Scholarship Saturday: New tools to bring domestic abusers in the military to justice

By Isaac Kennen

Scholarship Editor
www.caaflog.org

The 2019 National Defense Authorization Act (NDAA) became law on August 13, 2018 and has two provisions that are particularly important for dealing with domestic abuse incidents in the military – from January 1, 2019, on.

First, Congress has amended Article 128 of the Uniform Code of Military Justice (UCMJ), to expressly state that the acts of strangulation or suffocation constitute aggravated assaults.

Second, a new enumerated offense entitled “Art. 128b. Domestic Violence” has been created.

This new crime punishes a broad range of misconduct.

Committing a violent offense (or violating a protective order with the intent to commit a violent offense) against a protected person is, of course, punishable under the new Article 128b.  But, so are non-violent offenses (including, expressly, violating protective orders or harming animals) when they are committed with the intent to intimidate or threaten a protected person.

These important legislative changes are not (yet) reflected in Part IV of the most current version of the Manual for Courts-Martial (MCM) published by the Joint Service Committee.

Accordingly, we do not yet have approved elements for use at trial, and no declared maximum punishment.  Practitioners will have to seek guidance elsewhere.

Such a practitioner might find help in an article by Captain Kaley S. Chan entitled “Getting a Grip on Strangulation,” published in the September/October 2018 edition of The Army Lawyer.

Captain Chan spends much of her time in her article recommending the creation of just the sort of legislation enacted in the 2019 NDAA.  So, a reader might be tempted to find her work obsolete.

But, her discussion of what sort of conduct constitutes “strangulation and suffocation” is still useful – particularly because the MCM does not yet address this new law, and the statute itself offers no definitions for those terms.  Captain Chan’s article even offers some proposed jury instructions.

- Originally published on January 19, 2019 on www.caaflog.com. Preserved by archive.org, here. In the CAAFLog archive, without attribution, here.