the fast growth of low wage jobs puts a downward on them. how might this impact them going forward? >> i absolutely think that to strengthen our economy you can strengthen the workers and raise wages. the beginning of 2013. we are gratified that since that date, states and cities around the country have raised the minimum wage. as a result the minimum wage has been raised to 8 million works. there is more than and there workers that have the entire

proposal. there is another important step we can take and all of our discussion about education and teachers, that's not going to raise a way for students tomorrow. it will be 10 to 20 years from now. >> we consistently hear that federal aid is decreasing and federal mandates are increasing. can you say what they can do to improve the lives of those? >> we have been doing a lot. first of all, we tried to be as flexible as possible. there is a number of places where we have shown that flexibility. going forward, they depend on what we are doing in the federal

budget. that's why that debate over how much we will invest over infrastructure and feechers and research and programs like the cops program. all of these things are contingent on this broader debate over what to do about the spending levels. that's one that we think is very much on the side of the nation's cities. >> thank you so much for taking the time to join us. >> thank you. >> next up, we have the research director who will talk you

through the survey. >> thank you, brooks. pleased to be here to share the results of the 2014 fiscal conditions survey. i would like to thank my coauthor who will be here on the panel session. i would like to thank the mac arthur foundation. as many of you know, the survey is the survey of officers and i mentioned this because it is the only source of annual finance data for the sector. as we were discussing today, the growth from the recovery has been slow. our survey allows us a window into that perspective to see how the slow recovery has impacted the city finances and in turn how cities have fared. how budgets have fared out of the recession. i will be discussing this in terms of key vital signs or ways that we understand the keys of

our nation's cities. the outlook of city finance officers. general fund revenues, workforce and personnel and ending balances. i will discuss the most impactful factors on the city's budget as well as how cities are responding. without further adieu, it's not a surprise that this year's survey reveals although the worst is behind them. finances have not yet recovered following the great recession and here's how we know. looking 59 city finance officers, we gauge the informed opinion of city finance officers. ganling their opinion is critical to the outlook of finances city-wide. we ask is your city's budget more or less able to meet the financial needs of your community? this chart shows the percent

reporting better able or less able with the gray bars better able and the blue bars less able. in 2014, a staggering 80% of city finance officers report that they are better able to meet the needs of their community than this time last year. more city finance officers in fact report a positive outlook this year than in the 29-year history of the survey. now generally speak i tend to be a glass half full type of person, but we need to look at both sides of the story. 80% were better off this year it means that 80% were worse off. it's indicative of the magnitude and the depth to which cities sanction in the recent period. like so much of what we will be discussing today, positive trends unfortunately are tempered when we take a closer look at the reality and the relative context of economic

recovery. so the next vital sign that we will be looking at is a revenue fund activity. this is critical. general fund revenues provide funding for operations comprised of taxes as well as user fees for services and development and intergovernmental aid as well. they are responsive to economic conditions and provide and serve as a barometer for what to expect in the years to come. we examined the amount of change and the revenues, the free line expenditures. a good news or bad news story. good news, general fund revenues grew by 2.8%. in 2013 compared with 2012. this is the first post recession year over year growth in revenues that we have seen. the bad news?

revenues are projected to stag nate as they close the books on 2014. to gain further perspective into the activity and see how well general fund revenues are faring pre and post recession, we took a closer look. we used 2006 which was the prerecession peak in revenues at the base year. we created an index. in 2012, it was the low for general fund revenues. they were 88% of 2006 revenues. the first post recession increase as we noted, but in 2014 which is productive because not all cities closed their books, we are projecting that revenues are at 90% of 2006 levels. revenues are not yet fully

recovered and the growth in revenues appears to be stag nating. yet another window is to take a closer look at the main drivers of this fund. property sales and income taxes. similar to the revenue and chart i show ud earlier. they show the constant change in property, income, and sales pax. the blue line is property tax. typically sales and next taxes respond more quickly where as property taxes, most cities have economic continues and take longer to recovery. this is ideal for any city. and they decline for the relief

of the recession. property taxes are anticipated to increase slightly in 2014 as collects catch up with improvements of the overall markets. this will be the first increase in property taxes that we are seeing coming oust recession. sales and income tax revenues continue to grow in 2013 and are projected to slow as cities close the books. this is indicative not only of air harsh winter, but the recovery we are seeing with low wage jobs dominating. speak of jobs, workforce and personnel. throughout the recession many implemented some combination of workforce and personnel-related cuts. they have an effort to reduce the costs. the results, the loss of hundreds of thousands of mid-wage jobs and public safety and public works, parks and

recreation health among others. the good news for the first time since the post recession, more cities are increasing rather than decreasing the size of their workforces. the gray line indicates the percentage of cities reporting they are decreasing the workforce and blue line increasing. the bad news, as we heard earlier this morning, in the context of trying to forward, there is a half million fewer local government jobs today than in 2002008. that's troublesome given the state of mid-wage and jobs crisis that we are experiencing today in this country. our last indicator are balances. ending balances or reserves provide a cushion for cities. they are an indicator of capacity primarily because cities help balance budgets in economic times and use reserves to help with planned expenses down the road. additionally we know that the writers look at a city's

reserves as to how well and likely a city is to make good on their debt and decrease the cost of borrowing. we measure ending balances as a percentage of expenditures. we ask for the ending balances and the budgeting ending balance for the next year in gray. the good news or the better news, ending balances are on a positive trajectory. at almost 22%, we know that prior to the recession, ending balances were around 25%. we are still not there yet. as we take stock of key vital signs, we are starting to see finances turning the corner, but as revenues workforce and ending balances indicate they have not returned to full recovery.

what's holding back recovery? this is a particular insight we ask of the finance officers. we want to know the factors that are most impacting the budgets. the most negative impacts and the infrastructure needs. maintenance and new infrastructure has been pent up in the great recession. we know that is a looming challenge. the cost in particular of infrastructure and health care are ones that are likely to persist and hold back budgets for years to come. on the positive side, we see that the broader economic recovery is starring to take hold at the local level. the health of the local economy and value are indicated by the finance officers as several of the positive impactors on the city budgets. turning to policy actions, we have what we see as overall health of city budgets.

we have the impactful factors that are playing a role on a daily basis. as many of you know, local governments unlike the federal government needs to balance the budget every year. throughout the year, cities are assessing not only the factors, but the needs of residents and adjusting the policy choices accordingly. what do the choices look like? we ask the finance officers about the specific revenue raising and expenditure activities in 2014. a majority of cities report that they are reinvesting in public safety. capital projects and employee wages. to boost revenues, they turn to user fees as they have over the past 30 years and to a lesser degree increases in property tax rates as well. in closing, we are cautiously optimistic about the conditions. for the first time fund revenues

are increasing and stag nate as cities close on 2014. we know we have a long way to go. there a half million jobs from prerecession levels. again, still have not caught up. the bottom line, cities were at the forefront of the great recession and making their way back through tough choices, innovation and partnerships and the nonprofits and others. given persistent constraints on budget, having state and federal partners at the stable is critical to full recovery of the nation cities. i would like to welcome to the stage mayor chris coleman of saint paul, minnesota. he will reflect on his time as mayor as well as the vision for

city federal partnership. >> good morning, everyone. thank you for the report. i want to thank all those that participated in the hospital and the city financial officers that responded to the survey online and over phone surveys and however we got that information. it's critically important that we do understand what the health of cities is right now. 80% of finance officers are reporting a more positive direction. that is a good thing. these have been very, very difficult years for cities and the economy has been particularly challenging as the resources and various sources for the cities have dwindled. we see recovery on that and starting to see a little bit of

a more hiring in the city, particularly public safety arena and other areas. we are still down with the jobs from where they were at peak employment. while we are optimistic about the future, it is not without clouds on the horizon. we know there long-term challenges that will need a commitment. if cities will succeed, they need a partnership with the state government and all of the residents of the cities that hopefully will benefit from the recovery as it goes forward. the survey indicate that is the city financial officers are concerned over the cost associated with the infrastructure especially. personally and close to home is the discovery of a major bridge into downtown st. paul was structurally unsound and has been restricted.

when you close down lanes coming into the downtown making it more difficult for residents to get in and people to spend money, that has a long-term impact on the financial health. you know that much of the infrastructure is in dire need of repair and upgrade. they receive ratings from engineers and has fallen behind the rest of the world. they have less resources coming down from state and federal source. cities continue to lead and do what's best for the residences. they have the union depot. they have the transit system or hub that will provide a great access to the cities. it is the central stop on our train and central stop on the light rail and buss that come in. if you look at how the project came together, it was a combination of local sources

that was private. it was federal sources. it was a perfect partnership. those are the types of things that they will sustain the well being. they are posed by the goods and people to their jobs. that's why the national league of city supports the long-term program that sends dollars directly to projects where people live. in addition, cities must include a stronger role and the project selection process and recognize the central role of transportation to metropolitan and regional economies. by ensuring the strong voice, the nation will see a return on innovation and big concept

investments that are the hall mark of what makes the nation so great. american cities and businesses agree on the need for a transportation program that is reliable and support long-term planning. you cannot plan for infrastructure projects six months at a time. you need a long-term plan. in addition to the new transportation program, economies are the economic engines and cities need time to allow the cities to have the flexibility to make the decisions that work best firefighter their communities. this ensures they have the flexible to best raise residenc residences. they level the playing field between online and brick and mortar retailers by voting for market place fairness. this is a priority of the cities for many years and will continue to be and as chairman furman indicated, a priority of the white house. we are hopeful we can get it

done this fall. giving cities the authority to get more money for basic services such as roads and police officers without costing the federal government a penny. the city leaders are the closest to the ground and the residents. we are not hundreds of thousands of miles away. 00s or thousands of miles away. we are there with them every day. we have experienced the same frustrations and challenges they do. the great thing about a mayor is when a resident complains, you have driven over that same pothole. we know on the local level what is best for the communities and what they need in order to grow and prosper. the items with we have outlined are simple. we are asking them to give us the opportunity to do what they say they want to do. make the investments and push them on a path to greater growth and makes the nation more competiti competitive. they work to help build better communities and places where the residents can thrive. we build partnerships across the

business and nonprofit sectors and party lines and across neighborhood divides. this is why cities in tune for the commute. why cities are most in tune to their community. we are asking for the tools and resources to make it happen. we are optimistic and we come through a dark time in the city's history. though we are optimistic, we know unless we continue to invest and continue to provide city resources, unless we have local control and decision makesing, we are optimistic and hopeful and we hope we can get congress and the white house and state governments and all levels of government to work the concept. thank you very much. >> we will take a few questions from the audience.

if there questions, if you want to come down to the mike. if you can come down to the mike, please. >> great presentation. i was interested in cities like detroit. some have emergency managers. they have gone beyond what they can afford to do. it's a key for those types of cities and others that might fall into the same situation as to what is the next alternative. will there be more cities having to go through the structurings? they may not be able to get done quickly to get basic services

like filling potholes and having basic services, police force, how would you envision that taking place in desperate straights? >> just generally speaking, we know although we presented a better news, not so good news and cautiously optimistic. cities are faring much more strongly out of the great recession. in the instances of bankruptcy are extremely rare. we feel for them and again, the vast majority necessary a better position than they have been. >> we have an extreme example that has and they are really outside this report. this report speaks to the broader general condition that they suggested that they are

training in the right direction. any city might have a problem with respect to pension issues or unfunded liabilities or challenges. even in detroit, starring to see detroit coming back and making tough decisions and changes. the fact is that cities across this country particularly larger areas are becoming revitalized and vibrant because people are investing. if we will continue to see that and see people wanting to bring your businesses to our communities and young people wanting to live in the communities, you have to invest in the kinds of things we are talking about including transportation and infrastructure.

>> i wanted to ask about general fund balances and not every city is required to have and the carry over i imagine you said there was an average of about 22%. i imagine that varies greatly depending on the city we are talking about. can you talk about whether cities should have a mandated rainy day fund like a lot of states do and especially looking at the future with revenues that are stag nating. can you talk about that and the whole picture. >> with the high ending balances around 25% just before the recession, as cities drew down, that came down and we are looking at around 22%. generally speaking and the realm of bond underwriters, they are looking for cities to have on

hand two months of personnel wages. there is as you mentioned a great deal of variation. they are speaking to the situation in st. paul. >> it is important for cities to have a policy and how they would use it. some use it as their cash flow. in terms of what they will require, they are very clear. and the threshold of what that would look like. in order to receive the higher ratings. they are important with the costs going forward. in the city, we have a specific

policy. it allows us to go as low as 15% in terms of our overall reserve, but one of the important factors is not using the balance to fund ongoing operations. it is specific for the emergency situations. if you are budgeting your permanent expenditures, that is not a good fiscal policy. i am hopeful as the finances stabilize, the cities that don't have the policy in place will be able to make it easier to govern when you are not in crisis and get the structures in place. >> any other questions? i think we have time for one

more. >> you had mentioned your support for the market place and your hope that that can get past. do you see that being passed along with the internet tax freedom act and do you support a pairing of those two bills? >> first of all, we are hopeful because there has been broad bipartisan support in the senate where it passed. we see that in the house on both sides of the aisle. there is clear support and getting it done. while we don't have a specific vehicle we have that attached to, we feel like this is the time to do it in the lame duck session. there has been talk about connecting it to the internet

bill, but whether that's the success or another vehicle we will be supportive of however we can get this fairness passed. it just means it is too significant for a source of revenue for the communities to be leaving it on the table and it's a way for local governments to get that additional revenue without the federal government. as we like to say, it's not a new tax, it's a due tax and it's about time we collect it for the local communities. >> next we will have our panel session. >> mayor coleman and chris farland, we brought together a group to discuss the report in

more depth. to my left the dean of public affairs at the university of illinois in chicago. mike is the city fiscal conditions coauthor and led the survey and report since its inception in 1986. to his left we have ron green, a city controller and the second highest elected official in the city government and the key financial officer. he brings a key local perspective. next to him, we have a senior economist and an lytics. responsible for covering state and local issues. he focuses on workforce, able. to begin, can you give us the contkz of this hospital, putting it in context with priest reports. >> as we learned from the presentation, this is the first

year generating more revenue than they had in the past. we had seen going into and out of recessions, and there tending to be a moderating effect because the property tax elections lag in economic recession by up to five years based on the assessment practices of the municipalities or the counties. you don't see the strong fiscal effects immediately when an economic recession is until a year or two or three out. probably for the first time since the great depression. income taxes and property taxes declined year over year for a long number of years. they overlap each other and income and sales tax will drop

in a recession and property taxes don't. as the economy improves, sales and they begin to decline. the caveat is from a much lower base. the increases and it's over a year over year decline for almost five years. >> can you give us the local perspective of what's happening in houston and putting it into the context of this admission? >> the city is unlike many of the larger cities. we are saying that our sales tax is up and property taxes is up.

we are seeing an up tick. 2010 and 2011 all over the city. we recovered about 2.4 for every job lot of. we recovered about 2.4 jobs and we see that. we are seeing the housing market has been fairly stable in our area. that has been a major driver for us. we have seen the tax base grow horizontally as opposed to vertically. we are interested in raising the tax rate and we are getting more structures on the ground on the residential and the commercial side. we have also seen just this cutting back in government as well. we have been able to retool ourselves and we did have the recession. helping an insurance model to start to realize savings there.

we are investing in infrastructure and have been able to refinance the bonds. we have certainly been able to reinvest in technology. we are cautiously optimistic. >> can you put this into the context of what you see at moody's? >> we have a unique view of things from them and we look at the way they affect the overall economy instead of the way economy affects the fiscal conditions. there is a brief story that we have economists, we have the training on every section of housing and finance and state and local government. when i bring the new economists in, i say as economists, why do we care what state and local

governments do? they come up with a wide variety of answers like the housing policy and the laws and the tax policy. they forget that the states and local governments make up a huge part of the economy. it's between 10 and 15%. look at the jobs numbers. 12 to 14% in terms of the overall economy. if local government is there, if you look at past recoveries, state and local governs years after the end of the recession, they have never been so poor in terms of the job loss or gain as far back as we had record to the great recession. we don't have great records on. one of the things going forward

that we will see with sluggishness and you look at the number of jobs lot of, the low wage jobs are way above the lows. the high wage jobs we recovered since the great recession, they are back above those levels. if you look at the mid-wage where we see the most spill over, that's well below the levels and the majority of that, 500,000 jobs did not come back since the end of the recession. just to put it in context, the federal government is only about 100,000 jobs below where it was at the end and states only about 100,000 jobs. at the end of the recession. if you compare it to the private sector, that's five times as many jobs are not back in local governments. we are tracking this closely. i think going forward as

everyone said it is cautiously optimistic. at the same time i don't think that we will see cities, states, or counties really spend to the degree they have spent coming out of the recovery. the pensions are too good. to a lesser extent, the city doesn't have to worry about medicate. in terms of health care costs for their employees, that's going to continue to be a question going forward. even though cities will be coming back & we are happy with the forecast and see that 80% of cities and the report did a good job of explaining the bag in terms of why that's happening. i think that will continue for a couple of years.

>> picking up on what you said earlier, what variations are you seeing? >> the report identifies the average year to year change in them from ex-penttures from the fund and year to year changes in property tax reports and year to year changes in sales tax receipts and income tax receipts. what the mythical thing might look like. they have 10 or 15% and they have access to the next tax. if they have the medium wage earners are not coming back, they will have a differential effect depending on whether or not they came back. the sales taxes also are around

55% of all cities have access to the sales tax. as the economy of our consumer confidence rebounds, people are buying more and that excludes a lot of services. as that increases, the receipt of sales tax collections will increase during that period of time. not all have access to that and there quite a few and almost all cities have access to the property tax and that depends on the collection of the property tax receipts and a variety of things across the country. that depends on if there taxes limitations and they can hold down property tax receipts even if the property tax and real estate industry is growing.

with the rate of inflation or population, if you look at the 19,000 plus municipalities, they don't all fit. the one model we present in the report, they vary depending on the host of circumstances including the restraints. municipalities can only tax what the states allow them to do they have the mix ups and if there is a strong real estate industry and sector in the municipality, the revenue portfolio and the growth of the property values won't have a huge impact on the budgets of municipalities. we need to think about that as being the people.

we have different characters and different possibilities and interests with the electorate. what i would like to underscore is. >> we know the city has been doing quite well. now that you are preparing for the future. >> houston is a city where we have revenue caps in place. we talk about going up against the caps, that will cause any elected officials to decide -- you want to grow your city. if your revenues are not growing, you are bringing in for us about 125 people a day with houston. we are clearly growing with the big issue for us that will cause

a deficit down the road. we are preparing like any other city that are looking at user fees. that is one of the average fees where we can look at. we are looking 59 what to do when it comes to all the expenditur expenditures. what is the talk around houston and the city council. the core services. i think anyone would argue it's probably a core service. it's one of the things we can't do ourselves. >> we also have an issue with the pension and i think everyone has a pension issue, one of the things i have been tracking is the number of active employees or retirees, that number is going down as we have an older workforce or number the retirees will go up. that will put another drag or drain into who pays into the pensions. and i don't want to buy into the

idea that the cities should be all concerned because people as mike said, cities are like people. we buy gas. we are subjected to the same forces. cautious optimism is the word of the day. certainly you have to build for the future. that is the biggest balancing act. how do you remain cautious and how do you remain optimistic? >> then in the fiscal conditions, we see infrastructures and can you talk about what you are seeing with the issues across the country? >> sure. they are e formously important not just at the local, but the state level. it's important to talk about this with the state and local issue. there is so much overlap in terms of infrastructure.

if you look at the amount of money being spent by states and local governments on infrastructure spending. if you look through the state and local governments, you see that we are in terms of real gdp, we are at a lower percentage than we have been at any point. one of the main issues is that the city needs more cooperation for the state and local government. there is a lot of governmental issues and at the least, everybody is coming to the realization and it was nice to hear jason talking about how it is on the radar. it's nice toy hear the mayor talk about it as well. yard to get this approved, even

if this comes up to what the average amount of state and local government spending was in the last 20 years, the share of gdp increase of about $800 billion relative to what we have in the forecast. if we were able to get back to the average, i'm not saying we would have a huge push. we would have huge economic consequences. >> at this point we have time for audience questions. if anybody has a question, could you please come down to the microphone? >> if we don't have any questions from the audience, i will ask you if you have closing comments. >> to pick up on the question that was raised on the q&a part, endingnesses are two comments. ending balances are different

from state rainy day funds. they typically are set aside with the trigger mechanism that allows spending to happen only if they reach a certain point or revenues that don't meet a target. for municipalities, it's like the end of your month with your checking account and your own household. it's what you haven't spent. that gets rolled over into the next fiscal year as cash that can be spent to cover whatever services, municipalities hold on for emergencies as the mayor said. to build up to make a city hall or to do something like that and to keep the bond rating agencies happy to demonstrate that they are good stewards of the fiscal resources.

about 22% of the temperatures, it was much less. what they have done is realized several things. you can't predict the future as we all balances this last winter and southern as well ran out early and they had to dig in to have more services. preparing for the unexpected emergencies is one of the reasons they tend to grow over the time. between the time they started monitoring the ending balances to the general fund is that the federal government is a much smaller actor or player. in the late 1970s around 14 to 15% came from the federal government today. today it's around 3% or 4%. they had to rely on their own

resources and understanding of what is financially smart for them to do. whether it's mother nature related or the emergencies like the water main breaks and those swords of things. as well as the bond rating that they can borrow because they have the cash reserves in hand as well as collecting funds for investment in a capital asset. cities are adjusting to the changes and being much better stewards of their own financial resources the same way that households are sturts of their own resources. >> for those of us who are in the office, the federal

government has all the mone. and the goal government gets all the problems. at the end of the day, we have to get it done. they trickle down for us whether we are in good economic times or bad, the trash has to get picked up. the police and fire have to be able to respond. we are going to manage it and when we are doing better which we are doing now, now is the time to plan. for the cities to grow and make the investments and i'm a huge proponent of keeping our municipal bonds tax-free. money is cheap right now. all cities across the country recognize that as it relates to saving and carrying over, most

cities especially houston when it got tight on us, we were able to draw them down. i would agree that that is not a good thing to do all the time. it's good to have a rainy day fund. it that's not always good to do. it's always good to have a rainy day fund because it rained in cities the last few years. i think a balanced approach is the order of the day. when you are at the municipal level. you have to understand that you represent people, these are like -- we're not like general motors. we can't raise the price of a cadillac if we need more money. we have to be very cognizant, one, of people who pay into the tax base and how it's affecting them because it's all enter related. if people don't have more money to spend, they can't buy more washers and dryers. we don't get more sales tax. if they can't buy homes, they don't get the property tax, if we overtax them, it's all a vicious cycle.

but at the end of the day, cities i think will persevere. we'll continue to provide the services at the level that people expect but we'll also be fiscally responsible. and the taxpayer expects us to be fiscally responsible. >> well, at the risk of beating a dead horse, i'm going to do it anyway. one of the cutting edge things in terms of state and local government finances right now is the reserved balances. not just the fact that they need more. everybody can say we need more. as ron said, it's not they need more. they need to know exactly how much they need to have without being too conservative and without choking off the vital city services. we've done a lot of research in terms of state balance sheets and state fiscal conditions. we twho a loll of people working their way to a local level as we. pew's done good work on it, for example. it's something that's going to have to be done while we're

cautiously optimistic, while we're coming out now, because if we wait a few years down the line, we're going to get flat-footed again. one of the biggest problems going into the recession, why we're so sluggish coming out state and local governments just didn't have enough money put away. in the past, the local governments were able to depend on the state governments. and the state governments didn't have enough reserve and a lot of tiles, the school districts and township got left out. both levels of government need to be attacking a better look at what their reserve policies are and maybe implementing certain statutory requirements in place. because as we talked about earlier, states, local -- it all boils down to that. without being able to take care of themselves, city, really going to have to keep an eye out on the future. because there's no guarantee that that help there be. >> thank you. to close this out today, i would add that fiscal conditions are strengthening.

economic downturn was so deep and the length of the recovery is so drawn that it's on the hour rierchs. at the same time, these are tempered by challenges from increased cluster services ongoing pension and health care costs, long-term infrastructure needs and decreased levels of state and federal aid. overall with economic recovery in the centralality of cities we will see fiscal growth well into the future. thank you all for joining us here today. [ applause ] c-span's campaign 2014 is bringing you more than 100 debates this election season. coverage continues tonight at 8:00 p.m. eastern on c-span2 with the new hampshire governor's debate between

magazine eye hassan and walt havenstein. and then governor kitzhaber debates dennis richardson. and the south dakota senate between mike rounds, democrat rick weiland, and independents larry pressler and gordon howie. here's a look at recent ads running in south dakota. ♪ hey there, i'm the middle class. i know, you don't hear from me very often, and no one much listen to me other way. until now, you've seen rick weiland south or north of jefferson. he's been out there fighting for me. for medicare, social security and affordable college loans, you know, the things dear to my heart. meaning we don't just have a panel now, we have a voice.

>> i'm john thune, for years i fought for what matters for the people of south dakota. often in opposition of president obama and his supporters. this november, if you can make south dakota's voice in washington even stronger by electing mike rounds to join me in the united states senate. with mike, our state will have two senators working together to get our country headed back in the right direction. please join me in supporting mike rounds for the united states senate. >> i'm mike rounds and i approve this message. i'm larry pressler and i approve this message. i'm here on the farm that i grew up still owned by my brother. and 30 years ago, they know i championed social security. the republicans are attacking with me background checks on guns. they know i supported the bob dole plan. and on the keystone the pressler pipeline plan is dedicated to south dakota oil. that's south dakota jobs and independence.

it's time to do something different. on election day, you're going to vote for the candidate you really support. not the one other people are saying it supports to win. you're going to make up your own mind and vote on principle. not on blind loyalty to politicians who aren't loyal to you. my name is gordon howie. and approve this message with your support i'll be next senator for south dakota. recent polls have changed the south dakota race from likely republican to leans republican. see all of the candidates debate tonight on the champion c-span2. be part of c-span's 2014 coverage. follow us on twitter and like us on facebook. to get debate schedules, video clips of key moments, debate

previews from our politics team. c-span is bringing you over 100 senate, house and governor debates and you can instantly share your reactions to what the candidates are saying. the battle for control of congress, stay intouched and engaged by following us on twitter at c-span and liking us on facebook. @facebook.com slash c-span. coming up part of the judicial department's judicial panel reviewing sexual assault cases. it looks at the military code of justice to determine whether they must be updated. this is an hour and ten minutes. i'd 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 of 2013. our mandate is to conduct an independent preview and assessment of judicial proceedings conducted under the uniform code of military justice involving adult sexual assault and related offenses since the most recent amend to art 120 of the ucmj in 2012. to start this morning, the panel will begin deliberating on what we've learned and heard about article 120. the panel has three tasks pertaining to our review of article 120. three tasks at a minimum.

first, we must assess and make recommendations for the improvements 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 where sexual acts occur as a result of access or coercion by a service member abusing his or her position in the chain of command. third, the response system's 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 a wide variety of issues. i don't suspect today's deliberation will conclude our review of 120 article issues but will allow panel members to

discuss the perspectives on the information received and help identify a way forward. following the deliberative session we will begin our discussion on other taskings required for privacy issues for victims of sexual assault crimes. we will begin our review of use of evidence from prior sexual conduct of an laechled victim in article 32's proceedings and courts martial which is addressed by military rule of evidence. we also exam victim's record by preliminary hearings and courts martial addressed by rule 513. today we will first hear from experts within dod who will explain the rules and their use in criminal proceedings. next we will hear from civilian and academic experts who will help us compare the military rules and practices of other civilian jurisdictions. we will then hear about trial practices from military

prosecutors and defense counsel. and finally we will hear from those who work and advocate victims with private issues in proceedings. i anticipate we will hear more about these issues in future meetings, including next month's meeting which will focus on the counsel program implemented by each of the military services. each public meeting the judicial review panel includes time to review input from the public. the panel did not receive any request from the public to appear at today's meeting. all materials from today's meeting, however, and previous meeting are available at jpp's website @jpp.whs.mill.. thank you very much for your attention, and i believe we're ready to dlin our deliberation discussion of article 120. okay. panel members, i outlined kind of the large issues we have to

look at whard to 120. and i think maybe we should just start by having each of the panel members since we're not allowed to discuss any of this except in a public meeting, express where they -- where they think the panel should come out, 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's acceptable to the panel members. may we start with you judge joe since you're sitting to my right. >> i'd like to just make the general comment that i think, it's almost an under statement

to stay -- sorry, thank you. i'd just like to start with the general comment that this is obviously a very difficult task. it's a 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 here with this new version of article 120. my own personal experience is that if the judge gets the legal instructions right, when they're instructing, in this case, the panel, that 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, and for particularly the prosecutors in terms of charging. we've heard examples that they're 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 a development of the case law. so, overall, that's 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, when we go through the various sections. but generally speaking, i would not, at this moment, want to take any heavy hand to trying 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 were 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 the number of people who have identified relatively 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 to hear the length of time that it has taken to this point to implement some of the changes that are already in the works regardinging this -- not only this statute, but other statutes, as they make their way through the interagency process. so i think the one good thing that could come from this review is some more pressure and emfase emphasis on making the changes faster in the field that need to be made. also with respect to judge jones, there are other things that i listened in the testimony that's been given that would seem to improve the overall tenor as we stand.

i don't think rewriting the law is one of those. i was told by someone who is a true expert who teaches this subject that if you can understand article 120, you can understand any criminal penalty anywhere in the us code for the ucmj. and also it seems to me that, yes, if you bifurcated the statute, you might have some simplicity but not that much. it just means that you may have turned fewer pages to get to the same outcome. so i don't think we should shy away from the statute just because it takes some time to really understand it and get 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 speed to help the people in the field who feel like they need clarification on some of the tough issue, 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 the opportunity for clarity around the case law as part of the line officer's role in this important task. i would also -- i was struck by the number of people who spoke to us about the need for some definitional clarity and the opportunities that exist to achieve that other than recourse of rewriting the statute itself. i think i just echo what my colleagues have to say. >> mr. stone. >> thank you madam chairman. like my colleagues on this panel, we've 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've heard so far, is that what we have is workable, it's good. and, yes, there's 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 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're definitions or sharpened terms here terror, within more or less the scope of what we have. because at least most of the testimony i've heard is that it does work. we would just like to try and 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 the small ways that were suggested. for example, defining incapacitated and other small issues such as that. i don't think we have enough information at this point to exactly recommend what should be -- how the change should take place. but i do think that 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, given the amount of attention focused on the issue of sexual assault in the military, i think that, as opposed to the normal course of events, it is likely that congress can act with amazing speed on these issues. so i'm not necessarily saying that the executive route would be faster and more efficient. so i think we should think about that.

i also am very troubled about the statute itself because, to me, and i'm glad that 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 the badly worded statute. because acquittal is an acquittal. we're not going to 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're telling a normal person who understands the english language that you've got to show bodily harm, that suggests that there's 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? i mean, you take the normal usage of the english language, bodily harm, and you think something serious and then you 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 under those circumstances. the issue of consent, i know we've heard from professor -- at nyu about the ambiguity of that term. we want to just look at the statute. well, you know, it says -- oh, i've got it somewhere -- free and willing -- it's 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 consent becomes very important. and it may be that further clarity with regard to consent will help alleviate some of the issues under 412. i hadn't 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 the statute that has been changed three times in such a short 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, and i don't know -- excuse me, i shouldn't say fact. particularly given the suggestion that we were were given at the last hearing, that this statute is used to train soldiers and sailors and recruits. i mean, if it's taking practice professional lawyers so much time and effort to understand the 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 point of view of training, if this is being used as a training tool, this statute, i would have a lot of concerns. 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? we all have this chart in front of us? mr. stone, do you? >> okay. >> good. the first is drug or intoxicant administration, code section

120-a5. 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. well, it was in the folder. i don't see it here. oh, here it is, sorry. okay. article -- everyone's got the statute. article 120-a5. and the question here, the issue is provision of article 120 does not require intoxicant be administered intentionally or for the purpose of impairing capacity. i think that was suggested by professor schellhoff -- scherr

hoffer, i don't mean to misstate his name. does anyone have a comment on that point? i think he was the only one who recommended that. i don't thing we got any recommendations from military personnel or services. judge jones? >> i was just going to ask, because i want 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. and because i don't know whether this is really an issue. obviously, you wouldn't convict someone -- under this, unless there was cause and effect and intent. that seems obvious, just from the reading of the statute. >> well, that was my impression as well. this is one of those that i did not think needed any change because it seems to me if a person who is accused, a

violation of this, says he did it by accident, then that would be 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 certainly understand professor shellhoffer's comment. but i agree with you, i don't think this one needs to be tinkered with. unless i heard a lot of evidence that, you know, in such cases, they were not being able to charge -- you know, actually charge them. >> anyone else have any other comment about this? yes. >> just the same, i've not heard more than one person actually bring this up. >> so is the consensus -- that's my reaction, 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's -- 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 that'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 -- well, you can see them. and the issue does bodily harm mean sexual intercourse without consent? or a sexual act contact with an additional offense of touching

beyond that penetration of 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. >> yes, sir. >> it seems to me that this is one that does need clarification. and again to your comments, madam chairwoman, 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. >> do you have any comments? >> well, as i said, earlier, the term "bodily harm" as its defined is something that i find

puzzling and possibly too ambiguous. judge jones, do you have a comment that you want to talk about? >> i was looking for the definition of bodily harm. any offensive touching of another, however slight, including any none consensual act or nonconsensual act. i'd have to spend some time -- >> well, it could be defined by the panel members but the initial impression if you have to find bodily harm, you're going to look for something that's harmful, really harmful. >> it sort of connotes force. >> yes, it connotes force, exactly. and it connotes some other kind of harm aside from the sexual penetration or the sexual act. >> right. >> and that's the problem.

so the difficulty with that, though, i'll just point out, professor, is that this may be taking on a biggie. it might need more than one of these little fixes that we were urged to take on. how do the other panel members feel? should we take a further look at this question of bodily harm or -- admiral? >> i think it makes sense, yes. >> mr. stone. >> 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.

>> i think -- so we'll leave that on our check list 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 consenting. the definition of incapable of conceptsing is ambiguous and unclear. and we received seven requests to clarify. and no specific objection to clarification of this point. how do we fell about that? should we try to clarify this? let's put it this way, any objection to clarifying this? >> i think we should clarify it it. i thought the testimony was compelling from the witnesses who did comment on this. that this is something that's not well spelled out. and people are going to other parts of the body to try to find

definitions for capacity, if you recall. and this seems to be something that needs a better understanding out there. >> kyle -- anybody else have any point or question? mr. stone. >> just that i think 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 to do those together. you know, change one with an eye on the other at the exact same time because they do interrelate so much. >> and 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. 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. it's 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 need to be clear in trying to -- >> yeah. so, i guess one of the points that we are 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 prosecution. >> you know, that's a really interesting idea that the notion that people are being, you know, trained on this, our military, i would love to see, you know,

how-those statements that are made in this training -- there are some training materials. if we're having trouble figuring this out i'd be interested to see. i don't mean an extensive search of all the training materials. but maybe some materials as to how this is being trained to new recruits or whoever is receiving the training along the way. >> judge, the definition of sexual assault and the dod programs have standardized the use of these terms. and each of the services has created standardized training on many of these consents so the ability -- >> you can give us a representative example. >> yes, ma'am, the ability of a person to consent say key part of the training in most of those. and we can pull that out for the panel. >> i'd like to see that, thank you. >> yes, it was only one witness who raised the issue of training but that really resonated with

me because as i said in my own comments, i'm having difficulty, if others are, i've been practicing law for a long time. that could create a problem. i'd also like to ask kyle, i agree that 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 part raised in our materials. >> i guess within the capacity to what, ma'am? >> when we asked to -- wasn't that one of the two points that we were asked to take a look at, was definition of -- or clarify, was it definition of the term "capacity." maybe that's --

>> i think that's incorporated here, ma'am. >> okay. >> i think the capacity to consent and incapable to consents, i think those were issues that were raised by presenters, somewhat interchangeably. >> okay. so that's not a separate issue that we -- that would be included on this review? >> on this review. >> okay. thank you. 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. 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 raised about whether we needed the statutes on abuse of

authority. is that correct, kyle? >> that's correct. >> because this provision would theoretically cover wrongful action. this position would theoretically cover those cases? >> yes, ma'am, 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 use of authority are not necessarily included. although the military judge's bench book has used the terminology within the term of "threat." >> so the judges have decided that they were going back to the previous -- to the amended -- to the unamended statute? >> it does include a broader

definition. >> so they include 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. i mean, as a practitioner, it came to my mind when i saw that. >> well, i think the point here, if i can try to they're low the focus for us, is that we had two suggestions for -- by 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 trainer 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 with the question as to whether the statute could be used in those circumstances. 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 more information if we can, or take a closer look at this provision of the law. and particularly, if the judges are interpreting it that a way that's broader than the existing language. i don't -- so how does -- 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, just generally orders violations. so one thing we ought to look at, too, is there enough in the arsenal of possible charges already? while at the same time, figuring out why this particular statute can't cover 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 will definitely look at all of the other possibilities that we have, just in terms of seeing, again, how important this is to put this into 120. and maybe analyze whether a strict like 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 prosecutored to come to any conclusions today. >> mr. taylor.

>> 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 is anything that takes place in the training environment that suggesting that some activity on the part of a trainee will benefit or not that individual, as tied to some sort of reaction they have to overtures by someone who's in in charge of them. that's something that we ought to get after and to make sure no one scapes accountability for that kind of action. >> did you want to comment about this? >> i do think that's a fundamental case. just abusing authority is what's being asked for us to be addressed. i do think that does deserve further examination to be sure to satisfy those terms. >> i agree, 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 realizes 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 the little chart, the next one, components of fear deals with exactly the same definition. we ought to deal with this and the question of whether fear has to be objective as well as subjective at the same time. again, my inclination is to view those two together, so they work together, since they were in one distinction when we look at it. but, yes, i agree that's that's important to focus on. and maybe to see if we can shorten the definition, and

thereby solve a lot of problems by that definition. >> i agree. the comments have been made and think this should be on our list. anybody have any other comment about the next item, components of fear? 120-g7? mr. stone has suggested that we look at that. anybody disagree? >> i do not. i do not disagree. i thought dean shank made a very powerful case for making a case there. >> okay. without objection, we're putting it on the list. okay. i guess the -- i wouldn't say it's the final one because we still have a few more to go through. use of consent throughout the statute. congressional intent regarding

consent was 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 we call a minor fix to the statute. >> to mr. stone's point, i don't believe you can rule effectively on the definition of incapable of consenting without addressing the use of consent. i think these are intertwined issues. >> anybody have any other comment? >> no, i just agree with that. i think it's right. we have to look at consent everywhere it is in the statute. >> well, i'm concerned about the term "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 of consent, that 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 the circumstances. all the surrounding circumstances are to be -- to be considered, including whether a person does not resist or cease to exist.

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? ist 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 my point of view -- from that point of view. so i agree with the other comments that were made. so that's on ours. we haven't reduced our workload too much so far. okay. >> i will make the comment, though, when you read "consent" here, it wouldn't surprise me at the end of the day there isn't any better way to say all of these things. but i agree we have to keep looking at everything. >> that's right. okay. next on the turn the page over, definition of "force." force is too narrowly defined.

that was a suggestion made by professor sheilhoffer. how does the panel feel about that? anybody have a comment? force is -- 120-g5, the term "force" means use of a weapon. the use of such physical strength or violence to injure a person or inflicts harm sufficient to coerce compel submission. >> can anybody tell me more specifically what the professor's criticism was? >> that reads fine to me. 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

shank. dean shank 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, yeah. >> for me, that was enough to tip this into the scale of something that needed a further look. >> well, normally, i would agree with that, but i don't know how that interplays with point number 7. which is threatening or placing that other person in fear. but maybe -- but i'm not objecting to taking a look at this. >> no objection. okay. so that's also on our check

list. next item, confused behavior it should not be based on the possession of victim's behavior. amend the statute. dean shank 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. >> oh, i'll be glad to comment on it because again, i think dean shank made a really good point. among other things she said that the statutory provision only requires the government to approve that the victim's process. the government must prove the accused's knowledge or 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 where would that deletion take place? she's not suggesting you take out the element that the accused has to have knowledge, i think reasonably should know. i'm sorry, i'm just not sure what -- i think that's essential myself. >> but this is a good example getting back, getting into the reads a little bit and figure out -- really analyze these and have another deliberation. >> yeah. i think the point -- if you look at b-2, the sentence says that

the accused has to know the person knows or reasonably should know. i think her point you don't need to prove the person actually knew. or just that the person, the defendant, reasonably should have known. but that imposes an objective standard. and maybe that's fair or not fair. i would -- before making any change to this, i would like to know a bit more. does yeah, me, too. i mean, it is on the alternative. so you have both options there for a panel to decide but, yes, i think we should look at it. >> any other points? >> yes. >> mr. stone? you're okay with it. okay. consent and mistake of fact as to consent as affirmative defenses. current version of article 120

remove confirm consents which were previously unavailable. unclear if defenses were still available. here we have statute to clarify consent. and then statute to mistakenly provide for mistake of fact offense. executive order could clarify consent. judge bench book currently instructs on both. kyle, did we actually have anybody suggesting a change on this because it's not indicated on the sheet? >> last month, it was recommended that consent or mistake of fact removed from the 2007 version. and he 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 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 ought to be clarified. this one, i think, is easy to be put on the agenda for action. i mean, that's my reaction. these two defenses should be clear that they exist and that they can be used. i don't know, at least to me. >> the question i have, i think the materials we got, the mistake of fact mostly involved situations where you have a victim that is under age. i presume that's not going to happen much in the military that they're going to be 14 or 15 or 16 and like like they're 18. wasn't that the situation that came up in the materials from mistake of fact? or is there another situation that's unique to the military that is repetitive?

>> mistake of fact is a general defense under rules for courts martial. i mean, so in terms of the carnal situations, you get out to that and that is a crime that does occur. but more generally there are others we just have to think through. >> and also, 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. so i think that, you know, i think big issues are raised when you buy the quote/unquote mistake effect claim. i certainly have no problem taking a look at it, but i think, that's one of the big issue that comes in allowing

someone to raise that mistake of fact defense. >> yes. i think that yes, the testimony that we in fact was precisely as you recalled. and that is mistake of fact as to consent. is the key issue. so i think this up with the question of consent. >> right because if you have a very good definition of consent then someone, mistake of fact i think would shrink. >> we want to focus on that question as to whether or not we want to go in the state of california as we heard, yes means yes. it doesn't mean no and no does not mean yes and that gets to the mistake of fact thing. oh she was protesting but i thought she was protesting too much and it meant yes. i think it would help if people

knew what was going on. that's a consent issue. not so much a mistake of fact 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 hoping 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 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 and i hadn't thought about it before but this also becomes part of the problem with 412 because if consent becomes yes then prior sexual conduct becomes less and less relevant so it might not come in as readily as it would today. so i would suggest as we look at 412 that that's something that we bear in mind. okay so that's something that obviously needs to be reviewed. okay. that's on our checklist. now indecent acts. oh, i'm sorry. i missed something. definition of sexual contact and

sexual act, 120 g-2. the definition of sexual contact is too narrow since it does not include touching accomplished by object. and overbroad because it includes any touching when 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 member of the panel feel about this? i'm going to start with you. >> >> okay. yes i definitely thought that the testimony was that there's just a hole in the statute because it doesn't deal with it because 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 prese presented with any touching and through the clothing. i think people get smacked on the back or on the rear end in what's meant to be a positive way as sometimes a team spirit thing. they give them a that a boy and it may be offensive but i don't know that it belongs in the definition of sexual contact. >> anybody else want to make a contact on that? i agree. that should be on our list to take a look at. and i think by the way 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 accept by statute. i think that recommendations for statutory changes wouldn't necessarily have to take forever given the present concern over the whole subject. so we're adding that. okay. indecent acts. latest version of article 120 deleted indesense acts from the statute. we got two suggestions for change. how do people feel? . any comment about this from panel members? >> seems to me it still should be an offense. whether under article 134 which is where it was historically is up for grabs in my opinion but i think it should be an offense. >> is it still in 134. >> it was taken out of 134 apparently and the two

presenters weren't sure why. they thought perhaps it was an oversight. >> an oversight by congress? shocking. >> i know it would be unusual. >> any others worth taking a look at? >> i agree with that. >> okay. >> let's see. >> well, 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. kyle are we within our time frame. >> yes, ma'am. we have about 12 or 13 minutes left in our, you know -- >> wow, okay, thanks.

>> here we'll have two suggestions as the panel members will remember that changes on the abuse of authority statute by -- abuse of authority by both a representative spires. having a much smaller or narrower focus and representative frankel having a much larger focus or broader focus. we received four recommendations for 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 the statutes or supported either one of the statutes with change, with recommendation of change, there might be some chance that this could move quickly through congress. so i don't -- i'll ask the panel members how you feel about proceeding on this point. these issues will be covered i think by the threatening -- our review of threatening wrongful action but question separate them out and just look at these two statutes alone. >> i think we'll end up doing both. i would like to look at the statutes themselves. that's part of it. >> anybody else? >> i totally agree with you that i'd like to at least try and change it. in the g-7 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 that we take care of the other problem and that

would 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 that we should take a look at this -- i mean, you agree with the suggestion that we should look at the statutes as well as the underlying issue. as well as lawful use of force. >> yeah but first try and take care of it if we're going to fine tune that definition and 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 to stay within the frame work.

>> they could prosecute abuse of authority under the statute. i don't know whether that's right or wrong. i am just saying we should first decide whether this could handle it and we want it to be clearer and then take it from there. >> okay one of the things i'm going to suggest unless somebody has a different point of view that because these statutes are -- at least representative spires statute is addressed perhaps we start off with the wrongful use of force so that we can be relevant in terms of the consideration of that statute. is that acceptable to members