Congress recently passed – and the President will likely soon sign – the National Defense Authorization Act for Fiscal Year 2019. The bill includes a small number of military justice provisions, including:

Sec. 531. Inclusion of strangulation and suffocation in conduct constituting aggravated assault for purposes of the Uniform Code of Military Justice.

Sec. 532. Punitive article on domestic violence under the Uniform Code of Military Justice.  (note: the final text is a significant improvement over the initial proposal, that we discussed here)

Sec. 533. Authorities of Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces.

Sec. 534. Report on feasibility of expanding services of the Special Victims’ Counsel to victims of domestic violence.

Sec. 535. Uniform command action form on disposition of unrestricted sexual assault cases involving members of the Armed Forces.

Sec. 536. Standardization of policies related to expedited transfer in cases of sexual assault or domestic violence.

Other sections address policies and reporting that have a military justice connection (like Sec. 544. Oversight of registered sex offender management program).

Some details follow.

Section 531 of the NDAA amends Article 128 to add a new paragraph (b)(3) expanding the definition of aggravated assault to include any assault by strangulation or suffocation. Current law defines aggravated assault as including an assault with a means likely to produce death or grievous bodily harm, or the intentional infliction of death of grievous bodily harm, and there can be situations where strangulation does not satisfy that definition.

Section 532 of the NDAA creates a new Article 128b enumerating the offense of domestic violence. The final legislation is far more narrow than the proposed version. The new Article 128b will read:

Article 128b.

Any person who—

(1) commits a violent offense against a spouse, an intimate partner, or an immediate family member of that person;

(2) with intent to threaten or intimidate a spouse, an intimate partner, or an immediate family member of that person—

(A) commits an offense under this chapter against any person; or

(B) commits an offense under this chapter against any property, including an animal;

(3) with intent to threaten or intimidate a spouse, an intimate partner, or an immediate family member of that person, violates a protection order;

(4) with intent to commit a violent offense against a spouse, an intimate partner, or an immediate family member of that person, violates a protection order; or

(5) assaults a spouse, an intimate partner, or an immediate family member of that person by strangling or suffocating;

shall be punished as a court-martial may direct.

Section 533 of the NDAA gives the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) (CAAFlog page) additional authority to hold hearings.

Section 534 of the NDAA requires that the DoD produce a report on the feasibility of expanding special victim counsel programs to include victims of domestic violence. Under 10 USC § 1044e, SVC services are limited to victims of alleged sex-related offenses, which generally involve only violations of current Articles 120, 120a, 120b, 120c, or 125.

Section 535 of the NDAA requires that the DoD establish a form to report the final disposition of allegations of sexual assault where the alleged offender is a member of the armed forces and the allegation is made in an unrestricted report.

Section 536 of the NDAA requires that the DoD standardize policies for expedited transfers of alleged victims of sexual assault and domestic violence.

4 Responses to “Military Justice Provisions in the FY19 NDAA”

  1. Kf says:

    Does anyone know why Congress felt it necessary to specify strangulation and suffocation as ways to commit grievous bodily harm?  My hunch is that they are trying to give SVPs another charge for Article 120 offenses, that will allow for a felony conviction, particularly when the defense is “she said she liked to be choked” during sex.  Making strangulation an aggravated assault might diminish the panels consideration of a consent defense, kind of like it would be ridiculous to say that someone would consent to being shot or having a loaded weapon pointed at you.  And if you are left with a simple battery which is a bcd and 6 months confinement.
     
    Unless you have an M.J. who has been around the block, I’d go panel because at least one of the people on the panel knows a woman who was into that kind of stuff.  
     
    And I would be interested in the jury instruction for defenses of the aggravated strangulation offense: “The evidence has raised the 50 Shades defense, or in other words, the complaining witness requested he or she be choked during intercourse because it was sexually satisfying.  The utterance of a safe word, however, negates the 50 Shades defense.  If you believe that it is reasonably possible that the complaining witness desired to be choked AND the complaining witness did not utter the safe word, then you must acquit the Accused.  In other words, the Government has the burden of proving beyond a reasonable doubt that the complaining witness did not desire to be choked during sexual intercourse and that she did utter the mutually agreed safe word and that the accused heard it and understood that the complaining witness’s consent was revoked.”

  2. Philip D. Cave says:

    Kf is spot on.  I’ve done a number of trials and appeals with “choking.”  Back a few years ago there was a craze called the “choking game” which could be found, interestingly, among high school students (there’s research on this).  So, it’s not unusual to find or what KF refers to as a version of autoeroticism in a case.  Yes, was there a “safe” word (or sometimes an action, kinda like tapping out in wrestling).

  3. Nathan Freeburg says:

    Agreed that there is a 120 aspect to this but my guess is this was aimed at DV cases. 

  4. Kf says:

    Nathan,
     
    Stop being the Bruce Willis to my Brad Pitt.  It’s a grand conspiracy by evil spirits, secretaries of secretaries and demonic minions to help the SGT Grey wannabes get convicted by allegations from SSG Anastasia Steele posers.