#Alcohol is not the problem; #DraconianRant about #SexualAssault in the US Military

Note: I am not saying that rapes and real sexual assaults do not occur within the military.  They do occur and I’ve investigated those crimes as well.
Please read: My point is that there is a reason why the number of reported sexual assaults are on the rise and alcohol is not it (it may be a contributing factor, but it is not the cause).

Relative background to this Rant:
Primary occupation: Military/Law Enforcement (AFOSI)

A recent article discussed a “50-percent increase” in sexual assaults over the “previous [fiscal] year” — again citing the possibility that the numbers could be higher due to people not wanting to report the incident.  The Pentagon’s new tactic is now taking the fight to “alcohol” as the prime reason there are “so many new” assaults.

I do not believe they are doing a fair comparison, and here’s why: for those that don’t know, the Manual for Courts Martial (MCM), also sometimes referred to as the “Uniform Code of Military Justice” (UCMJ), was revised in 2012.

Here’s an excerpt from Preface of the most recent MCM/UCMJ (page 6):

“Article 120 was significantly restructured and broken into three new statutes: Article 120 for adult sex offenses; Article 120b for child sex offenses; and Article 120c for other sexual misconduct.  These changes take effect on 28 June 2012.  The 2012 MCM will contain all three versions of Article 120.  For offenses committed prior to 1 October 2007, see Appendix 27. For offenses committed during the period 1 October 2007 through 27 June 2012, see Appendix 28.  For offenses committed on or after 28 June 2012, see Part IV of this Manual.”

Now, I’ve highlighted the key areas (you are more than welcome to download and peruse the complete MCM, available here— Article 120 starts on page 352… there are 884 pages in this version)

45. Article 120—Rape and sexual assault generally
[Note: This statute applies to offenses committed on or after 28 June 2012. Previous versions of Article 120 are located as follows: for offenses  committed on or before 30 September 2007, see Appendix 27; for offenses committed during the period 1 October 2007 through 27 June 2012, see Appendix 28.]
a. Text of statute.

(a) Rape. Any person subject to this chapter who commits a sexual act upon another person by
…
(b) Sexual Assault. Any person subject to this chapter who—
(1) commits a sexual act upon another person by—
(2) commits a sexual act upon another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring; or
(3) commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to—
(A) impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person; or
…
(g) Definitions. In this section:
…
(2) Sexual contact. The term ‘sexual contact’ means—
(A) touching, or causing another person to  touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person; or
(B) any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.
Touching may be accomplished by any part of the body.
…

Now that you are aware of how the code is now, let me show you what it was (2008 MCM, page 350):
Article 120
45. Article 120—Rape, sexual assault, and other sexual misconduct
a. Text of statute.

(a) Rape. Any person subject to this chapter who causes another person of any age to engage in a sexual act by—
…
(b) Rape of a child.  Any person subject to this chapter who—
…
(c) Aggravated sexual assault. Any person subject to this chapter who—
(1) causes another person of any age to engage in a sexual act by—
(A) threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping); or
(B) causing bodily harm; or
(2) engages in a sexual act with another person of any age if that other person is substantially incapacitated or substantially incapable of—
(A) appraising the nature of the sexual act;
(B) declining participation in the sexual act; or
(C) communicating unwillingness to engage in the sexual act; is guilty of aggravated sexual assault and shall be punished as a court-martial may direct.

So, as you can see — the law has changed so significantly, that no longer are Military Law Enforcement officials looking (and Judge Advocates prosecuting) for “aggravated” assaults, but now any form of touching relating to “intent to arouse or gratify the sexual desire”  of the subject meets the letter of the new laws.

Let me give you two EXTREME examples (that became cases) that I was aware of, as I monitored criminal cases in the Pacific Theater being conducted by felony-level law enforcement officers.

i) Male (Driver) and Female (Passenger) are in a car.  An argument ensues, Male pulls over and tells Female to get out.  Female refuses.  Male reaches over to open passenger door, Male’s elbow brushes against Female’s breast.  Female reports incident.  With that contact, sexual assault case opened/conducted.
ii) Male and Female are at club.  Male dances (hip hop/grinding style) with Female.  Female objects, reports incident.  With that contact, sexual assault case opened/conducted.  P.S. As this was a club, where (at least the) Male drank alcohol, this became an “Alcohol-related sexual assault case.”

Now; one thing that should appall you is the “FBI” equivalent Law Enforcement Agency for each of the military departments (for example, the Naval Criminal Investigative Service [NCIS–yes, like the TV show], the Air Force Office of Special Investigations [AFOSI], and Army Criminal Investigation Command [abbreviated as CID]) are bound by the legal code in the MCM (not to mention being under watch and eye of very high political figures) and are using their federal agent-level training to investigate unattended deaths, murders, fraud, drug investigations, actual rapes, a whole slew of other actual felony-level crimes and yes… don’t forget dirty dancing.

What are your thoughts on this article?

Note: The Fiscal Year is defined as 1 October – 30 September.  So, FY13 began on 1 October 2012 and ended 30 September, 2013.  And as a reminder, this new MCM was in effect as of 28 June 2012.

Read the article here.  “Hagel orders DOD-wide alcohol review after sex assault report” (Stars & Stripes)