Vice Adm. Nanette DeRenzi, the Navys judge advocate general, told the Senate panel that it was a good time to reconsider the powers granted commanding officers in light of modern developments, even as she cautioned that lawmakers should be ever mindful of the second or third order effects of any potential changes.
Exhibit A: What happened when Congress last adjusted the Uniform Code of Military Justice over sexual assault issues?
Prompted by reports of sexual assaults in Iraq in 2004, Congress directed the Pentagon to review Article 120 sexual assault provisions. The Pentagon task force didnt recommend any statutory changes. Congress, nonetheless, rewrote the law as part of a fiscal 2006 defense bill. The changes, Rep. Loretta Sanchez, D-Calif., said at the time, would be a major step in convicting rapists. Instead, they caused legal chaos.
Under the old military code, prosecutors had to prove that the victim hadnt consented. The rewrite removed that consent provision.
The accused could still claim as a defense that the victim had consented, through a preponderance of evidence. Prosecutors then could defeat this defense if they could show beyond a reasonable doubt that the victim hadnt consent.
This posed several problems. If the defense has enough evidence to show consent, then by definition its raised a reasonable doubt about what happened. One military appeals court called this conundrum a legal impossibility. Moreover, though the Constitution puts the burden of proof on the government in a criminal case, the rewrite seemed to shift this burden unfairly to the defense.
If you had 100 monkeys with a typewriter, theyd probably come up with something like this, Air Force Col. Don Christensen, a trial judge at the time, concluded during a 2009 aggravated sexual assault case.
Another military judge, Marine Corps Lt. Col. Raymond Beal II, called the revisions horribly flawed. J.A. Maksym, of the Navy-Marine Corps Court of Criminal Appeals, criticized the revisions as poorly written, confusing and arguably absurd.
Citing the rewritten laws serious problems, the U.S. Court of Appeals for the Armed Forces overturned the conviction of former Air Force enlisted man Stephen Prather, whod been accused of sexually assaulting an intoxicated woman at Travis Air Force Base in California.
Congress quietly rewrote the Article 120 language again in 2011.
I just think its a prime example of what happens when legislation is influenced by what they see on Oprah and what advocacy seekers propose, as opposed to whats really necessary, Col. Christensen said of the ill-fated changes during the 2009 trial.
As it happens, Christensen is now the Air Forces chief prosecutor. He handled the Wilkerson prosecution, and he told NBC he considered Hanks one of the most credible witnesses Ive ever dealt with.
She never changed her story, he told NBC. It remained 100 percent consistent.