CAAFlog » Article 120 (2012)

Today the NMCCA released a massive, 32 page published opinion of the court in United States v. Commander Booker, Military Judge, No. 201300247, __ M.J. __ (N-M.Ct.Crim.App. Sep. 20, 2013) (link to opinion).

A three-judge panel of the NMCCA grants a Government petition for extraordinary relief in the nature of a writ of mandamus and reverses a military judge’s ruling setting the maximum punishment for sexual assault in violation of Article 120(b) (2012) as the jurisdictional limit of a summary court-martial: confinement for 1 month, restriction for 2 months, hard labor without confinement for 45 days, and forfeiture of 2/3 pay per month for 1 month.

The President did not define the maximum punishments for offenses established in the 2012 revision to Article 120 until May 15 of this year (you can read all of our Article 120 (2012) coverage at this link). The Accused in this case was arraigned the day before the President acted, and two days after the President acted the Government filed a motion asking the judge to determine the maximum punishment for the sexual offenses. The judge then made his ruling, and the Government sought relief from the CCA.

After extensive discussion of its jurisdiction to consider the Government petition and the Government’s right to seek extraordinary relief, the CCA turns to the question of sentence determination. The court begins by noting that R.C.M. 1003(c) “established a binary analytical framework for offense-based limits on punishments: that framework employs mutually exclusive criteria, dependent upon whether the offenses are “listed” or “not listed” in Part IV of the Manual for Courts-Martial.” Slip op. at 17 (citation and marks omitted). Despite the inclusion of the statutory text of Article 120 (2012) in the most recent MCM, the court concludes that the offenses are not “listed” in Part IV because the inclusion was done by the Joint Service Committee and not by the President in an executive order (“Only the President may amend Part IV of the Manual, and prior to 15 May 2013, he had not done so with respect to the revised Article 120.” Slip op. at 21).

That leaves the procedure established in R.C.M. 1003(c)(1)(B) to determine the maximum punishment for an offense not listed in Part IV:

By applying the various offense-based limits on punishment mandated in R.C.M. 1003(c)(1)(B), we conclude that at the time the offenses were allegedly committed, the authorized punishment included a dishonorable discharge and confinement for at least 30 years.

Slip op. at 30.

The court then concludes:

the military judge’s analysis and ruling clearly deviated from the President’s unambiguous, standing guidance for determining offense-based limits on punishment for offenses not listed in Part IV of the Manual. The military judge’s ruling “overreached [his] judicial power to deny the Government the rightful fruits of a valid conviction,” Will, 389 U.S. at 97-98 (citation omitted), confinement in accordance with a law enacted by Congress exercising its Constitutional authority “to define crimes and fix punishments,” and the President’s exercise of Congressionally-delegated authority to define limits on punishment, Ex parte United States, 242 U.S at 42. See also Roche, 319 U.S. at 31 (issuance of the writ justified by persistent disregard of the Rules of Civil Procedure by Court) (citations omitted).

Additionally, to the extent that confusion over the punishment authorized for offenses charged under the amended Article 120 exists in the trial judiciary, the likelihood of recurrence weighs in favor of issuing the requested writ. At least one military jurist has ruled that the maximum punishment authorized for a sexual assault that allegedly occurred after 27 June 2012 and before 15 May 2013 does not include a punitive discharge or confinement for more than one month, while this court has concluded that a dishonorable discharge and confinement for 30 years are authorized punishments. Accord United States v. Ramsey, 40 M.J. 71, 76 (C.M.A. 1994) (“the military judge not only lacked authority for his ruling on reconsideration in which he arbitrarily picked some lesser figure than the 10 years authorized for [a lesser-included offense] malingering in a hostile fire pay zone; but also he failed to follow the clear mandate of R.C.M. 1003(c)(1)(B)(i).” (citation omitted)).

We see no reason to allow such an error to persist in a matter as fundamental to the proper administration of justice as the maximum punishment authorized for an alleged offense. See Ex parte United States, 242 U.S. at 51-52 (“since its exercise in the very nature of things amounts to a refusal by the judicial power to perform a duty resting upon it and, as a consequence thereof, to an interference with both the legislative and executive authority as fixed by the Constitution.”). Issuance of the requested writ is necessary and appropriate under these circumstances. Hasan, 71 M.J. at 418.

Slip op. at 30-31.

Congress amended Article 120 in the FY12 NDAA, with the new statute taking effect on 28 June 2012. That date passed without any Presidential rulemaking to list elements, define terms, provide model specifications, or establish maximum punishments (the things usually found in Part IV of the MCM).

But a few months later the JSC published a huge proposal of changes to the MCM, including the Part IV materials for the new 120 offenses. Unfortunately, when the President finally signed the next Executive Order, he defined only the maximum punishments.

Because of this, today there are still no official model specifications (a.k.a. sample specifications) for Article 120, Article 120b, or Article 120c. But we do still have the JSC proposal including model specifications that, while not formally adopted (yet), are the next best thing.

So, working from the JSC proposal (as published in the Federal Register), I pulled out the proposed Part IV for Articles 120, 120b, and 120c, cleaned up the formatting, and saved it as a single Word document available here (link).

The file includes the elements, explanation, max punishments, and model specifications for each of the 44 ways of charging Article 120, the 17 ways of charging Article 120b, and the 6 ways of charging Article 120c.

A reader advises that the recently-signed Executive Order 13643 (discussed here, here, and here) is now available in its entirety: link to PDF.

Notably, the only changes to the MCM are the revisions to the Military Rules of Evidence to conform with the similar changes to the Federal Rules of Evidence (provided in their entirety here) and the establishment of the maximum punishments for Article 120 (2012) (provided here). The other changes proposed by the JSC last October (discussed here) go back to the drawing board.

Here’s a fascinating article from Joint Forces Quarterly by Marine judge advocate Linsday Rodman that, among other worthy points, analyzes the 19,000 statistic that is frequently — though, as the article demonstrates, misleadingly — cited as the annual number of sexual assaults in the military.

The article also discussed the overprosecution problem — the phenomanon of convening authorities referring weak sexual assault cases to trial, sometimes despite contrary advise from their legal advisors.  Such overprosecution, the article notes, has the perverse effect of increasing the military’s sexual assault acquittal rate:

When a prosecutor does not have good facts, conviction cannot be the expectation. Nor should we want there to be a conviction in many of those cases. That would require a standard below the “beyond a reasonable doubt” standard, creating an exception in criminal law for sexual assault cases in direct contravention of the Constitution.

In United States v. Johanson the appellant was sentenced to “no punishment.”  The case presents another with a issue of statutory interpretation, expansion, contraction, and proposed contortion of Article 120, UCMJ?

Chief Johanson was convicted, after a contested members trial of:

five specifications of maltreatment of persons subject to his orders, in violation of Article 93, Uniform Code of Military Justice (UCMJ); one specification of abusive sexual contact and one specification of indecent exposure, both in violation of Article 120, UCMJ; and three specifications of assault and battery, in violation of Article 128, UCMJ.

Before the Coast Guard Court of Criminal Appeals Chief Johanson raised the following issues.

I. Whether a servicemember can be convicted of abusive sexual contact under the theory of being substantially incapable of declining participation when the victim was fully capable of communicating a lack of consent, communicated a lack of consent, moved away, and was neither asleep, unconscious nor under the influence of any drugs or alcohol.

II. Whether the military judge erred to the substantial prejudice of Appellant by adding to the Military Judges’ Benchbook instruction and instructing the members that mental disorientation could amount to substantial incapacity under Article 120, UCMJ.

III. Whether Appellant’s due process rights were violated when the military judge judicially altered the burden-shifting language of Article 120 and instructed the members accordingly.

The court summarily rejected the third issue.

Appellant’s argument that the military judge judicially altered the statute, invading the domain of Congress, is a novel one that we are not inclined to accept. We discuss the first two issues and grant relief.

The court found the LIO of wrongful sexual contact, and of course there was no need for a Sales or other sentence assessment.

What do you see when you look at this picture?

If your answer is “a brutal sexual assault,” you’re not alone.

‘We learn that George and Greta were perfect strangers. We learn that George was drunk, and that Greta had no idea of his presence, until she was in his arms, with his lips on hers… It seems pretty clear, then, what George had committed was sexual assault.”

The blog Feministing.com embraced the sexual assault premise, claiming that a closer look at the picture reveals corroborating evidence of the ‘crime’ that took place in 1945 in the middle of Times Square.

The writer points to the smirks on the faces of other sailors seen in the background; the firm grasp around the physically smaller woman in Mendonsa’s arms keeping her from escaping; the woman’s clenched first and limp body.

‘If there is a better symbol for how messed up our ideas about sex and romance are, I can’t think of one,’ the Feministing blogger writes.

Leopard writes in her blog, ‘The unwillingness to recognize a problem here is not surprising, considering the rape culture in which we live.’

‘It is not easy to assert that a woman’s body is always her own, not to be used at the whim of any man without her consent. It is far easier to turn a blind eye to the feelings of women, to claim that they should [empathize] with the man, that they should be good sports and just go along with it.’

If this kiss happened today it would be chargeable as a rape under Article 120, UCMJ (10 U.S.C. § 920):

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

(g) Definitions. In this section:

(1) Sexual act. The term ‘sexual act’ means—
. . .
(B) the penetration, however slight, of the . . . mouth of another by any part of the body or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

Lack of consent is not an element, intoxication is not a defense, and the maximum authorized punishment for such a rape is imprisonment for life without the possibility of parole.

Over at 31(b)log, Jim Clark of TJAGLCS has posted this interesting commentary exploring the impact of feminist theory on the evolution of rape laws.

The Military Judges’ Benchbook, Dep’t of the Army Pamphlet 27-9, has been updated to address the revision to Article 120 and the new Articles 120b and 120c, as Zack discussed here. The new Article 120 and 120b Benchbook provisions each includes an odd discussion of the death penalty.

As we previously discussed, the new new Article 120b is, without serious question, not a capital offense.  Article 18 of the UCMJ provides a general court-martial with jurisdiction to adjudge “the penalty of death when specifically authorized by this chapter.”  Article 120b doesn’t authorize death as a punishment; rather, it provides that someone who “is guilty of rape of a child . . . shall be punished as a court-martial may direct.”  That allows the President, acting pursuant to Article 56, to cap the sentence at anything up to and including confinement for life without eligibility for parole.  But it doesn’t authorize a death sentence.  So what on earth does this “Note” in the Benchbook’s discussion of Article 120b (linked here) mean?:

NOTE 2:  Death sentence.  The plurality opinion in Coker v. Georgia, 433 U.S. 584 (1977), held that the death penalty for the rape of an adult woman is unconstitutional, at least where the woman is not otherwise harmed.  RCM 1004(c)(6) indicates that the death penalty for rape is authorized when the offense was committed in time of war and in territory in which the United States or its ally was an occupying power or in which the United States armed forces were engaged in active hostilities.  RCM 1004(c)(9) indicates that the death penalty for rape is authorized where the victim is under the age of 12 or the accused maimed or attempted to kill the victim.

The death penalty isn’t authorized for any violation of Article 120b, which applies only to offenses committed on or after 28 June 2012.  And the new instruction including the note on the death sentence is to be used “for offenses occurring on or after 28 June 2012.”

Contrary to what the note seems to imply, the President has not authorized and cannot authorize death for a post-27 June 2012 rape committed in a war zone or occupied territory since Congress hasn’t authorized death for such rapes.  Nor can the President authorize death for  a post-27 June 2012 rape of a child or a rape accompanied by maiming or an attempt to kill since Congress hasn’t authorized death for such rapes.

It’s also strange that the note cites Coker v. Georgia but doesn’t mention the more recent SCOTUS decision in  Kennedy v. Louisiana, 554 U.S. 407 (2008), or the follow-on opinion regarding denial of reconsideration, in which a majority of Supreme Court Justices address the issue of whether death can be an authorized sentence for rape of a child in the military justice system.  Kennedy v. Louisiana, 129 S.Ct. 1 (2008) (statement of Kennedy, J,., joined by Stevens, Souter, Ginsburg, and Breyer, JJ., respecting denial of certiorari).

The Benchbook’s discussion of the new new Article 120 (linked here) includes a note identical to Article 120b’s note 2.  But once again, Article 120 doesn’t authorize capital punishment; rather, it provides that someone who “is guilty of rape . . . shall be punished as a court-martial may direct.”  While the 2006 legislation establishing the previous version of Article 120 included an authorization for death as a punishment for either rape or rape of a child, see Pub. L. No. 109-163, § 552(b)(1), 119 Stat. 3257, 3263, the legislation creating the 2012 version of Article 120 contained no such language.

So the revised Benchbook’s discussion of the “death sentence” for Articles 120 and 120b is outdated confusing surplusage.  The Benchbook’s drafters should remove it when they make the next revision, which will probably come when the President adopts maximum punishments for the new new Article 120 and for the offenses established by Articles 120b and 120c.

While we still don’t have a breakdown of Article 120 (2012) by elements, prescribed maximum punishments, or executive discussion (to understand why, read this and this), 31(b)log informs us that the Military Judge’s Benchbook has been updated to address the new Article 120, Article 120b, and Article 120c.

The updates should be accessible, without a login, here (at the bottom). If the link doesn’t work for you, please let me know.

Update: The instructions discuss mistake of fact as to consent as a possible defense to numerous offenses. Whether this defense is available was discussed by 31(b)log here (our post here).

From the folks that brought you the Art. 31(b)log, here is a 9-page primer on the new Art. 120.  For anyone that has Lexis-Nexis, just login and it should be free.  I think that leaves our baby blue brethren out in the cold, no?  From the Lexis-Nexis website, here’s a description of the primer:

Congress defines military sexual crimes in Article 120 of the Uniform Code of Military Justice (UCMJ). 10 U.S.C.S. § 920 et.seq. Effective on June 28, 2012, the newest version of military sexual crimes more successfully shifts the focus to the offender, but is not without its problems. This Emerging issues Analysis by Jim Clark, professor of Criminal Law at The Judge Advocate General’s Legal Center and School, the US Army’s ABA-accredited legal center in Charlottesville, Va., explores the changes effected by the new, new Article 120.

Sadly, I didn’t know there was a civilian professor at the Army JAG School.

That’s the interesting question addressed by this post on the TJAGLCS Crim Law Department’s 31(b)log.

Today’s NYT Op-Ed focuses on the continuing problem of sexual assault in the military. There have been some recent proposed structural changes to the UCMJ by members of Congress and it looks like more tweaking of Article 120 may be in the offing.

Congress just removed death as an authorized punishment for the offense of rape of a child in the military as of 28 June 2012.  That decision has particular resonance in light of the Supreme Court’s opinion in Kennedy v. Louisiana and its aftermath.

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:  Read more »

The National Defense Authorization Act for Fiscal Year 2012, which President Obama signed on New Year’s Eve, includes amendments to the UCMJ.  [The complete text of the UCMJ as amended is available here.]

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.

As the Hill reports here, President Obama today signed the National Defense Authorization Act for Fiscal Year 2012, while issuing a signing statement objecting to detention policy provisions in the statute.

As a result of the President’s signature, starting tomorrow, subpoenas duces tecum can be issued to obtain evidence for Article 32 investigations.  And 180 days from now, a new version of Article 120 will come into effect, along with a new Article 120b dealing with rape and sexual assault of a child and a new Article 120c dealing with other sex offenses.  Time permitting, I’ll post  more about the changes to Article 120 over the extended weekend.