CAAF apparently enjoyed the oral argument in United States v. Wilson, No. 06-0870/AR, so much that it has invited further briefing in the case. Still unclear is whether CAAF will hold a second oral argument.

In the daily journal for 3 May, CAAF ordered briefing on the following issue:

IS THE DEFENSE OF MISTAKE OF FACT AS TO AGE AVAILABLE WITH RESPECT TO A CHARGE OF SODOMY WITH A CHILD UNDER THE AGE OF 16, ARTICLE 125, 10 U.S.C. § 825?

CAAF also invited all of the other appellate government and defense divisions to weigh in with amicus briefs.

Here’s the issue that CAAF originally granted in Wilson:

WHETHER THE ARMY COURT ERRED BY AFFIRMING THE FINDINGS AND SENTENCE WHERE THE MILITARY JUDGE, IN ACCEPTING APPELLANT’S GUILTY PLEA TO SODOMY WITH A CHILD UNDER 16, INSTRUCTED APPELLANT THAT HIS HONEST AND REASONABLE MISTAKE OF FACT DID NOT CONSTITUTE A DEFENSE.

Funny, I would have guessed that the new issue would have come up in the course of briefing and arguing the old issue.

6 Responses to “Is mistake of fact as to age a possible defense in a sodomy case?”

  1. John O'Connor says:

    I agree that it seems as if this question would have been addressed in the initial briefs. Maybe CAAF thought the quality of the advocacy on the first go-around wasn’t helpful.

    For those who know more about this issue than me, what’s the argment that a mistake of fact defense IS available here? The text of Article 125 doesn’t even take age into account, just making all sodomies illegal.

    The MCM takes age into account in fixing maximum punishments, but I don’t think the language used by the President reasonably can be construed as making mistake of fact a defense. So, I guess that the argument is that the Constitution entitles a servicemember with a potential mistake of fact defense to the same max punishment reduction from that set out in Article 125 as a servicemember who committed sodomy with an older person? Is the hook due process? That just seems like a really tough argument if you can’t make a statutory construction argument and my quick read of Article 125 and the MCM seems to foreclose a statutory construction argument.

  2. Phil Cave says:

    So, if a mistake of fact defense is appropriate, and it only goes to sentencing, don’t you still have in effect an LIO. There’s a substantial difference in the potential maximum sentence. I’m not sure what the exact argument is either — but it seems to work with the indecent acts charge? U.S. v. Sims?

  3. Guert Gansevoort says:

    JOC, per Lawrence v. Texas, sodomy is legal for civilains in most circumstances, and per United States v. Marcum, even for servicemembers under certain limited circumstances. While the Court has not yet addressed a case where the military sodomite was engaged in constitutionally protected sodomy, there may yet be such a case. Image the facts in Lawrence, where a neighbor homophobe falsly reported a burglary and the police responded only to find bugery. If a servicemember were to sodomize a sixteen-year-old “victim”, believing her to be sixteen or twenty-one, has he commited a crime? Lawrence says no. The MCM says yes.

  4. John O'Connor says:

    So, Guert, you’re supposing that the issue referenced by CAAF is part of a two-step process. First, consider whether the military constitutionally has to treat a servicemember committing sodomy with a minor as if the other person were of age when there is a mistake of fact. Second, if the first premise is true, consider whether the charged sodomy would have been legal if the other participant were of age?

    But plenty of states treat, for example, statutory rape as a strict liability offense, so wouldn’t a finding that mistake of fact is available here essentially hold strict liability statutory rape statutes unconstitutional? While no expert on that subject (cough, cough), I think the constitutionality of such statutes is rather well established.

  5. Guert Gansevoort says:

    Your point is well taken. It is worth mentioning that the Lawrence majority noted that the case did not involve minors. It further noted that “19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys…” Lawrence, 539 U.S. at 568. But I think Justice Scalia’s dissent is accurate in that, after Lawrence, “[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.” Id. at 591. It is worth noting here that the C.A.A.F. has declined to grant review of several cases asserting a military right to engage in adultery.

    Before Lawrence, many states had held that there was no constitutionally protected right to engage in sexual intercourse outside of marriage. See e.g., Owens v. States, 352 Md. 663, 683 (Md. 1999). In Owens, the court relied upon Bowers in upholding Maryland’s strict liability statutory rape law. Now that it is clear that the framers’ principal concern was the protection of deviant sexual behavior, and that the states may not infringe upon such important libery interests on moral grounds, why do we not again require mens rea in statutory rape cases?

  6. John O'Connor says:

    Guert:

    I think there is a basis for not requiring mens rea in statutory rape cases even if your analysis about these being morality-based laws is correct. I think the idea is that these laws are designed to protect minors. It will be the rare case indeed where someone is harboring under a mistake of fact and thinks the minor is, say, 30 years old; rather, most cases of a true mistake of factw ill involve the defendant thinking the other party is a year or two over the age limit. The rationale behind the strict liability is that the state’s interest in protecting minors is sufficiently strong that the burden should be on the adult to make really, really sure when they engage in sexual conduct with someone who they think is just over the age limit that they are correct about the age, as the law will place the burden on the adult if he is wrong. Strict liability also recognizes the difficulty of addressing whether a mistake of fact is genuine, as in many cases there will be little to rely on other than the defendant’s own testimony.

    To me, all of this points away from a due process right that requires a government to recognize a mistake of fact defense when the government decides as a policy matter not to include one.