I recently called attention to the danger of laws that loosely define criminal actions. Terms like “economic abuse” and “technological abuse” are vague enough to mean whatever people want them to. Those wondering how this plays out need look no further than practices of the United States armed forces.
In principle the military distinguishes between “domestic violence” and “domestic abuse.” Both violate regulations. Only the first is a crime under the Uniform Code of Military Justice (UCMJ). This might seem reasonable. But definitions and implementation present serious problems.
To begin with, “abuse” is defined so broadly as to mean almost anything. The Department of Defense (DOD) identifies four categories of “domestic abuse.” Two of these are “emotional abuse” and “neglect.” The former includes behaviors “adversely affecting the psychological well-being of a current or former spouse or intimate partner.” The language isn’t “severe psychological harm” (i.e. “gaslighting”). It is “anything with a negative impact.” And it is now commonly believed that almost all unpleasant experiences are psychologically harmful. This includes being the recipient of occasional unjustified anger.
“Neglect” includes a member of the military withholding “necessary care or assistance for his or her current spouse who is incapable of self-care physically, psychologically, or culturally.” The idea that most unpleasant occurrences necessitate “psychological care” is widespread. “Cultural care” is superlatively vague. In other words, spouses can claim “neglect” whenever they feel they have not been treated with the “necessary” psychological or cultural “sensitivity.”
A dangerously broad definition is also given to “sexual abuse.” This, for the DOD, includes sexual contact “without the consent of the spouse or intimate partner.” Such “non-consensual” contact is distinguished from contact “against the expressed wishes” of the other party. This means a husband who has had consensual sex with his wife 1,000 times commits “abuse” if he sexually touches her when she has neither consented nor objected.
Alleged violations of these “standards” can be met with draconian punishments, even in the absence of clear proof. The Marine Corps, for example, mandates that “offenders” be discharged. The required “substantiation” is almost meaningless. It is enough if a “commander determines, based on a preponderance of the evidence, that an incident has occurred.” This means a Marine’s career is over if: 1) He is accused of failing to provide “cultural care”; and 2) His commanding officer decides the allegation is more likely true than false. Such practices require playing “fast and loose” with military law. Military law allows punitive discharges only when crimes have been committed. Most forms of “abuse” are not crimes under the UCMJ. The Marine Corps Headquarters website calls this a “legal gap.” And it has a simple solution: “Creatively interpret” offenses named in the UCMJ so they cover “abusive” behaviors.
Others go further. Lieutenant Danielle Dockery, a member of he Department of Defense’s Family Advocacy Program (FAP), claims that “Domestic violence is not just physical violence but includes emotional abuse.” This doesn’t just lack a basis in military law. It contradicts the context of the UCMJ’s prohibition of domestic violence.
Prior to 2018 domestic violence was not a unique offense. It was addressed under the prohibition of assault by UCMJ Section 928 Article 128. The language of that article clearly refers to physical acts. It is also the background to the domestic violence article—128b of Section 928b. The latter states that someone who “commits a violent offense against a spouse, an intimate partner, or an immediate family member of that person” is subject to court martial. Strangling and suffocation are listed as specific forms of violence. Just one type of “non-physical violence” is included—violating orders of protection. And this only qualifies as “domestic violence” under limited conditions: 1) When it is done to enable physical violence; or 2) When it is done to threaten or intimidate. (Legal experts have still called categorizing non-physical acts as violence “very concerning.”)
Dockery’s interpretation is not idiosyncratic. Her statements are found on the official website of Air Force Material Command. The parallel with Marine Corps policies is obvious. An “aggressive” approach is also encouraged in a report by the United States Government Accountability Office. This neither criticizes nor endorses “creatively interpreting” military law. But it agrees with the spirit of Marine Corps practice, recommending that comparable use be made of (often enough vague) local non-military laws. The report also tries to lay groundwork for including vaguely defined “abuse” as a crime in the UCMJ.
Whether or not to criminalize strict definitions of “abuse” that will be strictly observed in practice is a separate issue. So is the value (or lack thereof) of DOD definitions for non-disciplinary purposes (i.e. marriage counseling).
The immediate issue is that current military practice finds pretexts for punishing acts not criminalized by the UCMJ. This must stop. Documents recommending these practices must be revised. Punishments meted out since such documents were issued should be reviewed. This must include interviewing those punished under the practices in question. The FAP should be instructed in the limits of “violence” as defined by military law. Its materials and services must reflect this. Oversight agencies must enforce the correct meaning of military law. Those who violate it should be disciplined.
