A reader called my attention to military justice provisions in the House Armed Services Committee’s markup of the National Defense Authorization Act for Fiscal Year 2019 (H.R. 5515). The Committee’s report (dated today) is available here. The legislation as sent to the full House is available here. An excerpt containing just the military justice provisions (Title V, Subtitle D) in Word format is available here.
The legislation includes six military justice provisions:
Sec. 531. Minimum confinement period required for conviction of certain sex-related offenses committed by members of the Armed Forces.
Sec. 532. Punitive article in the Uniform Code of Military Justice on domestic violence.
Sec. 533. Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces.
Sec. 534. Modification of Military Rules of Evidence to exclude admissibility of general military character toward probability of innocence in any offense not strictly related to performance of military duties.
Sec. 535. Improved crime reporting.
Sec. 536. Oversight of registered sex offender management program.
Two of these proposals are particularly bad.
First, Section 532 would create a new punitive article – Article 128a – specifically focused on domestic violence. The new Article would read:
SEC. 532. PUNITIVE ARTICLE IN THE UNIFORM CODE OF MILITARY JUSTICE ON DOMESTIC VIOLENCE.
(a) In General.—Subchapter X of chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), is amended by inserting after the item relating to section 928 (article 128) the following new section (article):
“§ 928a. Art 128a. Domestic violence
“(a) Domestic Violence.—Any person subject to this chapter who, unlawfully and with force or violence, attempts, offers to, or does intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound another person of whom the person is an intimate partner is guilty of domestic violence and shall be punished as a court-martial may direct.
“(b) Aggravated Domestic Violence.—Any person subject to this chapter who, in committing domestic violence, uses a weapon, means, or force in a manner likely to produce death or grievous bodily harm is guilty of aggravated domestic violence and shall be punished as a court-martial may direct.”.
(b) Clerical Amendment.—The table of sections at the beginning of subchapter X of chapter 47 of such title is amended by inserting after the item relating to section 928 (article 128) the following new item:
You’re probably wondering what the difference is between intimidate and frighten; manipulate and coerce; or hurt and injure and wound. You’re also probably thinking about “the ‘surplusage’ canon — that, if possible, every word and every provision is to be given effect and that no word should be ignored or needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.” United States v. Sager, 76 M.J. 158, 161 (C.A.A.F. 2017). You might even be thinking about Mark Twain.
Those are serious concerns, but a greater one is that Congress already enacted an Article 128a. Specifically, in Section 5401(13) of the Military Justice Act of 2016, Congress redesignated Article 124 (maiming) as Article 128a.
Furthermore, the 2018 amendments to the Manual for Courts-Martial add sentence enhancements to ¶ 77 of Part IV of the MCM for violation of Article 128 involving “a spouse, intimate partner, or immediate family member.” Those provisions are more broad (and infinitely better written) than the proposed domestic violence Article.
Second, Section 534 would modify Mil. R. Evid. 404(a) – for the second time in 4 years – to restrict the defense of good military character:
SEC. 534. MODIFICATION OF MILITARY RULES OF EVIDENCE TO EXCLUDE ADMISSIBILITY OF GENERAL MILITARY CHARACTER TOWARD PROBABILITY OF INNOCENCE IN ANY OFFENSE NOT STRICTLY RELATED TO PERFORMANCE OF MILITARY DUTIES.
(a) In General.—Not later than 180 days after the date of the enactment of this Act, Rule 404(a) of the Military Rules of Evidence shall be amended to provide that the general military character of an accused is not admissible for the purpose of showing the probability of innocence of the accused for any offense under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), unless such offense is strictly and solely related to the performance of military duties.
(b) Specification Of Offenses For Which Admissibility Allowed.—
(1) IN GENERAL.—Each Secretary concerned shall specify, and may from time to time modify, the offenses under chapter 47 of title 10, United States Code, for which the military character of members of the Armed Forces under the jurisdiction of such Secretary is admissible pursuant to subsection (a) as a result of such offense being strictly and solely related to the performance of military duties.
(2) APPROVAL OF PRESIDENT REQUIRED.—The specification of an offense pursuant to paragraph (1), and any modification of such specification, shall not be effective unless approved by the President.
(3) SECRETARY CONCERNED DEFINED.—In this subsection, the term “Secretary concerned” has the meaning given that term in section 101(a)(9) of title 10, United States Code.
This is an extension of the 2014 change that seeks to further limit the admissibility of good military character in a way that won’t matter in the slightest because, as I explained in my writeup of this issue as the #1 Military Justice Story of 2014:
Ultimately, as the Court of Military Appeals noted in Wilson, a good soldier is someone who is “too professional a soldier to have committed offenses which would have adverse military consequences.” 28 M.J. at 49 n.1. In this respect, good military character is really just a different way of saying that a person is law-abiding, and being law-abiding is a trait that is always pertinent in a criminal case. See, e.g., Angelini, 678 F.2d at 381; United States v. Hewitt, 634 F.2d 277, 279 (5th Cir. 1981); United States v. Yarbrough, 527 F.3d 1092, 1102 (10th Cir. 2008). See also, generally, Michelson, 335 U.S. 469; McCormick on Evidence § 191 (6th ed. 2006).