Military Justice Disposition Delimitation Legislation in the 117th Congress

October 18, 2021 R46940

Military Justice Disposition Delimitation
October 18, 2021
Legislation in the 117th Congress
Alan Ott
This report provides a framework for Congress to consider the three disposition
Analyst in Defense and
delimitation proposals in the House and Senate FY2022 National Defense Authorization
Intelligence Personnel
Act bil s. The terms “delimited disposition” and “disposition delimitation” refer to any
Policy
procedure that requires disposition authority for a specified offense to be transferred

from a commanding officer to a judge advocate.
Kristy N. Kamarck
Specialist in Military
Scope of Report
Manpower

The first section of this report includes a brief overview of the military criminal justice
system, followed by a comparative analysis of the House and Senate proposals regarding
delimited disposition. The final section of the report describes the legislative
considerations for each proposal’s approach to delimiting disposition.
Historical Context
For more than two decades, Congress has sought to address sexual misconduct in the military by enhancing
servicemember accountability under the military justice system. Despite these legislative efforts and Department
of Defense (DOD) policy initiatives, independent evaluations have pointed to deficiencies in the department’s
approach to accountability.
In February 2021, Secretary of Defense Lloyd J. Austin directed an Independent Review Commission to assess
DOD sexual assault prevention and response programs. On September 22, 2021, the Secretary issued guidance
implementing the commission’s recommendations. Specific instructions for the first phase of implementation are
to be issued by the Under Secretary of Defense for Personnel and Readiness on October 13, 2021, with full
implementation of this phase estimated to be complete by 2027.
Throughout the 1940s, Congress received evidence of military justice maladministration. The primary concerns
were the system’s lack of due process and independence. Congress responded to these concerns by enacting the
Uniform Code of Military Justice (UCMJ) in 1950. Although legislative reforms establishing the UCMJ relied on
civilian criminal law and procedure as a model, the reforms also preserved many historical attributes of military
justice, such as a commander’s discipline and disposition authority. Preserving certain attributes meant that
although the UCMJ replicated a civilian criminal justice system overal , the reforms did not al ow judge advocates
to make decisions regarding the criminal prosecution of servicemembers. Prosecutorial discretion remained a
function of command, and judge advocates continued to serve as advisors to commanders regarding their
prosecutorial authority.
Options for Congress
The delimited disposition provisions examined in this report would al ow a judge advocate to prefer or refer
charges for certain offenses. This partial removal of a commander’s authority would appear to place an internal
control upon these offenses. Proponents of disposition delimitation may contend that the military justice system
would be more equitable and effective when the disposition authority for these offenses is a judge advocate rather
than a commander. Opponents acknowledge that delimitation is feasible, but they suggest that it is not advisable.
The three proposals discussed in this report present options for Congress. One option would be to disregard the
proposals for disposition delimitation and maintain the discipline and disposition authority held by commanders
under the UCMJ since 1951. If Congress accepts a proposal to delimit disposition, the two main considerations
are: (1) the extent of delimited disposition, which subdivides military justice authority, and (2) the scope of
delimited offenses, which subdivides offenses among the chain of command and judge advocate prosecutors.
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Contacts
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Military Justice Disposition Delimitation Legislation in the 117th Congress

Background
This report provides a framework for Congress to consider the House and Senate disposition
delimitation proposals in the FY2022 National Defense Authorization Act (NDAA). The terms
“delimited disposition” and “disposition delimitation” refer to any procedure that requires
disposition authority for a specified offense to be transferred from a commanding officer to a
judge advocate.1
Disposition authority is similar to a civilian prosecutor’s discretion to file charges, prosecute,
plea-bargain, and recommend a sentence.2 Besides disposition of charges for a military offense, a
commanding officer may also administer non-judicial punishment or administrative discipline as
alternatives to a criminal prosecution.3
For more than two decades, Congress has sought to address sexual misconduct in the military by
enhancing servicemember accountability under the military justice system.4 Despite these
legislative efforts and Department of Defense (DOD) policy initiatives, independent evaluations
have pointed to deficiencies in the department’s approach to accountability.5
Independent Review Commission
In February 2021, Secretary of Defense Lloyd J. Austin directed an Independent Review
Commission (IRC) to assess DOD sexual assault prevention and response programs (SAPR). The
IRC issued a report in June 2021 that contained eight SAPR-related problem statements.6 One of
these statements asserted that “the military justice system is not equipped to properly respond to
special victim crimes.”7 The IRC concluded that unless and until special victim crimes “are

1 10 U.S.C. §801; Black’s 540 (11th ed. 2019). T he term “commanding officer” includes only commissioned officers.
T he term “ judge advocate” means an officer of the Judge Advocate General’s Corps of the Army, the Navy, or the Air
Force; an officer of the Marine Corps who is designated as a judge advocate; or a commissioned officer of the Coast
Guard designated for special duty (law).
2 10 U.S.C. §§830, 833, 834; Black’s 586 (11th ed. 2019).
3 Department of Defense, The Manual for Courts-Martial (MCM), United States, Part II, Rules for Courts-Martial
(R.C.M.) 306, Initial disposition, 2019 ed.
4 T he Government Accountability Office (GAO) reports that at least 249 statutory provisions related t o military sex
offenses were enacted as part of the National Defense Authorization Act (NDAA) between 2004 and 2019.
Approximately one out of every five provisions was related to military justice and investigations. U.S. Government
Accountability Office, Sexual Assault in the Military: Continued Congressional Oversight and Additional DOD Focus
on Prevention Could Aid DOD’s Efforts, GAO-21-463T , March 24, 2021, at https://www.gao.gov/products/gao-21-
463t.
5 Report of the Fort Hood Independent Review Committee, Executive Summary, November 6, 2020, p. iii, at
https://www.army.mil/e2/downloads/rv7/forthoodreview/2020-12-03_FHIRC_report_exsum.pdf.; Department of
Defense, Annual Report on Sexual Assault in the Military, Fiscal Year 2020, May 6, 2021, p. 5 .
6 Department of Defense, Hard Truths and the Duty to Change: Recommendations from the Independent Review
Com m ission on Sexual Assault in the Military, June 21, 2021. See Section II: Statem ent of the Problem , pp. 17-32, (1)
Broken T rust; (2) T he Military Justice System is Not Equipped to Properly Respond to Special Victim Crimes; (3)
Leadership is Paramount; (4) Sexual Harassment and Sexual Assault Exist on a Continuum of Harm; (5) Victims Bear
a Heavy Burden; (6) Critical Deficiencies in the Workforce; (7) Outdated Gender & Social Norms Persist Across the
Force; and (8) Little is Known about Perpetration.
7 Ibid.
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handled by highly trained and experienced special victim prosecutors, the military justice system
wil never be equipped to properly respond to special victim cases.”8
Among the IRC’s 28 recommendations, IRC Recommendation 1.1 advised the Secretary that the
armed services should shift legal decisions to prosecute special victim crimes from commanders
to judge advocates serving as independent special victim prosecutors (IRC 1.1).9 In July 2021,
Secretary Austin accepted IRC 1.1 and announced that he would “work with the Congress to
make changes to the Uniform Code of Military Justice in such a way as to shift responsibility
from military commanders for prosecuting sexual assaults and related crimes, as wel as domestic
violence offenses, child abuse and retaliation.”10
On September 22, 2021, the Secretary issued guidance implementing the IRC recommendations
to al DOD senior leaders and commanders.11 The implementation is meant to consist of various
actions, which are subdivided into four tiers. Specific instructions for the first tier were scheduled
for issuance by the Under Secretary of Defense for Personnel and Readiness (USD(P&R)) on
October 13, 2021, with full implementation of tier one estimated to be complete by 2027. IRC 1.1
is designated as a priority recommendation in the guidance, and DOD indicated that it has revised
the original recommendation. Details of the revision were not included in the implementation
memorandum.
Disposition Delimitation Legislation
The disposition delimitation concept in IRC 1.1 that Secretary Austin is implementing is not
novel. It is similar to the concepts found in 15 legislative proposals that have been the subject of a
near decade-long congressional debate (see Appendix A). This legislative history is the
foundation for the disposition delimitation proposals in the House and Senate FY2022 NDAA
(H.R. 4350, as engrossed, and S. 2792, as reported, respectively) (see Table 1).
There are two FY2022 NDAA bil s, but there are three distinct disposition delimitation proposals,
one in H.R. 4350, as engrossed, and two in S. 2792, as reported. H.R. 4350, as engrossed,
includes the House IRC implementation (House-IRCI) provisions.12 S. 2792, as reported, includes
the Senate IRC implementation (Senate-IRCI) and the Military Justice Improvement and
Increasing Prevention Act of 2021 (MJIIPA) provisions.13
The three proposals would primarily delimit serious offenses, which are offenses punishable
under the authority of the Uniform Code of Military Justice (UCMJ) by death or confinement for
a term exceeding one year (similar to a felony in a civilian criminal code).14 The distinction
between the proposals is that the House-IRCI and Senate-IRCI would encompass a narrow group

8 Ibid, p. 19.
9 Ibid, Appendix B: Rebuilding Broken Trust: Recommendations for Accountability in the Military Justice System , June
21, 2021, pp. 8-9.
10 C. T odd Lopez, DOD News, Sexual Assaults Will No Longer Be Prosecuted by Commanders, July 2, 2021,
https://www.defense.gov/Explore/News/Art icle/Article/2681848/sexual-assaults-will-no-longer-be-prosecuted-by-
commanders/.
11 Department of Defense, Secretary of Defense Memorandum, “ Commencing DoD Actions and Implementation to
Address Sexual Assault and Sexual Harassment in the Military ,” September 22, 2021.
12 §§531-539I, H.R. 4350, as engrossed.
13 §§531-552, 561-570, S. 2792, as reported.
14 See MCM, Part IV, §84 or Army Regulation 27-10, Military Justice, November 20, 2020, Paragraph 5-14. In civilian
criminal justice systems, a crime that is punishable by imprisonment for more than one year or by death is considered a
felony or serious crim e (Black’s 762 [11th ed. 2019]).
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of UCMJ offenses, each of which is designated as a special victim offense, whereas the MJIIPA
would include a broad group of UCMJ offenses identified as a covered offense.15
UCMJ Definition of a Victim and IRC Definition of a Special Victim
A victim of a UCMJ offense is “an individual who has suffered direct physical, emotional, or pecuniary harm as a
result of the commission of an offense” under the UCMJ (10 U.S.C. §806b). The IRC defined special victim crimes
as “cases that disproportionately impact victims because of who they are, or what motivated the crime. These
crimes are often interpersonal in nature, in which the victim and the al eged offender may have a pre-existing
relationship or acquaintance. These are also crimes that require greater specialization and a sensitivity to the
complex dynamics that are often present in these cases. Many sexual assault victims also have intersectional
identities that result in compounded barriers to justice and place them at higher risk of re-traumatization as they
engage in the criminal legal system and investigative processes” (IRC Report, Appendix B, p. 9).
The House-IRCI would delimit disposition for 13 serious offenses, and the Senate-IRCI would do
so for 8 serious offenses, designated as special victim offenses.16 MJIIPA would delimit
disposition for 38 serious offenses, which include al IRCI special victim offenses.17 None of the
proposals would delimit offenses that are unique to military activities and operations (e.g.,
missing movement, jumping from vessel, aiding the enemy).
Table 1. Disposition Delimitation Proposals
House and Senate Versions of the FY2022 NDAA
Legislative Proposal
Sections
Bill
House IRC Implementation
531 to 539I
H.R. 4350 (as engrossed)
Senate IRC Implementation
531 to 552
S. 2792 (as reported)
Military Justice Improvement and Increasing Prevention Act of 2021
561 to 570
S. 2792 (as reported)
Source: CRS analysis of §§532-539E, H.R. 4350, as engrossed, and §§561-570, S. 2792, as reported.
A brief overview of the military criminal justice system is included in the next section of this
report, followed by a comparative analysis of the House and Senate delimited disposition
proposals.18 Legislative considerations for each proposal’s approach to delimiting disposition are
presented in the report’s final section.
Military Criminal Justice System
Jurisdiction under military law is based on the U.S. Constitution and relevant aspects of
international law.19 Military law jurisdiction is exercised through four distinct military justice
forums: (1) courts-martial, (2) courts of inquiry, (3) military commissions, and (4) non-judicial
punishment proceedings.20 Military law comprises federal law, constitutional authority, and

15 §534, H.R. 4350, as engrossed; §533, S. 2792, as reported; §562(b), S. 2792, as reported.
16 §534, H.R. 4350, as engrossed; §533, S. 2792, as reported.
17 §562(b), S. 2792, as reported.
18 For a broader overview of the current military justice system, see CRS Report R46503, Military Courts-Martial
Under the Military Justice Act of 2016, by Jennifer K. Elsea and Jonathan M. Gaffney .
19 Ibid, MCM, p. I-1. T he U.S. Constitution grants the Armed Forces of the United States three t ypes of governmental
power, through military jurisdiction under military law, martial law, and military government (Black’s 1189 [11th ed.
2019]).
20 10 U.S.C. §§815, 816, 935, 948b.
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inherent command authority.21 It is meant to promote justice, efficiency, and discipline in the
armed services.
Throughout the 1940s, Congress received evidence of military justice maladministration.22 The
primary concerns were the system’s lack of due process and independence.23 Congress responded
to these concerns by enacting the UCMJ in 1950, a military law code that applies to each armed
service and replaced the prior military justice system.24
The punitive articles in the UCMJ are military law offenses (Articles 77-134).25 Many of the
punitive articles are criminal conduct offenses that have a referent offense in modern penal codes
or historical common law (e.g., rape, murder, robbery).26 Other punitive articles are military
misconduct offenses that have a referent offense in medieval chivalric codes or Roman military
practices (e.g., mutiny, desertion, cowardice).27
Judge Advocates
Each armed service has a senior legal officer known as the Judge Advocate General (JAG).28
These senior officials are the principal legal officers responsible for military justice matters in
their respective service. The attorneys whom they appoint to serve as judge advocates are the
military officers primarily responsible for implementing the military justice system.29 The roles
and functions of judge advocates who are military justice practitioners resemble those of
attorneys in a civilian criminal justice system (see Table 2).30
Although legislative reforms establishing the UCMJ relied on civilian criminal law and procedure
as a model, the reforms also preserved many historical attributes of military justice, such as a
commander’s discipline and disposition authority.31 Preserving certain attributes meant that while
the UCMJ replicated a civilian criminal justice system overal , the reforms did not al ow military
lawyers to make decisions regarding the criminal prosecution of servicemembers. Prosecutorial

21 Ibid, MCM.
22 Department of Defense, Report of the Military Justice Review Group Part I: UCMJ Recommendations, December
22, 2015, p. 68.
23 Ibid.
24 P.L. 506, 81st Congress (64 Stat. 107), May 6, 1950.
25 10 U.S.C. §§877-934. A crime or an offense is an act made punishable by statute or under common law (Black’s 466
[11th ed. 2019]).
26 For example, see the original Model Penal Code published by the American Law Institute in 1962 at
https://archive.org/details/ModelPenalCode_ALI/mode/2up.
27 Department of the Army, Pamphlet 27-100-87, Military Law Review, no. 87, “T he Court-Martial: An Historical
Survey” (Winter 1980): 131-132. See also “Historical Perspective: Summary of Structural Changes in the Military
Justice System” (DOD, Report of the Military Justice Review Group Part I: UCMJ Recommendations, December 22,
2015, pp. 41-86).
28 10 U.S.C. §801. T he term “Judge Advocate General” means, severally, the Judge Advocates General of the Army,
Navy, and Air Force and, except when the Coast Guard is operating as a service in the Navy, an official designated to
serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security. T he equivalent senior
legal officer in the Marine Corps is the Staff Judge Advocate to the Commandant (10 U.S.C. §8046).
29 10 U.S.C. §806.
30 10 U.S.C. §827. Any commissioned officer of the Navy, Marine Corps, or Coast Guard designated to perform legal
duties for a command as a “legal officer” may also be detailed to serve as a trial counsel or a defense counsel (10
U.S.C. §801(12)).
31 Ibid, Report of the Military Justice Review Group, p. 70.
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discretion remained a function of command, and judge advocates continued to serve as advisors
to commanders regarding their prosecutorial authority.
Table 2. Active Duty Military Justice Practitioners
Judge Advocates, by Armed Force
Duty Position
Army
Navy
Marine Corps
Air Force
Coast Guard
Total
Defense Counsel
132
53
69
104
8
366
Trial Counsel
128a
45b
72
—
19
342
Military Justice Chief
58
8
41
76
1
184
Military Judge
25
12
12
20
3
72
Appel ate Judge
6
5
3
10
3
27
Total
349
123
197
288
34
991
Source: CRS analysis of information provided by JAG legislative liaison officials, December 11, 2020.
Notes: A “trial counsel” is a prosecutor, and a “military justice chief” is a supervisory prosecutor. A “military
judge” is a judge advocate who is detailed and designated under 10 U.S.C. §§826, 830. Air Force officials
informed CRS that 67% of al the service’s judge advocates notional y are available to serve as trial counsels, but
this general data could not be aligned with the specific data provided by other services.
a. Army officials informed CRS that the trial counsel number of 128 is for ful -time prosecutors, but there are
an additional 130 trial counsels who can prosecute cases as needed.
b. Navy officials informed CRS that the trial counsel number of 45 is for ful -time prosecutors, but there are
an additional 51 trial counsels who can prosecute cases as needed.
Investigation
DOD policy states that only entities with statutory law enforcement or criminal investigatory
authority may conduct criminal investigations.32 Each military department has a military criminal
investigative organization (MCIO).33 MCIOs must identify a DOD nexus before initiating a
criminal investigation.34 This nexus is a reasonable likelihood that an al eged or suspected offense
is related to DOD personnel, activities, or instal ations.35 If a serious offense, including a sexual
offense, is al eged, an MCIO must investigate the al egation.36
MCIO investigations take precedence over commander inquiries and other paral el
investigations.37 However, if not preempted by an MCIO, al commanders have authority to
conduct inquiries into military justice matters.38 The form of such inquiries can range from an

32 Department of Defense, Instruction 5505.16, Investigations by DOD Components, June 23, 2017, §1.2.
33 Army, Regulation 195-2, Criminal Investigation Activities, July 21, 2020; Navy, Instruction 5430.107a, Mission and
Functions of the Naval Crim inal Investigative Service, June 19, 2019; Air Force, Instruction 71-101, Crim inal
Investigations Program , July 1, 2019. See also Coast Guard, Com m andant Instruction 5520.5F, Coast Guard
Investigative Service Roles and Responsibilities, November 30, 2011.
34 Department of Defense, Instruction 5505.03, Initiation of Investigations by Defense Criminal Investigative
Organizations, March 24, 2011, §4.d.
35 Ibid.
36 Regarding military justice matters, generally, the term “sexual offense” includes any sexual misconduct punishable
under the Uniform Code of Military Justice, federal law, or state law (MCM, Part III, Military Rules of Evidence, Rule
413, Sim ilar crim es in sexual offense cases, 2019 ed., p. III-21).
37 Ibid, DODI 5505.03, §4.b.
38 Ibid, DODI 5505.03, §3.3.
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administrative investigation to a court of inquiry. Commanders must conduct preliminary
inquiries into al egations that a servicemember committed an offense.39 Commanders are required
to report al eged or suspected sexual offenses to an MCIO.40
Prosecution
Upon completion of an inquiry or investigation, a commander makes an initial determination
regarding the al egations. Initial determination for certain sexual offenses is restricted to the first
officer in the chain of command who is in pay grade O-6 (as specified in 37 U.S.C. §201(a)(1))
and a special court-martial convening authority (as specified in 10 U.S.C. §823(a)).41 Initial
determination options available to a commander are
 take no action;
 initiate administrative discipline;
 impose non-judicial punishment;
 initiate disposition of charges; or
 forward for disposition of charges.42
If the initial determination is to prefer charges or forward for disposition, a superior
commissioned officer may subsequently determine to dismiss the charges or to refer any or al of
the charges to a court-martial, as authorized.43 A court-martial must be convened when charges
are referred, because unlike civilian criminal courts, which typical y are standing courts, a court-
martial is a temporary activity established by a convening authority to conduct a trial for specific
charges.44
There are three levels of courts-martial, each with a corresponding level of convening authority:
general, special, and summary.45 Special and general courts-martial try criminal conduct offenses
analogous to misdemeanors and felonies, respectively, but they may also try minor misconduct
offenses.46 A summary court-martial adjudicates minor military misconduct offenses.47 A general
court-martial referral cannot be made before the convening authority obtains legal advice from a
staff judge advocate.48

39 Ibid, MCM, Part II, R.C.M. 303, Preliminary Inquiry into Reported Offenses.
40 Ibid, see R.C.M. 303 Discussion.
41 10 U.S.C. §823; MCM, Part II, R.C.M. 306(a); the memorandum of the Secretary of Defense titled “Withholding
Initial Disposition Authority Under the Uniform Code of Military Justice in Certain Sexual Assault Cases” and dated
April 20, 2012, or any successor memorandum; DOD, Instruction, 6495.02, Volum e 1, Sexual Assault Prevention and
Response: Program Procedures, March 28, 2013, as amended; Coast Guard, COMDTINST M5810.1H, Military Justice
Manual, Ch. 5, §C, p. 5-2. T he specific term “ sex-related offense” is distinguishable from the general term “ sexual
offense.” A sex-related offense is defined as a violation of 10 U.S.C. §§920, 920b, 920c, or 930, or an attempt to
commit any of these offenses as punishable under 10 U.S.C. §880 (10 U.S.C. §1044e(h)).
42 MCM, Part II, R.C.M. 306(c).
43 MCM, Part II, R.C.M. 401. T he term “superior commissioned officer” means a commissioned officer superior in
rank or command (10 U.S.C. §801(5)).
44 MCM, Part II, R.C.M. 504.
45 10 U.S.C. §816.
46 10 U.S.C. §§819, 818. See also MCM, Part II, R.C.M. 201.
47 10 U.S.C. §820. See also MCM, Part II, R.C.M. 1301.
48 10 U.S.C. §834.
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Court-Martial Procedure: Preferring, Referring, and Convening
Among the various military justice procedures, certain sequential steps must occur before a military offense can be
prosecuted in a trial by court-martial. A proper authority

must first prefer charges (press charges and provide notice to the accused); and

may then refer the charges to a court-martial (present charges and serve them upon the accused); and

may then convene a court-martial (conduct a trial to adjudicate the charges against the accused).49
Under the legislative proposals for disposition delimitation, these three steps of a military criminal prosecution—
prefer, refer, and convene—are the juridical elements that are delimited for certain offenses.
Incarceration
Servicemembers who receive a sentence of confinement may be confined in any facility under the
control of an armed force or the United States, or a place the United States may use.50 Such
confinement typical y occurs in a military confinement facility (MCF), unless a military offender
is subsequently transferred to a federal civilian facility.51 According to the Annual Correctional
Report issued by each armed service, the total MCF population at the beginning of 2021 was
1,180 military offenders (759 military sex offenders and 421 other military offenders; 64% and
36%, respectively).52 Military offenders transferred to a Federal Bureau of Prisons (BOP) facility
as military inmates are not included in the Annual Correctional Report data.53 The total BOP
transferred military offender population in May 2021 was 247 military inmates (116 military sex
offenders and 131 other military offenders; 47% and 53%, respectively).54
Disposition Delimitation
The proposed FY2022 NDAA delimited disposition provisions would al ow a judge advocate to
prefer or refer charges for certain offenses. This partial removal of a commander’s disposition
authority appears to act as an internal control placed upon disposition of these offenses.55
Proponents of disposition delimitation may contend that the military justice system would be
more equitable and effective when the disposition authority for these offenses is a judge advocate

49 A preliminary hearing is required to convene a general court-martial (10 U.S.C. §832; MCM, Part II, R.C.M. 405).
50 10 U.S.C. §858.
51 DOD, Instruction 1325.07, Administration of Military Correctional Facilities and Clemency and Parole Authority,
March 11, 2013, Enclosure 2.
52 U.S. Army; U.S. Navy; U.S. Marine Corps; U.S. Air Force; DD Form 2720, Annual Correctional Report, DD-
P&R(A)2067, January 1, 2021, §13.b. Military sex offenders transferred to Bureau of Prisons federal facilities are not
included in the data.
53 BOP is required to accept up to 500 military inmates (DOD and DOJ, Memorandum of Agreement Between
Departm ent of the Arm y and the Federal Bureau of Prisons, Transfer of Military Prisoners to the Federal Bureau of
Prisons, May 27, 1994).
54 BOP, Office of Research & Evaluation, Military Inmates Convicted of Sexual Offenses in Federal Custody—By
Branch, May 20, 2021.
55 An internal control is a procedure to provide reasonable assurance of achieving objectives in effective ness and
efficiency of operations, compliance with applicable laws and regulations, and conformity with GAO or inspector
general recommendations (e.g., 31 U.S.C. §7501 (a)(10) and 34 U.S.C. §11103(44)).
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rather than a commander.56 Opponents acknowledge that delimitation is feasible, but they suggest
that it is not advisable.57
Comparative Legislation
The various provisions in in the House and Senate proposals are distinguishable (see Table 3).
For a comparison of military justice provisions associated with the proposals that are not related
directly to disposition delimitation, see Appendix B.
Table 3. Comparison of Disposition Delimitation Proposals
House and Senate Versions of the FY2022 NDAA
H.R. 4350
S. 2792
S. 2792
(as engrossed)
(as reported)
(as reported)
House-IRCI
Senate-IRCI
MJIIPA
Sec. 531would cite sections 531-
No similar provision.
Sec. 561 would cite sections 561-
539E as the IRC Implementation
570 as the Military Justice
Act of 2021.
Improvement and Increasing
Prevention Act of 2021.
Sec. 532 would add an article to
Sec. 531 is similar in purpose to
Sec. 562 would authorize judge
the UCMJ authorizing a special
Section 532 in H.R. 4350, and it
advocate officers designated as a
victim prosecutor (pay grade O-6),
would establish the authority to
court-martial convening authority
and their assistant prosecutors, in
determine special victim offenses,
(pay grade O-6 or higher) with
each armed service with exclusive
but it would truncate overal
authority to prosecute certain
authority to determine if a criminal
disposition delimitation because it
serious offenses and their lesser
matter is a special victim offense
does not authorize prosecution
included offenses.
and authority to prosecute such
authority. Special victim
This provision and other provisions
offense and any related offenses.
prosecutors could refer charges
in MJIIPA directly apply to the
This provision would also authorize
and specifications to a commander
Department of Homeland Security
the Secretary of Defense to
with convening authority, but the
and members of the Coast Guard.
prescribe duties for special victim
decision to convene a court-martial
prosecutors by regulations “in
to conduct a trial would remain
consultation with the Secretary of
with the chain of command.
Homeland Security.”
This provision would also authorize
SAP: The Administration
more than one special victim
recommends that a special victim
prosecutor in each armed service,
prosecutor be authorized at pay
without a specified grade
grade O-5 because of limited
requirement, along with assistant
availability of pay grade O-6
special victim prosecutors.
officers.
Sec. 551 would require the
Secretary of Defense to consult and
enter into an agreement with the
Secretary of Homeland Security to
apply Senate-IRCI to the Coast
Guard when it is operating in the
Department of Homeland Security.
Sec. 533 would add a provision to
Sec. 532 is similar in purpose to
Sec. 562 would require secretaries
Title 10, U.S. Code, requiring DOD
Section 533 in H.R. 4350, but the
of military departments, and the

56 T he Government Accountability Office (GAO) defines the term “equity” as the consistent, systematic, fair, just, and
impartial treatment of all individuals, including individuals belonging to groups that have been denied such treatment,
and it defines the t erm “ effectiveness” as the extent to which a program or intervention is achieving its intended goals
(GAO, Program Evaluation Key Term s and Concepts, March 2021, p. 4).
57 See Department of Defense, Joint Service Committee on Military Justice, Report of the Joint Service Subcommittee
Prosecutorial Authority Study (JSS-PAS), September 2, 2020.
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H.R. 4350
S. 2792
S. 2792
(as engrossed)
(as reported)
(as reported)
House-IRCI
Senate-IRCI
MJIIPA
to issue uniform policies
prosecutorial entity established
Secretary of Homeland Security, to
implementing special victim
would be a “dedicated office in the
issue uniform policies implementing
prosecutor authorities and
Secretariat of each military
MJIIPA.
requiring the secretaries of military
department from which office the
Sec. 563 would require each
departments to establish an
activities of the special victim
armed services chief to establish an
independent secretariat-level Office
prosecutors of the military services
independent Office of the Chief of
of Special Victim Prosecutor headed concerned shal be supervised and
Staff on Courts-Martial with
by a judge advocate flag or general
overseen.” Such office would be
authority to convene courts-martial
officer directly reporting to the
headed by a lead special victim
for certain offenses.
secretary with assigned judge
prosecutor at grade O-6 who
advocates who are independent
would be “under the authority,
from their JAG.
direction, and control of the
SAP: The Administration states
secretary concerned”, but this is a
that a senior executive service
restatement of the general
civilian with similar qualifications
organizational relationship between
should be added as an option for
a department and its secretary,
office head.
which does not necessarily include
direct reporting authority.a
Sec. 534 would amend the UCMJ
Sec. 533 would amend the UCMJ
Sec. 562 would enumerate 38
by enumerating 13 special victim
by enumerating eight special victim
covered offenses, and 3 associated
offenses, and 3 associated inchoate
offenses and three associated
inchoate offenses that are delimited.
offenses, and by defining the terms
inchoate offenses, and by defining
It would also enumerate 64
special victim prosecutor and assistant
the term special victim prosecutor.
excluded offenses that are not
special victim prosecutor.
delimited.
Sec. 535 would amend the UCMJ
Sec. 535 contains similar text as
MJIIPA does not contain a similar
by clarifying that a commander who
Section 535 in H.R. 4350.
provision.
is a convening authority shal not be
considered an accuser when
convening a court-martial for
charges and specifications referred
by special victim prosecutor.
Sec. 536 would amend the UCMJ
Sec. 543 is similar to Section 536
Sec. 563 authorizes a designated
by requiring a trial counsel detailed
in H.R. 4350, except it specifies that judge advocate to be detailed to a
to a court-martial for a special
regulations issued by the President
court-martial for delimited offenses.
victim offense to be a special victim
are required to implement this
prosecutor, and it would authorize
provision.
such prosecutor to detail assistant
special victim prosecutors or other
counsel.
Sec. 537 would amend the UCMJ
Sec. 542 contains similar text as
MJIIPA does not contain a similar
by permitting a special victim
Section 537 in H.R. 4350.
provision.
prosecutor to determine that a
preliminary hearing is not required
or to request a military judge or
magistrate to serve as a preliminary
hearing officer pursuant to
regulations issued by the President,
and by adding the special victim
prosecutor as a recipient of a
preliminary hearing officer’s report.
Sec. 538 would amend the UCMJ
Sec. 541 is similar to Section 538
Sec. 562 would preclude the
by limiting to a special victim
in H.R. 4350, except it would
application of Article 34 of the
prosecutor the authority to refer
establish a fourth element for the
UCMJ to a designated judge
special victim offenses, and related
existing UCMJ Article 34
advocate if there is a determination
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H.R. 4350
S. 2792
S. 2792
(as engrossed)
(as reported)
(as reported)
House-IRCI
Senate-IRCI
MJIIPA
offenses, to a general or special
requirement for general court-
by the judge advocate that an
court-martial. But if prosecution of
martial convening authority SJA
offense is al eged, that there is
a related offense is declined by the
advice by adding: “there is sufficient
probable cause supporting the
prosecutor, then a convening
admissible evidence to obtain and
al egation, and that a court-martial
authority could refer such offense
sustain a conviction on the charged
would have jurisdiction over the
to any type of court-martial.
offense.” This new element would
accused and offense.
also apply to a special victim
prosecutor by requiring such
prosecutor to make a written
determination for a general or
special court-martial that al four
Article 34 elements are satisfied.
Sec. 539 would amend the UCMJ
Sec. 540 contains similar text as
MJIIPA does not contain a similar
by extending former jeopardy
Section 539 in H.R. 4350.
provision because convening
protections to an accused when a
authorities are part of the proposed
case is dismissed or terminated by a
Offices of the Chief of Staff on
special victim prosecutor.
Courts-Martial, not the chain of
command.
Sec. 539A would amend the UCMJ Sec. 538 contains similar text as
MJIIPA does not contain a similar
by granting a special victim
Section 539A in H.R. 4350.
provision.
prosecutor authority to enter into
plea agreements for special victim
offenses and would add express
language that such agreement is
binding on a convening authority as
one of the “parties.”
Sec. 539B would amend the UCMJ Sec. 537 is similar to Section 539B There is no similar provision in
by granting a special victim
in H.R. 4350, with technical
MJIIPA, but Section 562 would
prosecutor the authority to
corrections.
require the Secretary of Defense to
determine that a rehearing is
recommend such changes to the
impracticable for special victim
MCM as are necessary to ensure
offenses.
compliance with this section.
No similar provision.
Sec. 539 would amend the UCMJ
No similar provision.
by authorizing a special victim
prosecutor and special victim
counsel to issue a subpoena to
compel the production of evidence.
Sec. 539C would amend the UCMJ Sec. 536 would require an
There is no similar provision in
by creating a new article
amendment to the MCM making
MJIIPA.
criminalizing sexual harassment.
sexual harassment a nominative
The House-IRCI would enumerate
offense under Article 134 of the
this offense as article 120d and
UCMJ (general article) instead of
define it as a special victim offense,
making it a separate punitive article
like the Section 539C provision in
H.R. 4350. Among other matters,
Section 536 would (1) increase the
requirements for proving fault; (2)
require that the armed service was
also harmed by the conduct of the
accused; and (3) require proof that
the accused had “actual knowledge”
of committing the prohibited act, so
intoxication would be a defense to
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Military Justice Disposition Delimitation Legislation in the 117th Congress

H.R. 4350
S. 2792
S. 2792
(as engrossed)
(as reported)
(as reported)
House-IRCI
Senate-IRCI
MJIIPA
committing sexual harassment. The
Senate-IRCI would define this
offense as a special victim offense.
Sec. 539D would amend the
Sec. 534 contains similar text as
No similar provision.
UCMJ by adding the term “dating
Section 539D in H.R. 4350.
partner” to the terms “intimate
partner” and “immediate family
member” as a category of victim in
the UCMJ offenses of Stalking and
Domestic Violence.
No similar provision.
Sec. 549 would require the
No similar provision.
military departments to give
defense counsel entities authority
over their budgets and ensure that
such counsel have al required
support. It would also require
defense counsel detailed to special
victim cases to have specialized
skil s and training.
No similar provision.
Sec. 550 would require the
Sec. 564 would require the
Secretary of Defense to submit a
secretaries concerned to implement
report to Congress detailing the
MJIIPA using personnel, funds, and
resourcing necessary to implement
resources otherwise authorized by
the Senate-IRCI.
law, and it would not authorize
personnel or funds for the
implementation of MJIIPA.
H.Rept. 117-118 on H.R. 4350
No similar provision.
Sec. 567 would require DOD to
directs the Secretary of Defense, in
increase and enhance specialized
coordination with the military
training for prosecutors of sexual
department secretaries, to submit a
assault and domestic violence cases
report to the defense committees
and to provide a report to the
by March 1, 2022, describing a
defense committees on the
training plan for military justice
program implemented under this
practitioners and identifying the
provision.
plan’s costs and benefits (p. 141).
Sec. 539E provides that al
Sec. 552 contains similar text as
Sec. 570 provides that MJIIPA shal
amendments in the IRC
Section 539E in H.R. 4350.
take effect 180 days after its
Implementation Act of 2021 shal
enactment and apply to an
take effect two years after its
al egation of an offense made after
enactment and apply to an offense
the date the act takes effect.
occurring after the date the act
takes effect.
Sec. 539G would require the
No similar provision.
No similar provision.
Secretary of Defense, 180 days
after the House-IRCI is enacted, to
provide a report to Congress
issued by an independent
commission that examined whether
independent prosecutions should
include offenses other than special
victim offenses.
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H.R. 4350
S. 2792
S. 2792
(as engrossed)
(as reported)
(as reported)
House-IRCI
Senate-IRCI
MJIIPA
Sec. 539H would require the
Sec. 532 would require the
Sec. 565 would amend Title 10,
Secretary of Defense, 180 days
Secretary of Defense 270 days after
U.S. Code §156 Note, to require the
after the FY2022 NDAA is enacted,
the FY2022 NDAA is enacted to
Defense Advisory Committee on
to provide a report to Congress on
submit a report on the status of
Investigation, Prosecution, and
the status of IRC implementation
IRC implementation with quarterly
Defense of Sexual Assault in the
with specific recommendations
briefings to the House and Senate
Armed Forces to advise the
related to the four IRC lines of
armed services committees
Secretary of Defense on the
effort.
thereafter.
implementation of MJIIPA.
Source: CRS analysis of H.R. 4350, as engrossed, and S. 2792, as reported; Executive Office of the President,
Office of Management and Budget, Statement of Administration Policy, H.R. 4350 – National Defense Authorization Act
for Fiscal Year 2022, September 21, 2021, p. 2.
Note: SAP denotes Statement of Administration Policy.
a. For example, see 10 U.S.C. 113(b) and section 4 of DOD Instruction 5100.01, “Al functions in the
Department of Defense are performed under the authority, direction, and control of the Secretary of
Defense.”
Comparative Policy
The extent of delimitation in the three proposals is distinguishable. Under the House and Senate
IRCI, a commander with special or general court-martial convening authority is delimited from
convening either of these courts-martial for a special victim offense.58 Under MJIIPA, a
commander with general court-martial convening authority is delimited from convening a general
court-martial for covered offenses.59 See Table 4 for a comparison of the proposed disposition
delimitation policies.
Under the proposals, special victim offenses and covered offenses are included in disposition
delimitation, but al other offenses are excluded. However, a special victim prosecutor under the
House and Senate IRCI may exercise exclusive authority over an excluded offense if it is related
to a special victim offense. Under MJIIPA, a designated judge advocate may do the same for an
excluded offense if it is a lesser included offense of a covered offense.60 See Appendix C for a
comparison of the excluded offenses over which commanding officers retain disposition authority
to prefer and refer charges.
Table 4. Comparison of Proposed Disposition Delimitation Policies
House and Senate Versions of the FY2022 NDAA
H.R. 4350
S. 2792
S. 2792
(as engrossed)
(as reported)
(as reported)
House-IRCI
Senate-IRCI
MJIIPA
Promulgation
Armed forces in DOD, consultation Armed forces in DOD, agreement
Al armed forces, including the
with the Secretary of Homeland
with Secretary of Homeland
Coast Guard.
Security required.
Security for Coast Guard required.

58 §532, H.R. 4350, as engrossed; §531, S. 2792, as reported.
59 §562(d)(2), S. 2792, as reported.
60 §532, H.R. 4350, as engrossed; §562(d)(3), S. 2792, as reported. T he term “lesser included offense” means an
offense that is necessarily included in the offense charged and any lesser included offense so designated by regulation
prescribed by the President (10 U.S.C. §879; MCM, Part II, R.C.M. 307(c)(3)).
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H.R. 4350
S. 2792
S. 2792
(as engrossed)
(as reported)
(as reported)
House-IRCI
Senate-IRCI
MJIIPA
Prosecutor
Special victim prosecutor must be
Special victim prosecutor or
Designated judge advocate must be

in grade O-6 or higher
assistant must be

in grade O-6 or higher



a judge advocate

commissioned officer

certified under article 27 of


the UCMJ

a bar member in a federal

a bar member in a federal
court or highest state court
court or highest state court

serving outside the chain of



certified as qualified for special

certified as qualified for special
command of the accused and
victim prosecutor duty
victim prosecutor duty
victim
Assistant special victim prosecutor
Lead special victim prosecutor must

designated as a court-martial
must be
be
convening authority




Same as above

in grade O-6

significantly experienced in
court-martial litigation



five years’ experience

significantly experienced in
court-martial litigation
Prosecution
A special victim prosecutor shal
A special victim prosecutor shal
A designated judge advocate shal
have exclusive authority to
have exclusive authority to
have exclusive authority to
determine if an offense is a special
determine if a reported offense is a
determine whether to prefer or
victim offense and shal , upon
special victim offense and shal
refer charges for a delimited
completion of a relevant
determine whether to prefer or
offense, and any lesser included
investigation, determine whether to
refer charges for such offense and
offense, and shal be designated as a
prefer or refer charges for such
any related offense.
court-martial convening authority.
offense and any related offense.
A special victim prosecutor shal
A special victim prosecutor shal
A designated judge advocate shal
have exclusive authority to make a
have exclusive authority to make a
have exclusive authority to make a
determination to cause charges to
determination to cause charges to
determination to cause charges to
be preferred or to refer charges to
be preferred, but does not have
be preferred or to refer charges to
a court-martial for trial that shal be
exclusive authority to refer charges
a court-martial for trial that shal be
binding on any applicable convening
to a court-martial because such
binding on any applicable convening
authority for the referral of such
referral is non-binding on a
authority for the referral of such
charges.
convening authority.
charges.
Independence
Direct reporting authority to
Authority to prefer charges for
Direct reporting authority to
secretary. Authority to prefer and
offenses is binding on commanders.
service chief. Authority to prefer
refer charges for offenses is binding
and refer charges for offenses is
on commanders.
binding on commanders. Court-
martial convening authority outside
the chain of command
Synchronization
A special victim prosecutor has
Same as H.R. 4350 House-IRCI,
A designated judge advocate has
primary authority to prosecute a
except before exercising disposition
primary authority to prosecute a
special victim offense and any
authority, a special victim
delimited offense and its lesser
related offenses.
prosecutor must “provide that
included offenses.
A chain of command convening
commanders of the victim and the
A chain of command convening
authority has primary authority to
accused in a special victim case shal
authority has primary authority to
prosecute an offense that is not a
have the opportunity to provide
prosecute an offense for which the
special victim offense or its related
their candid input to the special
maximum punishment authorized
offense.
victim prosecutor regarding case
includes confinement for one year
disposition, but that the input is not
A convening authority can
or less, except four specified
prosecute a related offense that is
offenses under Article 134 of the
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H.R. 4350
S. 2792
S. 2792
(as engrossed)
(as reported)
(as reported)
House-IRCI
Senate-IRCI
MJIIPA
declined for prosecution in any type binding on the special victim
UCMJ that are excluded from
of court-martial the authority is
prosecutor” (§532(a)(6)).
prosecution by a convening
authorized to convene.
authority regardless of the
A convening authority can exercise
maximum punishment authorized.
any UCMJ authorities the authority
A convening authority can
possesses over a special victim
prosecute a delimited offense and a
offense that is declined for
lesser included offense that are
prosecution, except referral to a
declined for prosecution in a
special or general court-martial.
summary or special court-martial.
Implementation
The military department secretaries
DOD shal have policies that
Each service chief shal establish an
must establish within their
establish an office in the secretariat
office for courts-martial that is
secretariat a head of the Office of
of each military department from
staffed with officers in grade O-6 or
Special Victim Prosecutors, who
which activities of the special victim
higher, among other personnel,
must be a judge advocate flag or
prosecutors shal be supervised and
who would convene courts-martial
general officer under the
overseen by a lead prosecutor at
referred to them by a designated
jurisdiction of such secretary and
grade O-6, but this prosecutor
judge advocate. No additional
who shal report directly to the
does not have specific authority for
resources or personnel would be
secretary without intervening
directly reporting to the secretary.
authorized for this requirement.
authority.
Source: CRS analysis of H.R. 4350, as engrossed, and S. 2792, as reported.
Notes: The term “armed forces” is defined as the Army, Navy, Air Force, Marine Corps, Space Force, and
Coast Guard (10 U.S.C. §101(a)(4)).
Comparative Offenses
Table 5 compares the special victim offenses and covered offenses that would be delimited under
the proposed House and Senate versions of the FY2022 NDAA. In addition to its enumerated
special victim offenses, the House-IRCI also designates any offense in which the victim was a
child who had not attained the age of 18 years as a special victim offense.61
Table 5. Comparison of Delimited Offenses
House and Senate Versions of the FY2022 NDAA
S. 2792
H.R. 4350
S. 2792
(as reported)
(as engrossed)
(as reported)
Senate-IRCI
House-IRCI
MJIIPA
Article
UCMJ Offense
8 offenses
13 offenses
38 offenses
80
Attempts (to commit any of the fol owing
delimited
delimited
delimited
offenses)
81
Conspiracy (to commit any of the
delimited
delimited
delimited
fol owing offenses)
82
Soliciting commission of offenses (any of
delimited
delimited
delimited
the fol owing offenses)

61 §534, H.R. 4350, as engrossed.
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Military Justice Disposition Delimitation Legislation in the 117th Congress

S. 2792
H.R. 4350
S. 2792
(as reported)
(as engrossed)
(as reported)
Senate-IRCI
House-IRCI
MJIIPA
Article
UCMJ Offense
8 offenses
13 offenses
38 offenses
93a
Prohibited activities with military recruit or
—
—
delimited
trainee by person in position of special
trust
117a
Wrongful broadcast or distribution of
delimited
delimited
delimited
intimate visual images
118
Murder
—
—
delimited
119
Manslaughter
—
—
delimited
119a
Death or injury of an unborn child
—
delimited
delimited
119b
Child endangerment
—
delimited
delimited
120
Rape and sexual assault general y
delimited
delimited
delimited
120a
Mails: deposit of obscene matter
—
—
delimited
120b
Rape and sexual assault of a child
delimited
delimited
delimited
120c
Other sexual misconduct
delimited
delimited
delimited
121
Larceny and wrongful appropriation
—
—
delimited
121a
Fraudulent use of credit cards, debit cards,
—
—
delimited
and other access devices
121b
False pretenses to obtain services
—
—
delimited
122
Robbery
—
—
delimited
124
Frauds against the United States
—
—
delimited
124a
Bribery
—
—
delimited
124b
Graft
—
—
delimited
125
Kidnapping
—
delimited
delimited
126
Arson; burning property with intent to
—
—
delimited
defraud
127
Extortion
—
—
delimited
128
Assault (subsections (b) and (c))
—
—
delimited
128a
Maiming
—
—
delimited
128b
Domestic violence
delimited
delimited
delimited
130
Stalking
delimited
delimited
delimited
131
Perjury
—
—
delimited
131a
Subornation of perjury
—
—
delimited
131b
Obstructing justice
—
—
delimited
131c
Misprision of serious offense
—
—
delimited
131d
Wrongful refusal to testify
—
—
delimited
131e
Prevention of authorized seizure of
—
—
delimited
property
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S. 2792
H.R. 4350
S. 2792
(as reported)
(as engrossed)
(as reported)
Senate-IRCI
House-IRCI
MJIIPA
Article
UCMJ Offense
8 offenses
13 offenses
38 offenses
131f
Noncompliance with procedural rules
—
—
delimited
131g
Wrongful interference with adverse
—
—
delimited
administrative proceeding
132
Retaliation
delimited
delimited
delimited
134a
Child pornography
delimited
delimited
delimited
MCM-Pt. IV
§95
134a
Homicide, negligent
—
—
delimited
MCM-Pt. IV
§103
134a
Indecent conduct
—
—
delimited
MCM-Pt. IV
§104
134a
Indecent language communicated to any
—
delimited
delimited
MCM-Pt. IV child under the age of 16 years
§105
134a
Pandering and prostitution
—
delimited
delimited
MCM-Pt. IV
§106
Source: CRS analysis of H.R. 4350, as engrossed, and S. 2792, as reported.
Note: The inchoate offenses of attempts, soliciting, and conspiracy are not included in the total count of
offenses because they are common to al offenses—excluded and delimited.
a. Article 134 (10 U.S.C. §934) makes punishable acts in three categories of offenses not specifical y covered in
any other article of the UCMJ. They are offenses that involve (1) disorders and neglects to the prejudice of
good order and discipline in the armed forces, (2) conduct of a nature to bring discredit upon the armed
forces, and (3) noncapital crimes or offenses that violate federal civilian law (MCM, Part 4, §91).
Legislative Considerations for Congress
The three disposition delimitation proposals discussed in this report present options for Congress.
One option would be to disregard the proposals and maintain the discipline and disposition
authority held by commanders under the UCMJ since 1951. If Congress accepts a proposal to
delimit disposition, there are two main considerations: (1) the extent of delimited disposition,
which subdivides UCMJ authority, and (2) the scope of delimited offenses, which subdivides
offenses among the chain of command and judge advocate prosecutors.
In addition to any consideration of a proposal’s impact on sexual misconduct in the military,
another consideration may be whether a proposal wil have an adverse or positive effect on
command authority, the service’s judge advocate branches, or racial disparities in the military
justice system.62

62 U.S. Government Accountability Office, Military Justice: DOD and the Coast Guard Need to Improve Their
Capabilities to Assess Racial Disparities, GAO-20-648T , June 16, 2020, at https://www.gao.gov/products/gao-20-648t.
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Congress may also consider the function of disposition delimitation. Congress and others have
used the term “alternative military justice system” to describe the proposals, but this legislation
would not create a new system; rather it would bifurcate the process for convening courts-martial
and the procedures for preferring and referring charges.63 Other than subdividing disposition,
most aspects of how the military justice system works would remain the same. Additional y,
Congress may consider whether a legislative proposal that does not authorize a prosecutor to
make referral determinations that are binding on a convening authority is adequate for the
purpose of disposition delimitation.
Extent of Delimitation
The principal utility of delimited disposition appears to be the capacity that a special victim
prosecutor and a designated judge advocate have to direct the convening of a court-martial for the
charges that they refer.64 Like past bil s with disposition delimitation provisions, the House-IRCI
and MJIIPA would authorize prosecutors to refer charges that are binding to a convening
authority in the chain of command, who must then convene a court-martial for the referred
charges.65 The IRC recommendation for a special victim prosecutor does not include binding
referral authority, and the Senate-IRCI would not authorize such authority for a special victim
prosecutor.66 Instead, a commander with proper authority would determine whether to convene a
court-martial based on the referral of charges and specifications by a special victim prosecutor.
See Table 6 for a comparison of disposition delimitation authorities under the three proposals.
Table 6. Comparison of Disposition Delimitation Authority
Preferring, Referring, and Convening
H.R. 4350
S. 2792
S. 2792
(as engrossed)
(as reported)
(as reported)
Disposition Delimitation Authority
House-IRCI
Senate-IRCI
MJIIPA
Direct reporting authority to service chief or secretary
✓
—
✓
Preferral authority for charging offenses is binding on
✓
✓a
commanders

✓
Referral authority for prosecuting cases is binding on
✓
commanders
—
✓
Court-martial convening authority outside the chain of
—
—
✓
command
Source: CRS analysis of H.R. 4350, as engrossed, and S. 2792, as reported.
a. See Section 532 of S. 2792, as reported. Commanders must have an opportunity “to provide their candid
input to the special victim prosecutor regarding case disposition, but that the input is not binding on the
special victim prosecutor.” See also Article 37 of the UCMJ (Command influence) (10 U.S.C. §837).
Under the three proposals, commanders with proper authority would have disposition authority
over offenses excluded from delimitation, unless a special victim prosecutor or a designated judge
advocate assumes authority over an excluded offense as an offense related to a special victim
offense or as a lesser included offense of a covered offense, respectively. The chain of command

63 For example, see the Executive Summary on pages 1-4 of the DOD Report of the Joint Service Subcommittee
Prosecutorial Authority Study (JSS-PAS) issued on September 2, 2020.
64 §532, H.R. 4350, as engrossed; §562(d)(4), S. 2792, as reported.
65 Ibid.
66 Ibid, IRC Report, Appendix B, p. 15.
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would have no UCMJ authority over any offense prosecuted by a special victim prosecutor or
designated judge advocate.
However, commanders would have residual disposition authority for offenses over which a
special victim prosecutor or designated judge advocate declines to prefer or refer charges. Under
the House-IRCI and the Senate-IRCI, a commander with proper authority may exercise special
and general court-martial convening authority over a declined related offense, but not over a
declined special victim offense. Under MJIIPA, a commander has no authority to exercise general
court-martial convening authority over any type of declined offense, but the commander may
exercise any other UCMJ authority over a declined offense (see Table 7).
Since June 24, 2014, only general courts-martial are authorized to try offenses involving rape and
sexual assault of any child or adult, or attempts to commit these offenses.67 This existing
limitation on the chain of command’s UCMJ authority over such offenses would apply to al three
proposals.
Table 7. Comparison of Chain of Command Residual UCMJ Authority
Preferring, Referring, and Convening
Prosecutor Declines to Prefer Charges or Refer Charges to a Court-Martial
H.R. 4350
S. 2792
S. 2792
(as engrossed)
(as reported)
(as reported)

House-IRCI
Senate-IRCI
MJIIPA
Chain of Command’s
Special
Special
Lesser
Residual Authority for
Victim
Related
Victim
Related
Covered
Included
UCMJ Actions
Offense
Offense
Offense
Offense
Offense
Offense
General Court-Martial
—
✓
—
✓
—
—
Special Court-Martial
—
✓
—
✓
✓
✓
Summary Court-Martial
✓
✓
✓
✓
✓
✓
Non Judicial Punishment
✓
✓
✓
✓
✓
✓
Source: CRS analysis of H.R. 4350, as engrossed, and S. 2792, as reported.
Scope of Delimited Offenses
When considering the scope of delimited offenses, Congress has at least three choices. Two of
these choices are for special victim offenses, namely (1) House-IRCI (13 offenses) or (2) Senate-
IRCI (8 offenses), and one is for covered offenses (3) MJIIPA (38 offenses, including special
victim offenses).68 Congress may also take into account whether DOD should establish a uniform
enumeration of offenses for the various categories of sexual offenses in DOD policy. If delimited
disposition offenses are added as a category, DOD would have varying enumerations of sexual
offenses that differ in scope. See Appendix D for a comparison of sex-related offenses,
registerable sex offenses, and delimited sexual offenses.

67 10 U.S.C. §818(c); MCM, Part II, R.C.M. (f)(1)(D), (f)(2)(D).
68 T he inchoate offenses of attempts, soliciting, and conspiracy are not included in the total count of offenses because
they are common to all offenses—excluded and delimited.
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Punitive Article on Sexual Harassment
The House-IRCI would amend the UCMJ by creating a new article (120d) criminalizing sexual harassment . The
Senate-IRCI would create a nominative offense of sexual harassment under general article 134 in the MCM, which
would require implementation by the President. On September 21, 2021, the Office of Management and Budget
issued a Statement of Administration Policy for H.R. 4350 that included language urging Congress “to pass its
requested sexual harassment punitive articles.”69
Although the statement is associated with H.R. 4350, it is not clear if the Administration is urging the passage of
the House or Senate version of the sexual harassment article. As proposed, the House and Senate versions of the
sexual harassment offense provisions differ significantly. Selected portions of both versions are presented in a side-
by-side format in Appendix E.
Those who support making sexual harassment a criminal offense have argued that it would “make a strong
military-wide statement about the seriousness of these behaviors and the military’s zero tolerance policy for
them.” 70 Those who oppose a military offense for sexual harassment claim that “making sexual harassment a crime
could raise the stakes for the involved service members (both the al eged perpetrator and victim) and thereby
deter reporting and resolution of incidents of sexual misconduct.”71
Special Victim Offense
DOD has announced its intention to implement the IRC recommendation of delimitation by
special victim offenses.72 In testimony to the House Committee on Armed Services,
Subcommittee on Military Personnel, on July 20, 2021, Deputy Secretary of Defense Dr.
Kathleen Hicks provided DOD’s rationale for accepting the IRC’s approach of delimiting only
special victim offenses.
Dr. Hicks noted that the IRC’s mandate was limited to addressing issues related to sexual offenses
and that DOD had not undertaken a similar review to determine the advisability of delimiting
other serious offenses from commanders. She also conveyed DOD’s concern that expanding the
scope of the reform would draw attention and resources from the effort to address special victim
offenses, stating:
I think the biggest challenge we face is making sure we can effectuate positive change on
sexual assault and sexual harassment in a timely manner that builds faith back in to the
system.... So, we do have a concern that, at once, we are trying to accomplish this important
goal on sexual assault and sexual harassment. We would be swamping it and diffusing our
efforts with other goals.73
Some opponents of delimiting disposition only for special victim offenses argue that most special
victims are likely to be women. Focusing on offenses by type of victim, opponents argue, would
create a court-martial venue dedicated to female victims, which could undermine unit cohesion by
creating the perception of a lack of due process and independence.74

69 Executive Office of the President, Office of Management and Budget, Statement of Administration Policy, H.R. 4350
– National Defense Authorization Act for Fiscal Year 2022, September 21, 2021, p. 2.
70 DOD, Sexual Assault Accountability and Investigation Task Force, April 30, 2019, p. 6, at https://media.defense.gov/
2019/May/02/2002127159/-1/-1/1/SAAIT F_REPORT.PDF.
71 Laura T . Kessler and Sagen Gearhart, “ Sexual Harassment is not a Crime: Aligning the Uniform Code of Military
Justice with T itle VII,” University of Pennsylvania Journal of Law & Public Affairs, vol. 6, no. 3 (March 2021), p. 418.
72 Department of Defense, Secretary of Defense Memorandum, “Commencing DoD Actions and Implementation to
Address Sexual Assault and Sexual Harassment in the Military ,” September 22, 2021.
73 U.S. Congress, House Committee on Armed Services, Subcommittee on Military Personnel, The Findings and
Recom m endations of the Independent Review Com m ission on Sexual Assault in the Military , 117th Cong., 1st sess., July
20, 2021.
74 Eugene R. Fidell et. al., “Military justice reform, ‘pink courts,’ and unit cohesion,” The Hill, June 10, 2021.
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Covered Offense
Those in favor of delimiting serious offenses beyond special victim offenses have posited that a
layperson should not be al owed to oversee complex juridical matters and exercise prosecutorial
discretion over a process that can result in the equivalent of a federal felony conviction for
general criminal conduct offenses. For example, in a July 2021 House Committee on Armed
Services, Subcommittee on Military Personnel, hearing, Representative Jackie Speier proffered
the following rationale for expanded delimitation:
I believe the commission’s rationale for removing sexual assault prosecution decisions
from the chain of command also applies to other felony-level offenses that are nonmilitary
specific.
Crimes like murder, arson, and robbery are complex to investigate and prosecute, and
commanders who are not attorneys do not have the expertise or experience to make high-
quality prosecution decisions, and victims and their loved ones may perceive a conflict of
interest that discourages reporting.75
In addition, this rationale may reflect concerns identified by GAO regarding racial disparities in
the military justice system.76 Some in favor of the broader MJIIPA approach to delimit other
serious offenses from the commander’s disposition authority suggest that expanding delimitation
might also address these racial disparities. While the IRC recommended delimiting only special
victim offenses, the report addresses the special nature of crimes that are motivated by, or
associated with, individual attributes such as race, ethnicity, or sexual orientation.
DOD’s reported rationale for not delimiting other serious offenses appears to be that it is
impracticable to do so at the same time the department is delimiting special victim offenses. If the
immediate administrative burden is the only factor DOD contends is preventing it from delimiting
such offenses, then the concern over the quality and competence of special victim offense
prosecutions may potential y be generalizable to any other serious offense. DOD’s decision to
make IRC 1.1 a priority recommendation suggests that the department acknowledges its
responsibility to ensure that the military justice system can effectively prosecute special victim
offenses.77 Presumably, this duty of effective prosecution would extend to a trial for any serious
offense against a person, such as a complex murder prosecution that could include the death
penalty.78
Another possible reason why DOD finds it more practical to focus on special victim offenses
could be that these offenses possibly represent a significant number of the cases prosecuted in the

75 U.S. Congress, House Committee on Armed Services, Subcommittee on Military Personnel, The Findings and
Recom m endations of the Independent Review Com m ission on Sexual Assault in the Military , 117th Cong., 1st sess., July
20, 2021.
76 U.S. Government Accountability Office, Military Justice: DOD and the Coast Guard Need to Improve Their
Capabilities to Assess Racial Disparities, GAO-20-648T , June 16, 2020.
77 Department of Defense, Secretary of Defense Memorandum, “Commencing DoD Actions and Implementation to
Address Sexual Assault and Sexual Harassment in the Military ,” September 22, 2021.
78 Under the UCMJ, 14 offenses have death as a maximum punishment. One is for murder, two are for spying and
espionage, and the remaining 11 offenses are military misconduct offenses, four of which must occur in time of war
(MCM, Appendix 12). T he last military execution occurred 60 years ago on April 13, 1961 , by hanging for a
conviction of rape and attempted murder. T here have been 49 courts-martial since 1984 in which the death penalty was
sought, 15 of which the death sentence was adjudged. Of these military offenders, two had their sentence commuted
and eight had it overturned. Of the five remaining on death row, three have appeals pending and two have exhausted all
appeals. For the two that have exhausted their appeals, one is awaiting an order to be executed and the other received
an order of execution that has been appealed. (See Military Facts and Figures, Death Penalty Information Center, at
https://deathpenaltyinfo.org/state-and-federal-info/military/facts-and-figures.)
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military justice system. If this consideration is the basis for DOD’s narrower approach to
implementing disposition delimitation, the addition of 25 or 30 offenses under the broader
approach of MJIPPA would not be what risks overwhelming the implementation of special victim
prosecutors; instead, it would be the immediate effect of the 8 or 13 special victim offenses.
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Appendix A. Legislation
Table A-1 lists the legislative proposals that have been the subject of a near decade-long
congressional debate over disposition delimitation. This legislative history is the foundation for
the disposition delimitation proposals in H.R. 4350, as engrossed, and S. 2792, as reported.
Table A-1. Selected Delimited Disposition Legislative Proposals
2013-2021
Date
Congress
Bill
Title
06/23/2021
117th
H.R. 4104 (1) Military Justice Improvement and Increasing Prevention Act
05/13/2021
117th
S. 1611
(2) I am Vanessa Guil en Act of 2021
05/13/2021
117th
H.R. 3224 (3) I am Vanessa Guil en Act of 2021
04/29/2021
117th
S. 1520
(4) Military Justice Improvement and Increasing Prevention Act of 2021
09/16/2020
116th
S. 4600
(5) I Am Vanessa Guil en Act
09/16/2020
116th
H.R. 8270 (6) I Am Vanessa Guil en Act of 2020
06/25/2020
116th
S. 4049
(7) Military Justice Improvement Act of 2020a
06/11/2019
116th
S. 1789
(8) Military Justice Improvement Act of 2019
05/16/2019
116th
S. 1500
(9) Military Special Victims Protection Act of 2019
11/16/2017
115th
S. 2141
(10) Military Justice Improvement Act of 2017
12/09/2014
113th
S. 2992
(11) Military Justice Improvement Act of 2014
12/02/2014
113th
S. 2970
(12) Military Justice Improvement Act of 2014
11/20/2013
113th
S. 1752
(13) Military Justice Improvement Act of 2013
05/16/2013
113th
S. 967
(14) Military Justice Improvement Act of 2013
05/16/2013
113th
H.R. 2016 (15) Military Justice Improvement Act of 2013
Source: CRS analysis of legislative proposals at https://www.congress.gov/.
a. Proposed amendment to Fiscal Year 2021 National Defense Authorization Act, S. 4049 (S.Amdt. 2106, 116th
Congress (2019-2020), S3543-3544, June 25, 2020).
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Appendix B. Military Justice Provisions
Table B-1 compares military justice provisions associated with the House and Senate proposals
that are not directly related to disposition delimitation.
Table B-1. Selected Military Justice Proposals
House and Senate Versions of the FY2022 NDAA
H.R. 4350
S. 2792
S. 2792
(as engrossed)
(as reported)
(as reported)
House-IRCI
Senate-IRCI
MJIIPA
Sec. 539I would require DOD to
No similar provision
No similar provision
report on its efforts to implement
the recommendations from the May
2019 report of the Government
Accountability Office titled “Military
Justice: DOD and the Coast Guard
Need to Improve Their Capabilities
to Assess Racial and Gender
Disparities."
No similar provision
No similar provision
Sec. 566 would prohibit DOD
from amending its sexual assault
prevention and response programs
(SAPR) policy relating to the
treatment and handling of
unrestricted and restricted reports
of sexual assault, until 30 days after
notifying the congressional defense
committees of the proposed
amendment or modification.
No similar provision
No similar provision
Sec. 568 would require increased
and enhanced education and
training on military sexual assault
prevention developed specifical y
for three discrete groups: service
academy students, officer
candidates and ROTC cadets, and
senior commissioned and
noncommissioned officers.
No similar provision
No similar provision
Sec. 569 would require DOD to
improve and enhance the physical
security of al lodging and living
spaces on military instal ations, to
include CCTV surveil ance, lock
repair or replacement, and other
passive security measures to
increase the prevention of crimes,
including sexual assault.
Source: CRS analysis of H.R. 4350, as engrossed, and S. 2792, as reported.
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Appendix C. Excluded Offenses
Offenses that are not delimited are excluded from disposition delimitation. However, a special
victim prosecutor may exercise exclusive authority over an excluded offense if it is related to a
special victim of a UCMJ offense. A designated judge advocate may do the same for an excluded
offense if it is a lesser included offense of a covered offense.79 Table C-1 compares offenses that
are excluded from delimited disposition and retained for disposition by commanding officers with
proper authority to prefer and refer charges.
Table C-1. Comparison of Excluded Offenses
House and Senate Versions of the FY2022 NDAA
S. 2792
H.R. 4350
S. 2792
(as reported) (as engrossed) (as reported)
Article
UCMJ Offense
Senate-IRCI
House-IRCI
MJIIPA
83
Malingering
excluded
excluded
excluded
84
Breach of medical quarantine
excluded
excluded
excluded
85
Desertion
excluded
excluded
excluded
86
Absence without leave
excluded
excluded
excluded
87
Missing movement; jumping from vessel
excluded
excluded
excluded
87a
Resistance, flight, breach of arrest, and escape
excluded
excluded
excluded
87b
Offenses against correctional custody and
excluded
excluded
excluded
restriction
88
Contempt toward officials
excluded
excluded
excluded
89
Disrespect toward superior commissioned
excluded
excluded
excluded
officer; assault of superior commissioned
officer
90
Wil ful y disobeying superior commissioned
excluded
excluded
excluded
officer
91
Insubordinate conduct toward warrant officer,
excluded
excluded
excluded
noncommissioned officer, or petty officer
92
Failure to obey order or regulation
excluded
excluded
excluded
93
Cruelty and maltreatment
excluded
excluded
excluded
93a
Prohibited activities with military recruit or
excluded
excluded
—
trainee by person in position of special trust
94
Mutiny or sedition
excluded
excluded
excluded
95
Offenses by sentinel or lookout
excluded
excluded
excluded
95a
Disrespect toward sentinel or lookout
excluded
excluded
excluded
96
Release of prisoner without authority;
excluded
excluded
excluded
drinking with prisoner
97
Unlawful detention
excluded
excluded
excluded
98
Misconduct as prisoner
excluded
excluded
excluded

79 §532, H.R. 4350, as engrossed; §562(d)(3), S. 2792, as reported.
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S. 2792
H.R. 4350
S. 2792
(as reported) (as engrossed) (as reported)
Article
UCMJ Offense
Senate-IRCI
House-IRCI
MJIIPA
99
Misbehavior before the enemy
excluded
excluded
excluded
100
Subordinate compel ing surrender
excluded
excluded
excluded
101
Improper use of countersign
excluded
excluded
excluded
102
Forcing a safeguard
excluded
excluded
excluded
103
Spies
excluded
excluded
excluded
103a
Espionage
excluded
excluded
excluded
103b
Aiding the enemy
excluded
excluded
excluded
104
Public records offenses
excluded
excluded
excluded
104a
Fraudulent enlistment, appointment, or
excluded
excluded
excluded
separation
104b
Unlawful enlistment, appointment, or
excluded
excluded
excluded
separation
105
Forgery
excluded
excluded
excluded
105a
False or unauthorized pass offenses
excluded
excluded
excluded
106
Impersonation of officer, noncommissioned or
excluded
excluded
excluded
petty officer, or agent or official
106a
Wearing unauthorized insignia, decoration,
excluded
excluded
excluded
badge, ribbon, device, or lapel button
107
False official statements; false swearing
excluded
excluded
excluded
107a
Parole violation
excluded
excluded
excluded
108
Military property of United States–Loss,
excluded
excluded
excluded
damage, destruction, or wrongful disposition
108a
Captured or abandoned property
excluded
excluded
excluded
109
Property other than military property of
excluded
excluded
excluded
United States—Waste, spoilage, or
destruction
109a
Mail matter: wrongful taking, opening, etc.
excluded
excluded
excluded
110
Improper hazarding of vessel or aircraft
excluded
excluded
excluded
111
Leaving scene of vehicle accident
excluded
excluded
excluded
112
Drunkenness and other incapacitation offenses
excluded
excluded
excluded
112a
Wrongful use, possession, etc., of control ed
excluded
excluded
excluded
substances
113
Drunken or reckless operation of a vehicle,
excluded
excluded
excluded
aircraft, or vessel
114
Endangerment offenses
excluded
excluded
excluded
115
Communicating threats
excluded
excluded
excluded
116
Riot or breach of peace
excluded
excluded
excluded
117
Provoking speeches or gestures
excluded
excluded
excluded
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S. 2792
H.R. 4350
S. 2792
(as reported) (as engrossed) (as reported)
Article
UCMJ Offense
Senate-IRCI
House-IRCI
MJIIPA
118
Murder
excluded
excluded
—
119
Manslaughter
excluded
excluded
—
119a
Death or injury of an unborn child
excluded
—
—
119b
Child endangerment
excluded
—
—
121
Larceny and wrongful appropriation
excluded
excluded
—
121a
Fraudulent use of credit cards, debit cards,
excluded
excluded
—
and other access devices
121b
False pretenses to obtain services
excluded
excluded
—
122
Robbery
excluded
excluded
—
122a
Receiving stolen property
excluded
excluded
excluded
123
Offenses concerning Government computers
excluded
excluded
excluded
123a
Making, drawing, or uttering check, draft, or
excluded
excluded
excluded
order without sufficient funds
124
Frauds against the United States
excluded
excluded
—
124a
Bribery
excluded
excluded
—
124b
Graft
excluded
excluded
—
125
Kidnapping
excluded
—
—
126
Arson; burning property with intent to
excluded
excluded
—
defraud
127
Extortion
excluded
excluded
—
128
Assault
excluded
excluded
—
128a
Maiming
excluded
excluded
—
129
Burglary; unlawful entry
excluded
excluded
—
131
Perjury
excluded
excluded
—
131a
Subornation of perjury
excluded
excluded
—
131b
Obstructing justice
excluded
excluded
—
131c
Misprision of serious offense
excluded
excluded
—
131d
Wrongful refusal to testify
excluded
excluded
—
131e
Prevention of authorized seizure of property
excluded
excluded
—
131f
Noncompliance with procedural rules
excluded
excluded
—
131g
Wrongful interference with adverse
excluded
excluded
—
administrative proceeding
133
Conduct unbecoming an officer and a
excluded
excluded
excluded
gentleman
134a
Animal abuse
excluded
excluded
excluded
MCM-Pt. IV
§92
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S. 2792
H.R. 4350
S. 2792
(as reported) (as engrossed) (as reported)
Article
UCMJ Offense
Senate-IRCI
House-IRCI
MJIIPA
134a
Bigamy
excluded
excluded
excluded
MCM-Pt. IV
§93
134a
Check, worthless making and uttering-by
excluded
excluded
excluded
MCM-Pt. IV
dishonorably failing to maintain funds
§94
134a
Debt, dishonorably failing to pay
excluded
excluded
excluded
MCM-Pt. IV
§96
134a
Disloyal statements
excluded
excluded
excluded
MCM-Pt. IV
§97
134a
Disorderly conduct, drunkenness
excluded
excluded
excluded
MCM-Pt. IV
§98
134a
Extramarital sexual conduct
excluded
excluded
excluded
MCM-Pt. IV
§99
134a
Firearm, discharging-through negligence
excluded
excluded
excluded
MCM-Pt. IV
§100
134a
Fraternization
excluded
excluded
excluded
MCM-Pt. IV
§101
134a
Gambling with subordinate
excluded
excluded
excluded
MCM-Pt. IV
§102
134a
Homicide, negligent
excluded
excluded
—
MCM-Pt. IV
§103
134a
Indecent conduct
excluded
excluded
—
MCM-Pt. IV
§104
134a
Indecent language communicated to any child
excluded
—
—
MCM-Pt. IV
under the age of 16 years
§105
134a
Pandering and prostitution
excluded
—
—
MCM-Pt. IV
§106
134a
Self-injury without intent to avoid service
excluded
excluded
excluded
MCM-Pt. IV
§107
134a
Straggling
excluded
excluded
excluded
MCM-Pt. IV
§108
Source: CRS analysis of H.R. 4350, as engrossed, and S. 2792, as reported.
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a. Article 134 (10 U.S.C. §934) makes punishable acts in three categories of offenses not specifical y covered in
any other article of the UCMJ. They are offenses that involve (1) disorders and neglects to the prejudice of
good order and discipline in the armed forces, (2) conduct of a nature to bring discredit upon the armed
forces, and (3) noncapital crimes or offenses that violate federal civilian law (MCM, Part 4, §91).
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Appendix D. Offense Categories
The term “sexual offense” under the Military Rules of Evidence includes any sexual misconduct
punishable under the UCMJ, federal law, or state law.80 DOD further defines sexual offenses as
sex-related offenses (10 U.S.C. §1044e(h)) and registerable sex offenses (DODI 1325.07).81
Combining al existing and proposed categories results in 14 sexual offenses and 3 inchoate
offenses. Table D-1 compares the UCMJ punitive articles for these offenses by category of sexual
offense.
Table D-1. Comparison of Sexual Offenses, by Category
Positive Law, DOD Policy, and the House and Senate Versions of the FY2022 NDAA
10 U.S.C.
DODI
§1044e(h)
1325.07
H.R.
Special
Sex
S. 2792
4350
Victim
Offender
Senate
House
S. 2792
Article
UCMJ Offense
Counsel
Register
IRCI
IRCI
MJIIPA
80
Attempts (to commit any of the
✓
✓
✓
✓
✓
fol owing offenses)
81
Conspiracy (to commit any of the
—
✓
✓
✓
✓
fol owing offenses)
82
Solicitation (to commit any of the
—
✓
✓
✓
✓
fol owing offenses)
117a
Wrongful broadcast or distribution
—
—
✓
✓
✓
of intimate visual images
119b
Child endangerment
—
—
—
✓
✓
120
Rape and sexual assault general y
✓
✓
✓
✓
✓
120a
Mails: deposit of obscene matter
—
—
—
—
✓
120b
Rape and sexual assault of a child
✓
✓
✓
✓
✓
120c
Other Sexual Misconduct
✓
✓
✓
✓
✓
128b
Domestic violence
—
—
✓
✓
✓
130
Stalking
✓
—
✓
✓
✓
133a
Conduct unbecoming an officer,
—
✓
—
—
—
other (moral turpitude)
134b
Child pornography
—
✓
✓
✓
✓
MCM-Pt. IV
§95
134b
Indecent conduct
—
—
—
—
✓
MCM-Pt. IV
§104

80 Ibid, MCM, Part III, M.R.E. 413. Similar crimes in sexual offense cases, p. III-21.
81 10 U.S.C. §1044e(h); Department of Defense, Directive 6495.01, Sexual Assault Prevention and Response (SAPR)
Program , January 23, 2012, §4.l; 34 U.S.C. §20931; 10 U.S.C. §131 Note; Department of Defense, Instruction
5525.20, Registered Sex Offender (RSO) Managem ent in DOD, November 14, 2016, §1.1.
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10 U.S.C.
DODI
§1044e(h)
1325.07
H.R.
Special
Sex
S. 2792
4350
Victim
Offender
Senate
House
S. 2792
Article
UCMJ Offense
Counsel
Register
IRCI
IRCI
MJIIPA
134b
Indecent language communicated
—
—
—
✓
✓
MCM-Pt. IV
to any child under the age of 16
§105
years
134b
Pandering and prostitution
—
✓
—
✓
✓
MCM-Pt. IV
§106
Source: CRS analysis of 10 U.S.C. §1044e(h); DOD, Instruction 1325.07, Administration of Military Correctional
Facilities and Clemency and Parole Authority, March 11, 2013, Appendix 4 to Enclosure 2; H.R. 4350, as engrossed;
S. 2792, as reported.
a. Article 133 (10 U.S.C. §933), the general offense of conduct unbecoming an officer and a gentleman, includes
the specific offense of committing or attempting to commit a crime involving moral turpitude (MCM, Part IV, §90).
b. Article 134 (10 U.S.C. §934) makes punishable acts in three categories of offenses not specifical y covered in
any other article of the UCMJ. They are offenses that involve (1) disorders and neglects to the prejudice of
good order and discipline in the armed forces, (2) conduct of a nature to bring discredit upon the armed
forces, and (3) noncapital crimes or offenses that violate federal civilian law (MCM, Part IV, §91).
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Appendix E. Criminalizing Sexual Harassment
The House-IRCI would amend the UCMJ by adding a new punitive article criminalizing sexual
harassment. The Senate-IRCI also would make sexual harassment a military offense, but it would
do so by directing the President to add sexual harassment to the MCM as a nominative offense
under Article 134 of the UCMJ, an existing statute that is a general article serving as the basis for
17 other nominative offenses.82 Besides the distinguishable promulgation, the House and Senate
sexual harassment offense provisions differ significantly in substance.
The Senate-IRCI sexual harassment provision would establish a seemingly subjective fault
element—a certain person does believe. The House-IRCI version would establish an objective
fault element— cause a reasonable person to believe. Moreover, the current UCMJ punitive
article used for punishing sexual harassment—Article 93 (cruelty and maltreatment)—is based on
an objective fault element:
The cruelty, oppression, or maltreatment, although not necessarily physical, must be
measured by an objective standard. Assault, improper punishment, and sexual harassment
may constitute this offense. Sexual haras sment includes influencing, offering to influence,
or threatening the career, pay, or job of another person in exchange for sexual favors, and
deliberate or repeated offensive comments or gestures of a sexual nature.83
The subjective aspect in the Senate’s proposed sexual harassment offense could increase the
evidentiary requirements for establishing the fault element by having to meet a different
subjective standard in each case to show that an al eged victim suffered from prohibited conduct,
rather than relying on an objective standard to do so. Additional y, the principal fault element of
the Senate-IRCI provision appears to require more than one act of sexual harassment by making
“sexual advances” necessary instead of a single “sexual advance”, which is the requirement under
the House-IRCI version and Article 93 of the UCMJ. The Senate-IRCI version also would expand
the offense’s fault element to include the armed service as a necessary and simultaneous second
victim. The fault element in the House-IRCI provision would not require an institutional victim.
Both proposed provisions appear to establish sexual harassment as a general intent crime
(knowingly). However, the Senate-IRCI provision would seemingly supplement the mental state
element by requiring the accused to have actual knowledge of making sexual advances, demands,
or requests for sexual favors, or engaging in other conduct of a sexual nature. This requirement
potential y would have the effect of making sexual harassment a specific intent offense
(purposely). Among other matters, requiring the highest level of criminal culpability for the
offense of sexual harassment could al ow the accused to rely on intoxication as a defense against
an element of specific intent, knowledge, or wil fulness.84
Additional y, the required mental state in the Senate-IRCI sexual harassment provision would be
greater than the level of culpability required for the cruelty and maltreatment punitive article
currently used to punish sexual harassment.85

82 See MCM, Part IV, §91.
83 10 U.S.C. §893 (Article 93 of the UCMJ); see MCM, Part IV, §19(c)(3).
84 See Defenses in MCM, R.C.M. 916(l)(2). Voluntary intoxication is not a defense to an offense, generally, but it is a
legitimate defense against an element of premeditation, specific intent, knowledge, or willfulness in any crime; it is not
a defense to crimes involving only a general intent. Evidence of any degree of voluntary intoxication may be
introduced for the purpose of raising a reasonable doubt as to the existence of actual knowledge, specific intent, or
willfulness.
85 Any person subject to the UCMJ who is guilty of cruelty toward, or oppression or maltreatment of, any person
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Table E-1 presents a side-by-side comparison of the proposed provisions.
Table E-1. Selected Portions of Proposed Sexual Harassment Offense Provisions
House and Senate Versions of the FY2022 NDAA
House-IRCI
Senate-IRCI
I. Elements—A person subject to this chapter
I. Elements—The required elements constituting the
commits sexual harassment when—
offense of sexual harassment are as fol ows:
A. Such person knowingly—
A. That the accused knowingly made sexual advances,
1. makes a sexual advance,
demands, or requests for sexual favors, or engaged in
other conduct of a sexual nature.
2. demands or requests a sexual favor, or
3. engages in other conduct of a sexual nature.
B. The conduct described in paragraph (A) that such
B. That such conduct was unwelcome.
person committed is unwelcome.
C. Under the circumstances, on the basis of the record
C. That under the circumstances, such conduct—
as a whole, such conduct would cause a reasonable
1. would cause a reasonable person to believe, and a
person to—
certain person does believe, that submission to such
1. believe that submission to, or rejection of, such
conduct would be made, either explicitly or implicitly, a
conduct would be made, either explicitly or implicitly, a
term or condition of a person’s job, pay, career,
term or condition of a person’s military duties, job, pay, benefits, or entitlements;
career, benefits, or entitlements;
2. would cause a reasonable person to believe, and a
2. believe that submission to, or rejection of, such
certain person does believe, that submission to, or
conduct would be used as a basis for military career or
rejection of, such conduct would be used as a basis for
employment decisions affecting that person; or
career or employment decisions affecting that person;
3. perceive an intimidating, hostile, or offensive duty or
or
working environment due to the severity,
3. was so severe, repetitive, or pervasive, that a
repetitiveness, or pervasiveness of such conduct.
reasonable person would perceive, and a certain person
does perceive, an intimidating, hostile, or offensive duty
or working environment.
D. A person, who by some duty or military-related
See “III. Nature of Victim” below.
reason works or is associated with the accused, did
reasonably believe or perceive as described in
subparagraph (1), (2), or (3) of paragraph (C).
No similar element.
D. That under the circumstances, the conduct of the
accused was either—
1. to the prejudice of good order and discipline in the
Armed Forces,
2. of a nature to bring discredit upon the Armed
Forces, or
3. to the prejudice of good order and discipline in the
Armed Forces and of a nature to bring discredit on the
Armed Forces.
II. Other Conduct—For purposes of subsection
II. Scope of Conduct Considered Sexual in
(I)(A)(3), whether other conduct would cause a
Nature—Whether other conduct is “of a sexual
reasonable person to believe it is of a sexual nature shal
nature” shal be dependent upon the circumstances of
be dependent upon the circumstances of the act al eged
the act or acts al eged and may include conduct that,
and may include conduct that, without context, would
without context, would not appear to be sexual in
not appear to be sexual in nature.
nature.

subject to his orders shall be punished as a court -martial may direct. Elements: (1) that a certain person was subject to
the orders of the accused; and (2) that the accused was cruel toward, or oppressed, or maltreated that person. For
example, “ In that the accused did maltreat a person subject to his or her orders by ...” (10 U.S.C. §893 (Article 93 of the
UCMJ); see MCM, Part IV, §19).
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House-IRCI
Senate-IRCI
See “D” above.
III. Nature of Victim—For purposes of paragraph
(I)(C), a “certain person” extends to any person,
regardless of gender or seniority, or whether subject
to the Uniform Code of Military Justice, who by some
duty or military-related reason may work or associate
with the accused.
III. Location and Means of Act—An act constituting IV. Timing and Location of Act—The act
sexual harassment under this section—
constituting sexual harassment can occur at any
A. may occur at any location and without regard to
location, regardless of whether the victim or accused is
whether the victim or accused is on or off duty at the
on or off duty at the time of the al eged act or acts.
time of the al eged act;
Physical proximity is not required, and the acts may be
committed through online or other electronic means.
B. does not require physical proximity between the
victim and the accused; and
C. may be transmitted through any means, including
written, oral, online, or other electronic means.
No similar element.
V. Mens Rea—The accused must have actual
knowledge that the accused is making sexual advances,
demands, or requests for sexual favors, or is engaging
in other conduct of a sexual nature. Actual knowledge
is not required for the other elements of the offense.
Source: CRS analysis of H.R. 4350, as engrossed, and S. 2792, as reported.
Notes: Selected portions of proposed sexual harassment offense provisions are renumbered and reformatted
for clarity and presentation, emphasis added.

Author Information

Alan Ott
Kristy N. Kamarck
Analyst in Defense and Intelligence Personnel
Specialist in Military Manpower
Policy

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33

Military Justice Disposition Delimitation Legislation in the 117th Congress

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