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.

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.

Over at Lawfare Blog, they’re writing extensively about the detention provisions. Ben Wittes provides a quick and dirty rundown. Also, see this post to review only the detention provisions.

The new, new Article 120, which would give us Art. 120: Rape and sexual assault generally; Art. 120a: Stalking (pre-existing); Art. 120b: Rape and sexual assault of a child; and Art. 120c: Other sexual misconduct. I’ve cut the relevant section out of the conference report and provide it as a pdf here.

Finally, Article 47 (Refusal to appear or testify) would be expanded to included the case of a subpoena duces tecum for an Article 32 investigation.

Of course, this all assumes the conference report is adopted by both houses, and it survives the veto threat.

The conference report on the FY12 NDAA is available here. The following language is found on page 1425 of the pdf:

Privilege in cases arising under Uniform Code of Military Justice against disclosure of communications between sexual assault victims and sexual assault response coordinators, victim advocates, and certain other persons

The House bill contained a provision (sec. 584) that would add a new Article 140a to the Uniform Code of Military Justice establishing a privilege against disclosure of communications between a person who is a victim of a sexual assault and a Sexual Assault Response Coordinator (SARC), a Sexual Assault Victim Advocate, and personnel staffing the Department of Defense (DOD) Safe Helpline or successor operation.

The Senate amendment contained a provision (sec. 564) that would require the President to establish in the Manual for Courts-Martial (MCM) an evidentiary privilege against disclosure of communications to similar effect.

The House and the Senate recede. Neither provision is included in the conference report.

The conferees note that the DOD has indicated that a new Executive Order that would amend the MCM by adding a proposed new Military Rule of Evidence 514 Victim Advocate Privilege has completed all review within the Office of Management and Budget and is now with the President for review and approval. Additionally, DOD has amended its controlling regulations to ensure that the privilege against disclosure applies to communications with a SARC whenever their duties and responsibilities involve victim advocate functions. Once this change to the MCM is signed and implemented, the conferees believe that it accomplishes the objective of ensuring privileged communications for sexual assault victims.

Without the legislative requirement, I continue to wonder (as I did in this comment) about the notice and comment period for this new rule:

The 2009 JSC Annual Review of proposed MCM amendments includes the MRE 514 language. Link here. At the top of the document it states:

JSC 2009 Annual Review Package of Proposed Amendments to the Manual for Courts-Martial by Executive Order. Initially Published in the Federal Register on September 17, 2009.

However, the 17 Sep 2009 Federal Register notice contains no mention of MRE 514. Link here. 

Considering the amendments in the 19 October 2011 notice are supposed to be stylistic, I wonder if we’re missing a notice and comment period for MRE 514?

This morning I figured it out. The privilege is (will likely be) required by the 2012 NDAA. While the bill is in conference to work out differences between the House and Senate versions, the privilege appears in both (so I expect it will survive).

The Senate version contains the following language, requiring the President to promulgate a change to the Manual (i.e., the impending MRE provision):

SEC. 564. REQUIREMENT FOR PRIVILEGE IN CASES ARISING UNDER UNIFORM CODE OF MILITARY JUSTICE AGAINST DISCLOSURE OF COMMUNICATIONS BETWEEN SEXUAL ASSAULT VICTIMS AND SEXUAL ASSAULT RESPONSE COORDINATORS, SEXUAL ASSAULT VICTIM ADVOCATES, AND CERTAIN OTHER PERSONS.

Not later than 60 days after the date of the enactment of this Act, the President shall establish in the Manual for Courts-Martial an evidentiary privilege against disclosure of certain communications by victims of sexual assault with Sexual Assault Response Coordinators, Sexual Assault Victim Advocates, and such other persons as the President shall specify for purposes of the privilege.

The House version adds the privilege to the UCMJ (note: there appears to be a clerical error in the paragraph designations):

SEC. 584. PRIVILEGE IN CASES ARISING UNDER UNIFORM CODE OF MILITARY JUSTICE AGAINST DISCLOSURE OF COMMUNICATIONS BETWEEN SEXUAL ASSAULT VICTIMS AND SEXUAL ASSAULT RESPONSE COORDINATORS, VICTIM ADVOCATES, AND CERTAIN OTHER PERSONS.

(a) Privilege Established-

(1) IN GENERAL- Subchapter XI of chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), is amended by adding at the end the following new section:

`Sec. 940a. Art. 140a. Privilege against disclosure of certain communications with Sexual Assault Response Coordinators, Victim Advocates, and certain other persons

`(a) Privilege Against Disclosure- Communications between a person who is the victim of a sexual assault or other offense covered by section 920 of this title (article 120) and a person specified in subsection (b) and the records relating to such communications are not subject to discovery and may not be admitted into evidence in any case arising under this chapter.

`(b) Persons Covered by Privilege- The privilege granted by subsection (a) applies to–

`(1) a Sexual Assault Response Coordinator;

`(2) a Sexual Assault Victim Advocate; and

`(3) personnel staffing the DOD Safe Helpline or successor operation.

`(c) Consent Exception- The victim of a sexual assault may consent to the disclosure of any communication or record referred to in subsection (a) regarding the victim.

`(d) Relation to Other Privileges Against Disclosure- The privilege granted by subsection (a) in cases arising under this chapter is in addition to any other privilege against disclosure that may exist with regard to communications between a victim of a sexual assault and another person.’.

(2) CLERICAL AMENDMENT- The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 1034a the following new item.

`940a. Art. 140a. Privilege against disclosure of certain communications with Sexual Assault Victim Advocates, Victim Advocates, and certain other persons.’.

(b) Applicability- Section 940a of title 10, United States Code, as added by subsection (a), applies to communications and records described in such section whether made before, on, or after the date of the enactment of this Act.

Policy wonks might appreciate that I think there’s more to the story (the provision appears in both the HASC and SASC reports, but not in the HASC Military Personnel Subcommittee Mark or the HASC Chairman’s Mark), but it looks like the creation of the privilege is a done deal.

Practitioners should appreciate that there’s already been some scholarship on this issue, in the 2005 issue of the Military Law Review: Major Paul M. Schimpf, USMC, Talk the Talk; Now Walk the Walk: Giving an Absolute Privilege to Communications Between a Victim and Victim-Advocate in the Military, 185 Mil. L. Rev. 149 (Fall, 2005) (proposing expansion of the psychotherapist-patient privilege – Mil. R. Evid. 513 – to include  victim advocates).

(c) As used in this section, the term “qualified law enforcement officer” means an employee of a governmental agency who—

(1) is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and has statutory powers of arrest or apprehension under section 807(b) of title 10, United States Code (article 7(b) of the Uniform Code of Military Justice) . . . .

926C has a similar additions to the definition of retired law enforcement officer.  Was this really an issue?  Does this raise posse comitatus issues–which I realize is just another statute, but still an issue unless addressed. 

I can’t imagine this is not in support of or an attempt to counter the Sen. Ayotte amendments (see S7716-17) or others amendments dealing with turnover of detainees to the military or interrogation techniques, because Sen. Leahy opposes almost all of those.

I note that the page also has the nomination for Army General Counsel, who is also a former judge advocate, Brad Carsonis (“an associate professor of business law at the University of Tulsa, where he is also Director of the National Energy Policy Institute”).

H/t LTC Bobby Don

h/t John Baker

Here is a link to the full HR 1517, the Holley Lynn James Act, introduced on April 13, 2011.  The act’s namesake was “an Army 2nd Lieutenant . . . [that] was murdered by her husband, a Marine corporal, after a series of domestic violence instances that were not seriously addressed by the military.”  Story here. The Act also has a portion. Sec. 4, that would permit suits against the military for failure to address cases of domestic violence/assault.

Here is the military justice portion of the bill:

SEC. 3. DISPOSITION OF RAPE, SEXUAL ASSAULT OR SEXUAL HARASSMENT AND DOMESTIC VIOLENCE CASES WITHIN THE UNIFORM CODE OF MILITARY JUSTICE.

. . .

‘‘§ 940A. Art. 140A. Disposition of rape, sexual assault, sexual harassment, and domestic violence cases

‘‘(a) SPECIAL DISPOSITION.—Notwithstanding any other provision of law, there shall be special disposition for charges stemming from a sexual-related offense and charges involving an allegation of domestic violence committed by a member of the Armed Forces as follows:

‘‘(1) A case involving such charges shall automatically be referred to a general court-martial convening authority, as described in section 818 of this title (article 18).

‘‘(2) The staff judge advocate shall provide detailed billets for prosecutors in cases involving allegations of rape or sexual assault, to be filled by a field-grade officer of the Judge Advocate General’s Corps with a rank of O–4 or higher.

‘‘(3) In a case involving an accusation of rape, sexual assault, harassment, or domestic violence, the facts of the case shall be given precedence over the value to the service of the accused.

‘‘(4) In a case involving an accusation of rape, sexual assault, or harassment, the accused will not be eligible for non-judicial punishment or administrative punishment if found guilty.

‘‘(b) VICTIM’S RIGHTS.—A victim in a case involving allegations of rape, sexual assault, harassment, or domestic violence shall have rights as follows:

‘‘(1) The Secretary concerned shall provide counsel for the victim, in the same manner as counsel is provided for an accused under section 827(b) of this title (article 27), for any investigation or courts-martial proceeding relating to the case.

‘‘(2) All communications between a victim and a victim’s advocates or the victim’s counsel shall be considered privileged communications for purposes of the case and any proceedings relating to the case.

‘‘(3) A victim may appeal the decision of a general court martial in the case to the appropriate Court of Criminal Appeals under section 866 of this title (article 66).

‘‘(c) REVISION OF MANUAL FOR COURTS-MARTIAL.—The Joint Service Committee on Military Justice shall amend the Manual for Courts-Martial to reflect this section, with especially section 306 of such manual concerning disposition”

‘‘(d) PURPOSE.—The purpose of this section is to assure proper treatment of sexual assault cases in military judicial system, remove cases from chain of command that may contain both victim and accused, prevent non-judicial punishment and determination being decided in case by unqualified personnel without legal experience, considers the rights of the victim.’’.

There are three sections in the new bill’s ”Military Justice and Legal Matters” subtitle:

Sec. 541. Continuation of warrant officers on active duty to complete disciplinary action.

Sec. 542. Enhanced authority to punish contempt in military justice proceedings.

 Sec. 543. Improvements to Department of Defense domestic violence programs.

The first of those sections would add this statutory language to the United States Code (but elsewhere than the UCMJ):

A warrant officer subject to discharge or retirement under this section, but against whom any action has been commenced with a view to trying the officer by court-martial, may be continued on active duty, without prejudice to such action, until the completion of such action.

The contempt section would enlarge military contempt power three ways.  First, it would extend contempt authority to CCAs and CAAF.  Second, it would expand the contempt power from its current direct contempt boundaries and also reach disobedience of court orders.  Under the revision, the authority to punish for contempt would reach “any person” who ”willfully disobeys the lawful writ, process, order, rule, decree, or command” of the court.  Finally, it would raise the $100 fine limit to $1,000, while leaving the 30 day cap on confinement in place.

Section 543 directs SECDEF to implement within a year recommendations by the Comptroller General concerning domestic violence programs, including developing a ”Defense Incident-Based Reporting System,” ensuring that domestic violence programs are adequately staffed, develop a plan for obtaining data concerning domestic violence training for chaplains, and developing a plan for SECDEF oversight.

Thanks to Anon, again, here is a link to the Panel’s “homepage.”  Ifit asks you for search criteria, enter 73653 in the Committee Number field.   To see the documents the committee is reviewing, click on Meeting and then the link for documents. 

From my review of the Marine Corps’ presentation (slides 48-51 in particular), and Navy JAG, it would appear that the Marine Corps is making a big push for equality in this process.  In particular they are looking for parity of consideration of Marine Corps JAs for all AJAG slots and for consideration of Marine Corps JAs as the DoN JAG (as they phrase it). 

Considering this push, the now unavailable 1995/6 memo on the ability of Marine Corps JAs to be considered for Navy JAG was quite topical.   If anyone associated with the panel is reading, four documents that are no longer available on fido.gov appeared, on a quick scan, to be very interesting and relevant to this push by the Marine Corps.  I would personally appreciate if they could again be made available to the public.  The documents are (numbers correspond to the Aug. 30, 2010 index):

10. Commandant of the Marine Corps Memorandum for the Secretary of the Navy dtd 25 Apr 1994, Marine Nominees for Appointments to be the Judge Advocate General and the Deputy Judge Advocate General

11. Navy Judge Advocate General Memorandum for the General Counsel of the Navy dtd 22 May 1995, Marine Nominees for Appointment to be the Judge Advocate General and Deputy Judge Advocate General of the Navy

12. Navy Judge Advocate General Memorandum for the Principal Deputy General Counsel of the Navy dtd 4 Mar 1996, Proposed Legislation to Modify Statutes to Select the Judge Advocate General of the Navy and the Staff Judge Advocate to the Commandant of the Marine Corps

13. General Counsel of the Navy Memorandum for Secretary of the Navy, Under Secretary of the Navy dtd 9 May 1996, Marine Corps Nominees for Appointment as the Judge Advocate General and Deputy Judge Advocate General of the Navy

Gracias.

Update:  There are also some interesting historical materials in Section E. of the outline, such as this memo on the policy and legal considerations of appointing a Marine Corps judge advocate as the Navy JAG.

Update 2:  Somehow or someone the links are all becomming inaccessible.  I am slowly collecting all the documents and publishing them on a separate page.

1) Mr. Daniel J. Dell’Orto, Chairman (former DoD General Counsel);

2) Ms. Judith A. Miller (former DoD General Counsel);

3) Mr. William Molzahn (former Principal Deputy General Counsel of
the Navy);

4) Lt. Gen. Henry P. Osman, USMC (Ret.) (former Deputy Commandant of
the Marine Corps for Manpower and Reserve Affairs); and

5) RADM James E. McPherson, JAGC, USN (Ret.) (former Judge Advocate General of the Navy).

Now for the hearing notice:

DEPARTMENT OF DEFENSE

Department of the Navy
Meeting of the Independent Panel To Review the Judge Advocate Requirements of the Department of the Navy

AGENCY: Department of the Navy, DoD.

ACTION: Notice of open meeting.

———————————————————————–

Federal Register: August 16, 2010 (Volume 75, Number 157)]

SUMMARY: The Independent Panel to Review the Judge Advocate Requirements of the Department of the Navy (DoN) (hereinafter referred to as the Panel) will hold an open meeting. The Panel will meet in order to hear testimony from senior members of the Judge Advocate General’s Corps (JAGC) and the U.S. Marine Corps (USMC) and to conduct deliberations concerning the judge advocate requirements of the DoN.  These sessions will be open to the public, subject to the availability of space. In keeping with the spirit of FACA, the Panel welcomes written comments concerning its work from the public at any time. Interested citizens are encouraged to attend the sessions.

DATES: The meeting will be held on Wednesday, September 1, 2010, from 8 a.m. to 5 p.m.

ADDRESSES: The meeting will be held at the Residence Inn Arlington Pentagon City, 550 Army Navy Drive, Arlington, VA 22202.

FOR FURTHER INFORMATION CONTACT: Any member of the public wishing further information concerning this meeting or wishing to submit written comments may contact: Mr. Frank A. Putzu, Designated Federal Official, Department of the Navy, Office of the General Counsel, Naval Sea Systems Command, Office of Counsel, 1333 Isaac Hull Avenue, SE, Washington Navy Yard, Building 197, Rom 4W-3153, Washington, DC 20376, via Telephone: 202-781-3097; Fax: 202-781-4628; or e-mail: frank.putzu@navy.mil.

SUPPLEMENTARY INFORMATION: Pursuant to the provisions of section 506 of Public Law 111-84, the Federal Advisory Committee Act (FACA) of 1972, (5 U.S.C. Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.50, this is a public meeting and interested citizens are encouraged to attend the sessions.

Interested persons may submit a written statement for consideration by the Panel at any time prior to August 23, 2010.

D. J. Werner,
Lieutenant Commander, Office of the Judge Advocate General, U.S. Navy,
Federal Register Liaison Officer.
[FR Doc. 2010-20153 Filed 8-13-10; 8:45 am]
BILLING CODE 3810-FF-P

Two of the 13 members who signed onto the dissenting views–Congressmen Gohmert and Rooney–have served as Army judge advocates.  Congressman Rooney often touts his experience as a former law professor at West Point.

It should be immediately obvious to any past or present judge advocate that points 1-7 on pages 14-16 of the committee report aren’t addressed to the proposed expansion of Supreme Court cert jurisdiction, but rather address whether the CCAs’ Article 66 jurisdiction should be expanded to include courts-martial in which the accused isn’t sentenced to a punitive discharge or a year or more of confinement.  It should also be immediately obvious to anyone who has read the proposed Equal Justice for Our Military Act that the bill doesn’t affect the CCAs’ jurisdiction.

Here’s my serious question:  how do the names of two previous judge advocates, who should have instantly recognized that the dissenting views are seriously flawed, get included on those dissenting views?  I’m not familiar with the ways of Capitol Hill.  Does some staff member add their names without consulting the Congressmen?  Do the Congressmen authorize their names to be added without actually reading the dissenting views?  Is there another reasonable explanation that’s escaping me?

Look at pages 14-16 of the report, in which the 13 dissenting committee members set out seven arguments purportedly against the bill.  Those aren’t arguments against expanded cert jurisdiction; those are arguments against lifting the current requirement of a punitive discharge and/or a year of confinement to qualify for Article 66 appellate review.  No such lifting of the jurisdictional prerequisites for Article 66 review is included in the bill. How does it happen that these points are included in a congressional committee report when they’re irrelevant to the legislation at issue?  That strikes me as a major error.

h/t NBM3

This 39-page title would make many changes, including amendments to the UCMJ.  One of the portions that would affect military justice practice is section 1614, which would require the convening authority to consider the alleged victim’s opinion as to how a sexual assault allegation should be handled.  That section provides:  “Before making a decision regarding how to proceed under the Uniform Code of Military Justice in the case of an alleged sexual assault or other offense covered by section 920 of title 10, United States Code (article 120), the commanding officer shall offer to meet with the victim of the offense to determine the opinion of the victim regarding case disposition and provide that information to the convening authority.”

The bill would also require publicizing the results of sexual assault cases.  Article 53 of the UCMJ would be amended by adding:  “Dissemination of Results to Command in Certain Cases- In the case of an alleged sexual assault or other offense covered by section 920 of this title (article 120), the trial counsel shall notify the servicing staff judge advocate at the military installation, who shall notify the convening authority and commanders, as appropriate. In consultation with the servicing staff judge advocate, the commanding officer shall notify members of the command of the outcome of the case.”

Article 54 would be amended to require that a copy of the ROT be given to any alleged sexual assault victim who testified in a case:  “In the case of a general or special court-martial involving a sexual assault or other offense covered by section 920 of this title (article 120), a copy of the prepared record of the proceedings of the court-martial shall be given to the victim of the offence if the victim testified during the proceedings. The record of the proceedings shall be provided without charge and as soon as the record is authenticated. The victim shall be notified of the opportunity to receive the record of the proceedings.”

The bill would establish a privilege for communications between a victim and a Sexual Assault Victims Advocate co-extensive with the patient/psychiatrist privilege.

Perhaps most significantly, section 1643 of the bill would allow a servicemember or a dependent who is an alleged sexual assault victim to make a confidential report to:

(A) Military legal assistance counsel.

(B) Sexual Assault Response Coordinator.

(C) Sexual Assault Victim Advocate.

(D) Healthcare personnel.

(E) Chaplain.

The same section would also allow such servicemembers or dependents to decline to participate in an investigation.

And the section would create a statutory entitlement to legal assistance for such servicemembers and dependents:

(a) Availability of Legal Assistance and Victim Advocate Services-

(1) MEMBERS- A member of the armed forces or a dependent of a member of the armed forces who is the victim of a sexual assault is entitled to–

(A) legal assistance provided by a military legal assistance counsel certified as competent to provide such duties pursuant to section 827(b) of this title (article 27(b) of the Uniform Code of Military Justice); and

(B) assistance provided by a qualified Sexual Assault Victim Advocate.

Finally, the bill would require a report on the effectiveness of Article 120:

(a) Review Required- The Secretary of Defense shall conduct a review of the effectiveness of section 920 of title 10, United States Code (article 120 of the Uniform Code of Military Justice), as amended by section 552 of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109-163; 119 Stat. 3256). The Secretary shall use a panel of military justice experts to conduct the review.

(b) Submission of Results- Not later than one year after the date of the enactment of this Act, the Secretary of Defense shall submit the results of the review to the congressional defense committees.