When the appellant in United States v. King, No. 11-0583/NA, 71 M.J. 50 (C.A.A.F. Mar. 13, 2012) (CAAFlog case page) (link to slip op.), deployed he kept in touch with his wife and her 14 year old daughter via Skype. Skype automatically saves chat histories, and King’s wife discovered records of sexually explicit chats between King and her daughter. She asked her daughter about the chats, and the girl showed her a “sex toy” that King had purchased for her, and claimed that King had abused her, including having sexual intercourse with her. An investigation ensued, during which NCIS recorded a Skype chat between King and the girl in which he asked her to expose her breasts to him. King was subsequently convicted by members, contrary to his pleas, of indecent conduct and aggravated sexual assault, both in violation of Article 120. He was sentenced to confinement for three years, reduction to E-1, and a bad-conduct discharge.

At trial, at the CCA, and at CAAF, the appellant complained that the specification alleging indecent conduct fails to state an offense, arguing that his request for the girl to expose her breasts was a communication that does not meet the definition of an indecent act. The specification read:

In that . . . King . . . did, at or near the Al Basra Oil Terminal, Iraq, on or about 27 February 2009, wrongfully commit indecent conduct, to wit: by requesting [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.

Of note, this issue was raised at the CCA pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A., 1982), which means that it was raised at the insistence of the appellant.

The trial military judge denied the motion to dismiss, and the CCA found 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… we find that the appellant’s behavior was indecent … 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). CAAF granted review to determine:

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.

Writing for a unanimous court, Judge Erdmann begins his short analysis noting that the “court has held that ‘language’ can be, or be part of, ‘conduct’ in a particular case, so we begin here with an analysis of the specification and the facts, which leads us to the conclusion that at a minimum, the facts support an attempted indecent act.” United States v. King, No. 11-0583/NA, Slip op. at 5-6 (C.A.A.F., 2012). Determining that the appellant’s language at least amounted to attempted conduct (“but for his stepdaughter’s refusal to lift her shirt, King would have viewed his stepdaughter’s breasts using the webcam”), the opinion then finds that this was attempted indecent conduct “under the circumstances presented in this case.” Id., Slip op. at 7.

If this seems odd, you’re not alone. The opinion makes short work of the granted issue of the sufficiency of the specification (“language can be, or be part of, conduct”), and then spontaneously becomes a discussion of the legal sufficiency of the evidence. But that issue wasn’t granted or briefed, and Judge Erdmann is honest about the reality of the situation:

Under other circumstances we might request further briefing. However, we are dealing with a situation in which we can affirm a finding of attempt that would not change the sentencing landscape, in a case that involves the application of a statutory provision that has been repealed.

Id., Slip op. at 7-8. In other words, yes there is a problem with the (now repealed) statutory scheme for indecent conduct under Article 120(k), but its just not worth digging into now, or in this case.

Case links:
N-MCCA’s Opinion
Appellant’s brief
Appellee’s (government) brief
Blog post: Argument preview
Oral argument audio
Blog post: Argument recap
CAAF opinion
Blog post: Opinion analysis

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