CAAFlog » Article 120 (2012)

CAAF decided the interlocutory Army case of United States v. Schloff, 74 M.J. 312, No. 15-0294/AR (CAAFlog case page) (link to slip op.), on Thursday, July 16, 2015. A divided court concludes that sexual contact, as defined by Article 120(g)(2) (2012), includes both body-to-body contact and object-to-body contact. CAAF affirms the decision of the Army CCA that reversed the contrary conclusion by the trial judge, and the court remands the case for further proceedings.

Judge Ohlson writes for the court, joined by Chief Judge Baker and Judge Ryan. Judge Stucky dissents, joined by Judge Erdmann.

The appellant is a physicians assistant who was charged with five specifications of abusive sexual contact in violation of Article 120(d) (2012). All five specifications alleged that the appellant committed sexual contact by touching an individual patient’s breasts with a stethoscope. Each specification involved a separate alleged victim. Three specifications were referred to trial, and Appellant was convicted of one.

At trial, the appellant asserted that the specifications failed to state an offense because touching with a stethoscope does not constitute sexual contact. The judge deferred ruling on the issue until after the members found the appellant guilty of one specification and sentenced him to a dismissal. The judge then set aside the findings and sentence and dismissed the specification for failure to state an offense. The Government appealed and the Army CCA reversed the trial judge. CAAF then grated review of a single issue:

Whether the Army court erred in expanding the definition of a “sexual contact” to a touch accomplished by an object contrary to the plain language of Article 120(g)(2).

In today’s 3-2 opinion, CAAF narrowly concludes that the Army court did not err, that there is no ambiguity in the statutory definition of sexual contact, and that the definition includes “those instances where an accused touches a victim with an object.” Slip op. at 3.

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In a published opinion in United States v. Thomas, __ M.J. __, No. 201300357 (N-M. Ct. Crim. App. Nov. 28, 2014) (link to slip op.), the Navy-Marine Corps CCA reverses a forcible rape conviction on factual sufficiency grounds after concluding that “the Government treated ‘force’ and ‘unlawful force’ as if they were separate, unrelated concepts,” and explaining that:

Contrary to trial counsel’s argument, unlawful force is not a separate, distinct, and lesser type of force that can sustain a conviction for rape. Rather, the definitions set forth in Article 120 must be read together. There must be force, as defined by the statute, and that force must be unlawful. In other words, the Government must prove beyond a reasonable doubt that the accused used a weapon; used such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or inflicted physical harm sufficient to coerce or compel submission by the victim, and that those acts were “done without legal justification or excuse.” See 10 U.S.C. § 920(g)(5)–(6).

Slip op. at 4 (emphasis in original). Having defined the force necessary to support a conviction for forcible rape, the CCA’s “review of the record fails to discern any evidence that the appellant used force, as defined in the statute, to commit a sexual act.” Slip op. at 6.

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The current version of Article 120 involves four separate statutes: Article 120 (adult sexual offenses), Article 120a (stalking), Article 120b (child sexual offenses), and Article 120c (other sexual misconduct). All except for Article 120a are relatively new; they were enacted as part of the National Defense Authorization Act for Fiscal Year 2012 (discussed here) (see also our Article 120 (2012) category) and they took effect on June 28, 2012.

Among other things, Article 120c prohibits “indecent viewing, visual recording, or broadcasting.” These three offenses involve knowingly and wrongfully viewing, recording, or broadcasting “the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” Article 120c(a).

But the reach of Article 120c(a)(1) is now significantly limited by a published decision from a three-judge panel of the Navy-Marine Corps CCA in United States v. Quick, __ M.J. __, No. 201300341 (N-M. Ct. Crim. App. Oct. 31, 2014) (link to slip op.). Senior Judge Fischer writes for the panel, finding that the offense of indecent viewing requires that an accused actually view the real-life private area of a person. The CCA reverses the appellant’s conviction for merely viewing a recording (made surreptitiously) of another person’s private area, finding that the specification fails to state an offense.

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In an unpublished opinion in United States v. Torres, No. 201300396 (N-M. Ct. Crim. App. Aug. 28, 2014) (link to unpub. op.), a three-judge panel of the NMCCA rejects an equal protection claim, an as-applied vagueness claim, and an assertion that the military judge erred in using “knowledge of human nature and the ways of the world” in assessing the evidence in a judge-alone trial. Slip op. at 8.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of sexual assault and adultery in violation of Articles 120 and 134. He was sentenced to confinement for two years, reduction to E-1, and a dishonorable discharge. The convictions stemmed from Appellant’s sexual encounter with the heavily-intoxicated wife of another Marine during a house party. The woman – identified as “AM” – fell asleep in a bathroom. Then:

The next thing AM remembered was waking up in the spare bedroom on the air mattress. She had no memory how she got there and was disoriented and in discomfort; she then realized that someone was having sexual intercourse with her. As she started to wake up, she realized that she was wearing only a bikini top. The tank top, shorts, and underwear that she had worn while asleep in the bathroom had been removed.2 By the time she regained her senses, AM saw the appellant, naked, lying next to her. She rolled off the air mattress, grabbed some clothes that were on top of her red suitcase, and went to look for her husband.

Slip op. at 4. AM tried to awaken her husband, who had fallen asleep on a patio table, but he fell to the floor and started bleeding. AM then called 911 and reported her husband’s injuries and that she had been raped.

Appellant was convicted of sexual assault in violation of Article 120(b)(3)(A) (2012): committing a sexual act upon a person who is incapable of consenting due to impairment by an intoxicant. At trial Appellant did not contest that he had a sexual encounter with AM, but asserted that it was consensual and that AM was capable on consenting. Slip op. at 6. On appeal he asserted that the prosecution deprived him of equal protection because he had “higher symptoms of impairment [than AM],” slip op. at 11, that the term “[i]ncapable of consenting to the sexual act due to impairment by alcohol” is unconstitutionally vague, slip op. at 13, and that the military judge improperly used his own “human experience” in place of the evidence presented at trial, slip op. at 9. The CCA rejects all three errors.

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At this link you will find the NDAA Chairman’s markup, which includes:


The Secretary of Defense shall modify the Military Rules of Evidence to clarify that the general military character of an accused is not admissible for the purpose of showing the probability of innocence of the accused, except when evidence of a trait of the military character of an accused is relevant to an element of an offense for which the accused has been charged.  (Emphasis added.)

This is of interest partly because they are talking to the wrong person.  It is the President by executive order who determines and publishes what the rules of evidence are.  Certainly the secretary can direct the Joint Service Committee to study and propose such a change.  But what if the President (unlikely I know) decided against such a change in a future executive order amending the Manual and the rules of evidence.  This seems to show a generalized lack of understanding in the processes, about which many have commented.  As I watched the RSP hearings, I was struck by the number of people who did not seem to fully grasp how all of the moving parts really work.  Yes, I know there are some pretty smart and experienced military lawyers on the staff and such.

In this reportage of the just completed two-day public hearing of the SA Response Systems Panel, the writer notes the commitment of Sen. Gillibrand to offer:

about two dozen sexual assault provisions in the underlying section of the defense bill that originates in her Armed Services Personnel Subcommittee, including ideas from her sometimes rival on the issue, Democratic Sen. Claire McCaskill of Missouri, that would establish new rules for how victims and defendants should be treated. “We’re going to keep offering reform, reform, reform,” Gillibrand said.

It will be interesting to see what amendments on the treatment of an accused are offered, and whether or not they include such recommendations as full time defense investigators.

As an example of the need to fully understand the process I would cite to the proposal that a victim be allowed to make an unsworn statement on sentencing.  Bill Cassara’s written objections and thoughts were read into the record.  His modest proposals if the change were made were not fully adopted by his panel.  But it was interesting to see some push back from the full panel, especially the Chair.  In state and federal court there are extensive pre-sentence reports and “discovery” prior to the consideration of sentence.  This is unlike courts-martial where you typically roll into sentencing within an hour or two, and where the sole responsibility to present a defense case comes from defense counsel.  We all know that victims are rarely cross-examined during sentencing testimony, and usually there has been a pretrial interview and an opportunity for discovery.  That means that what the victim will say is pretty much known.  But what about the victim who introduces something substantial and unheard of before?  The panel proposal allows for the defense being blind-sided with little or no practical opportunity to respond.  The sub-panel chair’s response was that the defense could request a delay.  The full panel chair noted that in federal court such a need was unlikely because of the robust pretrial sentencing discovery and a delay of some kind, or request for sworn testimony subject to cross-examination that would likely be granted by the federal judge, if the new information were new and substantial.  Well again, we all know a delay to investigate is unlikely to happen in a court-martial.  Anyway, take a look and see what you think.  Of course I concur with Bill’s well reasoned proposal if unsworn victim impact statements are enacted in some form.

The two days of hearings can be viewed at C-Span, beginning here.

Today the NMCCA released a massive, 32 page published opinion of the court in United States v. Commander Booker, Military Judge, No. 201300247, 72 M.J. 787 (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 (rank-dependent but a maximum of confinement for 1 month, forfeiture of 2/3 pay per month for 1 month, and reduction to E-1).

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 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.