CAAFlog » Article 120 (2012)

In Rehaif v. United States, 139 S. Ct. 2191 (2019) (SCOTUSblog case page), the Supreme Court held that the word knowingly in 1018 U.S.C. §924(a)(2) – which states the punishment for unlawful possession of a firearm in violation of other statutes – applies to the material elements of the other statutes. Writing for a 7-2 majority of the Court, Justice Breyer explained that:

As a matter of ordinary English grammar, we normally read the statutory term knowingly as applying to all the subsequently listed elements of the crime.

139 S. Ct. at 2196 (marks and citations omitted). In a pointed dissent, Justice Alito (joined by Justice Thomas) excoriated the majority for “casually overturn[ing] the long-established interpretation of an important criminal statute.” 139 S. Ct. at 2201.

Last week CAAF cited Rehaif to grant further review in this Army case:

No. 19-0104/AR. U.S. v. Nicholas E. Davis. CCA 20160069. On consideration of Appellant’s petition for reconsideration of this Court’s order denying the petition for grant of review __ M.J. __ (Daily Journal June 18, 2019), and in light of United States v. Rehaif, 139 S. Ct. 2191, 2196 (2019), it is ordered that the petition for reconsideration is granted, that the order denying the petition for grant of review is vacated, and the petition for grant of review is granted on the following issue:


Briefs will be filed under Rule 25.

The reference to denial of the petition for review is wrong. CAAF granted review in this case in April as a trailer to United States v. McDonald, 78 M.J. 376 (C.A.A.F. Apr. 17, 2019) (CAAFlog case page). CAAF then summarily affirmed in light of McDonald in June, declaring that “military judge did not err in instructing the court members that for the affirmative defense of mistake of fact as to consent to apply, the mistake must have been reasonable as well as honestly held” (noted here).

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Articles 120(b)(3)(A) and 120(d) prohibit sexual activity with a person who is incapable of consenting due to impairment by any drug, intoxicant, or other similar substance.

In recent decision in United States v. Newlan, No. 201400409 (N.M. Ct. Crim. App. Sep. 13, 2016) (link to slip op.), a three-judge panel of the NMCCA finds that a military judge erred when he defined impairment under Article 120 as:

“Impaired” means any intoxication which is sufficient to impair the rational and full exercise of the mental or physical faculties.

Slip op. at 8 (quoting instructions). This definition was drawn from language in the Manual for Courts-Martial that defines impairment under Article 111 (drunken or reckless operation of vehicle, aircraft, or vessel). See MCM, Part IV, ¶ 35.c.(6).

Writing for the panel, Judge Rugh explains that:

Article 120(b)(3)(A), UCMJ, does not prohibit engaging in sexual acts with a person who is drunk or impaired by alcohol. Put more plainly, mere impairment is no more the standard under Article 120(b)(3)(A), UCMJ, than the SAPR-perpetuated “one drink and you can’t consent” axiom is the standard. And litigants and military judges who fixate solely on the term “impairment” do so at their peril.

Instead, the statute establishes a required level of impairment. In other words, sexual acts are prohibited only when the person’s impairment rises to the level of rendering him or her “incapable of consenting to the sexual act.” Art. 120(b)(3)(A), UCMJ.

Slip op. at 10 (emphasis in original). By appropriating the Article 111 definition of impaired, “the military judge’s instructions failed to provide the members with an accurate, complete, and intelligible statement of the law.” Slip op. at 12.

The opinion is the latest in a number of recent decisions that reach the blindingly-obvious conclusion that intoxicated or otherwise impaired people can legally consent, despite popular misconceptions to the contrary (see our #9 military justice story of 2015).

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In a published opinion in United States v. Solis, 75 M.J. 759, No. 201500249 (N.M. Ct. Crim. App. Aug. 11, 2016) (link to slip op.), a three-judge panel of the NMCCA rejects the appellant’s arguments that Article 120(b)(3)(A) – which criminalizes sexual activity with a person who is incapable of consenting due to impairment by an intoxicant – is void for vagueness both facially and as applied.

The decision is reminiscent of the NMCCA’s rejection of similar arguments in United States v. Torres, No. 201300396 (N-M. Ct. Crim. App. Aug. 28, 2014) (discussed here). In Torres the CCA concluded that servicemembers have fair notice that they may be prosecuted for initiating sex with an unconscious person.

The CCA reaches a similar conclusion in Solis, with an important caveat. Writing for the panel Judge Fulton explains that:

[T]he statute does not proscribe sexual acts with impaired people, but rather with people incapable of consenting to the conduct at issue because of their impairment—and even then, only when the inability to consent is known, or reasonably should be known, to an accused.

Slip op. at 5 (emphasis added). The quite-obvious conclusion that the statute does not prohibit sex with any impaired person (including, of course, a drunk person) reminds me of the Army CCA’s decision in United States v. Long, 73 M.J. 541 (A. Ct. Crim. App. Jan. 30, 2014) (discussed here) (finding that the drunk victim was competent to consent, but didn’t). And, of course, CAAF’s decision this term in United States v. Pease, 75 M.J. 180 (C.A.A.F. Mar. 17, 2016) (CAAFlog case page), provided us with a clear and uniform standard of review for a trial-stage finding that a person was incapable of consenting.

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In a published opinion in United States v. Williams, 75 M.J. 663, No. 20140401 (A. Ct. Crim. App. Mar. 30, 3016) (link to slip op.), a three judge panel of the Army CCA splits 2-1 to hold that the offense of indecent exposure in violation of Article 120(n) (2006) and 120c(c) (2012) does not include showing a person a photograph or digital image of one’s genitalia.

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In a published opinion in United States v. Johnston, 75 M.J. 563, No. 201400338 (N-M. Ct. Crim. App. Jan. 21, 2016) (link to slip op.), a three-judge panel of the NMCCA reverses the appellant’s conviction of indecent exposure in violation of Article 120c(c), for sending text-message pictures of his erect penis to a 14 year-old girl, because the evidence leaves the CCA unconvinced that the appellant exposed himself in an indecent manner.

Judge Marks, writing for the panel, explains that Article 120c(c), which took effect on June 28, 2012, lacks the element of public exposure that was present in the prior (2006) version of Article 120 and in the enumerated Article 134 offense that was in effected before that:

Unlike prior versions, this statute requires neither a public setting nor a public view.2 By removing such an element, Congress sought to criminalize “situations in which the exposure is indecent – even if committed in a place where it would not be reasonably be [sic] expected to be viewed by people other than the members of the actor’s family or household.” MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), App. 23, at ¶ 45c.a. This amendment reflected the Court of Appeals for the Armed Forces’ (CAAF) more expansive interpretation of indecent exposure in United States v. Graham, 56 M.J. 266 (C.A.A.F. 2002), discussed infra. It also left “an indecent manner” as the only element making intentional exposure criminal.

Johnston, slip op. at 3-4. Considering the President has (still) not promulgated guidance for this statute, the CCA “turn[s] to case law for objective factors to help define the parameters of an indecent manner. Three factors emerge as hallmarks of indecent conduct: (1) lack of consent; (2) involvement of a child; and/or (3) public visibility.” Slip op. at 4.

Considering these factors, Judge Marks concludes that the evidence depicts the child “as a willing and active participant in graphic sexual fantasies shared via text, or ‘sexting,'” slip op. at 7, that “the sustained volleys of sexually explicit messages and A.C.’s repeated requests for details of imagined sexual encounters with the appellant are inconsistent with claims that photos of the appellant’s penis came without her invitation or consent,” slip op. at 8, that there is “unrefuted evidence supporting the appellant’s reasonable mistake of fact as to A.C.’s age during the period charged in the specification,” slip op. at 9, and finally that there was no evidence of public visibility, slip op. at 9.


Returning to the elements, the Government proved through the photographs themselves that the appellant intentionally exposed his penis. The evidence, however, leaves us unconvinced that he exposed himself in an indecent manner. The photograph’s “tend[ency] to excite sexual desire” is apparent from the relationship and pattern of sexting surrounding it. But the evidence points to private conduct toward someone he reasonably perceived to be a consenting adult. This case has none of the three hallmarks of indecency but all three of the factors comprising the liberty interest identified in Lawrence. Consent, age (or a reasonable mistake of fact as to age), and privacy leave us with a reasonable doubt that the appellant’s conduct was indecent. Therefore, we set aside the finding of guilty to the Second Additional Charge II and its sole specification, violation of Article 120c(c) from 1-31 December 2012, for factual insufficiency.

Slip op. at 9.

CAAF decided the Marine Corps case of United States v. Riggins, 75 M.J. 78, No. 15-0334/MC (CAAFlog case page) (link to slip op.), on January 7, 2016. The court finds that assault consummated by a battery (in violation of Article 128) is not a lesser included offense of either sexual assault or abusive sexual contact by placing in fear through the use or abuse of military position, rank, or authority (in violation of Article 120(b)(1)(a) (2012) and Article 120(d) (2012)).

Judge Ohlson writes for a unanimous court.

CAAF granted review of a single issue:

Whether the lower court erred in deciding a question of law which has not been, but should be, settled by this court when it held that assault consummated by battery was a lesser included offense to abusive sexual contact and sexual assault.

The case involves the appellant’s sexual encounter with a subordinate. The appellant was tried by a general court-martial composed of a military judge alone. He pleaded guilty to fraternization, making a false official statement, and adultery. He pleaded not guilty to other offenses that included four specifications of sexual assault and eight specifications of abusive sexual contact. The sexual offenses alleged that the appellant placed the alleged victim in fear that he would affect her military career through the use or abuse of military position, rank, or authority.

During the trial, and over defense objection, the military judge determined that assault consummated by a battery is a lesser included offense of these sexual offenses, and then he convicted the appellant of five specifications of assault consummated by a battery as lesser included offenses of two of the sexual assault specifications and three of the abusive sexual contact specifications. The appellant was acquitted of the other sexual charges, and was sentenced to confinement for three years and a bad-conduct discharge.

The military judge made special findings when he convicted the appellant of the lesser offenses, explaining that:

he found the appellant “did not expressly place [her] in fear of him taking action that would affect her career,” the context and circumstances surrounding the incident were such that [she] was, in fact, fearful of what could happen to her and her military career if she resisted the appellant’s sexual advances. This fear, combined with her oral protests allow this court to also find that “it was not reasonable for the appellant to have believed that [she] was consenting.”

United States v. Riggins, No. 201400046, slip op. at 10 (N-M. Ct. Crim. App. Nov. 26, 2014) (quoting record) (marks omitted). The appellant challenged the military judge’s determination that assault consummated by a battery is a lesser included offense at the NMCCA, but the CCA concluded that:

One cannot prove sexual assault by threatening or placing that other person in fear without necessarily proving assault consummated by a battery, because one cannot prove a legal inability to consent without necessarily proving a lack of consent. Accordingly, we find assault consummated by a battery to be an LIO of sexual assault under Article 120(b)(1), UCMJ (2012 ed.).

United States v. Riggins, No. 201400046, slip op. at 8 (N-M. Ct. Crim. App. Nov. 26, 2014).

Judge Ohlson’s decision for the unanimous CAAF finds flaw in the NMCCA’s decision by highlighting the difference between a legal inability to consent and the element of lack of consent, but the decision repeatedly emphasizes that it is limited to the circumstances presented in this case.

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Our #9 Military Justice Story of 2015 involves the significant steps taken this year to address the deeply flawed (and often misogynistic) view that an intoxicated person is necessarily incapable of consenting to sexual activity with another.


Article 120 prohibits sexual activity with a person who is incapable of consenting, but the UCMJ does not define that term. However, interpreting the prior version of the statute (which addressed a person who is substantially incapacitated), CAAF held that “if an accused proves that the victim consented, he has necessarily proven that the victim had the capacity to consent.” United States v. Prather, 69 M.J. 338, 343 (C.A.A.F. 2011).

Prather was a case involving a male accused, a female victim, and a night of drinking, and CAAF’s declaration of the seemingly obvious – that a person who does consent necessarily can consent – was just part of the court’s conclusion that the statute included an impermissible burden shift to an accused (Congress rewrote the statute soon afterward).

Today, the rewritten (2012) version of Article 120 defines consent, beginning with the explanation that: “The term ‘consent’ means a freely given agreement to the conduct at issue by a competent person.” Article 120(g)(8)(A) (2012). This definition is nearly identical to the one in the prior (2006) version, which stated that “the term ‘consent’ means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person.” Article 120(t)(14) (2006). But this language also requires judicial interpretation, as the UCMJ does not define the term competent person, enabling prosecutors to argue that an intoxicated person is not a competent person (and is therefore necessarily incapable of consenting). Such an argument functionally deprives an accused of the defenses of consent and mistake of fact as to consent.

There are some who believe that an intoxicated person cannot be a competent person for the purposes of consenting to sexual activity. Put differently, there are some people who believe that someone who is intoxicated cannot consent to sex. Those people are wrong. Drunk people can and do consent to things all the time, and they are routinely held responsible for their decisions and actions while intoxicated (DUI immediately comes to mind, but there are plenty of other examples in our system where voluntary intoxication is rarely a defense).

Two decisions of the Army CCA in 2014 addressed the meaning of a competent person in the context of consent to sexual activity. First, in January, the Army CCA explained that “competence, in this context, is a legal term of art.” United States v. Long, 73 M.J. 541, 545 (A. Ct. Crim. App. 2014) (discussed here). Then, in November, the CCA elaborated that consent is correctly defined “in terms of a competent ‘person’ and not a ‘decision.'” United States v. Brown, No. 20130177, slip op. at 5 (A. Ct. Crim. App. Nov. 21, 2014) (discussed here). This person/decision distinction is important: the law recognizes objective factors that make a person incompetent (age, infirmity, disability), while a decision is merely subjectively good or bad.

But it was the the July 2015 decision of the Navy-Marine Corps CCA in United States v. Pease, 74 M.J. 763, No. 201400165 (N-M. Ct. Crim. App. Jul. 14, 2015) (discussed here), cert. for rev. filed, __ M.J. __ (C.A.A.F. Sep. 14, 2015) (discussed here), that won competency to consent a spot on our Top Ten list.

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Article 120(b) (sexual assault) and (d) (abusive sexual contact) prohibit the commission of a sexual touching upon another person under various circumstances, including when the accused:

commits a sexual act upon another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring

Article 120(b)(2) (emphasis added), and when the accused:

commits a sexual act upon another person when the other person is incapable of consenting 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;

Article 120(b)(3) (emphasis added).

In a recent unpublished decision in United States v. Mohead, No. 201400403 (N-M. Ct. Crim. App. Oct. 29, 2015) (link to slip op.), a three-judge panel of the NMCCA considers the difference between these two offenses in a case involving a victim who was asleep at the beginning of the encounter and awake (and resisting) at the end, for which the Government charged the appellant with both offenses in order to address his conduct both before and after the victim awoke. The CCA affirms the finding of guilt involving a sleeping person, but reverses the finding of guilt involving a person incapable of consenting, reasoning that:

[The victim’s] actions upon waking indicate she was then capable of consenting despite the earlier alcohol consumption. While trying to “reason with” the appellant, she articulated her clear understanding of what was happening, that she thought it was wrong, and that she did not consent. While his actions may have constituted a different sort of sexual assault, based on this record and these facts we are not convinced beyond a reasonable doubt of the appellant’s guilt for Specification 1 [sexual assault of a person incapable of consenting due to impairment by alcohol]. Thus we will set aside the finding and dismiss that specification.

Slip op. at 7.

The CCA’s opinion highlights that a person who manifests lack of consent (through physical resistance, verbal protest, or otherwise) is necessarily capable of consenting. A sexual touching of such a person may well be a sexual offense, but it is not one involving a person who is incapable of consenting.

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

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

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

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

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

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

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In a published opinion in United States v. Thomas, 74 M.J. 563, No. 201300357 (N-M. Ct. Crim. App. Nov. 28, 2014) (link to slip op.), the Navy-Marine Corps CCA reverses a forcible rape conviction on factual sufficiency grounds after concluding that “the Government treated ‘force’ and ‘unlawful force’ as if they were separate, unrelated concepts,” and explaining that:

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

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

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

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

But the reach of Article 120c(a)(1) is now significantly limited by a published decision from a three-judge panel of the Navy-Marine Corps CCA in United States v. Quick, 74 M.J. 517, No. 201300341 (N-M. Ct. Crim. App. Oct. 31, 2014) (link to slip op.). Senior Judge Fischer writes for the panel, finding that the offense of indecent viewing requires that an accused actually view the real-life private area of a person. The CCA reverses the appellant’s conviction for merely viewing a recording (made surreptitiously) of another person’s private area, finding that the specification fails to state an offense.

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

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

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

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

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

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


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

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

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

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

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

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

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

Today the NMCCA released a massive, 32 page published opinion of the court in United States v. Commander Booker, Military Judge, No. 201300247, 72 M.J. 787 (N-M. Ct. Crim. App. Sep. 20, 2013) (link to opinion).

A three-judge panel of the NMCCA grants a Government petition for extraordinary relief in the nature of a writ of mandamus and reverses a military judge’s ruling setting the maximum punishment for sexual assault in violation of Article 120(b) (2012) as the jurisdictional limit of a summary court-martial (rank-dependent but a maximum of confinement for 1 month, forfeiture of 2/3 pay per month for 1 month, and reduction to E-1).

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

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

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

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

Slip op. at 30.

The court then concludes:

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

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

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

Slip op. at 30-31.

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

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

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

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

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