Sexual Assaults Under the Uniform Code of Military Justice (UCMJ): Selected Legislative Proposals

Recent high-profile military-related cases involving sexual assaults by U.S. servicemembers have resulted in increased public and congressional interest in military discipline and the military justice system. Questions have been raised regarding how allegations of sexual assault are addressed by the chain of command, the authority and process to convene a court-martial, and the ability of the convening authority to provide clemency to a servicemember convicted of an offense. Under Article I, Section 8 of the U.S. Constitution, Congress has the power to raise and support armies provide and maintain a navy and provide for organizing and disciplining them. Under this authority, Congress has enacted the Uniform Code of Military Justice UCMJ, which is the code of military criminal laws applicable to all U.S. military members worldwide. The President implemented the UCMJ through the Manual for Courts-Martial MCM. The Manual for Courts- Martial contains the Rules for Courts-Martial RCM, the Military Rules of Evidence MRE, and the UCMJ. Members of the Armed Forces are subjected to rules, orders, proceedings, and consequences different from the rights and obligations of their civilian counterparts, and the UCMJ establishes this unique legal framework. The UCMJ authorizes three types of courts-martial 1 summary court-martial, 2 special courtmartial, and 3 general court-martial. Depending on the severity of the alleged offense, the accused s commanding officer enjoys great discretion with respect to the type of court-martial to convene. Generally, each of the courts-martial provides fundamental constitutional and procedural rights to the accused, including, but not limited to, the right to a personal representative or counsel, the opportunity to confront evidence and witnesses, and the right to have a decision reviewed by a lawyer or a court of appeals.