The 2019 National Defense Authorization Act (NDAA) became law on August 13, 2018 and has two provisions that are particularly important for dealing with domestic abuse incidents in the military – from January 1, 2019, on.

First, Congress has amended Article 128 of the Uniform Code of Military Justice (UCMJ), to expressly state that the acts of strangulation or suffocation constitute aggravated assaults.

Second, a new enumerated offense entitled “Art. 128b. Domestic Violence” has been created.

This new crime punishes a broad range of misconduct.

Committing a violent offense (or violating a protective order with the intent to commit a violent offense) against a protected person is, of course, punishable under the new Article 128b.  But, so are non-violent offenses (including, expressly, violating protective orders or harming animals) when they are committed with the intent to intimidate or threaten a protected person.

These important legislative changes are not (yet) reflected in Part IV of the most current version of the Manual for Courts-Martial (MCM) published by the Joint Service Committee.

Accordingly, we do not yet have approved elements for use at trial, and no declared maximum punishment.  Practitioners will have to seek guidance elsewhere.

Such a practitioner might find help in an article by Captain Kaley S. Chan entitled “Getting a Grip on Strangulation,” published in the September/October 2018 edition of The Army Lawyer.

Captain Chan spends much of her time in her article recommending the creation of just the sort of legislation enacted in the 2019 NDAA.  So, a reader might be tempted to find her work obsolete.

But, her discussion of what sort of conduct constitutes “strangulation and suffocation” is still useful – particularly because the MCM does not yet address this new law, and the statute itself offers no definitions for those terms.  Captain Chan’s article even offers some proposed jury instructions.

8 Responses to “Scholarship Saturday: New tools to bring domestic abusers in the military to justice”

  1. Cloudesley Shovell says:

    A few very initial thoughts:
    1.  The addition to Art. 128 uses the phrase “assault by strangulation or suffocation” while just a few lines later makes the very same thing an offense again in the new Art. 128b, except phrasing it actively, “assaults a spouse, an intimate partner, or an immediate family member of that person by strangling or suffocating.”  I wonder why? Are they different things?  Also, why the sudden interest in this particular method of assaulting another person?  When did this suddenly become the leading criminal justice issue?  Is there a parallel effort out amongst the States of these United States to combat the sudden rise of stranglin’ and suffocatin’?  Perhaps I missed all the Governor William J. Le Petomane table pounding and harumphing and cries of “something must be done!  Immediately! Immediately!”
    2.  What is an “intimate partner” for purposes of Art. 128b? Is a roommate a partner?  How many dates before a person is a partner?  What level of intimacy rises to the level of “intimate”?  Is a kiss goodnight after the second date enough?  A hug?  Telling secrets one would tell nobody else, save perhaps a priest at confession? A little canoodling on the couch?  Whispering sweet nothings?  Dancing awfully close together? A nice pat on the ass after a great beach volleyball game?  Buying another person a rose at dinner then sleeping in the same bed but not doing anything, a la Walter and Alison in The Sure Thing?  What if you’re a fat kid named Eliot who eats paste?  To continue with movie analogies, is a friend with benefits an “intimate partner”?  If both parties agrees, is a no-strings-attached thing a partnership for purposes of this new Art. 128b? First base?  Second base? Third base? Or is it like adultery where proof of actual sexual intercourse is required, and anything else just ain’t enough?  Does said level of intimacy require consent, or can this new offense be piled on top of a sexual assault charge, the required level of intimacy being met by the underlying unlawful sexual act?  Does it require some current level of intimacy?  What if the persons involved broke up the weekend prior?  The month prior?  The year prior?  The decade prior?  Is there a time limit?  Or is your prom date from high school forever an “intimate partner” and you’re in trouble when you slap him for getting fresh at the 10th high school reunion?
    3.  And while we’re at it, what is an “immediate family member”?  What if your obnoxious brother-in-law who just won’t shut up about politics at Thanksgiving gets a pumpkin pie in his face?  What if that same brother-in-law doesn’t care about politics but just won’t stop playing Words with Friends on his phone at the dinner table, and so you take his phone away (an Art. 121 violation!), and tell him “You ain’t getting it back until you learn some manners and behave like an adult, dammit!” (a threat or intimidation!), have you now violated Art. 128b(2)?  What if it’s not your brother-in-law but your 45-yr-old sister who you see once a year?  Is she still an “immediate family member”?
    4.  Why does the new Art. 128b omit those familiar words, “subject to this chapter” after “person” at the beginning, as in “Any person subject to this chapter who—”  . . .   Are the offenses in the new Art. 128b so awful, so contrary to good order and discipline, so adverse to the laws of war and humanity that those deplorable evil scum who potentially violate this chapter are now lumped together with spies and those aiding the enemy, condemned as they are by Articles 106 and 104 respectively?
    5.  And finally, let’s all break out the popcorn because if you thought the poo-slinging in divorce cases and other “family law” matters was bad before, just wait until things get going under this new Article 128b.  Commanders are just going to love this one.
    Kind regards, and all the best for an enjoyable weekend,

  2. Kevin Reinholz says:

    Zeke,Interesting post! I’m most curious about the new provisions’ interplay with 18 U.S.C. § 922(g)(9), a.k.a. the Lautenberg Amendment. Specifically, I wonder whether the lack of certain definitions will lead to confusion about Lautenberg’s application:
    Qualifying Offenses: As enacted the statute defines “misdemeanor crime of domestic violence” (MCDV) as any state or federal misdemeanor that –

    “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”

    If the intent is to make Lautenberg applicable to convictions under the new A128b, it would make sense to define “(1) commits a violent offense against a spouse, an intimate partner, or an immediate family member of that person” in such a way as to make it clear that an “intimate partner” must be “a person similarly situated to a spouse, parent, or guardian of the victim.” If on the other hand a broader class of victims are intended to be protected by the new A128b, I foresee a lot of headaches for SJA offices when it comes to post-trial paperwork and determining whether to report the conviction as Lautenberg-qualifying or not.

  3. Concerned Defender says:

    The hunger of government over-reach continues. Before anyone hyperventilates, I’m fully against anyone assaulting anyone else, especially a trusted loved one.  But there are already laws on assault, battery, and sex crimes.  These DV laws are over-reach in my opinion, and Lautenberg and the new “red flag” laws are very worrisome for anyone interested in ending false accusations. 
    It’s a well-known fact that all these DV laws, and now “red flag” laws, are widely abused and ripe for abuse by vindictive “partners” and widening to any circle of anyone a person ever knows (or never even met).  These laws serve to ruin the accused, at no risk or cost to the accuser.  Rarely are accusers held to account for false accusations, but they bring the full might of the government against the accused who is ruined and drug thru the dirt and lucky to escape these emotionally charged hijacked terms.
    These poorly drafted and unnecessary laws create far more problems than they attempt to solve.  Last I checked, chocking someone is already an assault/battery.  Why is a new over-lapping law necessary?  
    All of this is just a huge waste of resources and gives endless ammunition to clog the courts with what will be a weaponized action in ugly breakups and divorces.  
    When will the legislative feel-good insanity cease?  At what point does the government get out of the bedrooms of Soldiers??? How many innocent men must be drug thru this nightmare???

  4. Fisch says:

    Sir Cloudesley, 
    Regarding question 1 you posed above, I believe that by specifically making strangulation or suffocation against a spouse or partner an aggravated assault crime, Congress will void the defense of consent.
    In contrast, consent is not a defense to an aggravated assault specification. See United States v. Bygrave, 46 M.J. 491, 493 (C.A.A.F. 1997) (stating a victim cannot consent to an act which is likely to produce grievous bodily harm or death).United States v. Atchak, No. ACM 38526, 2015 CCA LEXIS 328, at *11 (A.F. Ct. Crim. App. Aug. 10, 2015)
    In CPT Chan’s article, it appears that her model specification and jury instruction would lead to a conviction for consensual choking during sexual intercourse because the Government simply would show that the accused intentionally impeded the normal circulation of the blood of another person by applying pressure to the person’s neck. And, if this an aggravated assault, then consent is not a defense as stated above. 
    While the practice is one that I don’t engage in, and I have learned that women who are into that kind of thing are ones whom I would never date, there are women and men who are into being choked as it allegedly leads to a more intense orgasm.  I’m sure that are fellow defense practitioners, like me, who have had to raise this defense in the past and have possibly filed 412 motions to bring in other sexual partners of the victim who were prepared to testify that the victim said she was into choking during coitus.
    By making choking an aggravated assault and also specifically enumerating a crime when a spouse is choked, then consent is not a valid defense.  And, if consent is not a valid defense, then certainly other sexual partners by whom the accuser requested to be choked are irrelevant to show that she requested that the Accused choked her in the Accused’s case.  So, all 412 motions regarding this fact pattern will be due to be denied.
    I am aware that more often choking is one of the acts of violence in rape, and that is what the proposed amendment is attempting to criminalize.  But, unfortunately in this post 50 Shades era, there will be some men who engage in consensual choking, and they will be convicted.  And, when that relationship sours, SVP’s will have another arrow to shoot into an accused whose spouse is attempting to leverage a false rape allegation to gain custody of the couple’s child(ren), only this one will stick because when asked about choking his spouse, the Accused who chooses to make a statement will truthfully say, “Yeah, she told me to during sex.”

  5. Cloudesley Shovell says:

    I think you’re exactly right. 
    This same issue of criminalizing completely consensual sexual activity was an issue in the original (2007 I think it was) changes to Art. 120.  The definition of force was so broadly written that it encompassed all sorts of things that were normal in the arena of private and consensual sexual activity.
    I suppose one can only react with wry amusement at the sudden and remarkable shift from “get the government out of the bedroom” in the great anti-sodomy crusade to “the government must examine in minute detail every aspect of private sexual activity!”
    I see that we also agree that this statute will most likely be another weapon in divorce and custody cases. 
    Kind regards,CS

  6. JBF says:

    There seems to be a tension between the lack of a consent defense for aggravated assault by strangulation and the existence of the various services’ Combatives programs (not to mention the popularity of combat sports among service members).  The key to this puzzle may lie with the often-overlooked element of Article 128, “unlawfully.” 

  7. Philip D. Cave says:

    And apparently no consideration of the “choking game” or similar autoerotic practices.  While the concern and prevalence is with the youth, there are plenty of adults who engage.  

  8. Concerned Defender says:

    Agreed with the above about consenual choking, rough sex, etc. assessment.  
    Normally, an accused is not compelled to testify.  That’s a fundamental right found in the 5A and Article 31.
    The very devious way these laws are drafted and practically applied remove that right against self-incrimination.  The accusation is so emotionally charged and does in fact require explanation.  This forces the accused to waive his rights to explain it was consensual.  
    Typical crimes have contemporaneous witnesses or extrinsic evidence.  Not so with ancient sex assault or DV allegations.