The Joint Service Committee on Military Justice (JSC) has released new
supplementary material for the Manual for Courts-Martial (MCM) that could
have a significant effect on Article 134 trials. The new publication dictates
how certain sexual offenses should be considered and recorded in court.
For example, the new material clarifies how the Article 134 offense of
adultery should be defined by the court. While extramarital sexual activity
is a chargeable offense, the new addition to Appendix 23 notes that the
sexual activity itself is not to be considered criminal.
"The offense of adultery is intended to prohibit extramarital sexual
behavior that directly affects the discipline of the armed forces, respect
for the chain of command, or maintenance of unit cohesion," Appendix
23 reads. "This provision should not be interpreted to criminalize
sexual practices between two adults with full and mutual consent from
each other, but rather, to punish the collateral negative effects of extramarital
sexual activity when there exists a genuine nexus between that activity
and the efficiency and effectiveness of the armed forces."
Disjunctive vs. Conjunctive
There is also an addition to Appendix 23 that dictates that when charging
multiple clauses in an Article 134 offense, both the court record should
use the word "and" and not "or" to separate them.
This is known as charging in the disjunctive (“or”) or charging
in the conjunctive (“and”). The purpose of this seemingly
minor change is actually significant: it clarifies the record as to whether
or not each clause was proven beyond a reasonable doubt—rather than
ambiguously grouping all of the theories of guilt together with “or.”
"At findings, the Trial Counsel or Military Judge must make certain
that the record is clear as to whether the trier of fact found that clause
1, clause 2, or both clauses were proven beyond a reasonable doubt,"
Appendix 23 now reads. "Using the word 'and' to separate
clauses 1 and 2 in the terminal element allows the trier of fact to except
the unproven clause from the specification. This approach forces intellectual
rigor in analyzing each clause as distinct and separate."
CAAFlog.com recently addressed the wider issue of charging in the disjunctive rather
than the conjunctive. They use
United States v. Lesley as an example of when a defendant was convicted of “knowingly and
wrongfully possessing child pornography, to wit: digital videos of a minor,
or what appears to be a minor, engaging in sexually explicit conduct.”
That “or” meant that, on appeal, the convicted defendant in
this case was able to argue for a lesser sentence under the assumption
that pornographic material only featured “what appeared to be minor.”
This was possible because prosecutors did not charge in the conjunctive
(using “and”), which would have included all circumstances
listed in the charge for later, separate assessment by the court. The
new Appendix 23 encourages this use of charging in the conjunctive to
add a much needed level of accuracy to court-martial procedure.
If you are a military Servicemember who has been accused of a criminal
act, then it is crucial that you have defense counsel that is familiar
with the military justice system.
Joseph L. Jordan, Attorney at Law is 10+ year veteran of the U.S. Army who now defends the rights and interests
of accused members of our armed forces stationed all over the world.
Take an aggressive approach to your defense. Contact us today to request a
free case evaluation.