The relevance of this new development for the SO community is that it provides a shockingly clear and vivid example of how Congress has been working in the matter of pandering to victimist and ‘rape law reform’ advocacies.
In 2006 (the year when the Democrats took control of Congress, by the by) there was a short addition buried in the National Defense Reauthorization Act of that year. This is the ‘military budget’ Act, which formally funds the military for the coming fiscal year.
Specifically, the little-noticed addition directed that the Manual of Courts Martial and Rules for Courts-Martial be amended in such a way that in any question of ‘consent’ in a sex-offense charge, the burden of proof is to be laid upon the defendant to prove that ‘consent’ was actually given.
You can access the Manual for Courts-Martial here. It is a 900-plus page document, and I am going to reference the pagination on the printed page of the document (not, as I usually do, the pagination of the browser). Thus for our purposes here, most of the material is to be found on document-page II-108 and following. So when you scroll the document, look for ‘II-108’ on the bottom of the document page itself.
Thus in the Rules-for-Court-Martial (R.C.M.), Rule 916 (b)(4) at page II-108: “In the defense of fact as to consent in Article 120 (a) rape or Article 120 (b) aggravated sexual assault or 120 (e) aggravated sexual contact or Article 120 (h) abusive sexual contact, the accused has the burden of proving mistake of fact as to consent by a preponderance of the evidence”. [italics mine]
This is then further backed up by Rule 920 (e)(5)(A) (II-117) which directs the Instructions which the military judge must give to the jury before it begins its deliberations in the case: “The accused must be presumed to be innocent until the accused’s guilt is established by legal and competent evidence beyond reasonable doubt.” So far so good.
But then in Rule 920 (e)(5)(D) (II-118): the burden of proof is on the government (again, good) BUT this does NOT hold in regard to charges enumerated in Rule 916 (j)(2) or 916 (j)(3), which are the abovementioned sex-offense charges. So the jury is to be instructed by the military judge that in sex-offense matters the burden of proof lies not upon the government (and thus upon the alleged victim) but upon the accused.
If you were to scroll down further to the actual Articles of the UCMJ (which begin beneath the R.C.M.) to Article 120 you will see that it has numerous sub-specifications whose definitions cover just about any sexual encounter conceivable. Article 120 (entitled “Rape, sexual assault, and other sexual misconduct”) begins on page IV-68 and goes on and on to IV-83.
Many thoughts occur.
First, as you notice in the articles, the JAGs themselves – in their roles as defense counsel or judges – are now going public with their concerns that this is an impossible situation for jurispraxis, and that even more lethally, it is profoundly un-constitutional. (I would say: anti-Constitutional, as is so much of the SO Mania Regime law ‘reform’.)
I was hard on the JAGs in my recent Foster Post, not as individuals but as agents of a hugely fraught legal system, especially when it is blended with SO Mania law ‘reforms’. I acknowledge that I was greatly – and happily – surprised to see this recent spate of articles.
But second, it is deeply disturbing to see both the Content of such SO law ‘reforms’ and the Method by which they were slyly insinuated into the already skewed and fraught military-justice system.
The Content of these ‘tweaks’ is lethally anti-Constitutional. Yet it very accurately reveals and exposes precisely the Alien and dangerous nature of so much of victimist and radical-feminist –inspired ‘reforms’ of ‘rape law’: the whole thrust (you should pardon the expression) of them is to stampede the Law and the Sovereign Authority of the government against the accused (preferably spun as the ‘perp’) and effectively makes the Law and the government merely the retributive (or revenge-making) Agent of the accuser (preferably spun as the ‘victim’ or ‘survivor’).
And as you can see in the text of Article 120 in all its sub-sections, this is not simply ‘rape law’ but ‘sex law’ verrrry broadly defined.
The fundamental gravamen of ‘rape law’ reform indispensably and absolutely requires the overturn of the most basic American and Western constitutional principles that protect the accused from the arbitrary or whimsical depredations of the Sovereign Authority of government. This is no ‘reform’ – this is revolution in the worst sense of the word, treacherous and lethal and insidious and premeditated and deliberate.
And as the SO community has seen so very often, the Method of erecting this ‘reform’ into Law was sly and sleazy: you may well imagine that in a huge congressional Bill covering the entire national military budget, few Members were going to actually read the tiny bit that erected these ‘reforms’, thus further (and lethally) infecting the already rather grievously ill military justice system. *
Had the JAGs – and those who have spoken out deserve credit here – not spoken out, then it is hardly inconceivable that this repugnant but now formally-enacted frakkulence would have migrated into civilian law. Imagine advocates besieging willing State legislators-dupes with the shrill bray that ‘congress has already approved this reform and enacted it into the military system’, the last phrase uttered perhaps with a pious nod to the Stars and Stripes standing up against the wall of this or that pol’s office.
Good frakking grief.
Former JAGs – especially those of a prosecutorial temperament – might become prosecutors in this or that State or in civilian Federal court and start to insinuate this monstrosity of a legal arrangement into this or that case, thus – if successful – establishing a precedent in case-law. Or perhaps become law professors, further skewing the education of upcoming generations of lawyers. And the band will play on.
As it is, the Supreme Court may well be taking a look at this whole Rule 916 thing with an eye to tossing it out.
But even if that happens – and may God preserve the United States by making sure that it does – the SO community is served clear warning as to how insidiously, anti-constitutionally, and treacherously the advocacies of ‘reform’ and their legislative panderers are willing to go.
So much remains to be done.
NOTES
*I want to make a point that others have made in the SO community in regard to AWA: it was passed under a ‘suspension of the rules’ rubric: this rubric is usually reserved for “uncontroversial” Bills that need not detain or engage the full attention of the House. So, for example, a Bill making such and such a day National Sunshine Day.
Under this rubric, a) no actual vote is recorded (so nobody will ever know who voted for it or against it). But also b) there’s no way (that I have been able to find, although I am no whiz at internet investigation) of knowing just how many Members of the House actually voted the Thing into law. For all we know, I imagine, the AWA and all its pomps and all its works was voted into national law by a small cabal of sponsoring or supportive Members who may not number more than a few dozen, if even that.
And as the SO community well knows, the Thing has run into all sorts of problems legally, as well as there not being much loose government cash to fund its predations. Yet AWA is still on the books and – if I read the frakkulently incoherent text of the Thing correctly – large numbers of persons automatically, if only technically, became Federal criminals (and ‘fugitives’) as soon as it was passed into law by whatever smallish cabal showed up on the Floor (at 2AM, perhaps?) to vote it in.
This is no way to conduct a government, especially a putatively democratic and deliberative one.
And as you may well imagine, this rather nasty and treacherous legislative practice has also spread to other areas of national concern as well as to other Branches of the government.
ADDENDUM
You can see here that this idea that the male is always presumed guilty in any sexual-encounter cases has also been erected in regulatory practice among the nation’s colleges and universities. As this article notes, this is not a law debated and passed by Congress, nor is it even a Federal Regulation that went through the process of being published for comment in the Federal Register, but merely a Letter sent by a federal bureaucrat to all colleges and universities that receive Federal funding (just about all of them, therefore) that “purports to be an additional implementation” of the 1972 Title IX anti-sex discrimination in education law.
Amazingly this bureaucrat tells universities NOT to abide by the criminal-justice standard of proof and evidence AND “strongly discourages” these institutions from allowing an accused male to “question or cross-examine the accuser”.
If so-called ‘elite’ students are being trained in such anti-Constitutional habits, can you imagine what the country will look like when they grow up (however that comes to be defined) and assume positions of authority in politics, law, and education?
ADDENDUM
For most of this country’s history military-justice, for all of its Constitutional incoherence, kept to its private preserve, grinding out its activities only upon those Citizens who had voluntarily signed up and thus put themselves within its range (well, then there was the matter of drafting people forcibly into the military and thus into the purview of military justice – but the Supreme Court finessed things by finding the system – more or less - constitutional).
For decades military justice lived as a shadow-thing, not quite acceptable but legal enough to keep itself going. Then in the flush of the Reagan Eighties, as the now-iconic red suspender lawyers of Wall Street began making astronomical salaries, it was proposed that the UCMJ be extended to cover not only all active-duty military personnel, but also all reservists (in those days, very few ever saw active-duty the way that has become so familiar post-9/11). This would have hugely expanded the writ of military justice and ‘business’ for the JAGs.
The formal pretext put forth was that in the Cold War era, even Reservists were only within minutes of being called to active duty and, anyway, as a member of the Reserves you were still an exemplar of all the wonderful things that the military was so you should have to live up to that responsibility all the time and be held accountable all the time. And anyway, it was burbled, miliary justice was just Perry Mason in uniform. And maybe even better than Perry Mason.
It was brayed that since civilian law was doing such a poor job, and the military was so ‘efficient’, then military justice was actually the core model of how US justice should work (the military, in Reagan’s day, was seen as exactly the opposite of the ‘mess’ that civilian life had fallen into). The SO community might quickly realize what an ominous catastrophe would lie along that potential path.
But remarkably, it was the military Reservists themselves who instantly and definitively put an end to that possibility. They knew just how frakkulent the thing was, and what any human life would become if it were subjected to the eternal ministrations of military justice.
But in the next decade, in the Nineties, military justice suddenly found a way back to the Table: in the earliest national SO laws, the mantle and aura of criminal authority were spread to embrace the military justice system: in place after place in the text of those laws it was most specifically pointed out that those eligible for Registration in the new schemes would include anyone convicted of some form of sex-offense through the military justice system.
So I cannot help but imagine that the ‘militarization’ of SO Mania law was not entirely an accident.
But, as the SO community now sees with increasing clarity, the essential incoherences of military justice, combined with the fundamental and essential incoherences of the entire SO Mania approach with its utterly Alien dynamics (for so long seated in the military justice system), have worked to wreck any ‘efficiency’ that militarization of the Mania Regime might have been expected to provide.
Worse, the insinuation of the military justice ‘approach’ to law – through former military lawyers now in prosecutorial or law school positions and even in political office – has contributed to the virulence of the derangements embodied in the Regime’s laws.
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