The U.S. military has revised the Uniform Code of Military Justice to consolidate sex crimes under one article, specifying the elements of each crime and setting forth the maximum penalties, military and civilian attorneys said.
Article 120 of the UCMJ now includes expanded descriptions of the sexual assault and carnal knowledge statutes and brings various other sexual offenses under the same article, said Robert Reed, the associate deputy general counsel for military justice and personnel policy in the Pentagon. The offenses previously were scattered in various military legal statutes.
The revisions, which took effect Oct. 1, came about after Congress asked the Defense Department to review its statutes governing sexual offenses and bring them more in line with federal sex crimes statutes, Reed said.
Incidents of sexual assault and harassment in the military have gained public attention in recent years, including reports of rape and sexual assault at the service academies and against women deployed to the war zones.
Article 120 now includes rape of a child, aggravated sexual assault both to an adult and child, aggravated sexual abuse of a child, indecent acts, forcible pandering, indecent exposure and wrongful sexual contact, among other offenses. A subsection to the article deals with stalking.
The revisions have sparked legal debate. The new language does not specify the government’s need to prove a victim’s “lack of consent.” Instead, the government must prove solely that the perpetrator had sex with the victim by force, Reed said.
“That meets the element of the offense if established beyond a reasonable doubt,” he said.
The rewrite shifts the burden of proof from the government to the defense, said David Court, who has 30 years of experience defending U.S. servicemembers at courts-martial in Europe.
“The defense will have the burden to show by a preponderance of evidence that the accused mistakenly believed the other person involved in the incident was a consenting participant,” he said. “Then the burden shifts to the government to prove beyond a reasonable doubt that there was no consent.
“I ask you, how that’s possible?” Court said. “If a decision has been made by a preponderance of the evidence that he was mistaken, that should equal not guilty.”
In other words, if the accused thinks the victim consented, and his defense attorney can prove that, then the accused should be found not guilty.
Reed said eliminating the “without consent” requirement refocuses the case from the victim to the perpetrator.
If the defense raises the issue, Reed said, the government then must address it and prove beyond a reasonable doubt that the sex was, in fact, unwanted.
The consent issue has stirred grumblings in the military legal community, and the change will be addressed at the next round of reviews by the Joint Service Committee on Military Justice in January, Reed said.
One civilian defense attorney said the revision provides better guidelines for both sides of a case.
“The new version breaks down each foreseeable type of sexual assault, specifies the elements that distinguish one from another, and sets forth maximum penalties for each,” Guy Womak said.
“It basically simplified the charging and defense of such offenses by providing more specificity as to what constitutes each variant of the offenses.”
