The Continuous Evolution of Military Sexual Assault Law
Patrick D. Pflaum
According to a report submitted to Congress, the Department of Defense (DoD) received 3,230 reports of sexual assault involving members of the Armed Forces during Fiscal Year 2009.1 According to the same report, the number of reported sexual assaults has continued to trend upward over the past several years.2 While the report clarifies that this increase is likely due to “a greater proportion of victims coming forward, not an increase in crime,” the issue of sexual assault in the military ranks has had the attention of Congress for a number of years.3 In 2005, Congress completely revised the sexual assault provisions in the Uniform Code of Military Justice (UCMJ), those provisions in Title 10 of the United States Code that establish a system of criminal justice for the military. Based on recent congressional activity and case law, it appears that more change is on the horizon.
Beginning in the 1990s, some military justice practitioners began to suggest that the UCMJ provisions governing sexual assault were antiquated and ripe for revision. At the time, the language in Article 120 (the UCMJ article covering rape) remained largely unchanged from the original version that was passed in 1950. Military courts, however, had generally kept pace with developments in the law and interpreted the language of the statute in a manner that accommodated modern understandings of constructive force, parental compulsion, and incapacitation due to drugs or alcohol. In addition, using his power under Articles 36 and 56, the president has provided for the punishment of several other sexual offenses under Article 134, a “general article” proscribing any conduct that is prejudicial to good order and discipline or discrediting to the armed services.4 Since 1951, the Manual for Courts-Martial (MCM) has identified several sexual offenses as potentially punishable under Article 134, including indecent assault, indecent acts with another, indecent acts or liberties with a child, indecent exposure, and indecent language.
At the turn of the century, though, the movement for significant change to the military sexual assault provisions gained momentum. In 2001, on the 50th anniversary of the UCMJ, a panel of military justice experts released the results of a study of several military justice issues. The Cox Commission (named for The Honorable Walter T. Cox, III, the chair of the committee and a senior judge on the Court of Appeals for the Armed Forces) recommended the revision of the UCMJ in order to create a comprehensive sexual assault article in the UCMJ.5 This recommendation prompted little action until allegations of mishandling of sexual assault complaints surfaced at the United States Air Force Academy in 2003.6 With this incident, sexual assault in the military became an issue with definitive Congressional interest. In the Ronald W. Reagan National Defense Authorization Act of 2005,7 Congress directed the DoD to take two important actions. First, the statute directed the DoD to “develop a comprehensive policy for the prevention of and response to sexual assaults involving members of the Armed Forces.”8 Congress mandated that the policy address several specific issues, including medical treatment of victims, confidential reporting, uniform data collection procedures, and victim advocacy and intervention.9 The statute also directed the DoD to:
review the Uniform Code of Military Justice and the Manual for Courts-Martial with the objective of determining what changes are required to improve the ability of the military justice system to address issues relating to sexual assault and to conform the Uniform Code of Military Justice and the Manual for Courts-Martial more closely to other Federal laws and regulations that address such issues.10
Based on this second directive, the Joint Service Committee on Military Justice, a DoD focus group tasked to recommend changes to the military justice system, formed a special subcommittee to study the punitive provisions addressing sexual misconduct in the military. The committee published a lengthy report that proposed six options. The subcommittee recommended “no change,” concluding, “The subcommittee members were unable to identify any sexual conduct (that the military has an interest in prosecuting) that cannot be prosecuted under the current UCMJ and MCM.”11 Despite this recommendation, the larger Joint Service Committee suggested several changes.12 In 2006, about 15 months after directing the study, Congress completely overhauled the statutory provisions addressing sexual assault in the military, with one of the subcommittee’s proposals forming the basis for the revision. These changes became effective on October 1, 2007, and the current version of Article 120 became the largest punitive article in the UCMJ—by a significant margin.13
The “new Article 120” consolidated all of the sexual assault provisions into one article of the UCMJ, with one notable exception. The drafters of the legislation chose to leave Article 125, prohibiting sodomy, as a separate provision. This is notable for two reasons. First, in the federal scheme, conduct that would constitute “forcible sodomy” is included in either aggravated sexual abuse or sexual abuse, depending on the circumstances.14 Second, despite the Supreme Court’s holding in Lawrence v. Texas,15 Congress did not amend or repeal Article 125, leaving intact the military caselaw interpreting both Article 125 and Lawrence.
As a general concept, the current Article 120 is a reasonable amalgam of the federal sexual assault scheme and some traditional principles that have been a part of the military system for decades, if not longer. The article borrows the concepts of “sexual act” and “sexual contact” from the federal provisions that address sexual assault,16 and borrows concepts like “indecent act” and “indecent liberty with a child,” from the military tradition.17 The statute also addresses certain misconduct that was not expressly included in the MCM before, like the sexual exploitation of subordinates by persons with superior military status.18 Under the old provisions, military courts sometimes struggled to identify which types of type of senior-subordinate sexual conduct could be considered a sexual assault, as opposed to some other military offense like sexual harassment or maltreatment of subordinates.
One notable aspect of the new Article 120 is the role of consent. The issue is common in sexual assault cases, and jurisdictions vary in how consent is treated in their sexual assault provisions. Under the old Article 120, “rape” was “an act of sexual intercourse by force and without consent.”19 As a general principle, the prosecution had to prove that the victim did not consent or was unable consent to the alleged sexual conduct. Under the new statute, “consent” is defined as “words or overt acts indicating freely given agreement to the sexual conduct at issue by a competent person.”20 It is omitted from the language of all but one of the sexual offenses.21 Instead, the current Article 120 makes consent an affirmative defense to only the four most serious offenses: rape, aggravated sexual assault, aggravated sexual contact, and abusive sexual contact.22 The statute also assigns the accused the burden to prove an affirmative defense by a preponderance of the evidence.23 If so proved, the statute then appears to offer the government an opportunity to disprove the existence of the affirmative defense beyond a reasonable doubt.24 Unfortunately, neither the statute nor the MCM lay out a workable formula for the application of this construct at trial. As such, the defense bar has raised constitutional challenges to this statutory scheme, arguing, in general, that the statute violates due process by shifting the burden to an accused to disprove an element of the offense. This argument is rooted in the precedent established in a series of cases that includes In re Winship,25 Mullaney v. Wilbur,26 Patterson v. New York,27 and Martin v. Ohio.28 In 2010, the Court of Appeals for the Armed Forces (CAAF) rejected a facial challenge to the statute,29 but in early 2011, the CAAF found certain provisions unconstitutional as applied. In United States v. Prather, the court concluded that “the second burden shift . . . which purports to shift the burden to the government once an accused proves an affirmative defense by a preponderance of the evidence, constitutes a legal impossibility.”30 The court then held that the statutory framework unconstitutionally shifted the burden to the accused to disprove an element of the offense when asserting an affirmative defense of consent—a due process problem not cured by the military judge’s instructions in the case.31 Prather and its progeny will almost certainly provide a powerful catalyst for revision.
The due process issue has not been the only criticism of the statute. Some general criticism is to be expected as long-time military justice practitioners adjust to a wholly new statutory scheme. Some is based on the complicated nature of the statute. According to the 2009 Report of the Defense Task Force on Sexual Assault in the Military Services, “Practitioners consistently advised Task Force members that the new Article 120 is . . . cumbersome and confusing.”32 In addition, “[p]rosecutors expressed concern that it may be causing unwarranted acquittals.”33 This is not surprising considering the statute establishes fourteen different sexual offenses and contains a significant amount of overlapping language. The statute and the accompanying MCM provisions also lack some procedural clarity, particularly related to affirmative defenses and lesser included offenses. Based on these concerns, as well as those regarding its constitutionality, the Defense Task Force on Sexual Assault in the Military Services advised the Secretary of Defense to conduct “a follow-up review of the effectiveness of Article 120, UCMJ.”34
It appears that some members of Congress also believe some revision is warranted. During the legislative cycle for the National Defense Authorization Act (NDAA) for Fiscal Year 2011,35 both houses passed versions of the bill that would have affected Article 120. Neither made it into the final version of the NDAA, but they are instructive nonetheless. The House version, H.R. 5136, directed the Secretary of Defense to conduct “a review of the effectiveness” of Article 120, and specifically directed him to “use a panel of military justice experts to conduct the review.”36 The bill also mandated a number of changes to the Armed Forces sexual assault prevention and response program, including a requirement that all of the service secretaries “issue guidance to all military unit commanders that implementation of the Department of Defense sexual assault prevention and response program requires their leadership and is their responsibility.”37 The Senate version took a more aggressive approach and would have completely overhauled Article 120 once again. It revised the basic organization, reworded some offenses, and eliminated the provisions that triggered the due process challenges.38 The NDAA that ultimately passed did not include any language affecting Article 120, even that directing a study of its effectiveness. This is likely due to the passage of the bill repealing the “Don’t Ask, Don’t Tell” policy,39 which may result in other changes to the UCMJ.40 Nevertheless, practitioners can be assured that Article 120 is destined for more change.
For those practicing military justice, the body of law addressing sexual assault under the UCMJ is vast, complicated, and continually evolving. Constant vigilance is required to maintain the competence required to litigate these cases. For those without any involvement or experience with the military justice system, these sexual assault provisions provide a snapshot of a system that is modern, nuanced, and subject to the continued supervision of Congress and the president. While there can be no doubt that the military remains vigilant in its effort to lower the incidence of sexual assault in this era of persistent conflict, it appears that Congress remains poised to ensure that the UCMJ continues “to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.”41
Major Patrick D. Pflaum is an Army judge advocate attending the US Army Command and General Staff School at Fort Leavenworth, Kansas. Prior to this assignment, he taught military criminal law as an associate professor at the US Army Judge Advocate General’s Legal Center and School in Charlottesville, Virginia. The views expressed in this article are solely those of the author and do not reflect the official positions of the Department of Defense, the Department of the Army, or the Judge Advocate General's Corps.
7. Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (NDAA), Pub. L. No. 108-375, § 576, 118 Stat. 1811, 1924–26.
8. Id., § 577, 118 Stat. 1926–28.
9. Id., § 577(b), 118 Stat. 1926.
10. Id., § 571, 118 Stat. 1920–21.
13. National Defense Authorization Act for Fiscal Year 2006 (NDAA), Pub. L. No. 109-163, § 552, 119 Stat. 3136, 3256–63 [hereinafter 2006 NDAA] (codified at 10 U.S.C. § 920 (2006)).
14. See, e.g., 18 U.S.C. §§ 2241, 2242, & 2246 (Westlaw 2010).
16. See, e.g., 18 U.S.C. § 2246 (Westlaw 2010).
17. Manual for Courts-Martial, United States, pt. IV, ¶ 87 (indecent acts or liberties with a Child), ¶ 90 (indecent acts with another), & ¶ 88 (indecent exposure) (2005).
18. UCMJ art. 120(t)(7) (2008).
19. Manual for Courts-Martial, United States, app. 27 (2008), at A27-1 [hereinafter 2008 MCM].
21. Id. art. 120(m) (lack of permission is an element of wrongful sexual contact).
25. 397 U.S. 358, 364 (1970).
29. United States v. Neal, 68 M.J. 289, 304 (C.A.A.F. 2010).
30. 69 M.J. 338, 340 (C.A.A.F. 2011)
35. The National Defense Authorization Act (NDAA) is the annual bill where Congress authorizes the appropriation of funds for the armed forces. It is also the normal vehicle for amending the UCMJ. The 2011 version that ultimately passed is the “Ike Skelton National Defense Authorization Act for Fiscal Year 2011.” See Ike Skelton National Defense Authorization Act for Fiscal Year 2011, Pub. L. No. 111-383, 124 Stat. 4137 (2011).
36. H.R. 5136, 111th Cong. § 1618 (2010).
38. S. 3454, 111th Cong. § 561 (2010).
39. See generally The Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).
40. Major Sherilyn A. Bunn, Straight Talk: The Implications of Repealing “Don’t Ask, Don’t Tell” and the Rationale for Preserving Aspects of the Current Policy, 203 Mil. L. Rev. 207, 254 (Spring 2010); Major Laura R. Kessler, Serving With Integrity: The Rationale for the Repeal of “Don’t Ask, Don’t Tell” and its Ban on Acknowledged Homosexuals in the Armed Forces, 203 Mil. L. Rev. 284, 326 (Spring 2010).
41. 2008 MCM, supra note 19, at I-1 (Preamble).
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