A couple of significant unpublished NMCCA decisions Part I: Parental compulsion doesn’t satisfy force element of 2006 version of child rape statute
Over the last month (plus two days), NMCCA has issued several potentially significant unpublished opinions. This post will look at one concerning child rape. A follow-on post will look at another concerning lab reports and confrontation.
The recent case of United States v. Valentin dealt with, among other issues, whether parental compulsion could satisfy the force element for a child rape conviction under the 2006 version of Article 120. United States v. Valentin, No. NMCCA 201000683 (N-M. Ct. Crim. App. May 17, 2012). No, NMCCA held. Senior Judge Payton-O’Brien wrote for a unanimous panel.
The military judge instructed the members that the force element could be satisfied by “constructive force in the form of parental distress or compulsion.” NMCCA held “that the theory of constructive force by parental compulsion is not encompassed in the definition of force under [the 2006 version of] Article 120(t)(5), UCMJ. Despite the lack of defense counsel objection, it was plain error for the military judge to instruct the members that they could find constructive force based on a parental compulsion theory, and . . . the error materially prejudiced the appellant.” Valentin, slip op. at 18.
The court reasoned, in part:
Force under Article 120(t)(5)(C) is defined as, “action to compel submission of another or to overcome or prevent another’s resistance, by . . . physical violence strength, power, or restraint applied to another person, sufficient that the other person could not avoid or escape the sexual conduct.” Finding that “power” describes a physical act and not psychological forces conforms to the canon of statutory construction noscitur a sociis: words are judged by the company they keep. United States v. Martinelli, 62 M.J. 52, 61 (C.A.A.F. 2005). All of the words surrounding “power” in Article 120(t)(5)(C) contemplate physical action. To find that “power” means something other than physical compulsion would make “power” an anomaly in the middle of a list describing other physical acts.
Id., slip op. at 19.
The court found further support for that conclusion in the statute’s legislative history. The court noted that before Article 120 was amended, “a task force was assembled and six options for changing the statute were offered.” Id., slip op. at 20.
The task force ultimately recommended not changing the statute, for a variety of reasons including the belief that a major change to the law from a common law statute would eviscerate the applicability of military appellate court decisions. In the six options presented, some included incorporating the parental compulsion theory of constructive force while other options did not. Ultimately the task force’s recommendation not to change Article 120 was rejected, and the statute was amended without expressly including a theory of constructive force based on parental compulsion.
Id. (internal footnote omitted).
Finally, the court reasoned that the inclusion of a parental compulsion theory in the 2011 version of the child rape statute (Article 120b, which applies to offenses committed on or after 28 June 2012) “indicates that the theory was simply not included in the prior version under which the appellant was convicted.” Id. Accordingly, the court overturned the child rape conviction, but affirmed a conviction to the lesser included offense of aggravated sexual assault of a child who had attained the age of 12 but not the age of 16. The court knocked 1 year, 10 months, and 15 days off of the approved confinement portion of the sentence (which had been 14 years, 10 months, and 15 days) to remedy the erroneous conviction to the greater offense of rape of a child.
The Valentin decision notes that the force element can be satisfied by parental compulsion under both the pre-2006 and 2011 child rape statute, the former as a result of judicial construction and the latter as a result of statutory language. But not under the 2006 version, NMCCA held.
While Article 120b will soon go into effect, the 2006 Article 120(b) will remain with us for quite some time. It will continue to govern child rapes that occurred between 1 October 2007 and 28 June 2012. Since there’s no statute of limitations for that offense, prosecutions under that statute are likely to occur for years to come. When they do, even though it’s unpublished, Valentin may prove to be a significant opinion.