The current version of Article 120 involves four separate statutes: Article 120 (adult sexual offenses), Article 120a (stalking), Article 120b (child sexual offenses), and Article 120c (other sexual misconduct). All except for Article 120a are relatively new; they were enacted as part of the National Defense Authorization Act for Fiscal Year 2012 (discussed here) (see also our Article 120 (2012) category) and they took effect on June 28, 2012.

Among other things, Article 120c prohibits “indecent viewing, visual recording, or broadcasting.” These three offenses involve knowingly and wrongfully viewing, recording, or broadcasting “the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” Article 120c(a).

But the reach of Article 120c(a)(1) is now significantly limited by a published decision from a three-judge panel of the Navy-Marine Corps CCA in United States v. Quick, __ M.J. __, No. 201300341 (N-M. Ct. Crim. App. Oct. 31, 2014) (link to slip op.). Senior Judge Fischer writes for the panel, finding that the offense of indecent viewing requires that an accused actually view the real-life private area of a person. The CCA reverses the appellant’s conviction for merely viewing a recording (made surreptitiously) of another person’s private area, finding that the specification fails to state an offense.

The specification at issue alleged the following as a violation of Article 120c(a)(1):

In that [the appellant], while on active duty, did, at or near San Diego, California, on or about 1 July 2012, knowingly and wrongfully view a visual recording of the private area of Ms. [TR], without her consent and under the circumstances in which she had a reasonable expectation of privacy.

Slip op. at 3 n.3. The recording was made by a Marine Corporal (E-4) and it showed the appellant (a Marine Sergeant; an E-5) and another person simultaneously engaging in sexual acts with TR in the appellant’s barracks room (the appellant was acquitted of rape in connection with this sexual encounter). “During this sexual encounter, [the Corporal] used his smart phone to surreptitiously video record the three [participants] for a few seconds until [the woman] saw what he was doing. After the encounter, [the Corporal] showed the appellant the video recording and, at the appellant’s request [the Corporal] forwarded the video to the appellant.” Slip op. at 2-3.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of conspiring to distribute an indecent visual recording, wrongfully viewing an indecent visual recording, and indecent conduct in violation of Articles 81, 120c, and 134. He was sentenced to confinement for six months, reduction to E-3, and a bad-conduct discharge

Reversing the wrongful viewing conviction, the CCA focuses on the fact that the appellant’s conviction was based on his viewing of a recording rather than of a real-life body part:

The indecent viewing specification at issue alleged that the appellant knowingly and wrongfully viewed “a visual recording of the private area of [the victim], without her consent and under the circumstances in which she had a reasonable expectation of privacy.” Additional Charge Sheet. Importantly, the specification did not allege that the appellant viewed the victim’s “private area.” Rather, it alleged that the appellant viewed “a visual recording of the [victim’s] private area.” (emphasis added). We find this distinction significant because viewing of the “private area” itself, not a visual recording, is the conduct proscribed by the plain language of the statute.

Slip op. at 4 (emphasis in original). The CCA finds the statute unambiguous in its requirement that an accused view the real-life private area of a person, and not merely a recording of the same. Moreover, CCA highlights that the statute addresses recordings separately:

Congress used clear and unambiguous language to expressly proscribe the making of and broadcasting of indecent visual recordings, as such recordings are expressly articulated in the second and third paragraphs of the statute. Consequently, the absence of any similarly clear proscription on the viewing of indecent visual recordings is significant.

Slip op. at 5. Additionally, the CCA notes just how broad a statute prohibiting the mere viewing of an indecent video would be:

Interpreting Article 120c to criminalize the mere viewing of a recording of indecent material would raise serious concerns about the statute’s constitutionality under the First Amendment’s overbreadth doctrine.

Slip op. at 6. Ultimately, the CCA finds “no legal support to apply the expansive reading to the plain language of Article 120c that the Government advocates for here.” Slip op. at 6. This is a major ruling that significantly (and rightly, I think) narrows the reach of Article 120c(a)(1).

But the CCA isn’t done with its consideration of Article 120c just yet. The opinion also addressed the appellant’s conviction for indecent conduct in violation of Article 134. However, the CCA affirms that conviction, rejecting a preemption challenge and an as-applied constitutional challenge.

For the preemption challenge, the CCA explains that:

The appellant argues that once Congress enacted Article 120c, indecent conduct was no longer an offense because it is not listed as a specific offense under the 2012 edition of the UCMJ and, thus, “Congress did not intend to criminalize private, consensual, group sex under the 2012 UCMJ.” Appellant’s Brief of 27 Jan 2014 at 58.

Slip op. at 8. The court rejects this argument with the following conclusion:

Because Article 120c was only “intended to criminalize non-consensual sexual misconduct that ordinarily subjects an accused to sex offender registration” and Congress did not enact an Article criminalizing indecent acts in the 2012 edition of the Manual, we find this offense properly charged under Article 134.

Slip op. at 8 (quoting Manual for Courts-Martial (2012 ed.), App. 23 at A23-16). The CCA’s quotation of the analysis section in the Manual for Courts-Martial is troubling, as the Manual clearly disclaims that analysis as nothing more than non-binding commentary. See Manual for Courts-Martial (2012 ed.), Part I, ¶ 4 (discussion). Moreover, I’m not sure how the Joint Service Committee determined that this was the intent of Congress in enacting Article 120c. I haven’t gone back to check all of the floor discussions about the FY12 NDAA, but I do know that the language creating Article 120c originated in the Senate, that the Senate Armed Services Committee sent the original bill to the full Senate without a written report, and that the final legislation was the product of a conference committee. So even if there was some floor discussion about Article 120c, I doubt that it’s definitive (or even particularly persuasive).

Notably, the Air Force CCA recently reached a different conclusion in the area of child sex offenses when it affirmed the dismissal of an Article 134 charge involving a sexual activity with a minor on preemption grounds, finding that “Congress intended for Article 120b, UCMJ, to be a comprehensive statute to address sexual misconduct with children.” United States v. Long, No. 2014-02, order at 6 (A.F. Ct. Crim. App. July 2, 2014) (discussed here).

For the as-applied constitutional challenge, the CCA finds that “the appellant’s argument that this was a wholly private exchange without aggravating factors is untenable.” Slip op. at 9. The court explains:

Assuming arguendo that we accept the appellant’s underlying premise that the sexual encounter between the appellant, TR, and JM was consensual, this was not a wholly private and discreet sexual liaison. Legally sufficient evidence was adduced at trial that this conduct was prejudicial to good order and discipline and service discrediting. The sexual activity took place in an unlocked barracks room and two other service members were present during at least a portion of the sexual encounter. Moreover, one of the room’s windows was left open throughout the encounter and Cpl H video recorded the conduct through the open window.

Slip op. at 9. The CCA also rejects the appellant’s argument that the military judge was required to instruct the members on the Marcum factors, based on the same facts. Slip op. at 10. See also United States v. Castellano, 72 M.J. 217 (C.A.A.F. 2013) (CAAFlog case page).

The NMCCA remands for a rehearing on the sentence.

8 Responses to “A significant published decision from the NMCCA interpreting Article 120c (2012)”

  1. Scott says:

    I’ve litigated the preemption issue regarding using Art 134 to “resurrect” the repealed Art 120 offense of “Indecent Conduct” twice at the trial level.  One MJ dismissed the specification and another did not.
     
    In addition to the apparent Congressional intent of expressly repealing Indecent Conduct from Article 120, there is a notice issue for the same reason.  It is somewhat harsh to repeal a criminal prohibition and then say: “surprise, it’s still illegal.”
     
    120c also seems to delineate specific, more narrow offenses, all under the general category of “visually indecent sexual misconduct.”  Reverting to the much boarder “Indecent Conduct” standard seems to make these more narrow delineations somewhat moot.
     
    According to this prior post: http://www.caaflog.com/2013/04/20/notes-from-the-2013-code-committee-meeting/, Judge Ryan expressed similar concerns at the 2013 JSC Meeting, wondering “if Congress didn’t include this offense by an express omission from the newest iteration of Article 120.”

  2. scott says:

    *Last sentence should read “if Congress didn’t PRECLUDE this offense by an express omission from the newest iteration of Article 120.”

  3. RY says:

    I’ve raised the same Art 134 preemption argument.  MJs like to dodge dismissals though and always seem to error on side of Gov’t can charge anything.  In the straight Art 134 cases, client ended up with an acquittal on that so there is no appellate issue to resolve. 
     
    I’ve also applied the argument though to Art 133 where it was conduct unbecoming to engage in threesome or foursome.  It created a very interesting argument about fair notice of what was criminal and how Marcum may apply.  In the end we got some very favorable instructions and an acquittal in both cases (one before MJ and one before members). 

  4. stewie says:

    I don’t think there’s an issue with charging indecent conduct as a 134. Yes, they removed it as a delineated section under 134 and they didn’t put it into 120, that’s not the same thing as saying no indecent act can ever be charged under the general article. 134 is pretty darn broad, and if an indecent act is PGOD or SD, then it’s a violation of clause 1 or 2.  At any rate, the issue could be solved by simply bringing indecent acts back into 134 (I don’t think it belongs in 120).  I suspect one of those two things is going to happen sooner or later.

  5. Scott says:

    RY, you need to stop getting acquittals on these cases so we can get more case law.

  6. k fischer says:

    So, does anyone know how the 3 specs of rape made it past a 32?  Was there a lower enlisted second complaining witness, or was the fraternization charge because Sgt Quick had Pfc H’s sloppy seconds?
     
    US v. Quick sounds a lot like the facts of this case.  
     
    Here is a PSA to all male students, Servicemembers and athletes:  If you are into women who go to the barracks, dorms, or hotel rooms and engage in intercourse with young men whom they have never met, then be prepared to lawyer up after you engage them.  Go to church, read your bible, and save yourself for the right woman, and you significantly reduce the chances you will be a victim of a false allegation.

  7. RKincaid3 (RK3PO) says:

    I love this opinion—this court GETS IT!  Apply the plain language and quite trying to save bad, aggressive, insipid and abusive prosecutorial discretion. 
     
    Even the SCOTUS is recognizing the absurdity of abusive prosecutorial discretion that distorts the plain language of a statute (regardless of how stupid the plain language of the statute is, as in the case of Art 120).  Consider the SCOTUSs response, below, to an utterly absurd prosecution and the discretion of the prosecutor pursuing it earlier this week at the oral arguments in the case of Yates v. U.S., as reported by Amy Howe, of SCOTUSblog.

    Although Badalamenti’s time at the lectern was certainly no picnic, Assistant to the Solicitor General Roman Martinez encountered even more skepticism during his thirty minutes of oral argument, as Justice after Justice voiced concerns about the potentially sweeping reach of the government’s interpretation of the statute. Justice Antonin Scalia was Martinez’s main antagonist, unleashing a barrage of questions and comments that removed any doubt about where his sympathies lay. He complained that, under the statute, Yates had faced a maximum sentence of up to twenty years. What federal prosecutors, he asked Martinez, have this kind of discretion in choosing what charges to bring? Referring to last Term’s Bond v. United States, in which a Pennsylvania woman had been charged with violating the federal laws implementing an international chemical weapons treaty after she tried unsuccessfully to poison her husband’s lover, Justice Scalia asked Martinez whether the prosecutor in this (Florida) case was “the same guy” as in Bond. “What kind of mad prosecutor,” Scalia continued, “would ask for twenty years” in prison for destroying fish?
    Justice Ruth Bader Ginsburg joined the fray, asking whether the Department of Justice gives federal prosecutors any guidance on what charges they should bring in a case like this. A similar statute, carrying only a five-year maximum sentence, would also apply to Yates’s case, she noted. Martinez’s response – that a manual instructs federal prosecutors to bring the charges that are most severe – drew even more ire from Justice Scalia. He warned ominously that, “if that’s going to be the Department of Justice’s position, we’re going to have to be very careful about interpreting the scope” of laws like these.
    The Chief Justice also appeared skeptical of the government’s argument. He inquired whether the government would bring charges under this particular statute whenever someone destroys a “tangible object.” Martinez assured him that the federal government does not actually file criminal charges in “every fish disposal case.” However, that answer appeared to provide little comfort to the Chief Justice, who shot back that the important thing was that, on its reading, the government could do so. And the possibility of a twenty-year sentence, the Chief Justice suggested, would give government lawyers “extraordinary leverage” to try to get someone to plead guilty. Justice Stephen Breyer would later echo these concerns, telling Martinez that, “if you can’t draw a line, there is a risk of arbitrary or discriminatory enforcement” of the statute.
    Martinez tried to direct the Court’s attention to what he described as some of the weaknesses in Yates’s interpretation. He contended (much as Justice Kagan had earlier) that all of the verbs in the statute do not necessarily apply to all of the nouns, reducing the force of Yates’s argument that a “tangible object” has to be something in which you can make a false entry. After all, he asserted, no one would say that you can mutilate an email or falsify a blank hard drive, both of which would follow from Yates’s reading of the law. But even these efforts only got him so far. Justice Alito acknowledged to Martinez that “you have arguments on all of these points,” but he then admonished Martinez that “you are really asking the Court to swallow something that’s pretty hard to swallow.” “This statute, as you read it,” Justice Alito continued, “is capable of being applied to really trivial matters, and yet each of those would carry a potential penalty of twenty years, and then you go further and say that it is the policy of the Justice Department that this has to be applied in every one of these crazy little cases.”   (Emphasis added)

    And the silly fish case was on the heels of the silly Chemical Weapons ban case in Bond v. U.S. from last term.  The bottom line is that I hope the military courts will start adjudicating and shouting “BS”–like this court did–instead of straining credulity (and defying the concept of limited government power to criminalize the population) by bending over to support a commander’s prosecutorial decision–YES–a COMMANDER’S decision.  Remember, this is NOT the prosecutor’s fault–her is merely an advisor in the miltary system.  The Commander OWNS the charging decisions and the prosecution decisions–even when it is the JAG who gets stupifyingly creative with the charge sheet.
     
    We need many more military court decisions like this.  We surely do.  Then the UCMJ may one day truly become a justice system in more than name only.
     
     

  8. RKincaid3 (RK3PO) says:

    k fischer:  you asked:

    So, does anyone know how the 3 specs of rape made it past a 32?

    Likely answer:

    No independent judgment of the facts is allowed–all that matters is the outcome.  Also known as congressional UCI over the careers of those making the decisions to prosecute.