Judicial Proceedings Panel on Article 120, UCMJ Released

The annual rite of proposing ways to change military sexual assault law was released recently in the form of the Judicial Proceedings Panel on Article 120. Judicial Proceedings Panel Report

To be perfectly clear, this is an issue that does not concern me as much as it has in the past. Congress keeps changing the law and we keep winning cases. We keep winning for three fundamental reasons: (1) Military juries generally have integrity and are honest, (2) military prosecutors can't say no, and (3) prospective jurors are being trained on legal concepts that are inconsistent with their own experiences and they are rejecting that training with their verdicts. The combination of weak evidence and mostly honest jurors is a recipe for an acquittal.

I first began work on military crimes and defenses book five years ago with a major publishing firm. It is finally near publication. Over the years, I've had to re-write the sexual assault chapter several times. Over the course of countless hours of research and writing, I realized that I don't really care what they do to the law. We keep getting acquittals for the most part. The reality is that nobody in Congress is getting the civilian defense bar involved much in the discussion. There are some heavy hitters on this panel. Highly respected lawyers to be clear. But, the road warriors - those of us in the trenches winning cases in every branch all over the country aren't involved much in the political discussion.

I will agree with the Judicial Proceedings panel on one point though. Article 120, UCMJ is reasonably effective (to use their words).

Most of the new recommendations have to do with changing the jury instructions and law. I'll be blunt. I don't care what they do to the jury instructions. Military jurors have been fed garbage for years and they aren't buying it.

The Department of Defense subjects our jury pool to hours of sexual assault training every year. In every case, I have to question potential jurors. In most sexual assault cases alcohol or rank is involved on some level. In every case, I have to question jurors on their understanding of how alcohol affects a woman's ability to consent. Every juror I speak to has been taught that a woman who consumes even one drop of alcohol cannot consent to sexual activity. That's nonsense, of course. And they know it's nonsense.

I recently had several Coast Guard jurors tell me that if a husband and wife both consume one glass of wine during an anniversary dinner neither individual can legally consent to sexual activity. That's what they are being taught. It's a load of garbage and they know it. And we are winning cases because of it.

In cases involving abuse of rank, it doesn't take long for us to discover that service members know how to complain about abuses of rank and authority. They know where to complain. They also know that they will be protected if they complain. In cases involving abuses of rank or authority, the jury is often left with a person engaging in a completely consensual relationship who is now looking to gain from that relationship.

This report seems to take the view that the law needs to be written clearer on issues of consent and coercive relationships. The recommendations seem pragmatic.

But, nothing in the report is likely to change how we defend these cases. Military jurors are intelligent. Many of them have graduate level education. They understand the law. It's sex...it's not rocket surgery.

I've got strong views on the issue, but it's become too exhausting to maintain those views. Like I said...Congress keeps changing the laws and juries keep rejecting those changes.