Sex Offenses Under Military Law: Will the Recent Changes in the Uniform Code of Military Justice (UCMJ) Re-Traumatize Sexual Assault Survivors in the Courtroom?

In 2013, the President, Secretary of Defense, and members of Congress responded with shock and outrage to perceptions of increased sex assaults committed by military personnel upon other military personnel. Politicians are considering a variety of changes to substantive and procedural criminal law to make prosecution of such offenses more effective. This Article evaluates substantive military criminal law, UCMJ art. 120, 10 U.S.C. § 920, and Military Rules of Evidence 404(a) and 405(c). Drawing on lessons learned from state and federal laws, the Article then makes recommendations regarding statutory changes in military criminal sexual assault and procedural statutes. Specifically, the author recommends amending substantive military criminal law to add the offense of “Indecent Act” back into UCMJ art. 120; modifying the definition of force; eliminating the increased emphasis on whether the victim’s fears are “reasonable”; removing the focus from the accused’s perceptions of the victim; returning the statutory limitations on the affirmative defense of mistake of fact as to consent; adopting California’s evidentiary threshold for giving affirmative defense instructions on mistake of fact as to consent and consent; and creating a statutory structure to restrict judicial appellate discretion in determining the need for certain lesser-included offense instructions. The author supports a statute-based amendment of Military Rules of Evidence 404(a) and 405(c) to clarify that general military character or good soldier evidence is not admissible to show probability of innocence for sexual assault offenses