In United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008) (link to slip op.), a divided CAAF concluded that the defense of mistake of fact as to age does not apply to a charge of non-forcible sodomy with a child under the age of 16 in violation of Article 125 (of note, Article 125 was amended by section 1707 of the FY14 NDAA, eliminating non-forcible sodomy as an offense). But Congress has long provided a statutory defense of mistake of fact as to age in a prosecution for certain sexual offenses with a child in violation of Article 120, enacting the first such defense in Section 1113 of the National Defense Authorization Act for 1996, 110 Stat. 186, 462 (1996). Such a defense provides that a service member accused of a sexual act with a child under the age of 16 is not guilty if the accused reasonably (but wrongly) believed that the child was at least 16 and the child was in fact at least 12.

This creates the possibility that a service member who commits sexual activity with a child under the age of 16 while under the reasonable but mistaken belief that the child is over 16 may be charged with an offense under Article 120 for which there is a defense of mistake, with an offense under Article 125 for which there isn’t a defense of mistake, or with both.

It’s both charges in the ongoing Army court-martial of Private Hernandez: sexual assault of a child, sexual abuse of a child, and sodomy with a child in violation of Articles 120b (2012) and 125. The case is ongoing because the Army CCA has now issued two opinions on a Government petition for extraordinary relief, first denying the petition in an unpublished summary disposition by a three-judge panel, and then granting the petition in the form of a writ of prohibition in an en banc published opinion. United States v. Gross, Military Judge, and Hernandez, Real Party in Interest, No. 20140293 (A. Ct. Crim. App. Jun. 5, 2014) (per curiam) (Hernandez I) (link to unpub. op.), rev’d on recon. en banc, 73 M.J. 864, (A. Ct. Crim. App. Aug. 28, 2014) (Hernandez II) (link to slip op.).

At issue is the action of the military judge on the accused’s efforts to have the defense of mistake of fact as to age applied to the sodomy charge, despite CAAF’s opinion in Wilson.

In advance of trial the accused moved that the judge agree to instruct any panel of members on the defense, but the judge refused citing Wilson. The accused then elected trial by judge alone. After hearing the evidence, the judge acquitted the accused of the Article 120b offenses, but he did not make any finding regarding the Article 125 offense. He then said:

It should be obvious to everyone that I did not enter a finding as to Charge II and its Specification. Regarding Charge I, I find that the defense proved by a preponderance of the evidence the defense of mistake of fact as to age; that is why I found the accused not guilty.

I’ve determined to reconsider my ruling as to the defense’s motion that mistake of fact as to age should apply to Charge II and its Specification. I have determined that [it] does apply and I find that the defense proved the defense of mistake of fact as to age by a preponderance of the evidence.

I find that the government proved the elements of sodomy beyond a reasonable doubt, but as I said, the defense proved the defense of mistake of fact by a preponderance of the evidence. I am prepared to announce a finding of not guilty to Charge II and its Specification; however, before I do that, I will allow the government time to file an extraordinary writ challenging my ruling on the applicability of the mistake of fact with regards to sodomy.

Hernandez II, __ M.J. at __, slip op. at 2-3. The Government took the judge’s invitation. But a three-judge panel of the CCA, composed of Judges Cook, Campanella, and Haight, issued a per curiam opinion rejecting the Government’s petition, specifically finding that the Government failed to show that a writ was appropriate under the circumstances. The court noted the judge’s failure to either acquit or convict the accused, and found that “at worst, this is a request for an impermissible advisory opinion, and, at best, it is a premature request for our appellate review.” Hernandez I, slip op. at 3.

So the Government sought reconsideration en banc, and the whole CCA reverses the panel. Dramatically, the en banc opinion is authored by Judge Haight and is joined in by the other two judges who were part of the three-judge panel. Moreover, while those three judges found the Government’s appropriateness argument insufficient when reviewing it as a panel, as part of the en banc court they conclude that “the government has shown that issuance of a writ is appropriate under the unique facts of this case.” Hernandez II, __ M.J. at __, slip op. at 6 (emphasis added).

The court’s appropriateness analysis notes:

[A] panel of this court initially declined to exercise that discretion because of the unusual procedural posture of a judge declining to enter findings. Upon reconsideration en banc, this court now exercises its discretion to prohibit the military judge from “overrid[ing] Congress’ policy decision, articulated in a statute, as to what behavior should be prohibited.” United States v. Nerad, 69 M.J. 138, 140 (C.A.A.F. 2010) (quoting United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 (2001)); see also Badaracco v. Comm’r of Internal Revenue, 464 U.S. 386, 398 (1984) (“Courts are not authorized to rewrite a statute because they might deem its effects susceptible of improvement.”).

Our superior court has sanctioned issuance of a writ to “confine an inferior court to a lawful exercise of its prescribed jurisdiction.” Labella, 15 M.J. at 229 (quoting Dettinger v. United States, 7 M.J. 216, 220 (C.M.A. 1979)). However, where a military judge’s decision is within his discretion, the decision “must amount to more than even gross error; it must amount to a judicial usurpation of power, or be characteristic of an erroneous practice that is likely to recur.” Id. (internal quotation marks and citations omitted). Although CAAF has not specifically sanctioned issuance of a writ where a military judge refuses to “abide by controlling precedent,” other courts have approved the appropriateness of a writ under such circumstances. Higdon, 638 F.3d at 246; see also Wexler, 31 F.3d at 129. As we held above, the military judge’s action in applying the mistake of fact as to age defense to the offense of sodomy with a child under the age of 16 was not a decision within his authority to make. Thus it equates to a judicial usurpation of power.

Hernandez II, __ M.J. at __, slip op. at 6. A somewhat ironic footnote adds:

This opinion involves a situation where the military judge acted outside his authority and in contravention of controlling precedent by our superior court. This opinion should not be read as an encouragement to military judges to decline to decide issues within their authority or to countenance procedural situations like this in the hopes that this court will decide issues for them as the trial progresses.

Hernandez II, __ M.J. at __, slip op. at 6, n.5.

The court’s analysis of the substantive issue is worth consideration:

The military judge based his ruling upon the fact that Article 120 has been amended after Wilson and upon the concept that “ambiguity should inure to the benefit of the accused.” First, we readily reject any notion that Article 120b (Rape and Sexual Assault of a Child) somehow preempts or repeals by implication Article 125 (Sodomy). Second, there is no ambiguity of meaning or definition; rather, a defense applies to one offense, but does not to another. A difference in application of defenses to overlapping misconduct, e.g., the defenses of marriage or consent, is neither unheard of nor legally infirm.2 Moreover, as recently reminded by our superior court, we have “no license to generate a statutory conflict where none exists. . . .” United States v. McPherson, __ M.J. __, slip op. at 7 (C.A.A.F. 21 Aug. 2014). However appealing the principles of lenity may be to the military judge in this case, that very argument, as espoused by Judge Baker in his dissent to Wilson, was rejected by the majority. 66 M.J. at 51-52 (Baker, J., dissenting). Both the military judge and this court are bound by that rejection.

Hernandez II, __ M.J. at __, slip op. at 5. I think the Army court’s rejection of the argument that Article 120b (in which Congress established a specific and detailed statutory framework for prosecuting child sex offenses) affects Article 125 (an old and general statute that the President refined in the MCM pursuant to his Article 56 authority to set maximum punishments) is in conflict with the Air Force CCA’s recent decision in United States v. Long, No. 2014-02 (A. F. Ct. Crim. App. Jul. 2, 2014) (discussed here), where that court rejected a Government interlocutory appeal after concluding “that Congress intended for Article 120b, UCMJ, to be a comprehensive statute to address sexual misconduct with children.” Long, order at 6.

Because it only takes two votes to grant a petition for review at CAAF (See Eugene R. Fidell, Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces 45-46 (2010)), I think there’s a good possibility that CAAF will revisit its decision in Wilson in the wake of the enactment of Article 120b. But the opinion of the court in Wilson was authored by Judge Ryan and joined in by Judges Erdmann and Stucky. Unless one of these three is ready to reach a different conclusion about the strict liability nature of Article 125, the law won’t change and an accused may still face the dilemma that Private Hernandez now faces.

9 Responses to “The Army judiciary wrestles with mistake of fact as to age as a defense to sodomy with a child in violation of Article 125”

  1. stewie says:

    Unfortunately this goes to this society’s weird belief that sodomy is “worse” than intercourse. Thus we have all these old laws in both military and civilian law that penalizes oral and anal sex worse than “regular” intercourse. The moral apparently is, sleep with a young girl (and possibly get her pregnant) but don’t do anything else that involves another entryway.

  2. Christian Deichert says:

    I was wondering when this would hit CAAFlog.  I wasn’t tracking the conflict between this en ban decision and Long.  I know GAD is seeking an appeal to CAAF; we’ll see how this one goes.

  3. Christian Deichert says:

    Derp.  DAD, not GAD.

  4. Lieber says:

    I don’t think society believes that in the slightest (not for the last 40 years anyway)…just the military.

  5. stewie says:

    Well, parts of society do. Many cases where oral sex leads to mandatory minimums that intercourse does not, particularly with children.  We just a few years ago got rid of the last of the sodomy laws, many of which applied, technically, to both heterosexuals and homosexuals.  Probably more a “South” thing, but it’s not just a military thing.

  6. RY says:

    I raised this at the trial level. I argued it as a DP issue.  Client has a right to know what is criminal at time of the offense so as to avoid offending the law if that is his desire.  MOF does not apply per Wilson because CAAF in a split decision said silence by Congress meant no MOF defense.  Art 125 is a general statute covering unnatural sex.  Congress in amending Art 120 a few times now has created an extensive statute to address all forms of sex offenses.  In fact, 2012 version specifically provides for anal sex as a sexual act for rape and sex assault.  Art 120 makes MOF applicable.  Unlike other cases along these lines, it is usually two very different articles.  See US v. Campbell, for example, where same act could be charged as theft, Art 112a, and false official.  In such cases, there are different types of crimes being committed that offend different principles or values.  Here, Art 120 and Art 125 both specifically cover sexual offenses and Congress was not silent on oral/anal sex having a MOF as to age defense.  
    In short, Amn Snuffy at the time of engaging in the act has a right to know what constitutes an offense. What is an offense necessarily includes what is a defense.  Congress specifically provided MOF is a defense.  So the same sexual act is not a crime under one specific article per Congress, but it is a crime under a general article because CAAF wasn’t sure what congress intended?  It is the same act and both statutes intend to prohibit sex acts.  I argued that the specific article 120 must be applied.  MJ didn’t agree.
    In my case, the Amn was convicted but received 6 months, no discharge so there was no appeal as Art 69b has basically been worthless in the AF.  There is definitely a principle here that needs to be addressed.  
    Interestingly, the concept grew on my judge who actually used the relationship of Art 125 and Art 120 against me later.  Gov’t Charged anal sodomy but trial evidence showed it was vaginal.  MJ decided (based on my argument in previous case discussed above), that Art 120 can be LIO of Art 125, forget the fact that it is a fatal variance to go from anal to vaginal in the charge, in my opinion.  Didn’t matter…that was an acquittal. 

  7. Lieber says:

    well Southerners make up approximately 30% of Americans and even then most Southerners live in large metropolitan areas that are more liberal than the rest of the south.  reality is that the military (especially career members) have a disproportionate share of rural Southerners.  then throw in religion.  no, I don’t think we represent the majority of Americans very well at all.

  8. stewie says:

    Havent done a survey, but suspect state laws dealing with minors and oral sex v. intercourse treat them differently in other parts of the country too, specifically the midwest and mountain west.

  9. Defense Hack says:

    I once had a case nearly identical in Wilson, wherein the accused had a reasonable mistake of fact as to age. The same behavior was charged as both Article 125 and 120, which unfortunately, the MJ did not believe was multiplicious.With that said, TCs are now told to charge in the alternative in order to guarantee a conviction, and a single act of oral sex will get charged as both a violation of 120b and 125. My tiny brain hasn’t figured out a way to solve this from the Defense perspective, and it seems like despite Congress’ intent to provide a defense in 120b cases, the strict liability standard of 125 continues.