CAAF heard oral argument in United States v. King, No. 11-0583/NA, on Monday 12 December. The case questions whether indecent language amounts to indecent conduct in violation of Article 120(k) (“indecent acts”).
The appellant’s counsel began his argument by setting out two reasons why the court should answer the issue in the negative and find that the specification at issue failed to state an offense. First, he argued that the definitions of “indecent conduct” and “indecent liberty” make this plan. Second, he argued that legislative history reveals that the offense of indecent acts was never intended to criminalize indecent language. Both of these arguments boil down to a parsing of the language of the text of Article 120(t)(11), which states:
The term “indecent liberty” means indecent conduct, but physical conduct is not required. . . . An indecent liberty may consist of communication of indecent language so long as the communication is made in the physical presence of the child.
The court was immediately skeptical, asking why the definition of “indecent liberty” matters when the appellant was charged with “indecent conduct” (which has its own definition that lacks the language about a communication). Appellant’s counsel replied that because words get their meaning from those around them, and the definition of “indecent liberty” states that it “means indecent conduct.”
However, he was then asked if the appellant would prevail if the court looked only at the definition of “indecent conduct” (Article 120(t)(12)), and he replied:
If Congress intended to charge indecent language under indecent conduct all it had to do was move the language about indecent language to indecent conduct, and then indecent language applies to indecent acts and it applies to indecent liberty. But they specifically put it – they bring it over to 134. Argument audio at 6:00.
This took the argument to a discussion about the significance of the enumerated offense of indecent language under Article 134. The appellant’s counsel argued that the current state of the law is significant, and that Congress and the President were working together to parse sexual offenses between (the new) Article 120 and Article 134. This eventually led to discussion about preemption, and whether the President’s enumeration of an offense under 134 can affect a definition created by Congress in another section of the Code.
But the appellant’s argument amounts to a distinction of the term “conduct;” that “conduct” must amount to something more than what the appellant did (which was to ask his step-daughter to show him her breasts during a Skype video chat), and must be more than mere language. He argued “indecent language and indecent conduct are different” (audio at 16:30).
Counsel for the government began his argument with a string of questions from Judge Stucky, first answering that the definition of indecent conduct can include pure language, then explaining that the word “indecent” is the limiting factor in the definition of indecent conduct. He also argued (in response to a question from Judge Ryan about the difference between “walking the walk” vs. “talking the talk”) that conduct is “how a person behaves,” and he compared it to other uses of the term conduct, such as disorderly conduct and conduct unbecoming an officer.
Judge Ryan posed an interesting series of questions (argument audio at 23:00). The President’s discussion to Article 134 states that it includes offenses “not specifically covered in any other Article of the Code.” What, she asked, should the court do about the enumeration of indecent language under Article 134 – how can it exist there if it is covered by indecent acts under Article 120(k). The government counsel answered this question by explaining that there is a different reach of indecent language than of indecent acts. Still, Judge Ryan seemed unwilling to apply Article 120(k) in this situation when there is an enumerated 134 offense that appears to be a better fit.
This reminds me of a segment from the oral argument of Fosler where there was a lot of discussion (led, I think, by Judge Ryan) about the limited significance of the President’s discussions in the manual. I really expected someone to say simply that indecent language under Article 134 is a lesser-included offense of indecent conduct under Article 120(k), but obviously that’s not right…
Ultimately, the government’s argument tracks the language of the N-MCCA’s opinion, that characterized the appellant’s actions as a “course of conduct designed to result in his 13-year-old stepdaughter’s exposure of her breasts.”