, or a free group of people, that they must socialize with anyone.  The government has no right to tell a free person, or a free group of people, that they must conform their thoughts so as to not even “consider” another person to be “a snitch.”  
    People have a right to keep to themselves and think what they wish about their fellow citizens.  Even if we don’t like it.  The JPP’s recommendation that the government should infringe on that liberty are misguided.  The fact that the JPP made such a recommendation with good intentions doesn’t make it any less totalitarian.  These are the sorts of intentions the road the hell is paved with.

  6. Tami a/k/a Princess Leia says:

    WRT to retaliation, the social retaliation is the toughest to deal with when the victim and accused are in the same social group.  Their friends inevitably take sides, in particular if they believe the victim lied (even though they have no clue what happened), then they side with the accused.  How is a commander realistically expected to deal with that?  He can’t order anyone to continue being friends with the victim.
    For the definition of “sexual act,” did you notice penetration no longer includes the mouth for penetration with objects or non-sexual body parts?  A better recommendation would have been to eliminate “with intent to abuse, humiliate, harass, or degrade,” and leave penetration by anything of any orifice as long as it’s done w/ intent to gratify sexual desires.  So you can stick a banana or cucumber or some other “sexual fruit/veggie) in someone’s mouth with the intent to gratify sexual desires, but it will not count as a sexual assault. 
    And penetrating the vulva, anus, or PENIS?  Ouchtown population you bro!
    The JPP also created confusion between rape and sexual assault, where it hadn’t really existed before.  The “unlawful force” for rape was sufficient if you continued having sex with someone after they said no or stop.  But changing sexual assault from “causing bodily harm,” which was understandable, to “without consent?”  So, continuing to have sex with someone who says no or stop, is that sexual assault because that person is no longer consenting?  Or is it rape due to “unlawful force?”  Why not just define “bodily harm” as any bodily harm other than “grievous bodily harm,” which is defined?  Give examples of “bodily harm” such as minor injuries, soreness to the body part that was penetrated, etc.

  7. Concerned defender says:

    Social ostracism???  So much for warfighting.  Good grief what a bunch of crybabies the bedwetters have made our military…

  8. Former SJA says:

    Zeke: The report doesn’t make any recommendation about what to do regarding social retaliation and ostracism, and using labels like “totalitarian” and adding a dire warning about a “road to hell” is ridiculous.  The report notes many of the same constitutional issues you express in recommending AGAINST changing the UCMJ to address it. Of course ostracism and social retaliation may be purely private issues.  It’s easy, but too simplistic, to focus on the “won’t be my friend” example as an obvious case where command action would be overreaching.  But it’s also true that ostracism and social retaliation may become so significant and problematic that the command must address the issue.  The victims in the report described behavior and actions that were corrosive to the unit and the ability of the members to perform their duties.  Do you really think leaders and commanders can or should just look the other way when this occurs?  (by the way, for those who continue to [appropriately] beat the drum about balancing victim and accused rights, the responsibility of a commander or leader is no different if an accused experiences such issues.)  
    My reading of the report and recommendations didn’t leave me at the edge of the cliff where you (and others) seem to be.  The report says the military needs to improve its understanding of retaliation issues and have processes to document, monitor, and competently investigate and respond to complaints.  How is that “crazy talk”?

  9. Zeke says:

    This is what the JPP report had to say about ostracism:

    The FY14 NDAA required the Secretary of Defense to prescribe regulations prohibiting retaliation against an alleged victim or other member of the Armed Forces who reports a criminal offense.  As discussed previously, all the Services recently prescribed regulations that prohibit ostracism, maltreatment, and professional retaliation.  If a Service member engages in conduct that violates one of these regulations, he or she may be prosecuted under Article 92 of the UCMJ for failure to obey an order or regulation.  As the regulations are currently drafted, the Services include narrow intent requirements in their definitions of ostracism and maltreatment. Most of the Services define ostracism as “the exclusion, from social acceptance, privilege or friendship with the intent to discourage reporting of a criminal offense or otherwise discourage the due administration of justice.”

    The report went on to say that the JPP supports keeping the specific intent element for an ostracism charge – i.e., that the exclusion from social acceptance, privilege or friendship should be punished but only if it is done “with the intent to discourage reporting of a criminal offense or otherwise discourage the due administration of justice.”  TThe JPP’s focus on the specific intent element is merely presenting a strawman argument.  The JPP is wrong in its basic premise – “exclusion from social acceptance, privilege or friendship” is no crime at all, regardless of whether it is done with specific intent or not.  That the JPP thinks it is Constitutionally acceptable to criminalize “exclusion from social acceptance, privilege or friendship” at all is the “crazy talk.”

  10. Zeke says:

    If DoD is going to make it a crime to “exclude [sexual assault victims] from social acceptance, privilege or friendship,” then why stop there?  Why not also make it a crime to exclude racial minorities, or homosexuals, or women, from social acceptance, privilege or friendship?  Do you think you have a sufficient number of minority/gay/female friends to satisfy a government prosecutor?  Are you extending them sufficient privileges to satisfy that prosecutor?  Would you be willing to bet your freedom on it?

  11. Concerned Defender says:

    It’s evident we are seeing the problems of a social justice engine and modern utopia experiment in the US Military.   Creating these fantasies of equality creates more legal problems and undermines the military and its mission more than it helps.  So we are now creating a system where someone can claim sex assault with no extrinsic evidence (e.g. “one day my commander tried to kiss me while were were alone in the supply room.”), which carries extremely heavy penalties, ignores the fact that the complaining witness is herself just recently tested positive for THC and is herself going through an involuntary separation (e.g. evidence of incentive to fabricate to save her own career), and then on top of this when people unfriend her from Facebook and stopped inviting this lunatic and lying person to BBQs, she’s going to claim hurt feelings?
    It would be funny if it wasn’t such a terrible precedent.  Our social justice leaders are literally ruining the military with the tweaks and implementation to the UCMJ in the last half-dozen years, and for greater military doctrine for decades.  For 5 decades we have focused and prioritized on the wrong issues facing our military.  Any one action may not be the cliff we will fall off, but it’s all inching us closer to a warfighting machine that cannot function or win wars.  These morons are re-arranging the chairs on the sinking Titanic.
    Question:  When and where was the last major war we, the United States, definitively won and held the win?  Who was the last major enemy we defeated in war?  If I’m the scorekeeper, we’ve gotten our butts kicked by 3rd world insurgents longer than I’ve been alive and have spent trillions of dollars chasing our tails… 
    So perhaps, just perhaps, we should have some re-focus on making tougher and smarter Soldiers, and not thumb-sucking bedwetters who cry because they aren’t popular.  

  12. Ed says:

    Former SJA- Punishing people for not being someone’s friend is not only unconstitutional  but is sick.`Next we will have SCM’s for not being ultra considerate and hurting someone’s feelings. I suggest these people worry more about ISIS and Russia.

  13. WarFighter says:

    Democrats think the military is one big social experiment.  Republicans think the military fights wars and kills people.  I’m voting Republican.

  14. Dew_Process says:

    “Ostracism” has a long and sordid history in our military.  General Ben Davis, USAF, suffered the “silent treatment” through 4 years at West Point because of the color of his skin, but he persevered and distinguished himself as noted HERE.  That was ostracism at its ugly worst and yes, I know that it’s now technically forbidden.
    But, if I don’t say “hi” to someone while walking down a hallway because I’m lost in thought, I’ve violated the UCMJ?  Crimes should be based upon conduct – commission or omission of such, not one’s thoughts regardless of how boorish they may be.  While there is an “intent” element, even thinking about going down that slippery slope is not something that is going to be positive for “good order and discipline.”  Hopefully common sense will prevail, but I’m not going to bet on it.

  15. Jolly Roger says:

    Someone help me out with this. If (1) it is a complete defense if the accused was mistaken as to some circumstance, and he would be not guilty if that circumstance in fact existed, and (2) mistake of fact as to the alleged victim’s consent is a defense in a sexual assault case, does that not lead to the conclusion that (3) consent is always a defense in a sexual assault case? It seems to me that, logically, to acknowledge MOF as to consent as a defense is to acknowledge consent as a defense, because it is to acknowledge that if the circumstances were as the accused believed them to be he would be not guilty. Why do we continue to assert that consent is not a standalone affirmative defense, and only an “attack on proof?” Maybe more importantly, what insanity makes us afraid to confidently announce what would be obvious to any Joe on the street, that there is no crime if the alleged victim has consented?

  16. k fischer says:

    A few years ago a female Army JAG wrote about such ostracism in a Facebook post addressing Senator Gillibrand.  She complained that commanders treated her differently because they didn’t know if she was going to accuse them of a crime, or words to that effect.  And I’m sure her perception was correct.  Whether that treatment is a conscious decision to punish, or a natural defensive reaction, is a different.matter.  
    And, you guys, I mean people, are getting really deep into the weeds in your attempt to regulate human interaction.  But I am positive that it will inspire joy joy morale and cure what seems to be everyone’s boggle.

  17. Zachary D Spilman says:

    Jolly Roger-

    The answer to that is found in my article published by LexisNexis: Consent and Mistake of Fact as to Consent: Defenses to Adult Sexual Offenses under the UCMJ 

  18. Dew_Process says:

    Jolly Roger:  If you haven’t read Zach’s article, it’s an outstanding analysis of the issue.  But, for a glimpse of where things appear to be headed, consider this article, Affirmative Consent. 

  19. Jolly Roger says:

    Got to read your article.  It’s very informative and I agree with every last bit of it as to the current state of the law.  That’s not my beef with the JPP, though.  My beef is normative, not descriptive, and I think the JPP’s mandate has it making normative judgments about the law, not just describing the law.  As you say in your article, even when mistake of fact as to consent does not negative an element or required mental state it can be an affirmative defense.  This is so because the statute allows for all affirmative defenses except for marriage, and because mistake of fact as to consent was established as an affirmative defense in US v. Carr.  But if you work backwards logically from the conclusion that MOF as to consent is an affirmative defense, and not just an attack on proof, you ought to arrive at the conclusion that consent is itself an affirmative defense, even when it does not negative an element.  Mistake of fact is a defense when, “if the circumstances were as the accused believed them, the accused would be not guilty of the offense.”  If the “circumstance” at issue is the consent of the alleged victim, and mistake of fact as to consent is a defense, then the logical conclusion should be that consent is a defense.  But as you also point out, consent to the sexual activity is not always a defense.  So why is mistake of fact always a defense?It is analytically messy to think about it this way and I think bad policy.  The reason is that consent is a justification.  Consensual sex is a social good.  It provides pleasure and propagates the species.  It should be encouraged like other justification defenses, such as choosing the lesser evil or a police officer using force to arrest a suspect.  The Model Penal Code recognizes this by noting that consent can either negative an element or be an affirmative justification.  By contrast, MOF as to consent is an excuse.  See Carr.  An accused who has sex with a victim mistakenly believing that she is consenting does no social good, he does social harm, but he is excused for being not blameworthy.  To say that consent is not an affirmative defense is to ignore the social good of consensual sex.  Love doesn’t win :(I don’t think this is entirely pie in the sky theory, either.  Imagine an accused charged with sexual assault by bodily harm, where the sexual act is penetrating the victim’s vagina with his penis and the bodily harm is holding her down by the wrists.  The victim testifies, “I consented to him penetrating my vagina I just didn’t want him to hold down my wrists.”  Normatively, this accused should be not guilty of sexual assault but guilty of assault consummated by battery for holding down her wrists.  That’s because his penetrating her vagina was done with consent and therefore was a justified social good, although his holding her wrists was not.  Descriptively, though, under the current state of the law — law the JPP would keep — consent to the penetration neither negatives an element of the offense nor is it an affirmative defense.  However, if Carr is still good law, mistake of fact as to consent is somehow an affirmative defense.  (This is all putting aside the Benchbook’s idea that the penetration is not done “by” bodily harm, which I think is besides the point).Anyways, I think the criminal law ought to be fairly intuitive for people of common understanding.  That would mean that there is no crime where the sex is consensual, not because of a lack of force or bodily harm or whatever else, but because consensual sex is a fine and good thing.  The JPP ought to say so.

  20. stewie says:

    I think the problem with this argument by JR is that it ignores the inextricable link between force and consent. While it is possible to come up with exceptions, generally speaking the two negate each other. If you consented, you weren’t forced…and if you were forced, you didn’t consent.
    Now, as I said, there are exceptions, but this general principle is the reason why consent is not an affirmative defense, but, when evidence of it is presented, something the government has to prove did not exist BRD.  Because if it is present, the GOV can’t get to force in most cases.
    It has zero to do with “consensual sex being a social good.”