awakening sort that we had in 2007-2008, or is this going to be a fully integrated part of the iraqi army? ..

[inaudible conversations]. >> now we have general, the colonel commandant of the flagship regiment. he is at every level. through kosovo, iraq, but particularly relevant he would commander of the multinational division southeast in iraq. thank you very, very much indeed for coming here and i will hand it to my colleague to begin. >> general, we're going to run around some of the same sort of issues obviously. but you said, your report had

said anyway, whether that is true or not, that, the maybe foot tile to do some of these things unless you've got a clear political plan to go with it. in one sense obvious remark to me but it has to the a lot within it. what are the objectives. what should we be seeking? what are your comments where the two fit together and whether they do fit together? >> yes, i did say that. i did indeed say military action without a political plan to pursue is foot tile. what i meant by that, it stand very limited chance of success and actually stand a pretty good chance of making things worse. and worse in a wider context. i think it provides sort of an excuse for the politicians to get to the real issue which is politics. reaching for the the military what they can't do anything sensibly political to do. i think that is big mistake.

it distracted mia and putting everyone's attention like this committee, on the military side when the real issues are the political ones. >> if the real political question is between the you are rainians and saudis and how do you -- what is this political question that we should be dealing with first before we reach for the military then? how do you solve it? >> you need to address the question what you think the problem is of isil and where isil comes from. this is characterized in many ways. it is one level a simple, yet another manifestation of sunni extremism. at another it is significant different. david: al qaeda and its orientation where al qaeda was looking at external influences, corrupted islam. and hence attacking the united states in 9/11. isis is focused, certainly

initially if you look at literature, what baghdadi is initially saying purifying inside of islam. you can characterize it even more so, not just a battle within sunni islam but a battle within wahhabi islam. who are the true representatives on earth of wahhabiism. because wahhabiism as you will note is a very pure form of islam and sees itself as only legitimate form of islam. when you look at the behavior of isis when they take over areas in the region they have, not just been against non-muslims, not even not against the shia but actually against any form of sunni islam that doesn't comply with their strict wahhabi, salafist interpretation of islam. this is a particularly internal, theological causality behind isis which you need to really

understand and it seems to me therefore the real question, the real threat that isis posed is not to us in the west. it is to saudi arabia and qatar, which face it are only two states in the region, in fact in the world have the official state religion as wahhabiism and salafist, precisely. i think it is look to resolution as i see fundamentally idealogical religious problem and go back to my response of my earlier question. my concern with the response so far that we seem to be mowing the grass as far as killing terrorists are concerned but we seem to do very little talking about the real problem which is this particular ideology, this particular mentality. if we're talking about threats to the united kingdom, i think it is that ideology is the major threat without necessarily adding military force rampaging around syria and northern iraq right now. >> do you see military response containing this sort of

expression as it currently is while these guys roam around the place creating their kala fat as best they can. my understanding of declaration the caliphate is whole muslim populations of world, would include malaysia and everywhere else but starting with the middle east and levant and cypress? nine deed. >> indeed. >> you have to do something in response. you're saying that is containment strategy but in one sense not addressing the real underlying problems but you now got the saudis and others committing material forces and u.a.e. woman pilot flying about the place shooting them up. is there some progress in terms of the neighbors understanding their own problem and accommodating themselves in a different way? >> there is some, fine but very little. i think the containment policy is a sensible policy as far as it goes. at least it tries to buy time.

buying time for the sunni regions, sunni nations in the region to work out their response and we need to have some sympathy with them although you cite the case of them raising materiel to fight the ball he will, i think they sent about as many fighters, saudi arabia sent as many fighters as we have, which is pretty inadequate and i suspect that female pilot in the u.a.e., her life is being made hell by the religious extremists in u.a.e. i think underneath the surface of those countries, whatever their formal states say, recognize recent poll in saudi arabia, 92% of people in saudi arabia was isis was a -- expression of islam and also the blog about the saudi pilot who refused to go on a bombing raid against isis because he believed in isis. so we need to recognize that there are extreme, internal divisions within the sunni world

and we should not assume that just because the government says some nice words about joining the coalition, actually actions really do speak louder than words and i think the very minimal efforts sunni states made towards isis show how difficult they're finding it to handle it. the internal power struggle within saudi arabia is so extreme, some people termed what is going on at the moment as the war of saudi succession. in many ways that is what we're seeing. what we should do -- >> it is right that we should see this as a threat but i think we, would be wise to take sort of a hippocratic oath on this one and doing something we do no harm. one of the great problems, we in our western ways see evil and we're on the side of good that is actually not the way it is seen in the region and if we're going to do military engagement in the middle east, remember the words, not continuation of politics by other means but actually the one about the victory defind in political

stability terms, not in terms of a fleeting passage of arms. so what is that long-term political stability look like? and until you worked that one out it's very hard to know what military action is actually useful. as i say, we in the west, if we're leading on this, what is the effect of christian forces not just an internal islam not even internal sunni but wahhabi battle for legitimacy? how do christian people interpret the wahhabi battle? how does that play? what about our allies in saudi arabia like king abdullah and the prince, how does that make people feel their job is more difficult? western planning if i felt that fully, our planners fully understood the mind set of the saudis. >> right. we could go on and discuss this a long time. but i bring out some of the

practical things that come out in what you say. this criticism about the iraqi armed forces, you heard some of the discussion we had earlier who were not going to stand and fight as a coherent army but maybe some these elements you're describing, describe the reasons why that was. what is your view of the training of the iraqi army, its ability to be a coherent force? what should we do? is there some way we could assist in that? >> before i answer that can i go back to your comment about practical matters? >> yes. >> that intellectual -- absolutely, fundamental to understanding the nature of the problem. if we don't get that knit nature right we're making a mistake. back to the army. the army is always said to be reflection of the society it is drawn from. the iraqi army, like the afghan army will be as strong or as weak as the governments and governance and society al glue

which it is drawn. we can do what we want, when way was in 2007 trying to organize withdrawal from basra, police chief suffered assassination attempts in as many weeks. he said what can we do to help? this isn't about training or equipment, it is about loyalty. you can't touch. that that is lesson we need to learn very hard. we can give these people the best weapons in the world and fundamentally the moral component, the moral component is weak they won't be any good. that is why 30,000 run away in mosul against 3,000. isil believed in what they were doing and these guys didn't. >> the same guys fighting badr militia or al-sadr and all rest of it they have moral component then. they didn't run away. >> they -- >> exactly. that is the point you're trying to make. are we slightly deluded assuming we get the sunni awakening whatever it is again, whatever

that was meant to be? in some way magically all these different groupings will cohere into a formal iraqi army? is that going to happen? >> there is sort of a yes and no to that. >> yeah. >> i still think that if we're looking for an answer to do about isil i think we have to look to it, we need to look at the divisions that possibly exist within isis. isis is in part a positive force. they have certain objectives. in part it is an anti-force. why the baath its, funnily not religious, happen to be sunni, they're not fundamentalists. why are they allied with ultrareligious people? they haste the status quo. drive a wedge in between them. that has to do it. even the tribes i'm not there reading intelligence, i would be surprised the tribes in anbar are any keener on isis than they

were al qaeda. there are wedges there. this containment mission which previous question, which was being slacked off a bit, seems to me actually that containment strategy is quite, has a certain coherence because it buys time in order for the intelligence people and these discontents and these divisions to become apparent. that's again one of my concerns, that if, the more we christians get in there, the more we ally people against them, where actually if we incubate them and let their own internal divisions come out that may come. come back to your other question. are we, the real question what sunni force can we muster to take back northern iraq if our objective is politically to restore the territorial integrity of iraq as it was before? and that is the difficulty because these, the iraq army will be a fundamentally shia army. and seeing a fundamentally shia army taking over sunni lands will be problematic.

they were certainly not be treated as liberators by the local sunni population which poses its own real problems. the question question is where will you get the sunni army from? are you getting to get it from local tribes, et cetera? are you getting it from saudi arabia? et cetera. i doubt it. you see the problems. >> my answer would be why not? that has been a argument -- and, so all of this is going to be long term then? you made the point about sustainability and persistence. i forget, what is the americans call it, operation inherent resolve this or something? resolve and persistence but it has to be sustainable. so what are your comments about that? how do you see that running? if it is a long-term political argument to deal with the objectives, but also a longer term, i mean? >> i have no idea. >> you have no idea? >> i don't know what it means. >> but it is important in terms of that how we configure and how

we sort of try and -- >> well, absolutely. politically we shouldn't be looking for quick wins because there aren't going to be any. actually gives credibility -- >> the prime minister is not wrong saying it is generational? >> no, he is not wrong at all and that's, i didn't, if he is going to adopt that philosophy, i don't think he should see this as being something as recent event. should see this as latest recurrence since 9/11 of sunni extremism. i think most encouraging line on that came from tony blair, not a man i normally praise too much, when he came out recently he said the biggest threat the world faces is sunni violent extremism. i think he is absolutely right. if that sets the world priority, that has been the problem we've been facing the last 12 years or since 9/11. so, you know, that is generational struggle. we've only been doing it since

9/11 and we need to keep doing it. but it comes back to the root cause and the root cause in my view is not military it is education. it is actually about education. because the nature, in my view, the nature of islamic observance is being allerred by these madrassas across the world and forms of islam being taught in these schools. that is the time bomb that will lead to the generational struggle the prime minister talks about. >> yeah, okay. those two gentlemen can not be wrong all the sometime? they have to be right some time. what extent is turkey's involve men here? -- involvement here. what struck me the attention on syria and whether they're being armed, where arms are going, are they coming from croatia and who is paying for them. nobody seemed to what happened in the north and all of sudden we got isil and the north. so it is big spaces but the neighbors at the top end is turkey. it is moving every day but what

do you think they can do given they are not even seen as, they're arabs. so your point about rereligions, all the rest of it what part should they play and how can we help them constructively? >> we have to look at the world through turkish eyes not necessarily our own. if you look at turkish point of view, they like many countries, ourselves include and assad would go quickly and open the up borders for jihadists to go in there. that didn't work out what the nature of jihadists became more extreme. what you're seeing in turkey is three threats from the turkish area. you see kurds, you see isil and you see assad. they have got to balance those three and work out which one is priority. seems their priority at the moment is get rid of kurds first, assad second and he will deal with isil. if you take his statement seriously last week you want to

redraw the boundaries then his ambition would go right away through sunni syria and down the euphrates into iraq. given that those are his stated objectives the question what he actually turns out to do because in the last two weeks he seemed to change his political direction sometimes. agreeing one thing at united nations, regular mening -- renege it next week and apparently agreeing to allow americans -- we should understand the constraints and fears he has and doesn't give us some comfort on where he is going to be going next. >> at the moment you want a hippocratic oath from him, do you? >> clearly from my point of view i would hope he would see isil as the biggest threat because that is, as i said before, i think it is the biggest threat but i would understand from his point of view it might not seem to be at the moment. >> thank you. >> two questions, general.

with all your expertise in training do you have any idea how come isil can pick up relatively sophisticate tanks, artillery, turn them around and be pretty good at their usage without having to do a british army course? we would spend weeks training on these things. i am just confused they can sort of pick up a tank, and gun it, command it, and look after it. do you have, have you got anymore insight on that? because it seems extraordinary. >> i think like most people i was, i was surprised, as i understand those people were surprised when isil suddenly burst on to the scene, not reading classified intelligence for some years, but reading back on it now, people have been saying they have been, this force has been just stationed for some time and i can only go on what i read in open source. so your source information is

considerably better than mind but it seems to me they have been actually trained on these things over some period of time and as you say -- >> they're prepared to take them up? >> so it would seem but i have no particular knowledge on this. >> and the second comment, and question is really, it seems so impossible for to us deal with this situation. there is no solution that any meth thousand law comes to how we deal with this rift through the arab world. in the truth in the end it will be history that actually resolves this problem insofar actually we're not going to have an impact, we could actually make it worse if we do go in, we won't be thanked, and actually in the end, the people who are most suffering will have to sort it out for themselves and therefore is there an argument

that we should actually just say, to hell with you? a plague on all your houses and just say, we're leaving? >> solution, i hate that word. the norwegian peace activist said on report in northern ireland in 1991, he said if you want solution go to chemist. conflict is inevitable in society you need to manage it. this is about people and about how you manage and how people choose to manage their own conflicts inherent in every society and thing has been said before. the opportunity was there after the anbar uprising from maliki had he different cast of mind to reward the sunni tribes for their revolt against al qaeda and bring them into the politic, to make decisions on distribution of oil profits for instance and also seats in government. actually what happened was, in fact he saw the army of the

sunni tribes as a very short-term experience because in the shia mentality the biggest threat that united all shias and which iran backed them, make sure there was no resurgence of sunni power around we didn't go back to saddam's regime. as soon as they got rid of al qaeda they were basically shut out again. that was the political weakness of the military campaign i argue with the army of anbar tribes. that was mismanaged. that opportunity was missed. should we say to hell with them? no, that is far to prescriptive. i firmly belief we should be in strong support of what fundamental support of sunni problem and that -- >> i wasn't actually indicating -- i was just devil's advocating. >> splendid. i'm in favor of a long-term policy of containment, rather than trying to solve it from our point of view. >> that might be the alternative step, might it?

we don't abandon, we just contain. >> and we wait for the sunnies to sort it out and i'm sure -- >> that is what i'm getting at. >> i think politically somewhere we're thinking part of the solution or part of the way to manage this may indeed be to reconsider the borders of the region. and there are a lot of people i understand are saying the borders of iraq will not be recovered and regained the way they were before. we'll not turn the clock back. there needs to be on that pretty sharp footwork politically to work out some stepping stone system to a new future. >> thank you. >> gentleman. >> we're talking about containment until they sort themselves out. what would that take militarily to achieve? >> it seems to me that the sunnis, that isil success has

been himmed to sunni lands so far. kurd land on one side or shia on another, that progress has slowed quite dramatically. you could argue therefore all we need to do is provide sufficient air power in order to make sure that -- if it is needed that there are isis strikes, that helps maintain that sectarian buffer if you like. how that works i've been, in syria, i guess maybe a different battle. -- mainly like iraq, which case, it is air power and also, which means some forward control perhaps on the ground. i noticed someone was saying earlier there would be no infantry on the ground but maybe might be forward air control. who knows we might be already there providing that kind of assistance, i don't know. i think the camps i.d. task is vital one. although it doesn't hit the headlines very much it is

technique isil used to surround outposts with ieds, have a counter ied force in iraq would be very useful about containment, stop them using that weapon systems to take out outposts whether they be sunni or whether they be peshmerga. and on that basis it ought to be sustainable certainly within iraq to stop their incursions further south. >> do you think air power so far is sufficient? >> well, i don't know enough about the land incursions. they seem to have slowed their incursion. if i'm right about the shia and kurds holding their own land, i'm not sure it is too bad. i suspect the real need is more precision about how it's applied rather than necessarily the quantity of it. we have people going on fights trying to find it and suggests a bit of an overkill. >> do you think that will lead to significant or sizable ground forces wherever they may come from to also help contain it?

your best saying that air power alone, probably special forces and spotters, rest anon the ground would be best? am i clear what you're saying? >> i would hope that is enough. >> okay. >> i'm taking a punt on fighting power of kurds and shia to protect their own land. i rather agree with the will to fought about badr, whatever they're called these days, these local militias. they do have a certain intensity of moral courage if you like that was notably absent in mosul. i think if they were allowed a bit of western firepower i would be confident that they could hold where they are. >> talking about a number of -- in the middle east. what about, do they have a role to play? given vast number of refugees, also can't contain anymore and -- >> my understanding that jordan is playing a more

forward-leaning role than most countries, given links to certainly our country and orientation of their king. i think this is understandable and a good thing. what i would like to see is more participation from across the region as i say. >> that is clear going back to when you started answering the questions, it is unclear of i think you were saying you were not clear what the strategy is on basis of what -- >> indeed i'm not. no, you're quite right. in the end -- >> talking about you and general shaw said that. >> okay. i think what i would like to see would be a sunni strategy for dealing with this. that is really what i want to see and our supporting it. the trouble with the westerners coming up with a strategy, it would be christian strategy and christian action. >> [inaudible] >> at the moment i can't see where it is heading. i can't see the politics. >> okay. >> i want you to briefly clarify

politics if i misunderstood. the tension between. you said need for containment strategy and this issue of, essentially making it worse if it is christian-led, as you put it, are you suggesting that that the -- can be unhelpful when it is ground troops and the sort of level of engagement with a bit of extra, as you described, could be a positive thing or do you think this currently and u.k. being involved in this way is, can be -- >> i don't i don't see the, i don't see enough of the intelligence factors to count what, to be able to judge the overall effect of western air power on this scheme. i just see what i read in the papers and -- potentially very double-edged for all the arguments that the first speaker himself said, which is not

necessarily, i mean every action you do have both positive and negative things. you have to balance those. i know not in principle against airstrikes with the aim of limiting the isis advance but i, the metric would be what effect it has on the overall political campaign and that is what concerns me because i can't right see that. >> we would agree we would love our neighbors to be leading this and doing all of. that but that isn't going to happen but we have to make a judgment whether we step in some form or not? >> yes, we're being fatal listtic there, aren't we. they need, in our lifetime we may say it hasn't happened. but there are times when they have taken action if they feel sufficiently threatened. they do things in ways that we don't conceive of. they have a different mind set than we do. they work in different ways.

>> on a little more than a minute to -- >> you have much more time than a minute, bless you. >> you have ten minutes indeed. >> won't need ten minutes. >> general, do you belief that the u.k. ought to join the united states and its allies in carrying out airstrikes in syria? >> well, if the legal foundation is good, is sound, which, i think foreign secretary was saying it was the other today. >> military it would make sense to, for the same purpose on containment strategy to do that. >> general, you have been more aware than i that the current size and structure of her majesty's armed forces, are those strictures of sufficient size and capability to deal with the crisis, such as the current one we have in the middle east?

>> would i say that we would seem to, the fact that we're using six, now eight tornadoes, show we've been buying the wrong planes for the last, 10, 15 years. we bought a brand new sparkling plane and put a concrete block in the nose instead after gun, is cost saving measure. i would say in the current circumstance that is bit after false economy. the concrete block and alterations to the aviation and costing as much as the gun originally would have done. >> well that is pretty definite condemnation. could i just take it a bit further. so we've got this one crisis. if there were to be further developments in eastern europe, which required u.k. force as part after nato mission, or

perhaps further troops are required in the response to the ebola crisis, so that is now three, are her majesty's armed forces sufficient to do all three missions effectively? >> that is a very motive question because it leaves undefindwhat effectively and how the contributions are and how you identify the mission. the ebola one i can't argue for. the east european one is interesting one because it depend where you see the threat is. fortunately the chief of the general staff of the russians outlined a year ago the way he saw russian forces operating and in a way, as far as i know he is the first world country to describe how they were going to engage in what we would call hybrid war and the big worry i would have about hybrid war is not the capacity of our armed forces to cope with it. but the capacity of whitehall to

organize it across government, the actual coherent plan rather than just a comprehensive approach to deal with it because i think the whole nature of hybrid war is played to a strength of the soviet, sorry the russian system. [laughter]. freudian slip there. and it exposes what i perceive as a chronic weakness in the, in the british government system in that we don't do, have an executive culture across whitehall and whitehall finds it difficult to create aplan across government. departmental -- which of is book i had just written, britain in perilous world which i would submit is the evidence of the committee. do we have enough forces for it? if i understand him correctly the military involvement in that campaign is small and limited and very precisely targeted because, only times it is

applied is when the battle is already won. when the population is sufficiently stirred up. when you sufficiently motivated the population, et cetera. then as in georgia, as in crimea, as in ukraine, little green men suddenly appear around suddenly the game is lost and that is really the worry i would have about the baltics. i don't see massed tanks rolling across from germany. what i see is subversion, corruption, disinformation, masquerading, all sort of that classic stuff. in that sense it is not a question of mass that we need, it is precision and application of all the levers of government in support of the host countries in the baltics. >> maybe the defense committee we have would visit the to the baltic countries and i wonder whether you would agree with one of our recommendation there is should be regular nato exercises, not of a permanent nato bases but regular nato exercises in at three baltic

countries? >> actually, what i said very surprised that nato hasn't forward positioned troops right away across nato already. i sort of a human tripwire. which always used to be the plan, the basis of, there was a force that was designed to represent every nation in nato that deliberately deployed for exactly that purpose. i'm very surprised we haven't got those troops there on rotating basis in the baltics already. >> thank you, general. i knew we lived in a troubled world but three witnesses we had this afternoon have indicatessed there is even more trouble than i thought. >> thank you, general. he wants to come and brief you. >> -- reasonably unanimous in saying that that is what is happening in iraq leads directly to little useless, dangerous, achievement containment of -- [inaudible] in all your discussions

including in talks around the world and in recent weeks, have you come across anybody who enthusiastically support what is we're doing in iraq? >> not in terms which you're asking the question. >> well in what terms? reasonable question. have you come across, can you think of anybody at all, commentators, think tanks, politicians, politicians, other than the prime minister, really well-informed who would say in these matters what we have been doing in iraq, airstrikes, is the right thing to have done? >> well i think the airstrikes in iraq could well be the right thing to be done but the problem it isn't connected to a physical plan apart from the containment aspect. >> that concludes the public session of the inquest. we'll continue with a brief

discussion with general shaw. [inaudible] thank you everybody. thank the public very much for coming. and colleagues, if they need to go. >> we'll have more on the british response to isis and other issues tomorrow during prime minister questions from the british house of commons. live coverage from london starts 7:00 a.m. eastern here on c-span2. to campaign 2014 here three debates tonight for seats in the u.s. house starting with 8:00 eastern, with the illinois 12th congressional district between incumbent democrat bill enyard running for second term, and mike boss and independent paula bradshaw. the district is on the southern part of illinois. it includes carbondale. the at 9:30 the race in idaho's 1st congressional distribute where two-term republican raul labrador debates.

the district spans the western part of the debate. the debate from the california's 21st congressional district with first termer david valdeao and democrat, amanda renteria. that district includes bakersfield. all this tonight on c-span2. campaign 2014 coverage continues with a week full of debates. tonight at 9:00 on c-span, the south carolina governors debate between five candidates. governor nicky hallly, democrat vincent shaheen, independent tom urban, independent steve french and independent morgan bruce reeves. thursday night live at 8:00 eastern, the iowa fourth district debate between u.s. representative stephen king and democrat jim mahre. c-span campaign 2014. more than 100 debates for the control of congress. the defense department's judicial proceedings panel tasked with reviewing the military judicial process for sex all assault looks at

statutes in the military code of just justice to determine if they're clear or must be updated. defense secretary chuck hagel formed the five member panel june to make recommendations to the congress and defense secretary on ways to improve sexual assault proceedings in the military. >> i would like to welcome, everyone to, good morning, everyone. thank you. i'd like to welcome, everyone to the third hearing of the judicial proceedings panel. all five members of the panel are present today and today's meeting is being recorded and streamed live by c-span. in addition the recording of this meeting will be available in c-span's video library. a link will also be posted on the jpp's website. the judicial proceedings panel was created by congress and the

national defense authorization act o 2013. our mandate is to conduct an independent review and assessment of judicial proceedings conducted under the uniform code of military justice involving adult section you'll assault and related offenses since the most recent amendment to article 120 of the ucmj in 2012. to start this morning the panel will begin deliberating what we heard and learned about article 120. the panel has three tasks related to our review of article 120, three tasks at a minimum. first, we must assess and make recommendations for the improvement to the current version of article 120 which was enacted by congress in 2012. second, we must assess the likely consequences of amending article 120 in situations in which sexual acts occur as a result of coercion by service

member abusing his or her position in the chain of command. third, the response systems panel recommended we consider whether to recommend legislation to amend article 120 to separate penetrative and contact offenses into distinct punitive articles under the ucmj. the panel received numerous documents and held two days of public hearings to hear variety of views on number of issues. i don't expect today's deliberation will conclude our review of article 120 issues but allow the panel members discuss the perspectives on the information we received and help identified the way forward. following our deliberative session we will begin our examination of other panel taskings that requires us to consider privacy issues for victims of sexual assault crimes. we will begin our review of the use of evidence from prior sexual conduct of an alleged victim in article 32 proceedings and courts-martial which is

addressed by military rule of evidence 412. we'll also examine the use of a victim's mental health records by defense during preliminary hearings and courts-martial which is addressed by military rule of evidence 513. today we will first hear from experts within dod who will explain the rules and their use in military criminal proceedings. next we will hear from civilian academic experts with will help us compare the military rules and practices to other civilian jurisdictions. we will then hear about trial practices from military prosecutors and defense counsel. we'll finally hear from those who work with and advocate for victims of these issues in military proceedings. i anticipate we will hear more about these issues including next month's meeting that focus on special victim's counsel programs implemented by each of the military services. this judicial panel includes time to receive comments and input from the public.

the panel did not receive requests from the public to appear at today's meeting. all material from today's meetings however and previous meetings are available on the jpp's website at, jpp.wh. s.mil. thanks very much for your attention. i believe we're ready to begin the deliberation and discussion of article 120. okay. panel members, i outlined a, kind of large issues we have to look at with regard to 120 and i think maybe we should just start by having each of the panel members, sense we're not allowed to discuss any of this except in the public meeting, express where they, where they think the panel should come out, where their own, what their own position is, with regard to the present status of 120. should it be amended and if so,

to what extent? do we need further information? and so we'll just proceed in that way if that, if that's acceptable to the panel members. may we start with you, judge jones, since you're sitting to my right? >> well, i'd like to just make the general comment that, i think, it is almost an understatement to say that, sorry, thank you. i would just like to start with the general comment that this is obviously a very difficult task. it's a very, very interesting and intricate statute. we've heard a lot of testimony that it should be left alone in order to give the judges time to

write on it, to create some common law here. and i think generally speaking that makes sense to me. there aren't a lot of cases out there yet with this new version of article 120. my own personal experience is that if the judge gets legal instructions right, on their instrucking in this case the panel, you can make the statute understandable and avoid error. i'm not certain exactly how difficult the statute is yet. i haven't, i don't have an opinion on how difficult it is yet for the practitioners, the defense, particularly the prosecutors, in terms of charging. we've heard examples they are frustrated with it but again, i think at the end of the day essentially the statute needs more time.

there needs to be more appellate comment from, development of the case law. so, overall that is my general comment. with respect to particular parts of it, it may be that there are small things that we might tackle and i'm not going to suggest any one of them right now. i think, maybe those will come up, perhaps if we, when we go through the various sections. but generally speaking, i would not, if i moment -- at this moment, not want to take any heavy hand to try to either rewrite significant portions of the statute or bifurcate it for

that matter. i saw testimony from one of our presenters that basically said, all right, so you have to flip through the statute but you can do it with respect to the difference between essentially the 120 rape charges and the lesser charges in it. and, again, overhauling it in terms of bifurcating, i think again may just cause more confusion than it's possibly worth. so those are my general comments. >> mr. taylor. >> thank you very much, madam chair. having listened carefully to the testimony and read the materials that we've been presented thus far, and balancing that against my own interests, both in law and public policy, i'm coming out at this point about the same place that judge jones did. it's a very difficult thing to interpret a statute that is

relatively new unless you have cases and it's very hard for us to assess the implementation of the statute until we have enough evidence of how the cases are working out, in order to give us some actual evidence or basis for making recommended changes. i've been impressed by a number of people who identified reltestifily small changes that they thought would improve the statute and my own bias is that if those changes can be accomplished through executive order or through changes to the bench book instructions that judges use, then that's probably a more efficient way of making changes. on the one hand. on the other hand i was disheartened in our last session the length of time it has taken to implement some of the changes already in the works regarding this, not only this statute but

other statutes as they make their way through the inner agency process. so i think one good thing that could come from this review, more pressure and emphasis making the system work faster to get changes to the field that need to be made. as to the specifics i also agree with judge jones that there are small things as i went through and listened to the various testimony that's been given that would seem to improve the overall tenor of where we stand. i don't think rewriting the law at this point is one of those. i was told by someone who is a true expert, teach this is subject, that if you can understand article 120, you can understand any criminal penalty anywhere in the u.s. code or the ucmj and also, it seems to me, yes, if you bifurcated the statute you might have some simplicity but not that much. it just means that you maybe turn fewer pages to get to the same kinds of outcomes.

i don't think we should shy away from the statute just because it takes some time to really understand it and become familiar with it. on the larger issue, i guess i'm also interested in understanding more clearly than i do now how it is that we can move things through the system, as i said earlier, with much greater seed, to help the people in the field who feel like they need clarification on some of the tough issues, get that kind of clarification, instead of waiting for the inevitable number of large number of cases that would work their way through the system to the appellate level. thank you. >> admiral tracey. >> i echo what my colleagues have to say with additional point of view court-martial convening authority which can after affect the ability around 120 and opportunity for clarity around the case law as part of the line officers role in this important task.

i would also, i was struck by the number of people who spoke to us about the need for sop definitional clarity and opportunities that exist to achieve that with recourse other than rewriting the statute itself. i think would echo what my colleagues have to say. thank you, madam chairwoman. like my colleagues on this panel, we heard a lot of people who have been able to work with the statute and haven't been totally frustrated by it and in one of my prior positions, the, i was constantly reminded by my colleagues not to sacrifice the good for the perfect. and i feel that, what at least,

i have heard so far is that what we have is workable, it's good. and yes, there is many ways that you could make it perfect but you have to be careful that that doesn't turn out to work out badly. it seems to me that the focus that i'm trying to keep is that we look at repetitive problem issues that come up and not just anecdotes that of situations that have turned out badly because there's no statute that can be implemented perfectly. and so i'm trying to keep track of what i think are recurring problems and see if we can provide, as was mentioned, a few, whether they are definitions or sharpened terms here or there within more or

less the scope much what we have because at least most of the testimony i've heard is that it does work. we would just like to try to make it work either a little bit better or a little bit more efficiently. and so that's my impression so far. thank you. >> thank you very much. thank you very much. i can give you some of my impressions which are a little bit different in the sense that i agree that, if we can, we should try to improve the statute in small ways that were suggested. for example, defineing incapacitated, and other small issues such as. that i don't think we have enough information at this

point, exactly to recommend, how the change should take place but i do think those would be useful changes. i'm agnostic actually about the question of whether those changes should be made by executive order or by congress, givenning the amount of attention focused on the issue of sexual assault in the military. i think that as opposed to normal course of events it is likely that congress could act within amazing speed on these issues. so i'm not necessarily saying that the executive route would be faster or more efficient. so i think we should think about that. i am very troubled about the statute itself. i'm glad people can make it work but i don't know what it means to make it work. we will not know how many acquittals took place because of a badly-worded statute because

acquittals an acquittal. we'll not get appellate review of those cases and we're just stuck and to me two of the issues trying to read the statute, keep cropping up. one is the fact that you have to show bodily harm. well, when you tell a normal person who understands the english language that you have got to show bodily harm, that suggests that there has got to be some kind of bodily harm, but, if you read the definition, bodily harm is an offensive touching no matter how slight. well, wait a minute. what does this all mean? you take the normal usage of the english language, bodily harm and use some serious, have offensive touching, no matter how slight? how does that get reconciled? how do panel members deal with

that? what happens in the real world in those circumstances? the issue of consent, i know we've heard from professor, at nyu about the ambiguity of that term. if you want to just look at the statute, well, you know, it says, that -- right in front of me somewhere. free and willing, there it is, there is something about free and willing consent. consent freely and willingly given. but, then, if you read all the way down, it suggests that you can infer consent from passive conduct. those seem to be pretty inconsistent terms. and what particularly concerned me, i wasn't really actually

focused on this issue initially but when i began to read the materials on 412, the question of content becomes very important and may need with further clarity with regard to consent would help alleviate some of the issues under 412 and actually understood the connection before. i generally agree with the premise that it's a good idea to have, as judge jones and others articulated, some stability with regard to the interpretation of a statute that has been changed three times in such a shore period of time. i accept that premise but i don't necessarily accept the premise that this is a workable statute and particularly given the fact, excuse me, i shouldn't

say fact. particularly given the suggestion that we were given at the last hearing that this statute is used to train soldiers and sailors and recruits. i mean if it is taking practice, professional lawyers so much time and effort to understand this statute, how can we be training people effectively under an ambiguous, difficult, statute? so these are the concerns that i have and maybe it means we just leave things, many things alone but at least from the point of view of training, if this is being used as a training tool, the statute, i would have a lot of concern. so i'm going to suggest possibly that we, as a follow-up move, our next step should be to take a look at some of the areas. i think the staff made a very good chart for us. some of the issues, specific

issues on article 120 and see what we want to do about each one of them, if that's okay with the panel members. any objection to that or further comment? >> no. >> okay. should we start with the first one that the staff put on our chart. you all have the chart in front of us? mr. stone, do you? is good. okay, the first is drug or intoxicant administration, and code section 128-a-5. does everyone have the statute in front of him or her so we can go forward? i can't seem to find mine over here. it was in the folder. i don't see it here. oh, here it is, sorry. okay. article, everyone has got the statute?

article 120-a-5. . . >> i don't think we got any recommendations from military personnel, the services. judge jones? >> i was just going to can ask, because i wasn't here last time, did anyone comment that this was a problem or how big a problem is it? i don't know how many such cases

there are or if there have been such cases. is there a problem with the way -- and i'm only asking because i wasn't here, but also because i don't know whether this is really an issue. obviously, you wouldn't convict someone unless, under this unless there was effect and intent. that seems obvious just from the reading of the statute. >> that was, that was my impression as well. this is one of those that i did not think needed any change because, it seems to me, that if a person who is accused of a violation of this says he did it by accident, then that will be that perp's responsibility to raise -- that person's responsibility to raise. so i think this is pretty clear on its face, to me at least. >> i mean, it's not as explicit as you might like, so i certainly understand the professor's comments, but i agree with you. i don't think this is, this one needs to be tinkered with unless

i heard a lot of evidence that, you know, in such cases, you know, they were not being able to charge, to actually charge them. >> anybody else have a comment? any other comments with regard to this? admiral. >> just the same, i have not heard more than one person actually wring that up. >> so the consensus -- >> that's my reaction as well. nobody indicated that it was a problem in the services. i mean, it's true the statute may not be as clear as possible. i don't know, kyle, is there some way of assessing whether this -- aside from the testimony that we had, is there any other way of assessing whether this issue is something that needs to be addressed? >> ma'am, we could follow up with a more detailed request to the services to ask for cases if there are any indicating this. i mean, we could follow that.

>> how does the panel feel about that? >> i think it's a good idea. >> okay. >> before we check it off. >> yes. thank you. i think that's a good approach. okay. the second issue is sexual assault by causing harm. this involves code sections 120 -- well, you can see them. and the issue is does bodily harm mean sexual intercourse without consent or a sexual content with an additional touching beyond that of pen trawtion or sexual -- penetration or sexual contact? i'm not sure i even understand that point. we've had people on both sides of this issue. anybody have any comment on the panel? >> well, i'll take a stab at this. it seems to me that this is one

that does need clarification, and, again, to your comments, madam chairman, how it's clarified is a separate conversation, but it's troubling to me that people would think there had to be bodily harm in addition to the actual sexual penetration in order to be guilty of this offense. >> any other comments? well, as i said earlier, the term "bodily harm" as it's defined is something that i find puzzling. and possibly too ambiguous. judge jones, do you have a comment that you wanted to -- >> i was just looking for the definition of bodily harm. >> yes, so am i. >> any offensive touching of another, however slight, including any nonconsensual sexual act or contact. well, i would have to spend some

time talking about this. i think it's confusing, i certainly agree. >> well, i mean, the terminology -- it could be defined, i think, for the panel numbers, but -- >> right. >> but your initial impression if you have to find bodily harm is you're going to look for something that's harmful, really harmful. >> it sort of connotes force. >> it connotes force, exactly. and it connotes some other harm aside from the -- >> right. >> or the sexual act. and that's the problem with it, it's not clear. the difficulty with that, though, i'll just point out, professor, is that this may be taking on a biggie. [laughter] it might not mean more than one of these little fixes that we were urged to take on. >> agreed. >> how do the other panel members feel? should we take a further look at this question of bodily harm, or -- >> i think it would make sense,

yes. >> admiral? >> i don't know that this needs to be at the top of our list. i don't think that this was the most important problem that the prosecution of these cases has raised, so i don't mind having it on the list, but i think it's not quite at the top. >> good point. um, i think -- so we'll leave that on our checklist and then figure out how we're going to approach all of these issues that we still need to deal with. okay. definition of "incapable of concepting." consenting. the definition of incapable of consenting is ambiguous and unclear. we received seven requests to

clarify. and no specific objection to clarification of this point. how do we feel about that? should we try to clarify this? put it this way, any objection to clarifying this? >> i think we should clarify it. i thought the testimony was compelling from the witnesses who did comment on this, that this is something that is not well spelled out, and can people are going to other parts of code to try to find testify in additions for capacity -- to find definitions for capacity, if you recall. this seems to be something that needs a better understanding out there. >> kyle -- anybody else have a point on the question? mr. stone. >> just that i think that in doing that, we ought to tie that with what we do with use of consent throughout the statute. it seems to me incapable of consent -- and what consent means -- are related, and we

ought to try and do those together, you know, change one with an eye on the other at the exact same time because they i do interrelate so much. >> um -- in and this, i mean, this may be one where it would certainly be nice to clarify through instructions as opposed to trying to have to go back for an amendment. you know, i think i would lean that way. i haven't read all the law that has come out under any of the previous 120s, but i'd just like to think about this in terms of what a judge would instruct even with the statute as it's written. just a thought as opposed to trying to reword it. >> to your concern with regard to how the statute is used for training, this would be one of the key issues that would be,

need to be clear in training young soldiers. >> so is i guess one of the points that we ought to bear in mind as we try to suggest any changes is the extent to which the clarification would help in terms of training as well as in terms of -- >> you know, that's really -- >> -- of prosecution. >> that's a really interesting idea about the notion that people aring with, you know -- are being, you know, trained on this, our military. i would love to see how, you know, some of the statements that are made in this training. are there some training materials? if we're having trouble figuring this out, i'd be very interested to see -- i don't mean an extensive search of every piece of training material, but maybe some samples of how this is actually being portrayed to new recruits or whoever's receiving the training along the way. >> judge jones, the definition

of sexual assault and the dod programs have standardized the use of these terms, and they've -- each of the services has created standardized training on many of these concepts. so -- >> [inaudible] a representative sample? >> yes, ma'am. the ability of a person to consent is a key part of training for most of those, so we can pull that together for the panel. >> i'd like to see it, thank you. >> yes. there was only one witness who raised the issue of training, but that really, that really resonated with me because, as i said in my own comments, or i'm having difficulties as others are, and i've been practicing law a long time. that could create a problem. i'd also like to ask kyle, i agree we should take a look at the question of incapable of consenting because we've been asked by a number of people to clarify it. does this also include the issue of capacity, kyle? because that was the second

issue that was raised. and i don't see the capacity point raised in our material. >> um, i guess within the capacity to what, ma'am? with -- >> weren't we asked to, wasn't that one of the two points that we were asked to take a look at, was the definition of, or clarify the definition of the term "capacity"? maybe that -- >> i think that's incorporated here, ma'am. >> okay. >> i think the capacity to consent and incapable to consent, i think those were issues that were raised by presenters somewhat interchangeably. >> okay. so that that's not a pratt issue that we -- a separate issue that we -- that would be included in this. >> i think so, ma'am. >> okay. good. definition of wrongful action is

the fourth one. threatening wrongful action is too narrow or ambiguous. we've been asked to amend, clarify, and we've been told not to amend. [laughter] same numbers on both sides. so what do we think? any panel members on this point? i think that this had to do, if i'm not wrong, with the issue that was race -- raised about whether we needed statutes on abusive authority. isn't that correct, kyle? >> that's correct. >> because the, this provision would theoretically cover threatening wrongful action. this provision would theoretically cover those cases. >> yes, ma'am. it would cover the threatening with wrongful action. the previous version of the statute included within the term of threat the offer of a benefit

or the lack of wrongful action. and so that, this is a more narrow definition of only the threat of a negative action. so those other aspects of potential abuse of authority are not necessarily included, although the military judge's bench book has used the terminology from the 2007 version within the term of threat. >> so the judges have decided that you're going back to the amended -- to the unamended statute. >> well, it does include a broader definition. >> um -- >> so included more under wrongful action, is that -- >> could that be challenged, kyle? >> i don't know. i'm not sure from the services what the status on that or if it has been, but, i mean, as a practitioner, it came to my mind when i saw that. >> well, i think that the point here, if i can try to narrow the

focus for us, is that we had two suggestions for, like, members of congress. very forceful suggestions to deal with statutory, to support statutory changes that would enhance the ability to prosecute abuse of force -- abuse of status. in other words, someone, whether it's a trainor abusing a recruit or someone up the chain of command abusing somebody below that, that this provision could be used. we were -- provisions were, statutory provisions were suggested to deal with those problems. if the existing statute is sufficient, then those two statutory suggestions would be

unnecessary. from my point of view, it took me a long time to get an answer to that question as to whether the statute could be used in those circumstances. some of you may remember people couldn't remember whether the statute had ever been used, some said it couldn't be used and so forth. so i'm just concerned that even though the language may be there, it's not being used in an effective way. and my own view would be in looking at the two statutory suggestions that were made that we get a little bit more information if we can or take a closer look at this provision of the law. and particularly, if the judges are interpreting it in a way that's broad or than the existing language. so how does -- the any other

members of the panel -- >> i think we should definitely look into this more and pay attention to it. i mean, i was struck by the comments that i read from the last meeting that there are other violations, criminal violations other than 120 that are being used, and i gather effectively, in situations where there's an abuse of power. and i guess one is called -- and you'll have to forgive me -- maltreatment, and just generally orders violations. so one thing i think we ought to look at too is, is there enough in the arsenal of possible charges out there already while at the same time figuring out whether this, this particular statute can't cover what we're -- this abuse of power because of the wrongful action language in there. and i don't know the answer to that as i sit here.

but i would definitely look at all of the other possibilities that we have just in terms of seeing, again, how important it is to put this into 120 and maybe analyze whether a strict liability offense, as is being suggested, should be put in 120. i mean, those are all issues that come to my mind. i think they're important, and i think this is something that we definitely, obviously, should continue to look at. i'm not prepared to come to any conclusions today. >> mr. taylorsome. >> yes, i agree that all of these actions are intertwined in a very interesting way, and i think the essential evil that we're trying to get at in part ising ising this anything that -- is anything that takes place in the training environment that suggests that some activity on the part of a trainee will benefit or not that individual as tied to only sort of reaction they have to overtures by someone who's in charge of them. and i think that's what we've

bot to get at and make sure there are enough different ways to doing that so that no one escapes accountability for that kind of action. >> did you want to comment about that? >> i think that's a special case. i do think that the fundamental issue of just abusing positional authority is part of what's being asked for us to address here, and i think that that does deserve further examination. that's why we've got tools. >> thank you. >> i agree that if this is being read more narrowly than the predecessor version, i can't believe that's what congress intended. and so maybe it was inartfully drafted, or sometimes in the conference committee and things people put together words without realizing that they have consequences in the case law. and i think that that's something that, yes, we have to look at. and, again, since what's on our little chart, the next one,

components of fear, deals with exactly the psalm definition, we ought to -- same definition, we ought to deal with this and whether the fear has to be objective as well as subjective at the same time. again, my ipically nation is to view those two -- my inclination is to view those two together so they work together since they're in one definition. but, yes, i agree that's important to look, focus on and maybe see if we can shore up the definition and thereby solve a lot of problems that we're hearing result from that definition. >> i agree with the comments that have been made, and i think that this should be on our list. anybody have any other comment about the next item, components of fear? 120g7? which, um -- mr. stone has

suggested that we look at that. anybody disagree? >> i do not. i do not disagree. i thought dean scheck made a very powerful case for making a change there. >> okay. without objection, we're putting it on the list. okay. and i guess -- no, i wouldn't say it's the final one because we've still got a few more to go through. use of consent throughout the statute. congressional intelligent regarding consent -- intent regarding consent is unclear. we've gotten three requests or three suggestions to clarify and two not to clarify, and i would just point out that changing the meaning of "consent" could be more than what one would call

minor fix to the statute. >> to mr. stone's point, i don't believe it's effective on the definition of capable of consenting without addressing this use of consent. i think these are intertwined issues. >> reporter: anybody have any other -- anybody have any other comment? >> no, i agree with that. i think we have to look at consent everywhere it is in the statute. >> well, i'm concerned about the term of consent not only because of the issue that's raised about the need to define incapable of consenting, but also because of what i see as a concern about the clarity of the term itself. because there is a suggestion on the one hand in the statute on consent that the it's kind of an

affirmative consent that's needed. if you look at a, consent means a freely-given agreement. and then somehow the lack of consent under c may be inferred based on circumstances, all the surrounding circumstances are to be considered including whether a person did not resist or cease to resist. suggesting that resistance alone is the factor. so, to me, this is an ambiguous consent, but i am a little humble about dealing with it just in the sense that this could have major repercussions about the statute. but that doesn't mean that we shouldn't take a look at it from are my point of view, i mean,

point of view. so i agree with the other comments that were made. so that's on our list. well, we haven't reduced our workload too much so far. [laughter] okay. >> well, i will make the comment, though, that when you read consent here, it wouldn't surprise me at the end of the day we decided there isn't any better way to say all these things, but i agree that we have to keep looking at everything. >> that's right. okay. next on, turn the page or turn the page over, definition of force. force is too narrowly defined. that was a suggestion made by professor shulhoffer. how does the panel feel about that? does anybody have a comment? force, 120g5, the term "force"

means the use of a weapon, the use of such physical strength or violence as sufficient to overcome or restrain or injure a person or to compel submission. >> can anybody tell me more specifically what the professor's criticism was? that reads fine to me. maybe did he say it should be more or -- >> well, one of the, if i may, one of the things that i found persuasive was actually by dean shenk about this particular point said it was too narrowly defined because it should also include suggesting possession of a dangerous weapon instead of just using a dangerous weapon. >> i remember that now. >> yes. >> for me, that was enough to tip this into the scale of something that needed a further look. >> uh-huh.

well, normally i would agree with that, but i don't know how that interplays with point number seven which is threatening or placing that other person in fear. but maybe -- but i'm not objecting to it, to taking a look at this. any, admiral, do you have any thoughts? >> [inaudible] >> no objection. o.k.. so that a's also on our checklist. next item, accused perception of victim behavior condition. point, the issue here is charging should not be paused on accused perception of victim's behavior or condition. amend the statute. dean shenk and colonel jackson. kyle, do you remember, can you flesh this point out for the panel, please?

unless somebody has a comment? off the top? >> i'll be glad to comment on it because, again, i think dean shenk made a very good point. among other things she said, the statutory provision only requires the government to accuse should know consciousness, even if the victim testifies about her ability to resist, the government must prove at least that the accused should have known. and her recommended change would look more toward the actual knowledge, the additional -- in other words, the additional element should be deleted, in her opinion. >> and what when would that deln take place? >> she's not suggesting you take out the element that the accused

are to have knowledge or should not. i think reasonably should know. >> i'm sorry, i'm just not sure what -- i mean, i think that's essential, myself. this is a good example of we have to go back and get into the weeds a little and figure out, really analyze these and have another deliberation. >> um, yeah. i think a point -- if you look at b2, the sentence says that the accused has to know, the person knows or reasonably should know. i think her point is you don't need to prove that the person actually knew, but just that the person reasonably, the defendant reasonably should have known. but that imposes an objective standard, and maybe that's fair or not fair.

you would -- before making any change to this, i would like to know some more, a bit more. >> yes. me too. i mean, and it is in the alternative, so you have both options there. >> true. >> for a panel to decide can. but i, yes, i think we should look at. >> any other points? mr. stone? you're okay with looking at it? okay. consent and the state of fact as to consent as affirmative defenses. current version of article 120, remove defirmtive defenses which were previously expressly available. unclear if defenses are still available. here we have amend statute to clarify congressional intent on consent, amend statute to expressly provide for mistake of fact be defense, executive order could clarify consent. judge -- [inaudible]

currently on both. kyle, did we actually have anybody suggesting a change on this? because it's not indicated on the sheet. >> major cossack last month recommended that consent and mistake of fact as to consent be added back into the statute. they were removed from the 2007 version, and you pointed out that among trial counsel that it's confusing as to whether the mistake of fact applies. and so his recommendation was to add it back in. >> and we wouldn't, you wouldn't have to go to congress to do this? oh, apparently an executive order could clarify it? well anyway, i mean, i actually think this is important and it ought to be clarified. this one, i think, is easy to be put on the agenda for action, i mean, is my reaction. i think two defenses, it should be clear that they exist and that they can be used.

i don't know, at least to me. >> a question that i have, i thought the materials that we got the mistake of fact mostly involved situations where you had a victim who was under age. and i presume that really is not going to happen much in the military, that they're going to be 14 or 15 or 16 and look like they're 18. wasn't that the situation that kept coming up in the materials? mistake of fact? or is there another situation in the military that's unique to the military that is repettive? -- repetitive? enter i'd have to go through and think about that. i mean, mistake of fact as a general defense under our rules for courts martial, so, i mean, in terms of the carnal knowledge situation, you could have a civilian victim, so that is a crime that does occur. i mean, it's not limited to military-on-military, of course. so, but more generally, there are other crimes, i'd just have to think through them. >> but also wouldn't it -- if

you have, given the lack of clarity about the term of consent, you could have someone claiming, well, she didn't say no, or as some people have said, no really means yes. >> i think -- >> so i think that, you know, i think big issues are raised when youing buy the, quote-unquote, mistake of fact claim. i certainly have no problem taking a look at it, but that's, i think, one of big issues that comes in as a result of allowing someone to raise that mistake of fact defense. >> yes. and i think that, yes, the testimony that we had, in fact, was precisely as you recalled, and that is mistake of fact as to consent is the key, is the key issue. so i think i this is all bound up with the whole question of consent. >> right. because if you have a very good definition of consent, then i don't know -- i mean, the mistake of fact, i think, would shrink. >> yes, i agree.

we absolutely want to focus be on that question as to who we want to go in the direction of california where we heard that, yes, it means yes. doesn't mean no. and no does not mean yes, and that gets to this mistake of fact thing. oh, she was protesting, but i really thought that she was protesting too much, and it meant yes. i think that both the training and for prosecution purposes i think it would help if people knew what was going on. and i think that's a consent issue, not so much a mistake of fact be issue. i don't understand -- well, i don't think it's good to keep that in the mistake of fact category that when a person says no or yes, they might not mean it. i mean, i think we're encouraging the problem and not helping to solve it. >> well, wouldn't you always permit a defendant to say i thought she consented and let a jury decide? can you really remove a mistake

of fact, the intent? i mean, i see it as a knowledge and intent element. i mean, this is exactly what -- can i agree we should define consent. no two ways about it. but i would be very reluctant to remove that defense. >> i agree with that, but i think the defense becomes much narrower, much narrower if the definition of consent is clear and broad. or the definition of consent is narrow. then the defense becomes narrow. and i think also, as i said in my opening remarks, i hadn't really thought of that before, but i think this also becomes part of the problem with 413 -- i mean, 412. because if consent becomes yes, then prior sexual conduct becomes less and less relevant. and so what's coming in under 412 might not come in so readily as it is today.

just a point that occurred to me. we could take a look at that, i would suggest, as we look at 412. that's something we'd bear in mind. okay. so that's something that obviously needs to be reviewed. okay. that's op our checklist. now, indecent acts. >> [inaudible] >> sorry? >> oh, i'm sorry. >> i missed something. definition of sexual contact and sexual act. 120g2. the definition of sexual contact is too narrow since it does not include touching accomplished by object and overbroad because it includes any touching. and we received three recommendations to change, and i'm not sure that we -- aside from the general objection to

making any changes -- received any objections to making these changes. how do members of the panel feel about this? mr. stone, i'm going to start with you. >> okay. yes, i definitely thought they, that the testimony was that there's just a hole in the statute because it doesn't deal with objects, and we, therefore, should definitely start with that's the easiest item to fix something that it seems everybody agrees is missing and got dropped. i think a very hard question is presented, i know it's troubled me, with any touching and i through the clothing. because i think that people get smacked on the back or smacked on the rear end in what's meant to be a positive way as sometime a team spirit thing. they give them an atta boy, and it may be offensive, but i don't

know that it belongs in the definition of sexual contact. excuse me. >> anybody else want to make a comment on that? i agree with mr. stone. i think it should be on our list to take a look at. and i think, by the way, that one of the things we have to look at, i think the suggestion was made that the definition to include an object could not be done except by statute. but we could take a good look at that. and as i said earlier, i think that recommendations for statutory changes wouldn't necessarily have to take forever given the present concern over whole subject. okay. so we're adding that. without objection, going to add that to the list. okay. indecent acts. latest version of article 120 deleted indecent acts from the

statute. we got two suggestions for change. how do people feel? any comment about this? from panel members? >> well, it seems to me that it still should be an offense. whether it should be an offense under 120 or under article 134 which is where it was historically is up for grabs, in my opinion. but i definitely think it should be an offense. >> is it still in 134? >> it was taken out of 134, apparently. and, again, the two presenters said they weren't sure why. they thought perhaps it was an oversight. is i don't know. >> an oversight by congress? shocking. >> i know it would be unusual. [laughter] >> any other comments from members of the panel? worth taking a look at, further look at? admiral, do you have a thought about this? >> i think i agree with that, the question of whether it belongs in 120 or 134.

>> okay. let's see. well, relations against wholesale -- recommendations against wholesale changes. i guess we can look at that as part of our general examination of these separate points. i guess we're up to article 120, abuse of authority and bifurcation. kyle, are we within our time frame? >> yes, ma'am. we have about 12, 13 minutes left in our -- >> wow. okay. thanks. here we had two suggestions, as the panel members will remember, of changes on the abuse of authority statute by, abuse of authority by both representative

spier and representative frankel having a much larger focus, broader focus. we received four recommendations for change and eight recommendations against change. i should just say that in our examination of threatening wrongful action, these issues will come up. but i also would like to point out that if we supported either one of statutes or supported either one of the statutes with change, with recommendations for change, there might be some chance that this could move quickly through congress. so i don't, i ask the panel members how you feel about proceeding. on this point. i mean, these issues will be covered, i think, by the

threatening -- review of threatening wrongful action, but we could separate them out and just look at these two statutes alone. >> well, i think we'll end up doing both, but i would like to look at the statutes themselves. as part of it. >> anybody else? >> i totally agree with you that i'd like to at least try and change it in the g7 definition of threatening or placing the other person in fear. i think that would be maybe taking care of this problem at the same time we take care of the other problem, and that'd be a great way, it seems to me, to address the abuse of authority which is a version of the unlawful force, it seems to me, that's being, that someone is mentally worried about. >> okay. so let me see if i can parse that out. you're saying we should take a

look at this. i mean, you agree with the suggestion that was made, that we should look at the statutes as well as the underlying issue about wrongful use of force. >> yes, yes. correct, yeah. but first, trying to take care of it when we're, if we are going to fine tune that definition, see if we can take care of it right there as opposed to requiring a completely separate abuse of authority provision, it seems to me. i would try and stay within -- >> or just analyze this and find out whether this statute actually is capable of taking care of it as written. i'm not sure. i think i saw some testimony that people felt they could prosecute abuse of authority situations under the statute. i don't know whether that was right or wrong. i'm just saying we should first decide this whether this can hae it. maybe we can, but we want it to

be clearer and then, you know, take it from there. >> okay. one of the things that i'm going to suggest unless somebody has a different point of view, that because these statutes are at least representative spire's statute that we start off with this use of force so that we could be relevant in terms of the consideration of that statute. is that acceptable to members of the panel? [inaudible conversations] >> great idea. >> don't go too far. [laughter] okay. now we have bifurcation. >> ms. hall stud, in terms of the -- looking at it under the definition of threat and under g7, representative speier's

thought, if you're a trainer and have a sexual act or sexual contact with a trainee, that's an offense. i guess what is the panel's perspective on that, or is that something to still consider, or is the panel more looking at this as -- [inaudible] of threat? >> if i may, i think, i think we should keep on the table this idea of strict liability, because as i said in one of my earlier comments, i think that this is one of the places that coercive power is most likely to be used in a way that is absolutely contrary to all of our values. so i think this is an important point. and when the services were asked to comment on this kind of issue, you may recall we got a report, i think it was last time, from the services that had reviewed this and concluded that they had adequate regulations to deal with this problem pretty much on a strict lie baseball

issue because it involved the violation of regulations. and then the question became whether the violation of these service regulations was adequate to really address the problem. >> well, i think the other issue that came up was this could be prosecuted you should non-12 -- under a non-120 provision, but those don't carry the same consequences, penal consequences as conviction under 120 because then you get denominated a sexual offender, and then you have to be register inside a state. so the consequences are much more serious. and i think -- and very clear point. so to go to the point that judge jones made, if we take a look at all of this together, we can determine whether we support the idea of strict liability for this very limited period of time. it may be important even if we do have revised the existing statute just to make this very

clear. kind of a training point, as you were saying, admiral. this might be training for those noncommissioned officers who are in this position. very clear they don't have to parse any long statute and just be right out there. so there would be a, i mean, a good reason to take a look at that statute. i might also point out, kyle, i could be wrong here and please correct me, that we didn't get any objection to the strict liability except that, to representative speier's statute, except that the representative of the joint services committee said that he was opposed to the -- not to the initial 30-day period of time that the statute would operate, but the second 30-day period. am i, is that correct? >> yes. time limitation was definitely what they were focused on. >> but i do think a number of service representatives spoke to their ability to prosecute these types of offenses under a strict liability under non-120

framework. so you're right, ma'am, there wassish hues with the specific time frame, but also just generally whether strict liability belonged under the 120 umbrella. >> there was one case that had a result of two years of confinement under the orders -- >> right. >> i think the orders as opposed to 120. is that the max, or -- >> it is for a violation of general order under article 92 and the different frameworks that they have. and they are looking, i know that the joint service committee talked about potentially increasing the potential liability under those offenses. so there are different options there. but that was a point talked about by different -- >> yeah. and an important issue is what attaches with a 120 conviction in terms of sex registry. huge issue. >> yes, i but to me, if i could

just make one point, it seems to me if we're going to label somebody as a sex offender for slapping somebody on the rear end through clothing, then how do you exempt someone who's taken use of his or her authority to abuse a young recruit? so, i mean, there needs to be some, in my view, some proportionality here on these offenses. but i think we don't have to debate the substance of this or the merits of this. i think, are we all agreed that we want to take a look at this? >> yes. >> yes. >> okay, great. now, of course, the really tough point arises. kyle, do you have suggestions more how we should approach -- for how we should approach gaining the information we need and going forward on this? >> we have one -- >> oh, i'm sorry, we have one more. >> the bifurcation issue, ma'am. >> oh, yeah, right. bifurcation. we received -- this is, should

penetration offenses be bifurcated from nonpenetrating offenses. we have one suggestion for amendment and three against amendment. how do we feel about proceeding on this? any of the panel members have a view? mr. taylor? >> sure. i don't think it should be amended. i hi it's going to be complicated -- i think it's going to be complicated whether they're in one statute or two, and once you parse your way through it, you understand it. obviously, it needs to be presented as staff director said in a way that's readily understandable to recruits than it is to lawyers who are schooled in this, but i would not recommend it at this point. >> any other -- >> i agree with that. and i think that if you run, there's all kinds of potential problems if you start to bifurcate them. attempted rape where the person gets interrupted before there's penetration, which statute is that one in? if congress decided to put them

together, i think we should accept that framework and try and work with what we've got in this case. they could have done it differently, but i don't see this as something that there's a compelling need to change. and we, it seems to me, we've got other things we need to work on. >> i agree with that. >> okay. so that's not on our list. we've made good progress. we took two items off our list, and we have a pretty full plate otherwise. [laughter] kyle green, do you have suggestions about how we'll proceed? i guess what we'll do now since we've almost consumed all of our time is that we will suggest to panel members how we will proceed on these points, and we'll just proceed, and right now we'll continue with the hearing before us. maybe we'll take a five minute break and commence in five minutes with the rest, with the

panel members, with the witnesses who have come to testify. thanks very much. [inaudible conversations] [inaudible conversations] >> okay.

we will -- good morning again. we're now ready, sorry to be a few minutes late, to deal with a panel that's going to focus on military rules of evidence, 412 and 415 and court-martial proceedings. we have three -- well, let's see, two witnesses before us. colonel john baker, u.s. marine corps deputy director, judge advocate, and mr. william bartow, army highly qualified expert attorney adviser. welcome to both of you, and i understand we'll start with you, colonel baker. thank you for your presence. >> thank you, ma'am. good morning. as you noted, i'm colonel john baker, the deputy director of the -- [inaudible] division for military justice and community development. mr. bartow and i are here to discuss mre -- excuse me, 412

and 513 and how they're litigated at article 32 hearings and during article 39a sessions at courts martial. to give my comments some perspective, i'll note that i've litigated 412 and 513 issues as a trial and as a defense come, i've ruled on them as a military judgement, i've taught classes to subordinate trial and defense counsel on how to litigate these issues in court, and most recently, i've been dealing with mre 412 and 513 as a policymaker as a member of the joint services committee where we recently recommended a revision to rules for courts martial 405 that would apply the protections of mre 412 and 513 at article 32 hearings but would eliminate the constitutionally-required exception at these preliminary hearings. the jfc has also recommended changes to mre 412 and 513 to clarify that a victim's right to

be reasonably heard at an mre 412 or 513 hearing includes the right to be heard through come. with this background, i'd like to offer a couple of observations and one act 'em dote before i -- anecdote before i turn the mic over to mr. bartow who will walk you through the procedural rules. first, i'll offer as a general proposition that when the procedural rules are properly applied, that both mre 412 and 513 strike the balance between protecting a victim's privacy interests and providing the fact finder relevant evidence needed to term the fact or innocence of an accused. second, over the course of my career i've seen an increase in 412 litigation and an even larger increase in mre 513 litigation, and i've also observed an increased concern for protecting the privacy rights of victims. third, when examining these rules, please take into account the important new role that

victims' legal counsel or special victims counsel, play in protecting a victim's privacy rights. in the marine corps, our victim legal counsel provide our victims a significantly improved right to be heard at article 32 hearings and article 39a sessions and mre 412 and 513. to be honest, i was surprised this morning when i looked at the agenda of speakers and didn't see someone from the the victim legal counsel or a special victim counsel to address this issue. i'll close with this -- >> may i interrupt? we're going to be hearing from special victims counsel -- >> good. >> yes, ma'am. >> the whole day. >> okay. >> so your mind should be at ease on that. >> good. i'll close with this anecdote. i served as a military judge in okinawa, japan, from 2001 to 2014 in the very early days of mre 513 litigation, and i can still remember my first closed

mre 513 review hearing and my first in camera review of a victim's record. the case was a hotly-contested sexual assault allegation, and the defense had proffered that the victim had made numerous inconsistent statements regarding the alleged assault. i approached this hearing thinking it would be like any other motion session that i'd presided over. i was wrong about that. the victim was notified about the hearing, and she appeared, and she made a pretty compelling argument that i not review her records are. the defense counsel who was representing the young marine made an each more convincing argument, that the records could contain material that were constitutionally required, and at the conclusion of the session, i ordered the trial counsel to produce the treatment records under seal for me to review in camera. when the records arrived and i began to review them, i think this was the first time that i really had appreciated how personal and private the communications are between the victim and her treatment provider. during the course of my review,

i did discover a piece of critical information that i felt needed to be disclosed to the accused and eventually to the fact finder. as i balanced these competing interests of these two young active duty marines, i really became mindful of the discretion that i had as a military judge and that i needed to have in order to make the proper decision. so with that, i'll turn the microphone over to mr. bartow, and i'll look forward to answering any questions i have. [inaudible conversations] >> madam chair, members of the panel, good morning. it's a privilege to speak with you this morning about the military rules of evidence that apply the rape shield rule and the psychotherapist privilege. my particular emphasis is going to be on the various ways in which the system safeguards victim privacy at pretrial hearings and during the court-martial. i speak to you, much as colonel

baker does, as someone who has served in almost every position in the military justice system is. i've been a prosecutor, defense counsel, law professor, policy official, staff judge advocate and a military judge at both the trial and appellate levels. i also speak to you as someone who has worked outside the military system, having spent the last five years with the federal judiciary as the senior attorney and court executive. so i'm very can confident and comfortable when i echo colonel baker and say that the military justice system effectively provides due process for those accused of crime while safeguarding privacy interests of victims of crime, particularly concerning their previous sexual behavior, their sexual predispositions and communications with psychotherapists. but i want to begin this portion of our time together by an introductory note. and it's important to remember that when dealing with the military rules of evidence,

we're dealing with a body of law that is created by executive order. the president has been authorized by congress in 10usc836 to promulgate rules of evidence, and this is the language of the statute. so far as he considers practicable, applying the principles of law and the rules of evidence recognized in the trial of criminal cases in the united states district courts. as such, you'll notice a fair similarity as we consider these two provisions with those in the federal rules of evidence and many state and commonwealth standards as well. now, if i could have the fors substantive slide, please. military rule of evidence 412 implements a rape shield rule in the military justice system. it is a rule of relevance, and it excludes as irrelevant two

broad categories of evidence. evidence that's offered to prove that a victim engaged in other sexual behavior than that charged and evidence offered to prove a victim's sexual predisposition; that is, her dress, speech or lifestyle. now, it's important to note that this is, as i mentioned, a rule of relevance. it is not a rule of privilege. and as such, there are three exceptions borrowed from the federal rule that you may find very familiar. the first is that the military judge may admit into evidence that evidence of specific instances of sexual behavior by a victim that are offered to demonstrate that another person, a person other than the accused, was the source of semen, injury or other physical evidence. this exception is, quite frankly, far less encountered

today than when i first began practicing due to the advent of sophisticated forensic examining and dna evaluation as well. the second exception is that a military judge may admit evidence of specific instances of sexual behavior by the victim with the accused that is offered , as madam chair noted earlier, to prove concept by the alleged victim in the -- consent by the alleged victim in the case. ..