Nearly anyone who has prosecuted or defended a case in which the allegations included sexual assault, rape, or sexual harassment can tell you they faced many challenges, regardless of which side of the issue they represented. The issues for judges are no less complex.
April 21, 2021 Feature
A Primer on the Complexities of Military Sex Offenses
By Col. Linda Strite Murnane (Ret.)
When you add to that already complex set of issues that the allegations involve a person serving on active duty in the military, a person serving as a member of the National Guard or in the Reserve component of the military, or a person who has retired from the military as the accused, the challenges are astronomically multiplied. When you add to the mix that the victim is or was in the military, or is a family member (commonly referred to as a “dependent of a military member”), the issues become even more complex.
This article will outline some of the unique and specific challenges in addressing sexual assault, rape, and sexual harassment offenses in the military environment. The article will focus on four specific areas: (1) the federal statutes defining these types of offenses as crimes in the military, (2) the jurisdictional challenges presented when prosecuting these offenses, (3) the impact on victims of these offenses and the unique features of military life that deter victims from reporting and participating in the investigation and prosecution of these crimes, and (4) the strengths and weaknesses of calls for reform of the Uniform Code of Military Justice.
Federal Statutes Addressing Sexual Misconduct in the Armed Forces
Generally, criminal offenses tried in a federal setting fall within title 18 of the United States Code. Where the military has authority to exercise jurisdiction, the specific statutes that outline the process by which military members are held accountable for criminal conduct are organized in 10 U.S.C. chapter 47. Taken together, these provisions are commonly referred to as the Uniform Code of Military Justice (UCMJ). Allegations of sexual assault, sexual harassment, and rape that involve a military member fall within these provisions when the alleged perpetrator is subject to the military discipline process.
The “punitive articles” that define the crimes chargeable in a military court setting are found in 10 U.S.C. §§ 877–934. Rape and sexual assault are specifically proscribed at 10 U.S.C. § 920, or Article 120 of the UCMJ. As a result of the heightened scrutiny to sexual assaults in the military in recent years, however, there has been substantial legislative effort to further address sexual misconduct, and that has led to the addition of punitive articles to address the offenses of depositing obscene matters in the mail (Article 120a), rape and sexual assault of a child (Article 120b), and “other sexual misconduct” (Article 120c). “Other sexual misconduct” includes indecent viewing, visual recording, or broadcasting of a person’s “private area” without consent, forcible pandering (compelling acts of prostitution), and indecent exposure. The offense of stalking is set out in Article 130 of the UCMJ.1 Article 117a prohibits the wrongful broadcast or distribution of visual images of sexually explicit conduct.
Individuals convicted in a trial by court-martial of the offense of rape may be sentenced to any penalty up to and including confinement for life without the possibility of parole. If convicted, it is mandatory that the convicted person be sentenced to a dishonorable discharge if enlisted or a dismissal from the military if an officer. This mandatory minimum sentence also applies to cadets and midshipmen at the U.S. service academies. A person convicted in a trial by court-martial of the offense of sexual assault may be sentenced to any penalty up to and including confinement for up to 30 years. If convicted, it is mandatory that the convicted person be sentenced to a dishonorable discharge if enlisted or a dismissal if an officer.
The UCMJ includes provisions under Articles 133 and 134 that permit charging a military member with other misconduct under the construct of “conduct unbecoming an officer” (Article 133) or “other disorders and neglects to the prejudice of good order and discipline.” These catchall provisions allow for the incorporation of state statutes where appropriate by the assimilation of the state statute, or the charging of any offenses that prejudice “good order and discipline in the armed forces” or “bring discredit upon the armed forces.”
While the basic elements of the crimes of rape and sexual assault in the military as defined in title 10 of the United States Code are fundamentally the same as those found in state and federal statutes for the same crimes, there are distinct differences in how a case sent to trial will be handled if it is referred to a court-martial.
The UCMJ requires a case to be referred to a court-martial by a “Convening Authority.” Title 10 U.S.C. § 822 (Article 22 of the UCMJ) defines the persons authorized to convene a general or special court-martial. Those persons include the president of the United States, the Secretary of Defense, the commanding officer of a unified or specified combatant command, the secretary of the service concerned (Secretary of the Army, Secretary of the Air Force, etc.), and other designated commanders. The Convening Authority is not necessarily a person with extensive training in the law, but it is a person charged with maintaining good order and discipline in the command for which they are responsible. Additionally, under Article 137(c) (10 U.S.C. § 937(c)), officers with the authority to convene courts-martial or to impose nonjudicial punishment must receive periodic training regarding the purposes and administration of the UCMJ. Officers assigned to duty in a joint command or a combatant command receive additional specialized training regarding the purposes and administration of the UCMJ with respect to the unique features of applying the military justice provisions in joint and combatant commands.
The Convening Authority is required to submit the allegations before them to an attorney, referred to in the military as a “staff judge advocate,” and to obtain the written advice of the attorney as to those allegations prior to sending the matter to trial.2 It is the unique importance of responsibility for maintaining good order and discipline with which commanders are charged that makes the role of the Convening Authority critical to the military trial process.
Challenges with Respect to Jurisdiction
Under the provisions of 10 U.S.C. § 802, individuals who are members of a regular component of the armed forces, cadets attending service academies, and members of the military reserve and National Guard may be subject to the UCMJ. Members of the National Guard are subject to UCMJ jurisdiction only when they are serving in a “federally activated” status.
A 2019 decision by the U.S. Supreme Court denying certiorari in the cases of Staff Sergeant (SSgt) Steven Larabee and SSgt Derek Dinger confirmed the right of the military to exercise jurisdiction over military members who have retired from the armed forces. In the Larabee and Dinger cases, the accused were each retired from the U.S. Marine Corps when they were tried for criminal offenses that were not related specifically to their military service. SSgt Larabee had retired from active duty as a U.S. Marine and was working as a civilian at a military installation in Japan when he assaulted the wife of an active-duty Marine at a bar in Iwakuni, Japan. Larabee was in “Fleet Marine Reserve Status” at the time he sexually assaulted his victim.3
Larabee’s fact pattern highlights the unique challenges faced in prosecuting sexual assault cases when a military member or a retired military member is involved. First, there is the issue of jurisdiction over the person. The victim in the Larabee case was a family member accompanying a person serving on active duty with the U.S. military outside the United States. There are international agreements detailing whether the host nation court or the U.S. domestic or military courts have jurisdiction over any misconduct tied to military members, civilians accompanying the force, or family members. Additional consideration in determining the proper criminal venue for disposition of the case arises in analyzing whether the U.S. statute under which an offense can be charged is one that permits prosecution outside of the U.S. borders, that is, whether the U.S. statute includes the right to exercise extraterritorial jurisdiction.
Thus, where the offense involved a U.S. citizen victim and a U.S. citizen perpetrator, committed in Japan, would rape under the U.S. federal statutes detailed in title 18 of the United States Code be applicable? Would the U.S. Code of Military Justice under 10 U.S.C. apply? Would the Japanese courts take jurisdiction over the criminal matter, and what diplomatic entitlements would a defendant have in the event that the Japanese courts were to take primary jurisdiction?
There are also the critical questions as to what protections guaranteed to a U.S. citizen under the U.S. Constitution would be recognized and enforced if a trial were held outside of the U.S. court system, as well as what protections, if any, exist for the victim of an offense. Important considerations related to choice of jurisdiction include the U.S.-guaranteed right to be free from self-incrimination and the right to be represented by counsel, as well as guarantees afforded in the U.S. rules of evidence such as the “rape shield” provision found in Federal Rule of Evidence 412.4
When the issues arise in an overseas environment, there are a variety of legal agreements the U.S. Department of Defense negotiates that address these issues applying the U.S. Constitution, U.S. domestic law, and also obligations of the United States under international treaties and agreements in those nations in which the United States has forces present. Generally, a host country has criminal jurisdiction over U.S. military personnel located in the host country. However, negotiated agreements, including Status of Forces Agreements (SOFAs), Administrative and Technical Status agreements (A&T Status), Visiting Forces Act agreements, and the NATO Formula of Shared Jurisdiction agreements, may agree to allow the United States to exercise jurisdiction over service members stationed overseas under conditions specified, such as where both the alleged perpetrator and the alleged victim are U.S. citizens.5
U.S. military personnel who are “combat deployed” represent a unique set of issues with respect to jurisdiction. The general rule of international law is that a sovereign nation has jurisdiction over all persons found within its borders.6 However, individuals who are deployed in support of combat operations are generally subject to exclusive U.S. jurisdiction during a combat deployment.7
Impact on Victims in Prosecuting Sexual Assault
The complications in prosecuting military offenders or in addressing the needs of victims who are in the military or are family members of the military present additional challenges in ensuring justice for victims as well as protection of the rights of an accused, who is, under the terms of the U.S. Constitution, presumed innocent until proven guilty. Some of these complicating factors result in the decision to resolve allegations of sexual assault using an administrative process rather than in trial.
Cases that are resolved by administrative process may be handled under 10 U.S.C. § 815, more commonly referred to as “Article 15.”8 In deciding whether to refer a matter to a court-martial, or to address the matter nonjudicially under Article 15, where the offense involves a “sex-related matter,” the decision authority is required to consider the victim’s views as to whether the offense should be resolved by the military or by a civilian court having jurisdiction over the offense.9
The military commander is required to refer a complaint of a sex-related offense (one addressed by the UCMJ provisions referred to above) for investigation by the military criminal investigative organization with responsibility for investigating that matter and may not resolve the matter until that investigation is completed.10
The complexities facing a victim of a sex-related offense, however, are at least as challenging as those faced in civilian courts and usually more complicated. Where the perpetrator and the victim are both in the military, the challenge of being assigned on the same military installation or within the same unit poses unique complexities. The military succeeds through unit cohesion, commitment to a common goal, and specific obligations to follow the orders of those appointed over them. The obligation to follow the orders of those appointed over them is a part of the oath of enlistment.
In an effort to provide remedy for these complexities, Article 6(b) of the UCMJ (10 U.S.C. § 806(b)) provides victims with specified statutory rights. These include:
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any of the following:
(A) A public hearing concerning continuation of confinement prior to trial of the accused.
(B) A preliminary hearing under [UCMJ] article 32. . . .
(C) A court-martial relating to the offense.
(D) A public proceeding of the service clemency and parole board relating to the offense.
(E) The release or escape of the accused, unless such notice may endanger the safety of any person.
(3) The right not to be excluded from any public hearing or proceeding described [above] unless the military judge or preliminary hearing officer . . . determines that testimony by the victim of an offense . . . would be materially altered if the victim heard other testimony at that hearing or proceeding.11
(4) The right to be reasonably heard at any of the following:
(A) A public hearing concerning the continuation of confinement prior to trial of the accused.
(B) A sentencing hearing relating to the offense.
(C) A public proceeding of the clemency and parole board relating to the offense.
(5) The reasonable right to confer with the counsel representing the Government at any proceeding [covered under the Rule].
(6) The right to receive restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the dignity and privacy of the victim of an offense. . . .
Additionally, 10 U.S.C. § 1044e establishes the Special Victims’ Counsel (SVC). The SVC provides legal assistance to victims of an alleged sex-related offense. Victims of a sex-related offense may make their report of the sex-related offense as either a restricted report or an unrestricted report. The victim is entitled to the services of the SVC under either reporting mechanism.
Victims of sex-related offenses are afforded legal consultation regarding the responsibilities and support provided by the Sexual Assault Response Coordinator, Sexual Assault Victim Advocate, or domestic abuse advocate, including any privileges that may exist regarding communications between those persons and the victim. The victims are entitled to legal consultation regarding the potential for civil litigation against parties other than the United States.
The SVC also provides legal consultation regarding potential criminal liability of the victim stemming from or in relation to the circumstances surrounding the alleged sex-related offense and the victim’s right to seek military defense services.
Reports of sexual assault and rape in the military are reported by women and men. The challenges presented by men who report sexual assault or rape are at least as great as those faced by women who are victims in the military environment. The 2019 Department of Defense Annual Report on Sexual Assault in the Military reported 7,825 reports of sexual assault involving service members as either victims or subjects. This was a 3 percent increase over the 2018 report numbers.12 In the 2019 report, 19 percent of those who reported they were the victim of a sexual assault identified as male.13
When the perpetrator is a training instructor, a commander, or a superior in the chain of command, the ability to move to another assignment involves substantial disruption to the victim and the victim’s family. Despite efforts in recent years to ensure the victim is moved upon request while investigation is pending, and despite efforts to minimize the risk of negative career impact, victims have seen and heard too many reports to be satisfied that their own advancement in the military will not be negatively impacted if they report and seek prosecution of the offender.
Perhaps the most comparable situation in the civilian environment, however, is those cases in which a college student is accused of a sexual assault by a fellow student. Universities and colleges in the United States have struggled to address the sexual assaults on college campuses with this same sort of victim impact. Does the victim have to transfer to another college, and, if so, what are the long-term implications for that victim?14
An additional challenge when the perpetrator and the victim are both in the military is the concern military victims may have that they might face prosecution or discipline for some aspect of the event. For example, if the victim was under the age of 21 but intoxicated at the time as the result of consuming prohibited alcoholic beverages, or where the events that led to the sexual assault or rape began with a consensual extramarital affair in which at least one of the parties was married to another, the victim may be subject to disciplinary action for a violation of provisions of the UCMJ.15
When the victim of the sexual assault is a military family member and the perpetrator is in the same family, the challenges are even greater. The military compensation system, housing system, health care system, and the employment and education systems are often tied directly to the military member’s assignment. For example, where the victim is a child of a military member and the alleged perpetrator is a parent or stepparent who is in the military, the ability to remain in military housing, to obtain adequate alternative housing that provides protection from the alleged perpetrator, and to access adequate health care are all impacted by prosecution of the perpetrator. With a mandatory sentence that includes dishonorable discharge or dismissal if the perpetrator is convicted of rape or sexual assault, all of the military benefits and entitlements to which the family members once had access are placed in jeopardy. While there are some temporary transition benefits for the family, there is no long-term solution for the family of a sexual assault perpetrator as to retirement benefits, medical care, housing, or career progression.
It is notable that despite these barriers to reporting sexual assaults and rape, the numbers of reports continue to increase. Objectively, that could mean there are more sexual assaults and rapes occurring, or, alternatively, it could mean that the public attention to the issues and the way in which they have been addressed are slowly having the desired effect of providing victims with the confidence in the system to empower them to report.
Calls for Reform
Sexual assault and rape are not novel or new in the military environment, just as they are not new in the civilian environment. However, the level of attention that these offenses have received since the end of conscripted service in the United States, the end of the “draft,” and the increase in the numbers of women serving in the military is new. When the military service academies opened their doors to persons of all genders beginning in 1975,16 the reports of sexual assault by women cadets drew the specific interest and concern of members of Congress. Individuals who attend the service academies must be nominated by a member of Congress, the vice president, or the president of the United States.17 The service academies’ experience with sexual assault and rape on campus was not unlike that experienced in other colleges and universities, but the role and responsibility of members of Congress in selecting the sons and daughters of constituents to nominate to the service academies resulted in heightened interest.
The military response to accepting a co-ed population into its university environment was deficient on many levels, and its ability to respond to sexual assault and rape in the university environment mirrored deficiencies that had been experienced by victims of sexual assault in the noneducational military environment for many years. Gender inequality had been a hallmark of military service from the earliest days of the nation. The Women’s Armed Services Integration Act of 1948 authorized secretaries of the various services to specify by regulation those military duties women could be assigned to perform.18 Women in the military were subject to discharge if pregnant and to court-martial for fraudulent enlistment if they failed to declare that they had children at the time of entry into the armed forces until May 1975.19
The gender imbalance, absence of women in leadership positions, and general disparity in power within the military environment led to calls for change that were largely ignored until the service academy scandals brought the necessary attention to the concerns.
Calls for change ranged from radical revision of the UCMJ’s method of referring cases to trial, to calls to create an independent office outside the chain of command, but within the military, to which all cases of sexual assault and rape would be referred for investigation and a decision regarding prosecution.20
High-profile cases involving victims of sexual assault, sexual harassment, stalking, and rape perpetrated by military members will continue to result in congressional attention to needed reforms to address the unique challenges to prosecute and punish sexual misconduct in the military environment. Cases like those of Army Specialist Vanessa Guillen, Lance Corporal Maria Lauterbach, Private First Class Asia Graham, and Private Second Class Nicole Burnham, where the victims have died as the result of either murder or suicide, continue to highlight the need for change. The military has begun to address the need to remove from supervisory and command positions those who fail to do what is necessary to address the many issues that must be considered in providing support to victims and family members and to ensure accountability balanced with the constitutional guarantees of the U.S. justice system. This is a vital step toward changing the “climate” within the military from the previous “boys will be boys” acceptance of sexual misconduct to a climate of respect for each service member that promotes an environment safe from unwanted sexual contact.
The views presented in this article represent the author’s personal views and do not necessarily reflect the views of the Department of Defense or its components or of the United Nations.
Endnotes
1. In 2016, when major changes were made to address sexual assault and rape in the military, Executive Order 13730 (May 20, 2016) included as a sex-related offense those offenses charged under 10 U.S.C. § 825, which proscribed forcible sodomy. Forcible sodomy falls within Article 120 under the current UCMJ.
2. 10 U.S.C. § 834.
3. There is also a pending appeal in the case United States v. Chief Petty Officer Stephen Begani, decided en banc at the U.S. Navy Marine Corps Court of Military Appeals on January 24, 2020, raising constitutional challenges to jurisdiction over military retirees. See United States v. Begani, No. 201800082 (N.M.C.C.A. 2020). Additionally, in Larabee v. Braithwaite, No. 1:2019cv00654, Larabee filed a challenge to Article 2(a)(6) of the UCMJ before the U.S. District Court for the District of Columbia, alleging that trial of retirees is unconstitutional. A memorandum decision on the matter was issued on November 20, 2020, by U.S. District Judge Richard J. Leon, finding in favor of Larabee. The United States filed its appeal of that decision on January 14, 2021.
4. F.R.E. 412 is applied under the Uniform Code of Military Justice and is referred to as Military Rule of Evidence (M.R.E.) 412.
5. See Operational Law Handbook 121–31 (ch. 7, International and Status of Forces Agreements) (2015), https://www.loc.gov/rr/frd/Military_Law/pdf/OLH_2015_Ch7.pdf (last visited Jan. 4, 2021).
6. Id. at 126.
7. Id.
8. Proceedings under Article 15, UCMJ, are also sometimes referred to as nonjudicial punishment, captain’s mast, admiral’s mast, or similar terms.
9. See Rule for Court-Martial 306(e).
10. See id. 303.
11. The determination requires findings applying the “clear and convincing evidence” standard. 10 U.S.C. § 806b(a)(3).
12. See Dep’t of Def., Annual Report on Sexual Assault in the Military: Fiscal Year 2019, https://media.defense.gov/2020/Apr/30/2002291660/-1/-1/1/1_DEPARTMENT_OF_DEFENSE_FISCAL_YEAR_2019_ANNUAL_REPORT_ON_SEXUAL_ASSAULT_IN_THE_MILITARY.PDF.
13. See Dep’t of Def., Appendix B: Statistical Data on Sexual Assault (2019), https://www.sapr.mil/sites/default/files/3_Appendix_B_Statistical_Data_on_Sexual_Assault.pdf.
14. See Laura L. Dunn, Addressing Sexual Violence in Higher Education: Ensuring Compliance with the Cleary Act, Title IX and VAWA, 15 Geo. J. Gender & L. 563 (2014).
15. The UCMJ prohibits drunk and disorderly conduct and “extra-marital sexual conduct” as set out at 10 U.S.C. § 934 where that conduct is prejudicial to good order and discipline in the armed forces or of a nature that would bring discredit on the armed forces.
16. See Department of Defense Appropriation Authorization Act of 1976, Pub. L. No. 94-106, 89 Stat. 531 (Oct. 7, 1975).
17. Cadets are not required to have a congressional, presidential, or vice presidential nomination to attend the U.S. Coast Guard Academy.
18. Jeanne Holm, Women in the Military: An Unfinished Revolution 21 (1993).
19. See Judith Hicks Stiehm, Arms and the Enlisted Woman 117 (1989); Holm, supra note 18, at 300.
20. For examples, see the Protect Our Military Trainees Act (H.R. 430), the Military Judicial Reform Act (H.R. 1079), the STOP Act (H.R. 1593), and, most recently, the I am Vanessa Guillen Act of 2020 (H.R. 8270).