Professor Jim Clark on Analysis of Crimes and Defenses 2012 UCMJ Article 120, Effective 28 June 2012

By Professor Jim Clark

Congress defines military sexual crimes in Article 120 of the Uniform Code of Military Justice (UCMJ). 10 U.S.C.S. § 920 et.seq. Effective on June 28, 2012, the newest version of military sexual crimes more successfully shifts the focus to the offender, but is not without its problems. This Emerging Issues Analysis by Jim Clark, professor of Criminal Law at The Judge Advocate General's Legal Center and School, the US Army's ABA-accredited legal center in Charlottesville, Va., explores the changes effected by the new Article 120.



Professor Clark writes:

"Congress defines military sexual crimes in Article 120 of the Uniform Code of Military Justice (UCMJ). 10 U.S.C.S. § 920 et.seq. For decades, the sole codified adult sexual offense was Rape by force and without consent. In 2007, Congress completely revamped and expanded the scope of Article 120.

"One major goal of the 2007 amendment was to shift the focus from the victim to the offender by removing the element of lack of consent. The new Article 120 successfully criminalized a broader range of offensive sexual activity, but was not otherwise a rousing success. The Hon. John Maksym, judge of the Navy-Marine Corps Court of Appeal, described the statute as a "poorly written, confusing and arguably absurdly structured and articulated act of Congress." United States v. Medina, 68 M.J. 587, 595 (N-M.C.C.A. 2009). Congress' inclusion of defenses of consent and mistake of fact as to consent in the revised law created an unconstitutional conflict in the law, and also returned the victim to the center of many prosecutions.

"In 2011, Congress recognized that the flawed 2007 Article 120 was not working well, and drafted a replacement, which takes effect on 28 June 2012. The newest version of military sexual crimes more successfully shifts the focus to the offender, but is not without its problems. This article explores the changes effected by the new, new Article 120."

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