Now more than any other time in the history of the United States military is a service member at risk of being accused of sexual assault, facing investigation by tenacious law enforcement and eventual trial by court-martial.
In October 2007, Article 120, UCMJ underwent its first overhaul and amendments. The goal? Increased successful prosecutions. At that time, the number of sexual offense based crimes jumped from four to twenty.
CONGRESSIONAL OVERHAUL OF ARTICLE 120
Prior to October 2007, most, but not all sexual offenses were contained in Article 120. Some other sexual offenses were found in Article 134, U.C.M.J. such as Indecent Acts, Indecent Liberties with a Child, and Pandering, and Article 125, Sodomy and Forcible Sodomy. In October 2007, the largest overhaul occurred and attempted to assimilate all sexual offenses under Article 120, U.C.M.J, expanding Article 120 violations from only Rape (by force and without consent), Rape of a child, and Carnal knowledge (without regard to whether or not the child under the age of 16 was a willing participant) to more than fourteen different types of offenses.
The expanded Article 120 post October 2007 but before additional revisions that went into effect in 2012 included, among others, a distinction between Rape and a new offense called “Sexual Assault.” Remarkably “sexual assault” included a theory of liability for when the complainant was “substantially incapacitated” or “substantially incapable of consenting,” though the terms were not defined. The list of manners of substantial incapacitation listed alcohol or other intoxicants sufficient to impair one’s ability to consent. This particular addition to the code addressed the growing concern over what is termed “Alcohol Facilitated Sexual Assault” though different degrees of liability related to whether or not the alleged perpetrator plied the complainant with alcohol or merely was advantaged by the weakened state.
UNCONSTITUTIONAL DOUBLE BURDEN SHIFT
Of most theoretical note, Congress eliminated Article 120’s previously required element of “without consent” and instead carved out consent as an affirmative defense that required evidence to an evidentiary standard of by a preponderance of the evidence (ordinarily calculated to be 51% or more). Constitutional challenges abounded. In May 2007, (then) Major Howard H. Hoege III authored an article in the Army Lawyer entitled “Overshift” The Unconstitutional Double Burden-Shift on Affirmative Defenses in the New Article 120” [found here: https://www.loc.gov/rr/frd/Military_Law/pdf/05-2007.pdf] that outlined most of the arguments explaining why removal of “without consent” created an unconstitutional burden shift to the defense. Essentially, because the government bears the burden of proving an accused’s guilt beyond a reasonable doubt and that burden never shifts to the accused, by requiring the defense to raise evidence of consent, the amendment unconstitutionally burdens him.
Though a grave theoretical error in drafting, most service court judges recognized the defect and protected against the constitutional challenges by “interpreting” the statute to mean if there is any evidence at all which might give rise to the inference of consent, the judge would instruct the panel that the government bore the burden of disproving consent beyond a reasonable doubt. Upon information and belief, I argued the first constitutional challenge to Article 120’s burden shift, my client having committed alleged misconduct on 4 October 2007 with the armed forces in Europe. Only those judges that gave the instruction as dictated by the letter of the statute in which a conviction followed gave reason for the military appellate courts to review and officially declare the burden shift unconstitutional. Thankfully, my constitutional challenge was never reviewed on appeal as my client was fully acquitted of sexual assault.
SHIFT IN CHARGING
Over the course of the years, with prosecution rates not improving terribly under the theory of sexual assault by substantial incapacitation, many practitioners advocated charging sexual assault by bodily harm. However, prior to the amendments of 2012, there was a split among those in the field as to whether or not there was a required bodily harm separate and apart from the sexual act that constituted the assault. Typically, when charging bodily harm type sexual assault prior to the 2012 amendments, most in the field took the conservative approach to charge a touching other than the sexual act that constituted the penetration, such as a hand on the thigh or even the shoulder, however the complainant was able to articulate where touched other than the penetration.
The October 2007 amendments also revised the child sexual offenses, eliminated “carnal knowledge” as a named offense but created “sexual assault of a child” between the over the age of 12 but not 16. Largely, the elements remained identical to pre-2007’s carnal knowledge offense.
2012 REVISIONS TO ARTICLE 120
Not satisfied with the number of prosecutions, in 2012, the President again revised Article 120 and again increased the number of offenses for which a service member can be prosecuted. In 2012, Congress also passed amendments increasing most maximum punishments for Article 120 offenses. This time, most alarmingly, the statute created sexual-based offenses for the touching of ANY BODY PART. Previously, only areas of the body recognized as sexual in nature could qualify for a sex-based offense (e.g., breasts, vagina, penis, buttocks, inner thigh). As of 2012, ANY BODY PART, if touched in a way that could be construed as sexual, can render someone a target for prosecution as a sexual offender.
FY 2014 NDAA AMENDMENTS
Yet more amendments took effect as part of the FY 2014 National Defense Authorization Act. These amendments refined sexual assault offenses in an effort to increase the number of successful prosecutions and stripped service members of avenues to investigate the case, including restricted access to the person making the sexual assault allegation.
In fact, National Defense Authorization Act that passed in FY2014 Section 1708 now outlines that commanders cannot consider a servicemember’s service record when making a decision about what to do with an allegation of sexual assault. Period.
MILITARY’S MOVE TOWARD GENERALIZATION, NOT SPECIALIZATION
Regrettably, as Congress steps up their efforts to increase the number of successful prosecutions, military legal leadership in nearly every branch of service is creating internal pressures on attorneys in the ranks to generalize, not specialize and especially not in the defense of sexual assault allegations.
The Army specifically encourages “broadly skilled” judge advocates, culling the ranks of those who have focused on criminal justice and removing specialists who otherwise would be best situated to defend the military accused.
RESOURCES ARE BEING AMASSED AGAINST YOU
The government is amassing every possible resource including creating new bureaucracies, and their only goal is to convict anyone accused of sexual assault, no matter how ridiculous the allegation, no matter what is the service record of the Soldier, Sailor, Airman, Marine, or Coast Guardsman being accused. Secretary of Defense Panetta tells the press that “we must spare no effort to protect [servicemembers and their families] against this heinous crime of sexual assault.”
Amidst political pressure from congressmen and congresswomen, and even from the President of the United States, commanders fear their careers will end unless they take every accusation to court. Our nation’s highest leaders fear public backlash like the lawsuits filed by several former complaining witnesses.
Command fears have been realized in publicized scandals including senior leaders being forced to retire after disapproving findings and sentence in the sexual assault court-martial of an Air Force Lieutenant Colonel. Directly related to that scandal, Congress passed legislation severely limiting a commander’s authority to grant clemency (any result more favorable than what the panel or Court handed down) and has all but eliminated post-trial discretion in military sexual assault courts-martial.
Many if not most of service members who find themselves accused of sexual misconduct wait to hire an attorney; they hope against all hope that they will not need an attorney. Perhaps they hope that the accuser will admit it is a false allegation; perhaps they think that law enforcement will uncover the truth; perhaps they are simply in denial that this nightmare is their new reality. Whatever the reason, waiting to hire an attorney when you are facing prosecution by the military for sexual assault can cost you more than the dollar amount of a retainer agreement: waiting to hire an attorney can cost you evidence that shows you are innocent, waiting to hire an attorney can cost you your defense, and waiting to hire an attorney can ultimately cost you your livelihood, your liberty, your right to bear arms, and your right to live where you desire.
As a former military prosecutor, Army Special Victim Prosecutor, military defense counsel, and civilian practitioner, Ms. Stewart’s experience and knowledge of sexual assault in the military is superb and her representation of clients has earned her phenomenal case results and a trusted reputation.
Now is the time to ensure that your rights will be protected. Hire a former military Special Victim Prosecutor who knows the military’s sexual assault law inside and out, one of very few practitioners that has practiced under all four different versions of the U.C.M.J.’s Article 120
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