On Monday 12 December CAAF will hear oral argument in United States v. King, No. 11-0583/NA. The issue presented is:
I. Whether Specification 5 of Charge I alleging an indecent act under Article 120(k), UCMJ, failed to state an offense where the indecent act alleged was appellant orally requesting during a Skype internet conversation that a child under the age of 16 years expose her breasts so that he could view them utilizing the web camera.
The appellant was convicted by members with enlisted representation sitting as a general court-martial, contrary to his pleas, of one specification of indecent conduct and one specification of (on divers occasions) engaging in a sexual act with a child under the age of 16 years, in violation of Article 120, UCMJ. He was sentenced to confinement for 3 years, reduction to E-1, and a BCD.
The N-MCCA affirmed in a split, unpublished opinion, and addressed the issue granted by CAAF, finding that:
the appellant in this case engaged in a course of conduct designed to result in his 13-year-old stepdaughter’s exposure of her breasts. . . . After examining all the circumstances, including the age of the victim, the nature of the request, and the relationship of the parties, we find that the appellant’s behavior was indecent in that it constituted “that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.” Art. 120(t)(12), UCMJ. We conclude that the appellant’s indecent conduct satisfies the statutory definition of an indecent act. United States v. King, No. 201000406, slip op. at 5-6 (N-M Ct. Crim. App, May 5, 2011).
In a dissenting opinion, Senior Judge Booker wrote that “Any dispassionate reading of the record shows that the appellant communicated indecent language to GF during the course of the conversations alleged in this specification.” King, No. 201000406, slip op. at 6-7. Senior Judge Booker also questioned the legal and factual sufficiency of the proof on this issue.
The appellant’s brief begins with the fact that the accused moved for dismissal of the specification at trial on the basis that it fails to state an offense. The specification reads:
In that Builder Third Class Michael D. King Jr., U.S. Navy, Naval Mobile Construction Battalion Eleven, Gulfport, Mississippi, on active duty, did, at or near the Al Basra Oil Terminal, Iraq, on or about 27 February 2009, wrongfully commit indecent conduct, to wit: by requesting Ms. GF, a female under 16 years of age, to expose her breasts during a SKYPE internet conversation so that he could view them utilizing the web camera.
The brief then sets out two arguments: (1) that “language” is not “conduct,” and (in the alternative) (2) that the specification fails to allege two of the four elements of the offense.
The first argument turns on the historic military practice of charging “indecent acts” separate from “indecent language.” With the enactment of the new Article 120, Congress added the term “indecent conduct” to the definition of “indecent act.” The appellant argues that based on this history, Congress did not intend to subsume “indecent language” into “indecent act.” If this type of action by Congress sounds confusingly familiar, see my blog post: The amazing (new) Article 120. The appellant cites the rule of lenity for this proposition, which states than an ambiguous rule should be construed in favor of the accused. See, for example, United States v. Beaty, 70 M.J. 39, 44-45 (CAAF, 2011).
The appellant also notes that “indecent language” is still an enumerated offense under Article 134.
The appellant’s alternative argument is that an indecent act under 120(k) requires four elements, and not just the two listed in the MCM (see Part IV, paragraph 45.b.(11)). The two listed elements are: (1) that the accused engaged in certain conduct; and (2) that the conduct was indecent conduct. The appellant argues for the addition of: (3) that the conduct occurred without the consent of the other person; and (4) that the conduct violated the other person’s reasonable expectation of privacy.
The government’s brief argues that “’conduct’ means how a person behaves” and the appellant’s request that GF expose her breasts was part of a course of conduct (that included sexual intercourse between the appellant and GF). It also cites numerous examples where CAAF found the word “conduct” to include language.
The government also argues that the statute is not ambiguous, therefore the rule of lenity does not apply. Significantly, the government argues that the appellant’s two additional elements describe one type of indecent conduct, but that the statute was intended by Congress to encompass more, and that it is inappropriate for the court to defeat the obvious purpose of the legislation by imputing these elements.
Finally, the government attacks the appellant’s reliance on an enumerated offense under Article 134, calling this position a “reverse preemption doctrine” (where the existence of an enumerated 134 offense serves to restrict another Article).
CAAF’s review will be de novo. I anticipate the oral argument will focus on the Congressional intent in drafting the statute and the meaning of “conduct.”