Mens rea was the #8 Military Justice Story of 2017 in part because in United States v. Tucker, 76 M.J. 257 (C.A.A.F. May 23, 2017) (per curiam) (CAAFlog case page), CAAF explained that the term neglects in Article 134 does not mean negligence, rejecting the published decision of the Army CCA (75 M.J. 872) that found that the term states a negligence standard.

The case involved a guilty plea to two specifications of unlawfully providing alcohol to underage soldiers in violation of Article 134. Tucker admitted that he knew that one of the soldiers was underage, however he didn’t know and did not admit to having had any reason to know that the other soldier was underage. The military judge nevertheless accepted Tucker’s plea after instructing Tucker “that the necessary mens rea requirement for this Article 134, UCMJ, offense was ‘negligence.'” 76 M.J. at 257.

Early this year the Army CCA issued a second decision, again published, and again affirming the conviction on the basis that “the appellant’s admitted mens rea of simple negligence, when combined with the requirement that appellant’s conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces, and his admitted knowledge of the wrongfulness of his actions, sufficiently separates his criminal conduct from otherwise innocent conduct.” United States v. Tucker, 77 M.J. 696, 697 (A. Ct. Crim. App. Mar. 27, 2018) (marks omitted) (link to slip op.). Senior Judge Campanella wrote for the majority of a three-judge panel. Judge Salussolia dissented, asserting that “we are bound to apply a mens rea higher than simple negligence for this offense because nothing in statute or under customs of the service requires otherwise.” 77 M.J. at 707. 

Yesterday, CAAF granted review:

No. 18-0254/AR. U.S. v. Steven M. Tucker. CCA 20150634. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE ARMY COURT ERRED IN HOLDING THAT THE MINIMUM MENS REA REQUIRED UNDER CLAUSES 1 AND 2 OF ARTICLE 134, UCMJ, TO SEPARATE WRONGFUL FROM INNOCENT CONDUCT IS SIMPLE NEGLIGENCE.

Briefs will be filed under Rule 25.

2 Responses to “CAAF to again review whether negligence is a sufficient mens rea for a violation of Article 134, in United States v. Tucker”

  1. stewie says:

    Why would we treat this any different than requiring knowledge of someone being underaged for statutory rape/sex assault?
    (granted, we treat under 12 as a strict liability but there’s a reason for that).
     
    We don’t apply negligence to the above situation, so why would we apply it for a much less serious offense of providing alcohol to a minor?

  2. TC says:

    Knowledge of a child’s age is not required for 120b offenses.  Mistake of fact as to age is an affirmative defense.