“Wrongdoing must be conscious to be criminal,” reiterated the Supreme Court in Elonis v. United States, 135 S. Ct. 2001, 2009 (2015), and military lawers took note. CAAF grappled with the mental state – the mens rea – required to violate the UCMJ in three cases in 2016.
But in 2017 the court addressed it again, issuing a decision that is likely to be a significant and lasting precedent on the issue. That makes mens rea the #8 Military Justice Story of 2017.
Things began with Anthony Elonis, who posted seemingly-threatening comments to his social media account and was indicted for transmitting threats in violation of 18 U.S.C. § 875(c). Elonis claimed he had no criminal intent, and he moved to dismiss the indictment because it didn’t allege that he intended to threaten anyone. The District Court denied the motion after concluding that Elonis didn’t need to have the intent to threaten; he need only have intended to make the communications themselves. The District Court also denied Elonis’ request to instruct the jury that it had to find that he intended to threaten in order to find him guilty, and instead instructed the jury that it could convict Elonis if it found that a reasonable person making the statement would expect the listener to take it as a threat. Elonis was convicted.
The Supreme Court didn’t reverse Elonis’ convictions, but it did find that the jury instruction was erroneous. Explaining that predicating criminal liability on what a reasonable person might think without reference to the accused’s state of mind is a negligence standard, the Court concluded that the statute requires more than mere negligence because “federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” 135 S. Ct. at 2012. It’s not that Congress can’t criminalize negligence; it just didn’t criminalize negligence in this context.
Elonis prompted similar challenges to court-martial convictions, and CAAF issued three opinions in 2016 that addressed mens rea in the context of violation of an order, violation of Article 134, and abuse of authority.
First, in United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page), CAAF 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. CAAF rejected the Army CCA’s conclusion that the order was a strict liability offense (where mens rea doesn’t matter), and applied Elonis to hold that Gifford must have acted at least recklessly. CAAF then remanded the case to the Army CCA for further review, and Gifford’s conviction was affirmed when the CCA determined that he “provided alcohol to underage individuals for the purpose of consumption while consciously disregarding the known risk that those individuals were under twenty-one years old.” United States v. Gifford, No. 20120545, 2016 CCA LEXIS 271, at *4 (A. Ct. Crim. App. Apr. 28, 2016), rev. denied, 75 M.J. 405 (C.A.A.F. Jul. 25, 2016).
Next, in United States v. Rapert, 75 M.J. 164 (C.A.A.F. Mar. 18, 2016) (CAAFlog case page), CAAF held that wrongfulness is a mens rea element for an offense under Article 134. Rapert was charged with communicating a threat against President Obama for offensive comments he made at an election-night party in 2012. Somewhat like Elonis, Rapert claimed his comments were not intended as threats. Unlike Elonis, Rapert did not litigate the issue of mens rea at trial. That mattered. CAAF determined that communicating a threat in violation of Article 134 – as enumerated by the President – includes the element that the communication was wrongful, and that element “is properly understood to reference the accused’s subjective intent.” 75 M.J. at 169. It then found “no clear evidence” that the military judge (Rapert elected trial by military judge alone) applied any different standard, and so affirmed the conviction. 75 M.J. at 170. But the court was deeply divided, with two judges dissenting from the conclusion that the term wrongful adds a mens rea element (and instead finding that the communication of the threat must be at least reckless).
Finally, in United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016), cert denied, 137 S. Ct. 248 (Oct. 3, 2016) (CAAFlog case page), CAAF addressed the military-specific offense of maltreatment in violation of Article 93. Explaining that “the essence of the offense is abuse of authority,” 75 M.J. at 280, CAAF concluded that maltreatment is a general intent crime (where an accused need only know certain facts to be guilty), and affirmed the conviction.
Like the convictions in Gifford, Rapert, and Caldwell, the convictions in Elonis were ultimately affirmed. The Court of Appeals found any error to be harmless because “the record contains overwhelming evidence demonstrating beyond a reasonable doubt that Elonis knew the threatening nature of his communications. United States v. Elonis, 841 F.3d 589, 598 (3d Cir. 2016), cert. denied, __ S. Ct. __ (Oct. 2, 2017).
But things were different in 2017.
CAAF granted review in United States v. Haverty, 76 M.J. 199 (C.A.A.F. Apr. 25, 2017) (CAAFlog case page), three months after it decided Gifford. Gifford provided alcohol to minors in violation of an order. Haverty was accused of hazing – also an orders violation – by wrongfully requiring a subordinate to consume alcohol. Neither challenged the mens rea required to commit the offense at trial.
CAAF specified an issue for review in Haverty that gave the appearance of a mundane Gifford trailer:
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.
But CAAF didn’t treat Haverty as a Gifford trailer. Instead, the court returned to first principles, concluded that recklessness is the minimum mens rea required to commit the offense, and reversed Haverty’s conviction.
Judge Ohlson wrote for the court in Haverty (having also written for the court in Gifford, Rapert, and Caldwell). His opinion began with a restatement of four principles of law:
[First,] the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” . . .
[Second,] silence in a criminal statute regarding a mens rea requirement does not necessarily prevent such a requirement from being inferred. . . .
[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. . .
[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.”
76 M.J. at 203-204. Then, considering the specific order at issue, Judge Ohlson concluded that recklessness is the minimum mens rea:
[T]he 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.
76 M.J. at 207. But “the military judge did not instruct the panel that it needed to find any mens rea at all.” 76 M.J. at 208. This narrowly won Haverty reversal under the plain error standard, at least in part because Haverty “contested the issue of intent in this case.” Id. CAAF’s opinion was unanimous on everything except the decision to reverse, with Judge Stucky dissenting from only this last part of the decision because he found that Haverty’s “conduct was not only reckless, but also purposeful.” 76 M.J. at 209 (Stucky, J. dissenting).
The deliberate thoroughness of Judge Ohlson’s opinion for the court in Haverty is a good indication that CAAF intends it to be a significant precedent, and subsequent developments support that view. In August, CAAF granted review of an issue challenging a conviction of negligent dereliction of duty with reference to Haverty. And in May CAAF remanded a case for consideration in light of Haverty after summarily rejecting the Army CCA’s published opinion that held that the Article 134 prohibition on disorders and neglects states a negligence standard. United States v. Tucker, 76 M.J. 257 (C.A.A.F. May 23, 2017) (CAAFlog case page).
There will be more cases challenging the mens rea required to commit offenses under the UCMJ. But the seminal nature of CAAF’s decision in Haverty makes mens rea our #8 Military Justice Story of 2017.