02 April 2009

Navy-Marine Corps Court holds new Uniform Code of Military Justice article 120 constitutional

CAAFlog reports here that the Navy-Marine Corps Court of Criminal Appeals, sitting as a full court (otherwise known as "en banc"), unanimously held the new Uniform Code of Military Justice article 120 -- a sex crimes statute -- is constitutional in the case of United States v. Neal. Several military judges had ruled the new article 120 unconstitutional on the grounds that the affirmative defense of consent shifted the burden to the defendant to disprove an element of the crime.

On 1 October 2007 the new article 120 took effect after Congress enacted it in the National Defense Authorization Act for fiscal year 2006. The statute deals with sexual assaults. The new article 120 had originally been opposed by the Department of Defense. However, eventually the Department of Defense, through it's Joint Service Committee on Military Justice ("JSC"), made several recommendations to Congress. Congress adopted the recommendation that some say is unconstitutional. The issue made CAAFlog's top ten military justice stories of 2008 coming in at number six. Here's a link to CAAFlog's article.

Several senior Congressional staffers on both sides of the aisle, speaking on the condition of anonymity, indicate that lawmakers and senior staff of the House and Senate Armed Services Committees are closely monitoring the issue. The appellate court's ruling is only binding on the Navy and Marine Corps service. If however, the nation's highest military court, Court of Appeals for the Armed Forces, agrees to take up the case, or the issue in another case, a determination would be binding on all military services absent a review by the Supreme Court. A final determination by the military's highest court or the Supreme Court could bring lawmakers back to the drawing board should the new article be ruled unconstitutional.

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