By Capt. Daniel Hancock, Fort Rucker Office of the Staff Judge Advocate Special Victims' CounselApril 6, 2017
FORT RUCKER, Ala. -- In December, Congress passed and then-President Barack Obama signed the Military Justice Act of 2016. This law made several important changes to our military justice system that will begin to take effect over the next two years, and it laid the groundwork for future adjustments to the system.
The act updated many of the crimes recognized by the Uniform Code of Military Justice. Together with an executive order issued in 2016, the act streamlined the UCMJ provisions relating to sexual crimes. In response to other recent trends, it also added offenses dealing with theft accomplished via credit and debit cards (Article 121a), stalking and cyber-stalking (Article 130), and acts of retaliation against victims, witnesses and reporters of crimes (Article 132).
Because Fort Rucker is a training installation, all service members should be aware of the new Article 93a that prohibits sexual relations, regardless of consent, between service members serving in training/accessions roles (drill sergeants, recruiters, etc.) and their trainees/recruits.
Another important change was increasing the statute of limitations for crimes involving child victims to 10 years and restarting the statute of limitations calculation when DNA evidence first implicates an offender for a serious crime.
For courts-martial, the act established uniform sizes for courts-martial panels (or juries, to borrow the civilian term). All death penalty trials will consist of 12-member panels, other general courts-martial will have eight-member panels and special courts-martial will have four-member panels. As opposed to the current two-thirds requirement, three-fourths of the panel members will have to agree on the guilt and sentence for the accused, except in capital trials where unanimity is still required.
Additionally, in cases where an enlisted service member elects to have enlisted service members on the panel, those enlisted panel members may now be from the same unit as the accused service member.
The act also changed the procedures available for determining the sentence for a service member convicted of a crime. Now, even in a trial where a panel decides whether the service member is guilty, a convicted service member may elect to have the military judge determine the sentence in a manner similar to many civilian jurisdictions. Once the law is implemented, sentences that require the forfeiture of pay or reduce an enlisted service member in rank will take effect immediately.
Convicted service members' rights to appeal their convictions were also changed. In the past, all cases where the sentence involved the death penalty, a punitive discharge, and/or confinement for six months or more were subject to mandatory appellate review. Now, only cases where the sentence includes the death penalty, a punitive discharge, or more than two years of confinement will be subject to mandatory appellate review. However, convicted service members sentenced to more than six months of confinement may still appeal their convictions to the Army Court of Criminal Appeals.
Military judges also gained an important new authority under the new law. Military judges may now issue subpoenas and warrants earlier in a case than under prior law. The act also makes it easier to enforce these subpoenas and warrants with civilian organizations by allowing for federal criminal prosecutions of civilians who refuse to comply with a subpoena issued by a military judge.
For those interested in the long-term trajectory of the military justice system, the new law created a permanent Military Justice Review Panel that consists of 13 members, including the secretary of defense, the attorney general, the chief justice of the Supreme Court, the chief judge of the Court of Appeals for the Armed Forces, and other officials to study the military justice system and make appropriate recommendations to Congress and the president.
Additionally, the law directed the judge advocates general of each armed service to develop five-year pilot programs to assess the feasibility of training a limited number of their judge advocates as experts in complex military justice trials.
Two other changes directed in the law will impact the routine practice of military justice. First, the act allows for military magistrates (who are generally captains and majors) to serve as judges in special courts-martial empowered to sentence any convicted enlisted service member to six months of confinement or less, but not to adjudge a punitive discharge.
Second, all defense counsel must request interviews with represented sexual assault victims through their special victims' counsel, and the victim has the right to request that the trial counsel (prosecutor) and victim advocate be present at that interview.
Finally, the Military Justice Act banned a once-popular punishment for Navy commanders to use at Captain's Mast (Article 15) proceedings when aboard deployed ships: restricting a guilty Sailor to a diet of bread and water.