House Passes 2-Year Minimum Sentence for UCMJ Rape and Sexual Assault Cases

Posted by Jason Van Steenwyk

2-Year Minimum Sentence for UCMJ Rape The House of Representatives handily passed a measure to impose a mandatory minimum sentence of two years confinement, plus dismissal or dishonorable discharge, for those convicted of rape or sexual assault under the UCMJ. If the measure is ultimately signed into law as part of a larger bill, it would increase the stakes for any servicemember accused. It would also make it more likely that the offender will never target anyone else while in uniform. This is important because last year nearly 25 percent of those convicted via the UCMJ remained in the service.

According to the Servicewomen’s Action Network, the military received 3,192 reports of sexual assaults against its members – overwhelmingly against women. The military considered 1,518 of them to be “actionable,” meaning the severity warranted criminal prosecution under the UCMJ, the event fell under UCMJ jurisdiction, and there was enough evidence, in the estimation of prosecutors, to potentially obtain a conviction. Out of the roughly 8 percent of the total number of sexual assault reported, there were 191 convictions. Of these, about 148 were discharged or dismissed. Another 15 or so resigned rather than face trials. That still leaves a significant number of troops who were allowed to remain in uniform despite a UCMJ conviction for sexual assault on their records.

The UCMJ includes a potential death sentence for rape under article 120. This article has already been reviewed and revised in 2007. Under the old law, prosecutors had to demonstrate that the accused had had sexual contact with the accuser without consent. Congress’s revision effectively put the burden of proof on the accused. Instead of merely needing to cast reasonable doubt on the prosecution’s claim, the revised statute required the accused to prove that the accuser actually consented to the sexual contact.

Some courts have found this burden shift to be constitutionally questionable, violating the right to due process under the 5th. The law also removed the question of consent as an element of the crime, in an attempt to place investigative focus on the accused rather than on the accuser. There were significant problems with this approach, since the 6th amendment still guarantees the accused the right to confront witnesses against him. Congress therefore revised Article 120 again in 2012. More details here.

There has only been one execution for rape under the UCMJ since WWII: Pvt. John Arthur Bennett was hanged in 1961 at Fort Leavenworth for raping and attempting to murder an 11-year old girl in Austria. Earnest L. Ransom was also executed at Fort Leavenworth in 1957, but he had also been convicted of premeditated murder along with raping a 14-year-old Korean girl. 

 

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