Sexual Assault Crimes in the Military – Revisions to the U.C.M.J. in 2007
The Uniform Code of Military Justice and the Manual on Courts Martial set out the laws that govern not only offenses unique to the military, but conventional offenses such as assault, battery and sexual offenses. In 2007, the section of the Code entitled “Rape” was amended and renamed “Rape, Sexual Assault and Other Sexual Offenses” and some offenses that had appeared elsewhere were consolidated in the new U.C.M.J. Article 120. It was effective October 1, 2007. Thus, in defending a client charged with any form of sexual offense, defense counsel needs to be aware of whether the charges arise under the old or the new Code.
In Article 120, there are fourteen categories of sexual crime; many of the definitions and elements apply equally to adult and child victims. The key difference when the victim is a child is that certain sexual conduct with children is an offense based solely on the child’s age and without the necessity of showing specific intent or use of force.
Application of the new or “old” law
Generally, the statute of limitation is five years except in death penalty cases. Rape is technically a death penalty crime in the military, but the impact of Supreme Court decisions on the death penalty insofar as rape and child rape provisions of the U.C.M.J. is beyond the scope of this review. Moreover, the statute may be tolled if the accused was outside of the jurisdiction of military tribunals for some period of time. Thus, the “old” law is still relevant to prosecutions occurring today and potentially for some time in the future. The practitioner should be aware of the prior law and case holdings, but they are beyond the scope of this summary here.
Criticism of the 2007 Sex Assault Revisions
Critics have called the 2007 revisions in the Code at worst unconstitutional and at best confusing. 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.” http://www.sapr.mil/media/pdf/research/DTFSAMS-Rept_Dec09.pdf.
Because of the intricacies of the revisions and the interplay between the “old” rape code and the new Article 120, counsel must study the issues and governing law very closely when undertaking the defense of a military sexual assault crime. Citations here are to the Manual for Courts Martial (MCM)
The “Old” Rape Law under the U.C.M.J.
The prior law may still be relevant to prosecutions for sexual crimes in the military. The case law defining certain concepts or elements may also be instructive even under the new Article 120. The practitioner is advised to carefully review the circumstances to determine whether any prior law may be of importance.