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):

Ҥ 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).

22 Responses to “Military justice provisions in the House version of the FY19 NDAA”

  1. k fischer says:

    Zack, 
     
    I ponder how exactly does one might “blame” with unlawful force or violence. Is it something like “Well, if you hadn’t said I was a bad mother, then I wouldn’t have attempted to run you over with the car” or “The reason I threw that glass at you is because you called me a liar and brought up that I said I played bass for a punk band when I was actually the singer!!” or “I punched you in the back of the head because you kept reading your book instead of talking to me.”
     
    But, I wholly support the Article 128a amendments.  I think that it is a nod to how often men are victims of domestic violence.  Did you know that a study of US adults ranging from 18 to 28 years old found:
     

    In nonreciprocally violent relationships, women were the perpetrators in more than 70% of the cases.

     
    Domestic violence occurred in 24% of the relationships studied.  Most domestic violence is reciprocal, meaning it goes both ways.  But, it was not so shocking to me that the study found 70% of the nonrecipocal violence was perpetrated by women consider US culture where females are given carte blanche to physically abuse men with no adverse consequences, particularly where men, like me and so many of my clients, have been raised to never hit a woman.  
     
    Now, the big question is whether or not FAP will recognize this statistic in their services when a male spouse reports that he was physically abused by his female Soldier spouse on the rare occasion that males report, most likely because nobody believes them or cares that they were abused.  Or, will he just be shrugged off?  I highly recommend that males who are domestic violence victims living on post or in one party consent states record the violence and threats they endure in order to prove they are actually being abused.  Of course, this won’t help a bit if the male is stationed at Ft. Benning because I had a client who presented recordings to the FAP, as well as at his Article 32 hearing, and no competent investigation was conducted into her conduct and the likelihood that he was actually the victim of domestic violence.
     
    Please note that I intentionally identified men as the only gender who should perform this task since females don’t have to provide any proof of abuse because their word is enough probably because of the presumption that all men are potential abusers, which the study noted in it’s discussion:
     

    Our findings that half of relationships with violence could be characterized as reciprocally violent are consistent with prior studies.8,9,11We were surprised to find, however, that among relationships with nonreciprocal violence, women were the perpetrators in a majority of cases, regardless of participant gender. One possible explanation for this, assuming that men and women are equally likely to initiate physical violence,20is that men, who are typically larger and stronger, are less likely to retaliate if struck first by their partner. Thus, some men may be following the norm that “men shouldn’t hit women” when struck first by their partner. A different explanation is that men are simply less willing to report hitting their partner than are women.21
     
    This explanation cannot account for the data, however, as both men and women reported a larger proportion of nonreciprocal violence perpetrated by women than by men. One might be tempted to think that men who perpetrate violence in nonreciprocal relationships are the traditional male “batterer.” However, the data were not consistent with this representation; women who were victims of nonreciprocal violence experienced less violence and a lower likelihood of injury than did women who were victims of violence in reciprocally violent relationships.

  2. stewie says:

    While the Venn diagrams of law abiding and good Soldier have overlap (indeed I’d say that latter contains the entirety of the former), they by no means completely do so. The latter is larger and more extensive I think both theoretically and as historically used in practice.
     
    Someone can be law-abiding but not a “good Soldier.” Granted, someone can’t be a “good Soldier” and not also be law-abiding, so there is overlap, but not completely so. It’s important for practitioners to transition from using the “easy button” of good Soldier and focusing on relevant character traits (law-abiding, prior treatment of women, character for ____). More likely to come in, and more likely to be useful to a fact-finder.

  3. Philip D. Cave says:

    It’s Back!!!
     
    Or at least appears to be–ACCA where were you.

  4. Advocaat says:

    I would add the mandatory minimum provision to the “particularly bad” list.

  5. Zachary D Spilman says:

    I was using particularly bad as a technical term, Advocaat.

    Nevertheless, I addressed mandatory minimums, generally, in this post.

  6. Concerned Defender says:

    I see a further erosion of the fundamental rights of an accused.  Every NDAA.  This is nothing new.  Why even have a trial… just shoot the accused upon accusation.  Is a cigarette and “last request” too much?

  7. Concerned Defender says:

    I would sincerely like to see mandatory prosecution for perjury or false allegation against any sex assault complaining witness, and this fact cannot be relayed to the panel.  You tell fibs on accusations, you get prosecuted.  And the sentence is commensurate with the one the accused faced, if he’s acquitted.  
    Of course this must be concealed from the panel otherwise they will be “choosing” who goes to jail among the two.  But this needs to be a reality, and explained to an complaining witness, to gauge her “victimhood” and level of interest in putting some skin in the game. 
    This improves the system DRASTICALLY and at almost zero cost.  It will immediately weed out the garbage accusations and fake/lies claims.  Real victims will still get justice but the fake ones will go away.  It needs to be a model for the nation. 
    See this article: http://americangg.net/tb-woman-10-years/
    The woman here, after accusing 15 men of rape, one convicted and serving 7 years, finally got caught and prosecuted for lying.  Convicted and received 10 years in prison.  
    Yes, this is a real issue in the nation and military – the false accusation.  It consumes justice, resources, lawyers, commanders, media attention, courts, appellate boards, and puts innocent men in jail.  It must end.  NOW.
     

  8. Robert Lyons says:

    Avid, non-lawyer (Chaplain) reader, but one for whom words matter:
    With regard to the Domestic Violence provision to the  2018 NDAA, how does one, unlawfully (and with force or violence)  BLAME another person.  Would not this presume that the act of blaming someone (for anything, up to and including burning my grilled cheese sandwich), can be considered an unlawful act? And if so, what is the basis for this?  And what constitutes lawful v. unlawful “blaming?”
    Further, and if Congress wants to go that far, why is the law limited to an “intimate partner?”  (I’m sure there is a “definiitions paragraph” somewhere.) However, domestic violence is not limited to one’s “sleeping partner,” but to all, of various relations, who might be sharing the same household.
    Worse than a bad law is a bad law badly written. (And yes, as simplistic as that is, I did just think that up, although I am sure someone else has coined it as well – inform me and I will give credit.)

  9. k fischer says:

    Robert Lyons, 
     
    Many of the changes that have been made are suffering from unintended consequences.  Take for instance, the changes made to the Article 32.  It is nearly impossible to get a finding of no probable cause or recommendation for a dismissal at the Article 32.  You can’t question the alleged victim.   The Government objects to all the evidence defense wants to present coming in, and many PHO’s sustain the objections because it is merely a probable cause hearing.  So, many extremely weak or borderline frivolous cases make it all the way to a GCM where a panel gets busted and loses faith in the SVP for being an honest broker.  Word gets around post about how the Government is railroading innocent Soldiers, and you end up having a string of acquittals, unsatisfied vics, wasted taxpayer money, and an abysmal conviction rate.  Then, when you do get convictions on weak cases, word gets out about TJAG(s) committing UCI to please Congress and CAAF reverses the conviction. Prior to the changes, many panel members understood that the case made it through the Article 32 phase, so there was a robust, or the appearance of a robust, investigation.
     
    So, Congress with this new 128a offense is intending to protect women.  I mean, let’s not kid ourselves here.  But, what is going to happen is that women are going to get a pass on their physical violence against men, so much so, that there will be a backlash against them.  It would be interesting to see whether Protect Our Defenders welcomes male victims of domestic violence with open arms when the perp is female.  And, what will ultimately happen is that women could be held to the same high standard as men, which means they will be prosecuted, convicted, and kicked out of the Army under Lautenberg.  Of course, women always have the false rape card they can pull, for those who completely lack any semblance of integrity.  Heck, we might also see some false allegations of domestic violence against women.  This law is going to create an interesting dynamic between genders with regards to prosecutorial discretion.  And, there will be some Commanders who will love the opportunity to slam a female accused of domestic violence in the name of EO, particularly when they’ve been given the advice of “dismissing charges would be unwise at this point of your career” against a Soldier who they felt was being railroaded.
     
    And, don’t forget FAP’s role in all this.  Notwithstanding the big sign on the front door lying about how they keep their patient’s records confidential, they will give those records to MPI, CID, and the SVP without even having the courtesy of letting the patient know their privacy is about to be violated.  This is why I advise ALL my clients to remain silent with FAP.

  10. Robert Lyons says:

    k fischer:  True story.  On Christmas Day, after 4 months of AD as a Chaplain, one of my Soldiers is arrested for violating a protective order.  Seems his wife had called him, claiming to have a flat tire or something, and crying and pleading for him to come rescue her.  So as soon as they hang up, he leaves to go help her, while she calls the police – and they all arrive on the scene (the police just after him). and he is busted.  “I didn’t call him to help me.  Why would I do that …?” So yes, manipulation and abusing the system occur all the way around.

  11. TC says:

    Chaps,
    Thanks for that compelling anecdote.  What liberal snowflake made it a crime to abuse your wife anyway?

  12. Zachary D Spilman says:

    many PHO’s sustain the objections because it is merely a probable cause hearing

    That’s totally wrong, of course. Probable cause is just one of four separate purposes of a preliminary hearing.

    The purpose of the preliminary hearing shall be limited to the following:

    (A) Determining whether there is probable cause to believe an offense has been committed and the accused committed the offense.

    (B) Determining whether the convening authority has court-martial jurisdiction over the offense and the accused.

    (C) Considering the form of charges.

    (D) Recommending the disposition that should be made of the case.

    Article 32(a)(2) (emphasis added).

    A recommendation as to disposition – for example – might include disposing of the case non-judicially, perhaps because of insufficiency of proof due to the absence of credible evidence of guilt.

  13. k fischer says:

    TC, 
     
    Please allow me to answer your question.  I think that Article 128 is sufficient to criminalize a husband beating his wife, as well as all other State laws dealing with battery.  I’m not sure who originally drafted Article 128.  I doubt it was a liberal snowflake.
     
    But, I believe that the Violence Against Women Act, drafted by Senator Joe Biden (DDE) and co-written by Democrat Louise Slaughter, the Representative from New York, with support from a broad coalition of advocacy groups, has genderized domestic violence, through its title, which presumes that the man is the batterer and the woman is the victim.  It was signed by President Clinton who has a reputation for both honesty and championing the notion that women are to be believed when making an accusation.  (sarcasm font)
     
    Zack, I’ve had Article 32 PHO’s not let me introduce evidence because they say “this is just a probable cause hearing.”  I couldn’t call a witness who previously made a statement because it “would be redundant, and it’s just a probable cause hearing.”  I agree that it is totally wrong, but what do you think CAAF would say about the MJ denying my request for a new Article 32 in light of the new changes?  I think I’d have an easier time getting a conviction reversed and the charges dismissed with prejudice for an Article 10 violation.
     

  14. stewie says:

    I don’t like it, you don’t like it, but BL 32s are mere PC hearings now. That’s all they are. You can’t turn them into more. It used to be that the thing that stopped a really bad case from going forward was most likely going to be an Article 32 hearing.
     
    Now, it’s going to be the government. Obviously, that’s not going to happen very often and thus we are going to get bad cases at trial. That sucks, it does. But I don’t think we are going back to substantive 32 hearings any time soon.

  15. Charlie Gittins says:

    Dinosaur checking in.  The loss of the Article 32 hearing in my view is the greatest loss to MJ since the Military Justice Act of 1983.  The 32 was a tool for defense counsel and, used effectively by a DC, benefitted both the accused and the Government because it tended to expose cases that shouldn’t go to trial.  I disposed of a two count (different women) rape case involving an MP at PISC after the 32 because I had the ability to cross-examine the women and put on evidence that shredded the case.  The guy got NJP for consensual sodomy, that he admitted before I began representing him.  Ended his enlistment with an Honorable discharge.  In 31 years he (really his father) is the only client that has ever sued me for malpractice.  If he would have been charged in these days, he would have gone to trial and might have been convicted on at least one of the accusations by members who had been “trained” by SAPR or whatever it is they call it these days.  Very sad what is happening to military justice.  I can’t stop watching because it is like a slow motion train wreck.  You don’t want to see it but you just can’t avert your eyes.    

  16. k fischer says:

    Now, it’s going to be the government. Obviously, that’s not going to happen very often and thus we are going to get bad cases at trial. That sucks, it does. But I don’t think we are going back to substantive 32 hearings any time soon.
     

    The only way it the 32 will change back to the way it was is when advocacy groups realize that their actions have caused panels to no longer walk into the courtroom with the presumption that a case is valid.  Before the changes, particularly when a case was not strong, I had a few cases where the panel asked the MJ whether a 32 was conducted and, if so, what was the recommendation.  In my last three cases which were borderline frivilous to somewhat weak, I had not even one question about the Article 32.  I think its because the panels know that a ham sandwich could be sitting in the Accused chair nowadays.  I use this anecdote to show that panels no longer presume that the Government is wearing the good guy hat when they walk into the Courtroom.  And, really, why should I care, except that I oppose the continuation of a system that is rife with abuse.  But, these groups will never realize (or admit) that what they are doing is backfiring, so it probably will never go back to the way it was.
     
    And, in addition to the changes with the Article 32, an Accused does not have a right to conduct a pretrial interview with the complaining witness, who many times is the Government’s most important witness.  What kind of system is this?

  17. Defender For Now says:

    Regarding the 32s, I generally agree with stewie.  We have it and we have to live with it.  It’s arguably still more protection than civilians enjoy before facing felony-level charges.
    What really gets to me is that Congress made it a probable cause determination and yet everyone continues to interpret that word to mean recommendation.  If the PHO’s determination were binding, at least the preliminary hearing would offer some sort of meaningful protection.  Instead, the government can phone in the preliminary hearing, fail to establish probable cause, and refer the charge/spec anyway! 
    The CGCCA has addressed the issue.  A few trial judges were dismissing charges where there was a no probable cause determination, and CGCCA overturned on 62(a) appeals.  To my knowledge, no other CCA has addressed the issue, and none have addressed it on the accused’s appeal.  I believe AFCCA will within the next 6-8 months.

  18. stewie says:

    I don’t know DFN, probable cause is a really, really low standard. Even very weak cases can meet that threshold, so not sure even if you made it binding that you’d see very many cases where it wasn’t found at the 32.

  19. Nathan Freeburg says:

    Erik Burris would differ. 
    And I’ve had a number of cases with a PHO no PC’ing and the government going forward anyway. I’m pretty sure this clients would disagree as well…even if it’s just because they would have saved a few thousand. 

  20. Defender For Now says:

    stewie,
    I’ve personally had two cases within the last 12 months where the PHO had “mixed findings” on probable cause, and the government went forward with the whole charge sheet.  And in one, the client was convicted of one of the specifications where there was a finding of no probable cause.  The issue was that the government essentially did not even attempt to establish probable cause at the 32 by, say, getting a legitimate written statement from the complainant or calling him as a witness.  And they didn’t need to, because they knew they could go forward regardless of the outcome of the hearing.  How is that due process?

  21. stewie says:

    Let me propose this gents…it’s easier to say “no PC” when you know your opinion is only advisory. You can truly believe there is no PC, or you could send it as a signal of a weak case.
     
    However, if you were to make it binding, I guarantee you most PHOs would find it very difficult to be the ones to completely kill a case unless they were very sure there was no PC. Thus, you’d see fewer findings of no PC then you do now.

  22. k fischer says:

    Stewie, 
     
    What if we made the standard “Probably” cause, which would be = or > 51%?  Because if the TC can’t get to a more likely than not standard, then how are they realistically going to get to a BARD?  And, make it binding. 

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