CAAF decided the Army case of United States v. Haverty, 76 M.J. 199, No. 16-0423/AR (CAAFlog case page) (link to slip op.), on Tuesday, April 25, 2017. Considering a single issue that was specified by the court itself, and applying the Supreme Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), CAAF finds that recklessness is the minimum mens rea (mental state) to sustain a conviction of hazing in violation of Army Regulation 200-20 paragraph 4-20. The court reverses the appellant’s conviction of violation of Article 92 for requiring the consumption of excessive amounts of alcohol as an initiation rite of passage.

Judge Ohlson writes for the court, joined by all but Judge Stucky who concurs with the majority’s conclusion on the mens rea issue but dissents from the majority’s finding of prejudice.

Sergeant (E-5) Haverty was convicted of numerous offenses by a general court-martial composed of members with enlisted representation. One offense was violation of Article 92 for hazing by “wrongfully requiring [SPC BB] to consume alcohol.” Slip op. at 5 (quoting instructions). The alcohol consumption occurred while Haverty helped the other soldier prepare for a field exercise, and the order allegedly violated included a sweeping prohibition against conduct that “unnecessarily causes another military member or employee, regardless of Service or rank, to suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful.” Slip op. at 4 (quoting AR 600-20). That language, incidentally, was changed in 2014 and now requires that the conduct be committed “recklessly or intentionally.” AR 600-20 ¶ 4-19.a(1) (available here); a change that incorporates the standard announced in today’s opinion.

But for Haverty the military judge did not instruct the members on any necessary mens rea to violate the hazing order, and the members returned a finding of guilty. The Army CCA considered numerous issues on appeal but did not address the mens rea required to violate this order. CAAF then specified a single issue questioning the adequacy of the judge’s instructions:

Whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for an Article 92, UCMJ, violation of Army Regulation 600-20, which prohibits requiring the consumption of excessive amounts of alcohol as an initiation rite of passage.

Today’s decision is Judge Ohlson’s fourth opinion of the court on mens rea issued since March of last year. The first was United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page), which held that an accused must have acted with at least reckless disregard for the true age of a person to whom he provided alcohol in order to be convicted of violating the order prohibiting providing alcohol to an underage person. The second was United States v. Rapert, 75 M.J. 164 (C.A.A.F. Mar. 18, 2016) (CAAFlog case page), which held that the element of wrongfulness in the Article 134 offense of communicating a threat, as specified by the President, requires proof of an accused’s mens rea. The third was United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016), cert denied, __ S. Ct. __ (Oct. 3, 2016) (CAAFlog case page), which held that there is no scenario where an accused could innocently engage in the kind of conduct prohibited by the general intent military offense of maltreatment.

Yet today’s decision doesn’t begin where those decision ended, but rather starts from basic principles to conclude that violation of a hazing order requires at least that the accused acted recklessly; the same requirement that was added to the order in 2014.

Judge Ohlson begins by outlining three principles of law:

Any analysis of the issue before us must begin from the premise that “[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” . . .

The next important principle is that silence in a criminal statute regarding a mens rea requirement does not necessarily prevent such a requirement from being inferred. . . . If, however, a statute is silent regarding a mens rea requirement, and if a court cannot discern the legislative intent in regard to that statute, then the court will infer a mens rea requirement consistent with the “general rule” cited by the Supreme Court in Elonis. . .

[Third,] when construing an order—a violation of which underlies an Article 92, UCMJ, offense—commanders should be held to the same standard as legislatures when determining whether they intended to create an offense that does not require the government to prove an accused’s mens rea; that is, they must speak with “a clear voice” on the matter. . . .

[Fourth, where the order does not clearly intend to omit mens rea ] we must decide whether the proper level of mens rea that we should infer is “general intent,” “negligently,” “recklessly,” “knowingly,” or “intentionally.” Consistent with the Supreme Court’s ruling in Elonis, in making that determination we read into the statute or regulation “only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct.”

Slip op. at 6-7 (citations omitted). Negligence, however, isn’t really an option because the Supreme Court has “long been reluctant to infer that a negligence standard was intended in criminal statutes.” Slip op. at 8 (quoting Elonis, 135 S. Ct. at 2011). That leaves general intent, recklessly, and greater mental states. Judge Ohlson defines general intent and recklessly as:

“General intent” merely requires that an accused commit an act with knowledge of certain facts. Caldwell, 75 M.J. at 281. As defined in Black’s Law Dictionary, supra note 8, at 931, general intent involves “[t]he intent to perform an act even though the actor does not desire the consequences that result.” . . .

We next turn our attention to “recklessly.” Black’s Law Dictionary, supra note 8, at 1462, defines “recklessly” as follows: “In such a manner that the actor knew that there was a substantial and unjustifiable risk that the social harm the law was designed to prevent would occur and ignored this risk when engaging in the prohibited conduct.”

Slip op. at 8. Greater mental states require no further discussion because CAAF finds that in this case recklessly is adequate.

Considering the regulation at issue, Judge Ohlson explains that the court must infer mens rea for three reasons:

First, although the regulation contains no explicit mens rea, there is no indication that the Secretary of the Army intended hazing to be a strict liability offense. See AR 600-20 para. 4-20.

Second, this Court cannot discern whether the Secretary of the Army intended to have some particular mens rea requirement apply to this regulation.

And third, in light of these first two points, we are obligated to interpret the criminal offense of hazing as including “broadly applicable [mens rea] requirements.” Elonis, 135 S. Ct. at 2009 (internal quotation marks omitted) (citation omitted).

Slip op. at 9.

The Army Appellate Government Division argued to CAAF that general intent was the appropriate mens rea because the regulation “demonstrates the Secretary of the Army’s attempt to eliminate all forms of hazing regardless of whether the individual believed his actions qualified as hazing.” Gov’t Div. Br. at 18 (discussed here). CAAF, however, rejects this argument as failing to adequately separate innocent conduct from criminal conduct:

in regard to the particular regulation at issue here, “general intent” is not a sufficient level of mens rea to separate wrongful conduct from otherwise innocent conduct. See Caldwell, 75 M.J. at 281–82; see also Elonis, 135 S. Ct. at 2010. The elements of “Hazing” under AR 600-20 are as follows: (1) conduct (2) that unnecessarily causes another (3) to suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful. As noted earlier, general intent merely requires “[t]he intent to perform [the actus reus] even though the actor does not desire the consequences that result.” Black’s Law Dictionary, supra note 8, at 931 (emphasis added). Thus, applying the mens rea of general intent to these elements could cause a servicemember to be convicted of hazing if he encourages a new member of his unit to engage in conduct which the servicemember honestly believes is not harmful, but which, objectively, could be considered harmful.

Slip op. at 13 (emphasis in original). In a footnote earlier in the case Judge Ohlson acknowledges that this result is different from the result reached in Caldwell involving maltreatment (which is somewhat similar to hazing), but the difference is based on the fact that maltreatment is a separate Article of the UCMJ and the fact that hazing is not limited to superior-subordinate relationships (while maltreatment is). See slip op. at 9-10, n.10.

CAAF finds that recklessness, however, is an adequate standard of mens rea:

On the other hand, applying the Gifford mens rea template, we conclude that “recklessly” is a sufficient mens rea in this instance. Pursuant to this mens rea requirement, in order for an accused to be convicted under Article 92, UCMJ, for a violation of AR 600-20 para. 4-20, the accused must have consciously disregarded a known risk that his or her conduct would unnecessarily cause another military member or employee to suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful. We deem this standard to be sufficient to separate wrongful conduct from innocent conduct in prosecutions under AR 600-20 para. 4-20.

Slip op. at 14. “Accordingly, the proper legal standard upon which the military judge was obligated to instruct the panel was whether Appellant acted ‘recklessly.'” Slip op. at 15.

Yet that is not the end of the analysis, as Judge Ohlson must also grapple with the fact that the defense did not object to the military judge’s inadequate instruction (and the fact that Elonis hadn’t been decided at the time the instruction was given). In another case this term – United States v. Davis, No. 16-0306/AR (CAAFlog case page) (argued Tuesday, January 10, 2017) – CAAF is considering whether the failure to give an instruction on an affirmative defense may be reviewed for plain error. Perhaps previewing how the court will decide that case, Judge Ohlson finds that:

Because Appellant did not object to the military judge’s failure to instruct the members on a mens rea requirement for the offense of hazing under Article 92, UCMJ, we review this issue for plain error. See United States v. Payne, 73 M.J. 19, 22–23 (C.A.A.F. 2014).

Slip op. at 15. Plain error, however, is based on the law at the time of appeal, and that includes Elonis and Gifford, and so CAAF “hold[s] first that there is error, and second, that the error is clear or obvious.” Slip op. at 15.

The plain error test also requires the appellant (who forfeited the error by failing to object at trial) to prove prejudice, and this is the part where Judge Stucky dissents. Judge Ohlson and the majority find that because intent was contested (with Haverty claiming that he merely offered alcohol to the other soldier), the military judge’s general intent instruction “had an unfair prejudicial impact on the members’ deliberations.” Slip op. at 16. Judge Stucky, however, concludes that there is no prejudice because the result of the trial would have been no different with a proper instruction:

The facts, as thoroughly recounted by the majority, do not establish a reasonable probability that the result would have been different had the members been instructed on the appropriate mens rea. In fact, the opposite is the case. The evidence shows that Appellant’s conduct was not only reckless, but also purposeful. As part of what Appellant himself labeled an “initiation,” he purposefully required SPC BB to consume alcoholic beverages. And he purposefully required her to submit to a trauma assessment, during which he intentionally touched her vaginal area, despite her objections. Therefore, I would affirm his hazing conviction.

Diss. op. at 1.

CAAF reverses the Army CCA’s decision, sets aside Haverty’s conviction for violation of Article 92 and sets aside the sentence, and authorizes a rehearing on the affected charge and the sentence.

Case Links:
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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