The Pentagon has proposed changes to the Manual for Courts-Martial to implement the practical details of the new military rape and sexual assault law Congress passed last year as a revision to Article 120. ()
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The Pentagon is finalizing changes to the military's rape law that experts say will shore up the rights of troops accused of sexual assaults.
The revisions to Article 120 of the Uniform Code of Military Justice aim to address complaints that the law has unfairly shifted the burden of proof to defendants, essentially reversing the maxim of "innocent until proven guilty" and forcing some troops accused of sexual assault to prove that a sexual encounter was consensual.
"It's an attempt to address the constitutional concerns about defendants' rights," said Michael Navarre, a former Navy judge advocate who now works in private practice in Washington.
In October, the Pentagon proposed changes to the Manual for Courts-Martial to implement the practical details of the new military rape and sexual assault law Congress passed last year as a revision to Article 120.
Lawmakers were seeking to fix problems created by a law passed in 2006, when Congress also revised Article 120 amid heightened public concerns about sexual assault reports in war zones and at the military academies.
Experts say the 2006 revision was poorly written and that it was flawed when applied to people who were accused of rape and claimed to believe — mistakenly or not — that their accusers had consented to the sexual acts.
That law was struck down last year by the military's highest court in the case of an airman convicted of aggravated sexual assault after having sex with a woman who passed out drunk on his couch during a house party in 2007.
The airman claimed the woman woke up, kissed him, took off her pants and they had consensual sex. The woman, on the other hand, said she recalled waking up and finding the airman on top of her and penetrating her, and she passed out again. She later reported the incident as a rape.
Under Article 120 as it was written at the time, the airman had to provide evidence of consent. That amounted to an "unconstitutional burden shift to the accused," according to the Court of Criminal Appeals for the Armed Forces, which overturned the conviction in February 2011.
Now, under the new version of Article 120, accused service members can claim they acted under the mistaken belief that they had consent but do not necessarily have to provide any particular proof. The jury panel is free to accept or reject such claims based on the other evidence in the case.
Military officials estimate that about 19,000 troops are sexually assaulted each year, but only a fraction of those are reported and even fewer lead to criminal convictions.
More changes coming
The new rules for military trials also allow for disclosure of more evidence about alleged victims, such as whether they and their accusers had a previous sexual relationship or whether the alleged victim had made previous allegations of sexual assault that were unsubstantiated.
Another change gives investigating officers at preliminary hearings the authority to seek subpoenas for documents from civilian agencies and businesses, such as cellphone records, medical records and police reports. Under previous rules, military lawyers could only issue requests that had no real legal authority.
"I think both sides would say these could be good changes," Navarre said. "You want the Article 32 officer telling the commander, ‘Hey, this is the strength of the case.' These new rules are an attempt to permit the Article 32 hearing officer to see and hear more evidence. With more evidence, the commander is getting a better assessment of the case and hopefully a better recommendation."
Victor Hansen, a retired Army judge advocate who is now a professor at New England Law in Boston, said the military is trying to balance the rights of both victims and troops accused of sexual assaults.
"This … reflects the sort of push-pull by the military to make sure they are being responsive to public criticisms about their ability to go after the perpetrators of sexual assault while at the same time striking a fair balance with the rights of the defendant," Hansen said. "For the most part, that is going to be an advantage of the defense rather than the prosecution because it gives them the ability to discover more evidence and challenge more evidence at the Article 32 stage."