I’m under the gun, so I don’t have time to do any more than provide links to the articles.  But that may be of little use to much of our readership.  I can’t access any Army legal links from my home computers — including ACCA decisions, Army Lawyer articles, and Military Law Review articles.  Is that an idiosyncratic problem?  Are others able to access the above articles via non-military computers?  If not, why has the Army decided to make its military justice materials inaccessible to civilians and what can be done to restore public accessibility?

FOR IMMEDIATE RELEASE DATE: February 2, 2012 2:21:40 PM CST Statement for Maj. Hasan Article 39A Hearing for Feb. 2FORT HOOD, Texas – Colonel Gregory Gross, the judge for the court-martial of Maj. Nidal Hasan at Fort Hood, re-set the trial date to June, 12, 2012. Previously scheduled to begin on March 5, 2012, the defense attorneys requested a delay so that they can better prepare for the trial. The judge agreed that one of the defense experts, a specialist in mitigation evidence, needs more time to complete his review of Hasan’s background. The judge also agreed that the defense team needs more time to sift through the volumes of documents related to this case. The judge considered other motions and requests from both the defense and prosecution teams in today’s hearing. The judge ruled on motions presented by the defense attorneys last October, where they requested expert assistance on the effect of pre-trial publicity and for help in selecting panel (jury) members. The judge denied the pre-trial publicity expert, but granted the panel selection expert. This expert will assist the defense attorneys in questioning the panel members before the court-martial to determine which members should be excused from sitting on the panel. The defense also filed a motion to compel the prosecution to provide them with notes from meetings and conversations between the President of the United States, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, and other high-ranking officials in the aftermath of the shooting on Fort Hood on November 5, 2009. The defense attorneys have requested the notes so they can determine if any matter was discussed which may have unlawfully influenced the independent discretion of Hasan’s chain of command to prosecute him. The prosecution opposed the motion, saying that the Army officers who have taken action in this prosecution were under no influence from higher officials to do so. The judge reserved ruling on this matter until a later date.Another motion considered was the prosecution team’s request that investigation reports prepared by the U.S. Department of Defense regarding Hasan’s military career be protected from further dissemination by the defense attorneys. The defense attorneys oppose such a protective order and requested that the judge allow them time to prepare a response to the prosecution’s motion. Once the judge receives the response, he will hear arguments from both sides before ruling on the motion.The judge commented on a matter that had been discussed at the last hearing in November. The defense attorneys have requested they be allowed to talk privately with the Commanding General of Fort Hood and the Staff Judge Advocate who gives legal advice to the Commanding General, to inquire into their qualifications to proceed with this case as a capital murder trial.The prosecution asserts that such private access is unnecessary, and asked the judge for more time to prepare a response to the defense request. The judge granted them more time, and he will not rule on this matter until he considers the prosecution’s response.The judge will prepare a docketing order based on the new trial date, and he may allow both sides to conduct hearings or conferences with him on a weekly basis as the trial date grows near. He will allow both sides to submit questions to the pool of potential panel members before they are selected for this trial.Hasan is presumed innocent unless and until proven guilty in a court of law.For more information contact: Fort Hood Public Affairs Office
Media Relations
(254) 287-9993
(254) 287-0106
fax: (254) 288-2750
Fort Hood, TX 76522
query@forthoodpresscenter.com

FORT HOOD, Texas — At the request of prosecutors and defense counsel for Maj. Nidal M. Hasan, a half-day administrative hearing will begin at 10 a.m. Feb. 2 in the Lawrence J. Williams Judicial Center.

Both parties in the case of the United States vs. Maj. Nidal M. Hasan will go on the record in open court before Military Judge Col. Gregory Gross to litigate pending motions brought by defense.  The newest motions concern discovery and a continuance.  Other motions may also be filed by either side for litigation at this hearing, and the military judge may also put other matters on the record at the hearing. 

The accused is presumed innocent unless and until proven guilty in a court of law.

Media who plan to cover the hearing must register here.

On the date for the event, satellite trucks should report to the Fort Hood Clarke Road Gate on West Highway 190 at 6 a.m. Truck registration ends at 6:45 a.m. All others should check in to the Fort Hood visitor’s center from 8-9 a.m. for final registration. All media should be prepared to show a U.S. driver’s license with photo and an accredited press badge with photo.  

Judge Wynn’s opinion notes the general rule that a court-martial doesn’t have jurisdiction “to try an enlisted man for an offense committed in a prior enlistment from which he has an honorable discharge, regardless of the fact that he has subsequently reenlisted in [a military] service and was serving under such reenlistment at the time the jurisdiction of the court was asserted.”  Hirshberg v. Cooke, 336 U.S. 210 (1949).  The opinion also notes the Clardy Exception, which provides that “where a servicemember is discharged prior to the expiration of his [ETS] for the specific purpose of immediate reenlistment, . . . he can be tried for offenses committed in the earlier enlistment.”  United States v. Clardy, 13 M.J. 308, 310 (C.M.A. 1982).  And the opinion observed that “there was (and remains) an open factual dispute between the parties regarding the date on which Hennis’s previous term of enlistment was to end,” which could have the effect of placing the offenses within or outside the Clardy Exception.

The Fourth Circuit upheld the district court’s decision not to reach the merits of the Clardy Exception’s applicability due to the Councilman absention principles.  420 U.S. 738.

The Fourth Circuit emphasized that unless the Supremes resolves the matter upon a cert petition seeking review of CAAF’s decision in the case, Hennis will be able to seek habeas relief on his jurisdictional claim following the completion of direct appeal within the military justice system.

Finally, the Fourth Circuit remanded the case to the United States District Court for the Eastern District of North Carolina for correction of erroneous language in the district court’s judgment.  (The error was that the judgment purported to grant the respondents’ summary judgment motion on the merits when the judge’s decision dismissed the habeas petition without prejudice and without reaching its merits.)

I.  Whether the military judge’s erroneous instruction limiting the right to self-defense deprived Appellant of his constitutional right to a fair trial.

II.  Whether the government’s failure to disclose favorable information to the defense deprived Appellant of his constittuional right to a fair trial.

United States v. Behenna, __ M.J. __, No. 12-0030/AR (C.A.A.F. Jan. 13, 2012) (order).

Judge Scullin initially holds that the Judge Advocate General of the Navy had the authority to discipline Mr. Partington. Judge Scullin relies on Article 36′s delegation of procedural rule-making authority to the President.  He also notes that, in connection with the case that led to the disciplinary proceeding against him, Mr. Partington had certified that he was familiar with and agreed to abide by authorities including the Navy Rules of Professional Conduct.  “Therefore, pursuant to clear constitutional and statutory authority, the Court finds that the Navy JAG had the authority to initiate disciplinary proceedings and ultimately suspend Plaintiff, a civilian attorney, from the practice of law before naval courts. Furthermore, given Plaintiff’s certification that he would abide by all rules and regulations for such proceedings, he cannot now reasonably assert that the naval court before which he argued lacked jurisdiction over him to impose discipline.”  Partington v. Houck, No. 1:10-CV-162, slip op. at 6-7 (D.D.C. Jan. 10, 2012).  Judge Scullin also rejected Mr. Partington’s argument that CAAF had no authority to impose reciprocal discipline on him since that claim rested on the premise that the Judge Advocate General of the Navy’s discipline was null and void.  Id., slip op. at 7 n.4.

Judge Scullin then rejected a due process challenge to Mr. Partington’s suspension, concluding that Mr. Partington “has not demonstrated a legitimate claim of entitlement to the practice of law before [naval] courts.”  Id., slip op. at 8.  He therefore “has no cognizable property interest in this limited practice of law.”  Id.  He reasoned: ”Plaintiff has cited no . . . source of law, state or federal, to support his argument that a lawyer has a constitutionally-protected property interest in his ability to represent clients before naval courts.  Although Plaintiff’s business may suffer as a result of his suspension, this alone is insufficient to warrant the relief Plaintiff seeks because Defendants have not wholly deprived him of his law license or his ability to practice law.”  Id.  Judge Scullin also rejected the argument that Mr. Partington has a constitutionally “cognizable liberty interest in the limited practice of law before naval courts.”  Id., slip op. at 9.

Having concluded that the Due Process Clause did not apply to Mr. Partington’s suspension from practice before naval courts, Judge Scullin noted that “the Court need not address what process is due or whether or not that process was provided to Plaintiff.”  Id.

Judge Scullin then analyzed whether the decision to discipline Mr. Partington could be challenged under the Administrative Procedures Act.  Judge Scullin held that CAAF, as a Court of the United States, isn’t an “agency” for APA purposes and therefore dismissed the APA claim against CAAF.  Id., slip op. at 1o-11.  Then, citing McKinney v. Caldera, 141 F. Supp. 2d 25 (D.D.C. 2010), aff’d sub nom., McKinney v. White, 291 F.3d 851 (D.C. Cir. 2002), Judge Scullin held that the Judge Advocate General of the Navy isn’t an “agency” for purposes of the APA and, therefore, dismissed the APA claim against that official as well.

Finally, Judge Scullin dismissed Bivens claims against four defendants in their individual capacities because “Plaintiff has not identified a constitutionally-protected Fifth Amendment liberty or property interest in the limited practice of law before naval courts.  . . .  [The Court does not] need to analyze Plaintiff’s Bivens claim any further because the only constitutional rights at issue concern potential due process violations.”  Id., slip op. at 13.  Judgment was entered in the Defendants’ favor.

We’ll continue to monitor the case to see if an appeal is filed in the D.C. Circuit.

The assigned issue:  “Whether the Government counsel’s stategic withholding of the convening authority’s grant of immunity makes Appellant’s statement to Government counsel non-immunized.”  United States v. Hathorne, __ M.J. __, No. 12-6002/AF (C.A.A.F. Jan. 4, 2012) (order granting review).

The specified issue:  “Whether, in light of United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), this Court has jurisdiction over an Article 62, UCMJ, appeal when the court-martial has adjudged a sentence that did not include a punitive discharge or confinement for one year?”  Id.

AFCCA’s unpublished decision in the case is available here.  United States v. Hathorne, Misc. Dkt. No. 2011-02 (A.F. Ct. Crim. App. Oct. 4, 2011).

The defense had filed a motion with CAAF to stay the trial proceedings while it considered the petition for review.  But CAAF denied that motion on 1 November 2011.  (That denial doesn’t seem to appear in the daily journal.)  The case went to trial the following day.  Airman First Class Hathorne was convicted of one specification of cocaine use.  He received a sentence of confinement for 7 days, 30 days of hard labor without confinement, restriction for 30 days, and reduction to E-1.

The Court of Appeals for the Armed Forces will hold a memorial session in honor of Judge Perry next Thursday, 12 January, at 1100.  The memorial session is open to the public.  The keynote speaker will be South Carolina Supreme Court Chief Justice Jean Hoefer Toal.

In addition to serving as a judge for 35 years, Judge Perry is remembered as a leading advocate in the legal battle for civil rights.  As noted by the Courthouse News Service here, he litigated cases that led to the integration of South Carolina beaches, parks, restaurants, public schools, and Clemson University.  Clemson later hired him to represent the university in connection with NCAA rules violations.  That’s an example of what this article calls his ability to make “friends of his enemies even as he compelled resistant whites to open public parks and university classrooms to black South Carolinians.”

Judge Perry served in the Army from 1942 to 1946.

In Kennedy v. Louisiana, 554 U.S. 407 (2008), the Supreme Court held that death isn’t a constitutionally permissible punishment for rape of a child.  Then, in an episode in which CAAFlog played a role, the Supreme Court revisited its decision because it had overlooked that the National Defense Authorization Act for Fiscal Year 2006 had authorized the death penalty for rape of a child, belying the opinion’s claim that there was no federal statute allowing rape of a child to be punished by death.  As a result, the Supremes modified the original Kennedy opinion while the five justices in the majority issued a statement reserving judgment on the constitutionality of death for rape of a child as a military offense: 

[A]uthorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context. The military death penalty for rape was in effect before the decisions in Furman v. Georgia, 408 U.S. 238 (1972)  (per curiam), and Coker v. Georgia, 433 U.S. 584 (1977); and when the Court surveyed state and federal law in Coker, it made no mention of the military penalty. See id. at 595-596 (plurality opinion) (not including the military as a “jurisdiction in the United States” that authorized the death penalty for rape, and naming the Federal Government among jurisdictions that recognized the death penalty for rape prior to Furman, but citing only the nonmilitary provision). The same is true of more recent Eighth Amendment cases in the civilian context. See Enmund v. Florida, 458 U.S. 782, 789-793 (1982); Tison v. Arizona, 481 U.S. 137, 152-154 (1987). This case, too, involves the application of the Eighth Amendment to civilian law; and so we need not decide whether certain considerations might justify differences in the application of the Cruel and Unusual Punishments Clause to military cases (a matter not presented here for our decision). Cf. Loving v. United States, 517 U.S. 748, 755 (1996).

That the Manual for Courts-Martial retains the death penalty for rape of a child or an adult when committed by a member of the military does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional. The laws of the separate States, which have responsibility for the administration of the criminal law for their civilian populations, are entitled to considerable weight over and above the punishments Congress and the President consider appropriate in the military context. The more relevant federal benchmark is federal criminal law that applies to civilians, and that law does not permit the death penalty for child rape. Until the petition for rehearing, none of the briefs or submissions filed by the parties or the amici in this case cited or discussed the UCMJ provisions.

129 S.Ct. 1, 2-3 (2008) (statement of Kennedy, J., with whom Stevens, Souter, Ginsburg, Beyer, JJ., join, respecting denial of rehearing). .

Article 18 of the UCMJ provides a general court-martial with jurisdiction to adjudge “the penalty of death when specifically authorized by this chapter.”  The “rape of a child” UCMJ provision that Congress adopted in 2006, along with an interim authorization for the death penalty, was Article 120(b).  The National Defense Authorization Act for Fiscal Year 2012 “repealed” Article 120(b).   NDAA for FY 2012, § 541(a)(2).  And it enacted a new, non-capital child rape article:  Article 120b, which provides that “[a]ny person subject to this chapter who . . . is guilty of rape of a child . . . shall be punished as a court-martial may direct.”  Death is authorized by neither the new Article 120b nor a non-codified portion of the bill, as was the case with the 2006 Article 120 amendments.  See Pub. L. No. 109-163, § 552(b)(1), 119 Stat. 3257, 3263. 

Despite Congress’s use of the word “repealed,” it isn’t quite accurate to state that Congress repealed the death penalty as an authorized punishment for rape of a child.  To the extent that rape of a child as defined by Article 120(b) of the 2006 version of Article 120 was punishable by death last week (an issue discussed below), even after 28 June 2012, death will remain an authorized punishment for Article 120(b) violations committed between 1 October 2007 and 27 June 2011.  Nevertheless, it is still significant that Congress would choose not to authorize the death penalty for violations of the new Article 120b in light of a majority of Supreme Court justices’ observation in the statement respecting denial of rehearing in Kennedy that “we need not decide whether certain considerations might justify differences in the application of the Cruel and Unusual Punishments Clause to military cases.”  Kennedy, 129 S. Ct. at 2.  In his statement respecting denial of rehearing in Kennedy, Justice Scalia (joined by Chief Justice Roberts) contended that the 2006 statute’s authorization of death for rape of a child under Article 120(b) “utterly destroys the majority’s claim to be discerning a national consensus and not just giving effect to the majority’s own preference. As noted in the letter from Members of Congress, the bill providing the death penalty for child rape passed the Senate 95-0; it passed the House 374-41, with the votes of a majority of each State’s delegation; and was signed by the President.” Id. at 3.  Of course, the defense authorization acts for both FY 2006 and FY 2012 dealt with a large number of issues.  It is questionable whether most Members of Congress and/or the President even knew of their death penalty provisions.  Indeed, President Obama’s act of signing the FY 21012 act into law is particularly interesting in light of his criticisms of the Supreme Court for the original Kennedy decision.  President Obama is pro-death penalty, having written in his 2006 book The Audacity of Hope:  “I believe there are some crimes — mass murder, the rape and murder of a child — so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment.”  Barack Obama, The Audacity of Hope 58 (2006).  After the Supreme Court announced its original Kennedy opinion, then-Senator and Presidential Candidate Barack Obama told reporters:

I disagree with the decision; I have said repeatedly that I think the death penalty should be applied in very narrow circumstance for the most egregious of crimes.  I think that the rape of a small child, six or eight years old, is a heinous crime, and if a state makes a decision under narrow limited well defined circumstance the death penalty is at least potentially applicable.

While death is clearly not an authorized punishment for a violation of Article 120b, it’s a closer call whether death remains an authorized punishment for violations of Article 120(a), though I believe the better argument is that it is not.

 Let’s review the bidding.  Before the 2006 version of Article 120 took effect for offenses on or after 1 October 2007, Article 120 authorized death as a penalty for rape.  The 1 October 2007 removed that authorization from the UCMJ itself.  The five justices in the Kennedy majority noted that the absence of language in the 2006 version of Article 120 permitting the death penalty calls into question whether a court-martial could adjudge such a sentence in light of Article 18′s provision that a general court-martial has jurisdiction to impose a death sentence only “when specifically authorized by this chapter”  See Kennedy, 129 S. Ct. at 2 (statement of Kennedy, J., with whom Stevens, Souter, Ginsburg, Beyer, JJ., join, respecting denial of rehearing).  Instead of authorizing death in a provision that would become part of chapter 47 of title 10 of the United States Code, the 2006 authorization act provided:

(b) INTERIM MAXIMUM PUNISHMENTS.—Until the President otherwise provides pursuant to section 856 of title 10, United States Code (article 56 of the Uniform Code of Military Justice), the punishment which a court-martial may direct for an offense under section 920 of such title (article 120 of the Uniform Code of Military Justice), as amended by subsection (a), may not exceed the following limits:

(1) SUBSECTIONS (a) AND (b).—For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct.

a) Rape- Any person subject to this chapter who commits a sexual act upon another person by–

(1) using unlawful force against that other person;

(2) using force causing or likely to cause death or grievous bodily harm to any person;

(3) threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;

(4) first rendering that other person unconscious; or

(5) administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct;

is guilty of rape and shall be punished as a court-martial may direct.

We previously noted the changes that the National Defense Authorization Act made to the UCMJ.  But that statute is also notable for a change that it doesn’t make.

The Senate’s version of the DOD Authorization Act would have repealed Article 125, which criminalizes sodomy.  The revised version of Article 120 defines “sexual act” to include contact between the penis and not only the vulva, but also the anus or mouth.  As a result, what used to be (and still is) forcible sodomy under Article 125 is also covered by Article 120.  But Article 125 covered (and still does) another offense, as well:  bestiality.  And that offense isn’t covered by Article 120.  A strange coalition emerged to oppose the repeal of Article 125 due to concern over bestiality.  The conference committee report suscintly summarizes the outcome: 

The Senate amendment contained a provision (sec. 551) that would amend section 920 of title 10, United States Code (Article 120 of the Uniform Code of Military Justice (UCMJ)), to separate Article 120, UCMJ, into three separate articles applying to the offenses of rape and sexual assault, sexual offenses against children; and other non-consensual sexual misconduct offenses. The provision would also repeal section 125 of title 10, United States Code (Article 125 of the UCMJ), the offense of sodomy.

The House bill contained no similar provision.

The House recedes with an amendment that would delete the repeal of section 125 of title 10, United States Code (Article 125 of the UCMJ).

157 Cong. Rec. H 8583 (daily ed. Dec. 12, 2011).

Article 125, titled “Sodomy,” provides:

(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy.  Penetration, however slight, is sufficient to complete the offense.

(b)  Any person found guilty of sodomy shall be punished as a court-martial may direct.

Military case law had long construed Article 125 to criminalize, among other offenses, consensual, heterosexual, noncommercial, adult, private acts of oral sex.  The maximum punishment for that heinous offense was (and is) five years of confinement and a DD.  From time to time, for one strange reason or another, some servicemember would be convicted of violating Article 125 by engaging in consensual heterosexual oral sex and the conviction would ultimately be upheld on appeal (despite the valiant efforts of one Judge Jack L. Rives in the case of United States v. Fagg, 33 M.J. 618 (A.F. Ct. Crim. App. 1991), rev’d, 34 M.J. 179 (C.M.A. 1992)).  Military justice practitioners often commented on a certainly hypocrisy in the system, but the gays in the military issue made Article 125 the third rail of military justice reform — no one would touch it.

Then along came Lawrence v. Texas and, not long thereafter, United States v. Marcum.  Under Marcum, servicemembers still can be (and sometimes are) convicted under Article 125 for private, consensual, adult acts of oral or anal sex. When that occurs, Marcum has us ask, basically, “Is there some reason other than the sex act itself why the military should be upset about these two people engaging in intimacy?”  And if the answer to that question is yes, then we convict the accused not on the basis that causes the military to be upset– be it fraternization or some other reason – -but of the sex act itself.  If Article 125 were to be repealed, then acts that are currently punishable as consensual sodomy would instead be punished as an orders violation, an Article 133 violation, or an Article 134 violation.  Such a conviction would more accurately reflect the gravamen of the offense.  It would also generally carry a maximum punishment less than the 5 years and a DD that the President has prescribed as the max for consensual oral or anal sex.

The repeal of Don’t Ask, Don’t Tell turned off the power to the third rail and on 1 December 2011, the Senate passed a version of the DOD Authorization Act that repealed Article 125.  Then all hell broke loose.

The Family Research Council appears to have raised the issue first, blogging about it here under the headline, “Bestiality Should Give Leaders Paws in Troop Bill.”  The post stated, in part:  “[I]n its rush to accommodate the Left, Congress may have inadvertently opened the door to even more perversion. As part of the Defense Authorization bill, liberals are pushing to make sodomy a legal activity under the Uniform Code of Military Justice (UCMJ). In its haste to make gay sex an official part of military life, the Left could be unintentionally repealing the ban on bestiality too.”

Cue Les Kinsolving.  For those of you who don’t know him, Les Kinsolving is WorldNetDaily’s White House correspondent who has been described by Baltimore City Paper as “[t]he notorious right-wing gadfly of the White House press corps, who has badgered every president and press secretary since Richard Nixon with nakedly biased and sometime bizarre queries.”  At a 5 December White House press conference, the following exchange occurred:

  [White House Press Secretary Jay Carney]  Let’s go to the back.  Lester.

        Q    Oh, my goodness.

        MR. CARNEY:  Can you believe it?  (Laughter.)  I’m in the holiday spirit.

        Q    In the holiday spirit.  The family research –

        MR. CARNEY:  Is everyone okay?  (Laughter.)

        Q    The Family Research Council and CNS News both reported a 93-to-7 U.S. Senate vote to approve a defense authorization bill that, quote, “includes a provision which not only repeals the military law on sodomy, but also repeals the military ban on sex with animals, or beastiality [sic].”  Does the Commander-in-Chief approve or disapprove of beastiality [sic] in our armed forces?

        MR. CARNEY:  I don’t have any comment on — I don’t have any comment on that.  

        Let me go to another question.

        Q    Does the President believe this will be approved by all animal support groups, such as –

        MR. CARNEY:  Let’s get to something more serious.  Yes, Jake.

        [Jake Tapper, ABC News]    You sure you don’t want to ask Lester another question?  Give him another opportunity?  (Laughter.)   

        MR. CARNEY:  I’ve learned my lesson, Jake.  (Laughter.)

        Q    Just one –

        MR. CARNEY:  Lester, I think we’ll — we’ll let everybody get a chance here.  

        Go ahead, Jake.

        Q    Are you sure you don’t want to take any more questions on beastiality [sic]?  (Laughter.)

        Q    You don’t want to comment on that?

[Video here]

Then things got weird.  PETA attacked Jay Carney for daring to suggest that asking whether the President supports bestiality in the armed forces isn’t a serious question.  (The PETA Media Center’s website is down at the moment, so I can’t provide a link.  I’ll update with a link later if the site comes back up.  Here’s a link to a Politico article quoting PETA’s reaction.)

Glenn Beck and House Member and GOP Presidential Candidate Michele Bachmann then discussed the issue on Glenn Beck’s 7 December web show.  (Clip available here.)  Representative Bachmann pronounced the Senate vote to repeal the bestiality ban “abhorrent” and “reprehensible” and exhorted viewers to contact their legislators and the White House.

The issue was even discussed on the 14 December Colbert Report, here.  But by then, the horse was actually back in the barn.  The House and Senate conferees, who filed their report on 12 December, had already removed the Article 125 repeal from the bill.

This leads to an interesting thought experiment:  if Jay Carney hadn’t called on Les Kinsolving at the 5 December press conference, would Article 125 have been repealed?  If so, in that alternative universe, would bestiality be legal or illegal in the military?

Those of us who practice military justice know that, on rare occasions, servicemembers do engage in bestiality.  When I was a student at Naval Justice School in those halcyon, pre-Tailhook days of 1987, we learned about the case of United States v. Sanchez, 11 C.M.A. 216, 29 C.M.R. 32 (1960), which, we were told, raised the age old question:  Which came first, the chicken or Sanchez?  Nor is the bestiality prohibition some relic of a bygone day, like Article 114′s criminalization of dueling; there has been at least one fairly recent bestiality prosecution in the armed forces. 

If Article 125 no longer existed, could an act of bestiality still be charged under the UCMJ?  Of course.  Bestiality would certainly be of a nature to discredit the armed forces and, hence, punishable under Article 134.  See generally United States v. Phillips, 70 M.J. 161 (C.A.A.F. 2011).  But what would the maximum punishment be?  Would it be considered a general disorder and, hence, under Beaty be punishable by only four months of confinement and forfeiture of 2/3 pay for four months, with no punitive discharge authorized for an enlisted accused?  Would it be governed by the maximum punishment for abusing a public animal and hence be susceptible to only confinement for three months and forfeiture of 2/3 pay for three months?  Is there a federal statute applicable to civilians that criminalizes bestiality?  If not, it appears that in a world without Article 125, the maximum court-martial sentence for bestiality would be considerably less than the 5 years’ confinement and DD currently authorized by Part IV of the Manual for a bestiality offense.  Which brings us to another chicken and egg problem.  Under the preemption doctrine, the President can’t prescribe an Article 134 bestiality offense while Article 125 still criminalizes sex with animals.  But will Congress refuse to repeal Article 125 until bestiality is already criminalized in some other form with a more severe punishment available than confinement for four months? Perhaps a generic Article 134 animal cruelty provision with a sufficiently severe maximum punishment could cover that base and allow for the repeal of Article 125.  It would also address one of the concerns raised by the Cox Commission II Report.  Perhaps PETA, after proclaiming itself unamused by Jay Carney’s response to Les Kinsolving’s bestiality question, will have the last laugh.

The statute amended four UCMJ articles and created two new ones — though the amendments to two articles (Articles 43 and 118) were merely conforming amendments.

The statute fixed one clerical error while creating another.   Section 542 of the statute fixed a misspelling in Article 47, amending Article 47(A) “by striking ‘subpenaed’ both places it appears and inserting ‘subpoenaed’.”  But section 541 of the statute, in enacting a new Article 120(f), referred to  ”the Rules for Court-Martial” rather than “the Rules for Courts-Martial.”  Perhaps some future DOD Authorization Act will include a technical amendment fixing that mistake.

As previously noted, one section of the statute (section 542) amends Article 47 to allow subpoenas duces tecum to be issued for Article 32 investigations.  This portion of the statute is now in effect. But the most important UCMJ change included in the statute is the amendment of Article 120 and creation of two new UCMJ articles dealing with sex offenses.

It wouldn’t be accurate to say that the statute repeals the 2006 version of Article 120, since that will remain in effect for offenses committed between 1 October 2007 and 27 June 2012.  But for acts committed from 28 June 2012 on, Article 120 will be different.

Before the 2006 amendment (Pub. L. No. 109-163, § 552, 119 Stat. 3136,  3257) , Article 120 was a 196-word statute covering rape and what was then known as “carnal knowledge.”  The portion dealing with rape was only 50 words:

(a)  Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.

. . . .

(c)  Penetration, however slight, is sufficient to complete either of these offenses.

The 2006 amended version ballooned to 2,830 words.  It covered rape, rape of a child, aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual contact, aggravated sexual abuse of a child, aggravated sexual contact with a child, abusive sexual contact, abusive sexual contact with a child, indecent liberty with a child, indecent act, forcible pandering, wrongful sexual contact, and indecent exposure.  One military judge famously likened the revised Article 120 to what 100 monkeys at typewriters might produce.  And CAAF held that the statute “results in an unconstitutional burden shift.”  United States v. Prather, 69 M.J. 338, 340 (C.A.A.F. 2011).

The 2011 amended version of Article 120 weighs in at 1,074 words.  It covers rape, sexual assault, aggravated sexual contact, and abusive sexual contact.  The statute creates two new UCMJ articles that are a combined 1,330 words.  The first, Article 120b, covers rape of a child, sexual assault of a child, and sexual abuse of a child.  The second, Article 120c, is titled “Other sexual misconduct” and covers indecent viewing, visual recording, or broadcasting; forcible pandering; and indecent exposure.

I plan to post a couple of thoughts about the revision to Article 120, so stay tuned to this same bat channel.