Although the letter was addressed to the Secretary, the proposals would require substantial statutory changes, and would functionally remove commanders from their role as convening authority in sexual assault cases.  Instead of having commanders determine the proper disposition of cases, Ms. Parrish and Mr. Jacob urge that “impartial experts” be given the task:

The great deference afforded to command discretion, sets up a dynamic fraught with conflict of interest and potential for abuse of power.

Some are now arguing that base commanders are yielding to political pressure and are automatically referring cases to the UCMJ. Although we have not seen credible data to support this assertion, this claim validates what we are advocating: that the authority to adjudicate cases of sexual assault and rape be given to impartial experts to determine the path of these cases and care of the victims.

In order to solve this problem, we believe that DoD must take the prosecution, reporting, oversight, investigation, and victim care of sexual assaults out of the hands of the normal chain of command and place the jurisdiction in the hands of an impartial office staffed by experts – both military and civilian.

The entire letter can be found here.

The “Revised Article 120″ splits sexual offenses into three Articles (plus Article 120a – Stalking) and eliminates some of the most difficult aspects of the “New Article 120.” The Revised Article 120:

• Delineates  11 offenses (including stalking):
1. Rape (Art. 120 (a))
2. Sexual Assault (Art. 120 (b))
3. Aggravated Sexual Contact (Art. 120 (c))
4. Abusive Sexual Contact (Art. 120 (d))
5. Stalking (Art. 120a)
6. Rape of a Child (Art. 120b (a))
7. Sexual Assault of a Child (Art. 120b (b))
8. Sexual Abuse of a Child (Art. 120b (c))
9. Indecent Viewing, Visual Recording, or Broadcasting (Art. 120c (a))
10. Forcible Pandering (Art. 120c (b))
11. Indecent Exposure (Art. 120c (c))
• Simplifies defenses to include all defenses available under the Rules for Courts-Martial (of note: An accused must prove a marriage or mistake of fact as to age (defenses to certain offenses with a child) by a preponderance of the evidence).
• Repeals language that eliminated “consent” and “mistake of fact as to consent” as issues (except for offenses against children (Art. 120b)).
• Repeals the burden-shift for an affirmative defense (Art. 120 (t)(16)).
• Expands the definition of “bodily harm” to explicitly include non-consensual sexual acts and contact.
• Expands the definition of “sexual act” to include contact between the penis and the “vulva or anus or mouth,” and to include penetration of the vulva or anus or mouth by “any part of the body” or object.
• Expands the definition of “sexual contact” in include touching of “any body part of any person” if done with requisite intent.

After the break I reproduce the “revised” text, noting repealed sections of the “new” text with strikeouts, new language in the “revised” text with underlines, and my notations in italics.

§ 920. Art. 120. Rape and Sexual Assault Generally

Contents (not part of legislative text):
(a) Rape.
(b) Sexual assault.
(c) Aggravated sexual contact.
(d) Abusive sexual contact.
(e)  Proof of threat.
(f) Defenses.
(g) Definitions.
          (1) Sexual act.
          (2) Sexual contact.
          (3) Bodily harm.
          (4) Grievous bodily harm.
          (5) Force.
          (6) Unlawful Force
          (7) Threatening or placing that other person in fear.
          (8) Consent.

(a) Rape. Any person subject to this chapter who causes commits a sexual act upon another person of any age to engage in a sexual act 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 another person unconscious; or

(5) administering to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairs 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.

(b) Rape of a child. Incorporated in Article 120b (a) – Rape of a Child.

(b) (c) Aggravated Sexual assault. Any person subject to this chapter who—

(1) commits a sexual act upon another person causes another person of any age to engage in a sexual act by—

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

(B) causing bodily harm to that other person; or

(C) making a fraudulent representation that the sexual act serves a professional purpose; or

(D) inducing a belief by any artifice, pretense, or concealment that the person is another person;

(2) engages in commits a sexual act upon with another person when the person knows or reasonably should know that the other person is asleep, unconscious, or other unaware that the sexual act is occurring; or

(3) commits a sexual act upon another person when the other person is incapable of consentinf to the sexual act due to-

(A) impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person; or

(B) a mental disease or defect, or physical disability, and that condition is known or reasonably should be known by the person;

of any age if that other person is substantially incapacitated or substantially incapable of—

(A) appraising the nature of the sexual act;

(B) declining participation in the sexual act; or

(C) communicating unwillingness to engage in the sexual act;

is guilty of aggravated sexual assault and shall be punished as a court-martial may direct.

(d) Aggravated sexual assault of a child. Incorporated in Article 120b (b) – Sexual Assault of a Child.

(c) (e) Aggravated sexual contact. Any person subject to this chapter who engages in commits or causes sexual contact with upon or by another person, if to do so would violate subsection (a) (rape) had the sexual contact been a sexual act, is guilty of aggravated sexual contact and shall be punished as a court-martial may direct.

(d) (h) Abusive sexual contact. Any person subject to this chapter who engages in commits or causes sexual contact with upon or by another person, if to do so would violate subsection (c) (b) (aggravated sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct.

(f) Aggravated sexual abuse of a child. Incorporated in Article 120b (c) – Sexual Abuse of a Child.

(g) Aggravated sexual contact with a child. Incorporated in Article 120b (c) – Sexual Abuse of a Child.

(i) Abusive sexual contact with a child. Incorporated in Article 120b (c) – Sexual Abuse of a Child.

(j) Indecent liberty with a child. Incorporated in Article 120b (c) – Sexual Abuse of a Child.

(k) Indecent act. Any person subject to this chapter who engages in indecent conduct is guilty of an indecent act and shall be punished as a court-martial may direct. Incorporated in Article 120c(a) – Indecent Viewing, Visual Recording, or Broadcasting.

(l) Forcible pandering. Moved to Article 120c (b) – Forcible Pandering.

(m) Wrongful sexual contact. Repealed. Incorporated into Art. 120 (c) Abusive sexual contact, by the expanded definition of  bodily harm at Art. 120 (g)(3).

(n) Indecent exposure. Moved to Article 120c (c) – Indecent Exposure.

(o) Age of child. Incorporated in Article 120b (c)(d) – Age of Child.

(e)  (p) Proof of threat. In a prosecution under this section, in proving that the accused a person made a threat, it need not be proven that the accused person actually intended to carry out the threat or had the ability to carry out the threat.

(f) Defenses – An accused may raise any applicable defenses available under this chapter or the Rules for Court-Martial [sic]. Marriage is not a defense for any conduct in issue in any prosecution under this section.

(q) Marriage. Incorporated in Article 120 (f) – Defenses.

(r) Consent and mistake of fact as to consent. Incorporated in Article 120 (f) – Defenses.

(s) Other affirmative defenses not precluded. Incorporated in Article 120 (f) – Defenses.

(g) (t) Definitions. In this section:

(1) Sexual act. The term “sexual act” means—

(A) contact between the penis and the vulva or anus or mouth, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or

(B) the penetration, however slight, of the genital opening vulva or anus or mouth of another by a hand or finger 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.

(2) Sexual contact. The term “sexual contact” means the intentional touching,

(A) touching, or causing another person to touch, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another any person, with an intent to abuse, humiliate, or degrade any person; or

(B) any touching, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, any body part of any person, with an intent to abuse, humiliate, or degrade any person or, if done with an intent to arouse or gratify the sexual desire of any person.

Touching may be accomplished by any part of the body.

(3) (8) Bodily harm. The term “bodily harm” means any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact.

(4) (3) Grievous bodily harm. The term “grievous bodily harm” means serious bodily injury. It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose. It is the same level of injury as in section 928 (article 128) of this chapter, and a lesser degree of injury than in section 2246(4) of title 18.

(4) Dangerous weapon or object. Repealed.

(5) Force. The term “force” means action to compel submission of another or to overcome or prevent another’s resistance by –

(A) the use of a weapon;

(B) the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or

(C) inflicting physical harm sufficient to coerce or compel submission by the victim.

(6) Unlawful Force – The term ‘unlawful force’ means an act of force done without legal justification or excuse.

(7) Threatening or placing that other person in fear. Repealed.

(7) (6) Threatening or placing that other person in fear. The term “threatening or placing that other person in fear” under paragraph (3) of subsection (a) (rape), or under subsection (e) (aggravated sexual contact), means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to death, grievous bodily harm, or kidnapping the wrongful action contemplated by the communication or action.

(8) (14) Consent.

(A) The term “consent” means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused’s use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent.

(B) A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious. A person cannot consent while under threat or in fear or under the circumstances described in subparagraph (C) or (D) of subsection (b)(1).

(C) Lack of consent may be inferred based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person’s actions.

A person cannot consent to sexual activity if—

(A) under 16 years of age; or

(B) substantially incapable of—

(i) appraising the nature of the sexual conduct at issue due to

(I) mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise; or

(II) mental disease or defect which renders the person unable to understand the nature of the sexual conduct at issue;

(ii) physically declining participation in the sexual conduct at issue; or

(iii) physically communicating unwillingness to engage in the sexual conduct at issue.

(9) Child. The term “child” means any person who has not attained the age of 16 years. Incorporated in Article 120b (d) – Age of Child.

(10) Lewd act. The term “lewd act” means— Repealed, but see Article 120 (b)(h)(5) – Lewd Act.

(11) Indecent liberty. The term “indecent liberty” means indecent conduct, but physical contact is not required. Incorporated in Article 120b (h)(5) – Lewd Act.

(12) Indecent conduct. Incorporated in Article 120b (h)(5) – Lewd Act; and Article 120 (c)(a) – Indecent Viewing.

(13) Act of prostitution. The term “act of prostitution” means a sexual act, sexual contact, or lewd act for the purpose of receiving money or other compensation. Incorporated in Article 120c (d)(1).

(15) Mistake of fact as to consent. Repealed.

(16) Affirmative defense. Repealed.

§ 920a.  Art. 120a. Stalking  Unchanged

§ 920b.  Art. 120b. Rape and sexual assault of a child

Contents (not part of legislative text):
(a) Rape of a Child.
(b) Sexual Assault of a Child.
(c) Sexual Abuse of a Child.
(d) Age of Child.
(e) Proof of Threat.
(f) Marriage.
(g) Consent.
(h) Definitions.
          (1) Sexual Act and Sexual Contact.
          (2) Force.
          (3) Threatening or Placing That Child in Fear.
          (4) Child.
          (5) Lewd Act.

(a) Rape of a Child- Any person subject to this chapter who– (Formerly Article 120 (b))

(1) engages in a commits a sexual act with a upon a child who has not attained the age of 12 years; or

(2) engages in a sexual act under the circumstances described in subsection (a) with a child who has attained the age of 12 years;

(2) commits a sexual act upon a child who has attained the age of 12 years by–

(A) using force against any person;

(B) threatening or placing that child in fear;

(C) rendering that child unconscious; or

(D) administering to that child a drug, intoxicant, or other similar substance;

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

(b) Sexual Assault of a Child- Any person subject to this chapter who engages in commits a sexual act with upon a child who has attained the age of 12 years is guilty of aggravated sexual assault of a child and shall be punished as a court-martial may direct. (Formerly Article 120 (d))

(c) Sexual Abuse of a Child- Any person subject to this chapter who engages in commits a lewd act with upon a child is guilty of aggravated sexual abuse of a child and shall be punished as a court-martial may direct. (Formerly Article 120 (f))

(d) Age of Child- (Formerly Article 120 (o))

(1) Under 12 Years- In a prosecution under this section, it need not be proven that the accused knew that the other person engaging in the sexual act, contact, or liberty had not attained the age of 12 years the age of the other person engaging in the sexual act or lewd act. It is not an affirmative defense that the accused reasonably believed that the child had attained the age of 12 years.

(2) Under 16 Years- In a prosecution under this section, it need not be proven that the accused knew that the other person engaging in the sexual act or lewd act had not attained the age of 16 years, but it is an affirmative defense that the accused reasonably believed that the child had attained the age of 16 years a defense in a prosecution under subsection (b) (sexual assault of a child) or subsection (c) (sexual abuse of a child), which the accused must prove by a preponderance of the evidence, that the accused reasonably believed that the child had attained the age of 16 years, if the child had in fact attained at least the age of 12 years.

(e) Proof of Threat- In a prosecution under this section, in proving that a person made a threat, it need not be proven that the person actually intended to carry out the threat or had the ability to carry out the threat.

(f) Marriage- In a prosecution under subsection (b) (sexual assault of a child) or subsection (c) (sexual abuse of a child), it is an affirmative defense, which the accused must prove by a preponderance of the evidence, that the persons engaging in the sexual act or lewd act were at that time married to each other, except where the accused commits a sexual act upon the person when the accused knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring or when the other person is incapable of consenting to the sexual act due to impairment by any drug, intoxicant, or other similar substance, and that condition was known or reasonably should have been known by the accused. (Formerly Article 120 (q))

(g) Consent- Lack of consent is not an element and need not be proven in any prosecution under this section. A child not legally married to the person committing the sexual act, lewd act, or use of force cannot consent to any sexual act, lewd act, or use of force.

(h) Definitions- In this section:

(1) Sexual Act and Sexual Contact- The terms `sexual act’ and `sexual contact’ have the meanings given those terms in section 920(g) of this title (article 120(g)).

(2) Force – The term ‘force’ means–

(A) the use of a weapon;

(B) the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a child; or

(C) inflicting physical harm.

In the case of a parent-child or similar relationship, the use or abuse of parental or similar authority is sufficient to constitute the use of force.

(3) Threatening or Placing That Child in Fear- The term ‘threatening or placing that child in fear’ means a communication or action that is of sufficient consequence to cause the child to fear that non-compliance will result in the child or another person being subjected to the action contemplated by the communication or action.

(4) Child- The term ‘child’ means any person who has not attained the age of 16 years.

(5) Lewd Act- The term `lewd act’ means–

(A) any sexual contact with a child;

(B) intentionally exposing one’s genitalia, anus, buttocks, or female areola or nipple to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person;

(C) intentionally communicating indecent language to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or

(D) any indecent conduct, intentionally done with or in the presence of a child, including via any communication technology, that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

§ 920c.  Art. 120c. Other sexual misconduct

Contents (not part of legislative text):
(a) Indecent Viewing, Visual Recording, or Broadcasting.
(b) Forcible Pandering.
(c) Indecent Exposure.
(d) Definitions.
          (1) Act of Prostitution.
          (2) Private Area.
          (3) Reasonable Expectation of Privacy.
          (4) Broadcast.
          (5) Distribute.
          (6) Indecent Manner.

(a) Indecent Viewing, Visual Recording, or Broadcasting- Any person subject to this chapter who, without legal justification or lawful authorization– (1) knowingly and wrongfully views 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;

(2) knowingly photographs, videotapes, films, or records by any means 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; or

(3) knowingly broadcasts or distributes any such recording that the person knew or reasonably should have known was made under the circumstances proscribed in paragraphs (1) and (2);

is guilty of an offense under this section and shall be punished as a court-martial may direct.

(b) Forcible Pandering- Any person subject to this chapter who compels another person to engage in an act of prostitution with another any person to be directed to said person is guilty of forcible pandering and shall be punished as a court-martial may direct. (Formerly Article 120 (l)).

(c) Indecent Exposure- Any person subject to this chapter who intentionally exposes, in an indecent manner, in any place where the conduct involved may reasonably be expected to be viewed by people other than members of the actor’s family or household, the genitalia, anus, buttocks, or female areola or nipple is guilty of indecent exposure and shall by punished as a court-martial may direct. (Formerly Article 120 (n)).

(d) Definitions- In this section:

(1) Act of Prostitution- The term ‘act of prostitution’ means a sexual act or sexual contact (as defined in section 920(g) of this title (article 120(g))) or lewd act on account of which anything of value is given to, or received by, any person for the purpose of receiving money or other compensation. (Formerly Article 120 (t)(13))

(2) Private Area- The term ‘private area’ means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple.

(3) Reasonable Expectation of Privacy- The term ‘under circumstances in which that other person has a reasonable expectation of privacy’ means–

(A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the person was being captured; or

(B) circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public.

(4) Broadcast – The term ‘broadcast’ means to electronically transmit a visual image with the intent that it be viewed by a person or persons.

(5) Distribute- The term ‘distribute’ means delivering to the actual or constructive possession of another, including transmission by electronic means.

(6) Indecent Manner- The term ‘indecent manner’ means conduct that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

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).

Navy judge advocate manning:

Given the existing budgetary programming authorizations for the Navy JAG Corps over the next five years, there will be a significant shortage of active-duty judge advocates in the U.S. Navy by 2015. The current shortage poses a significant level of legal risk to the DON and the Joint force, and a significant level of professional risk to the Navy JAG Corps. The DON and the U.S. Navy should act to mitigate these risks. 

SJA to the CMC role:

The Panel recommends clarifying and strengthening the role of the SJA to CMC for supervision of the administration of military justice in the Marine Corps, for the delivery of legal assistance services within the Marine Corps, and for the professional and technical supervision of Marine judge advocates.

Marine Corps JAs competing for JAG spot:

Finally, the Panel notes that under sections 5148 and 5149 of title 10, the JAG is appointed from qualified judge advocates of the Navy or the Marine Corps and the Deputy JAG is appointed from qualified judge advocates of the Navy and the Marine Corps.  The Panel does not take any position on whether there should be competition for the JAG or Deputy JAG positions among Navy Judge advocates and Marine judge advocates. The Panel notes that the Secretary of the Navy did not address the issue, nor did the Panel request that he take a position on the issue. Although the Panel has great respect for the strongly held positions of the CNO and the Commandant, in light of our statutory mandate, the Panel does not feel it is appropriate to take a position on this issue.

Here is the link to all of the 506 Panel’s documents.

The complaint states that the Armed Forces have not been able to “eradicate a well-entrenched misogynistic military culture that permits Command to scoff at rape allegations, threaten victims with courts martial and exercise unfettered discretion to decide to use ‘non-judicial punishment’ to penalize rape and sexual assault.”

The suit is filed by 17 veterans represented by Susan Burke.  The complaint is available here.

The link also includes letters from the Commandant of the Marine Corps and the Chief of Naval Operations concerning whether it’s appropriate to select a Marine judge advocate as the Judge Advocate General of the Navy or Deputy Judge Advocate General.  Care to guess which one said yes and which one said no?  From General Amos’s letter:  “I am strongly in favor of Marines competing for these and other Departmental leadership positions.  Leaving aside the benefit that would likely accrue to the Marine Corps, I believe that such competition can only make the Department a stronger and better integrated team.”  From Admiral Roughead’s letter:  “Having a Marine judge advocate serve as JAG or Deputy JAG would change what I regard as a logical and efficient construct that has served the Department of the Navy and the U.S. Navy extremely well.”  He argues that there are 328,000 members of the Navy compared to 202,000 Marines.  And there are 828 active duty Navy JAGs compared to 435 Marine active duty judge advocates.  He also notes that the ratio of flag officers to judge advocates is the same within the existing Navy and Marine Corps judge advocate communities.  He also argues that the U.S. Navy receives collateral benefits from the Judge Advocate General of the Navy and that the senior Navy lawyer should lead the Navy JAG Corps.

Navy defense and prosecution lawyers have been operating “without a lot of support and assistance” available to them, Houck said. That was not a problem in the 1980s, when court-martial was a big practice and the lawyers’ main line of work. “By organizing the way we are now — by setting up a defense counsel assistance program and trial counsel assistance program, and also putting Region and Naval Legal Service Offices in slightly different chains of command in which they each report to another senior Navy captain with experience in their business — we will give more assistance and oversight,” he said. Houck acknowledged that the Marine Corps is “a little further along” in that it has a separate defense command, which only does criminal defense and is entirely independent of the prosecution function. The Army also created a separate command solely for defense counsel in 1980. Houck said, “We’ll be there in about two years.”

The unflappable JO’C is quoted in the story saying, “I do think for trial counsel and defense counsel in the field, the training and mentorship are very much hit or miss. Having a defense counsel assistance program is a very positive development.”  I think we can all agree on that.

The military commissions system provides an opportunity to study a system that is somewhat similar to the court-martial system but that allows waiver of appellate review as a PTA term.  The PTA under which Omar Khadr pleaded guilty last week (available here, courtesy of the Miami Herald) included a requirement for waiving appellate review.  Here’s what it provided:

I offer and agree to . . . f.  Sign and execute the document found at Attachment B, a two (2) page document that is Military Commission Form 2330, Waiver/Withdrawal of Appellate Rights, within the specified timeframe found within Attachment B and R.M.C. 1110. In doing so I understand I will. at the time of execution of Attachment B, waive my rights to appeal this conviction, sentence, and/or detention to the extent permitted by law, or to collaterally attack my conviction, sentence, and/or detention in any judicial forum (found in the United States or otherwise) or proceeding, on any grounds, except that I may bring a post-conviction claim if any sentence is imposed in excess of the statutory maximum sentence or in violation of the sentencing limitation provisions contained in this agreement. I have been informed by my counsel orally and in writing of my post-trial and appellate rights.

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.

One of the many reasons (in addition to those mentioned by others) sentences are low in the military justice system, compared to our civilian counterparts (including our state counterparts) is that many TC’s are ill prepared for a robust sentencing case.  They simply have so little actual trial experience that they put all their eggs into getting the conviction.  They don’t really know what cases are worth, as they have nothing to bounce the sentence off of.  To young and inexperienced counsel, they often times ask for the max in a case that is at best a serious mast case.  Furthermore, they have no idea what other similarly situated accused have received in the past, so they essentially wing it. 

They don’t have the luxury that state and federal prosecutors have in terms of experience, AND, they don’t have a pre-sentence report prepared by Parole/Probation between the time of the conviction and sentencing.  

Of course, these comparisons are strained, because many (if not most) civilian defendants have criminal records by the time they “graduate” to felonies (we all know of exceptions to that general observation).  Prior convictions generally jack up the final sentence. 

Although I am not proposing these changes, certainly an alternative to the current structure is to require unanimous verdicts AND establish a determinate sentencing scheme, much like they have in California.  The result would be a substantial increase in the number of hung juries, and, for those convicted, more uniformity across similar crimes.  

For example, in California a conviction for a petty theft with a prior (a prior conviction for misdemeanor petty theft) exposes the defendant to one of three possible sentences: 18 months (called “the low”), 2 years (called “the mid”) or 3 years (called “the high”).  In California, judges do the sentencing, but there is no reason you could not allow the members to make that decision vice the judge.  In many crimes, the judge has the option of awarding the convict probation in lieu of a jail sentence.  The judge would sentence the defendant to prison for a period of years, suspend the sentence, and place the defendant on probation for two or three years.  Successfully complete probation and you get out from under your sentence.  Violate probation, and you may go to jail at the conclusion of the probation violation hearing.  (Parole and probation is an entirely separate subject, and problematic in the military justice system.) 

So, in the military context for example, a conviction for assault with a deadly weapon (current statutory max is 3 years) could expose an accused to a jail sentence of:  no time; 1.5 years; 3 years.  

Policy makers would have to weigh the pros/cons of setting determinate sentencing schemes, if they went down that road in the first place. 

There is no perfect sentencing system, at the state, federal, or military level; however, there is much room for improvement in our military system.  We have a unique justice system for lots of good reasons, however, and should be wary about trying to civilianize it. 

BZ to Colin for starting this conversation.

That being said, with all the hype (admittedly much of it by us here at CAAFlog) and the intriguing topics that Cox Commission II was to address, the sequel to Judge Cox’s oft quoted first Commission Report was a very ordinary sequel.  I don’t know if it was the sophomore jinx or the problem with trying to top your first stellar effort, but whatever it was this report elicited few groans or exclamations.  While our comments are discussing the recommendation concerning government attacking its own expert (provided to the defense), even that recommendation is relatively tame compared to Cox I’s recommendations regarding CA reform and member selection. 

And what about the issue of appellate reform?  Cox II only scratches the surface, basically reiterating CAAFlog commenter JO’C's recommendation for appellate review waiver (in fact citing JO’C), urging review of all contested courts-martial, and urging passage of the Equal Justice Act, see CAAFLog Cox II presentation here and JO’C article link here.  As the Cox Commission even admits, these changes are unlikely to cause many changes in actual workload or the system, save the waiver of appellate review.  What about eliminating the CCAs?  Ex writs and collateral review?   See other topics in CAAFlog’s post here (as revised here).

Aside from appellate issues, what about larger issues such as panel composition?  Independence of trial defense commands?  The role of military judges?  Capital case procedures? Codifying command responsibility as a punishment in cases of war crimes?  As for jurisdiction over civilians in times of contingency operations the report, well to continue the football metaphors, punts on the issue–devoting more time to abuse of non-public animals than any substantive issue with civilian court-martial jurisdiction based on the 2006 UCMJ Amendment.  Admittedly, civilian UCMJ jurisdiction has not been frequently used, but other philosophical issues in the Cox II topics list just didn’t make the cut.

In the end, IMHO, Cox II seems more like an effort to put the Commission’s weight behind some previous proposals, rather than blazing new ground–which is just not what I expected.  If that was the Commission’s goal, the Commission could have a lasting impact on the court-martial appellate review process.  And, also, maybe like a standout wide receiver coming into NFL form we’ll have a third installment that is a breakout year.

Judge Cox and two other members of the commission were present — George Washington Law Professors Steve Saltzburg and Mary Cheh.  Gene Fidell, the President of commission co-sponsor NIMJ, also participated in the roll-out.

Judge Cox indicated that the commission concluded that the military justice system is structurally sound.  The commission decided against proposing any changes to the convening authority’s role in the system.  He specifically indicated that consideration was given to recommending that the charging function be reassigned to lawyers, but the idea was rejected in recognition of the military justice system’s dual role as not merely a criminal justice system but also a tool that commanders use to ensure good order and discipline and mission accomplishment.  The commission also chose not to reengage on issues that have been thoroughly debated, such as the oft-raised proposal to remove commanders from the member selection process.

What the commission delivered instead were suggested improvements within the system’s existing framework.  The commission’s report allocates its seven recommendations into three groups:  (1) proposals to make the appellate review process fairer; (2) improvements in the pre-trial, trial, and investigative processes; and (3) the elimination of “an archaic and redundant military crime.”

Two of the three proposals for a better appellate review system are designed to enhance servicemembers’ access to appellate review.  The first would give those who are convicted at contested SPCMs and GCMs a right to appellate review regardless of the sentence imposed.  In support of this proposal, the report notes the serious collateral consequences that usually arise from a criminal conviction regardless of the sentence adjudged.  To someone like LT House, who was convicted in part based on fraudulent DNA evidence, being denied access to the military’s appellate review system risks a lifetime of stigmatization based on inaccurate evidence.  The second proposal urges adoption of the Equal Justice for Our Military Act of 2009, which would allow a cert petition to be filed at the Supremes in any military justice case reviewed by a CCA, rather than only those cases in which CAAF grants review.  The third proposal recommends study of the desirability of allowing waivers of appellate review as a negotiated PTA term.  Judge Cox indicated that while the commission was favorably disposed toward the idea, it did not believe it had sufficient information concerning the potential downsides of the proposal to definitively conclude that the change should be made.

In the second group of proposals, the commission first recommended better defense access to expert assistance both before and during trial.  The report notes several possible means to achieve this goal and ultimately notes the commission’s belief that “the best way to resolve the inequity in expert assistance is to expand the authority of the military judge before the case is referred to trial.”  The military judge, after hearing an ex parte request from the defense, could provide a neutral recommendation to the convening authority concerning a defense request for expert assistance.  The commission also recommended that trial counsel be prohibited from attacking the credentials of substitute experts that the government provides to the defense as adequate substitutes for defense-requested experts.  Currently pending before CAAF is the case of United States v. Anderson, No. 08-0344/AR, which presents a challenge to just such an attack.  Audio of that oral argument is available here.  The final proposal in the second group was a recommendation that all military law enforcement agencies be required to take stationhouse interrogations.

The third group consists of a single proposal:  the elimination of Article 125.  The report notes that the new Article 120 “incorporates and punishes acts of forcible sodomy, nonconsensual sodomy, and sodomy with an underage person.”  Accordingly, “there is no need for a separate provision making sodomy a military crime.”  (One commentator has argued that the maximum punishment for forcible sodomy is higher under Article 125 than under the new Article 120.  But that isn’t a function of either statute; rather, that’s the result of the President’s exercise of his Article 56 authority to set maximum punishments.  The President is free to increase the maximum punishment for forcible anal or oral sex under Article 120 whether Article 125 is repealed or not.) 

The report’s executive summary also noted additional “areas of concern.”  One was the recent amendment to Article 2(a)(10) extending court-martial jurisdiction over civilians accompanying the military in the field in contingency operations.  The report notes “the following issues which should be carefully considered”:

the constitutionality of exercising UCMJ jurisdiction over civilians; the need to have civilians serve on court-martial panels when a civilian is being tried; the kinds of crimes with which a civilian may be charged under the UCMJ; a civilian’s right to appellate review; and the potential criminal liability of a military commander for the misconduct of civilians.

Another area of concern is animal abuse and abandonment overseas.  The report noted “a large number of letters from people overseas on the issue of animal abuse and abandonment by service members of their domestic animals while stationed overseas.”  The commission observed that “[b]ecause this abuse and abandonment often takes place overseas and is beyond the reach of local civilian authorities, service members can go unpunished for the conduct.”  The commission has already sent a letter to DOD “asking that appropriate action be taken to address this problem.”

What next?  The commissioners indicated that they plan to present the recommendations to the American Bar Association to consider whether to adopt them as ABA policy.  Those recommendations that are endorsed by the ABA could then become the subject of an ABA lobbying effort.  (The ABA is already lobbying in support of the second recommendation:  enactment of the Equal Justice for Our Military Act of 2009.)

Shortly after the first Cox Commission report, Congress enacted one of its proposals.  Congress later enacted a second when it adopted the revised Article 120, though Judge Cox made clear today that it isn’t quite what the commission had in mind.  It will be interesting to see how many of this report’s proposals are adopted as either UCMJ or MCM amendments.

1.  Expand appeal to the Courts of Criminal Appeals and Court of Appeals for the Armed Forces (CAAF) to make appellate review a matter of right in every contested court-martial.

2.  Enact the Equal Justice for Our Military Act of 2009, now pending in the House of Representatives, to permit direct appeal to the Supreme Court by convicted servicemembers, regardless of whether CAAF grants certiorari.

3.  Consider permitting accused servicemembers to waive their right to appellate review in pre-trial agreements.

4.  Improve access to defense counsel to expert assistance during case investigation and trial.

5.  Prohibit trial counsel from attacking the credentials of an expert witness if the government provided that specific expert to the defense as an adequate substitute for an expert consultant requested by the defense.

6.  Require military law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects at law enforcement offices, detention centers, or other places where suspects are held for questioning, or, where videotaping is not practicable, to audiotape the entirety of such custodial interrogations.

7.  Repeal Uniform Code of Military Justice, 10 U.S.C. § 925 (Article 125, sodomy).

The report also identifies two additional areas of concern:  (1) jurisdiction over civilians; and (b) animal abuse and abandonment overseas.  The report notes areas for further consideration regarding the former and suggests adoption of a specific prohibition against the latter.