Mens rea reform and the military

The Court of Appeals for the Armed Forces (CAAF) has spent the last two terms mired within the UCMJ, determining what constitutes the proper mens rea for various offenses due to imprecise drafting by Congress, the president, and commanders. The CAAF has twice found issue with general orders and Article 92, looked at maltreatment in Article 93, and at communicating a threat in Article 134. Next term, the CAAF will look at negligent dereliction of duty within another section of Article 92.

“Few areas of criminal law pose more difficulty than the proper definition of the mens rea required for any particular crime." United States v. Thomas, 65 M.J. 132, 133 (C.A.A.F. 2007) (citing United States v. Bailey, 444 U.S. 394, 403 (1980). Yet the Supreme Court’s opinion in Elonis set the CAAF on this path, ensuring that in the absence of clear intent of Congress (or the president or a superior officer), military members cannot be found guilty unless the fact-finder determines they acted with at least a reckless state of mind.

In the background to these cases are mens rea reformers, pushing to heighten what constitutes a guilty mind. While these reforms mostly target the administrative state and public welfare offenses, they would also include traditional crimes recognized at the common law. Even though these reforms have failed to take hold within Congress, the efforts appear to have reminded courts of long-standing precedents, causing this recent reexamination of mens rea.

If Congress wants to maintain more control of the UCMJ, it should address the implication of Elonis and these CAAF decisions the next time it updates the UCMJ. Congress could either clearly dispense with mens rea for some crimes, or include a default method of interpretation to gap-fill the mens rea when a statute is otherwise unclear. Currently, the UCMJ is a mishmash of common law and modern crimes, some with imprecise mens rea terms. It also contains longstanding military specific offenses. This sometimes leads to confusing results even at the CAAF, such as in Caldwell, where the Court held maltreatment was a general intent crime that did not require appellant acted recklessly. While this opinion hinted at a military-specific exception to the mens rea requirement, the opinion did not make that holding explicit. Subsequent cases have juggled Caldwell’s nod to general intent with the more modern concepts of recklessness, knowledge, intent, and negligence that underpin mens rea reforms.

In any case, the CAAF’s recent grant indicates it will not be slowing down any time soon. Perhaps in the near future, the CAAF may even examine sexual assault by bodily harm in Article 120 or conduct becoming an officer in Article 133. Hopefully Congress steps in soon to make its intent known, otherwise the CAAF will be stuck cleaning up this mess.