Opinion Analysis: Kissing a child’s feet, with a sexual intent, is legally sufficient to sustain a conviction of sexual abuse of a child, in United States v. Rodriguez
CAAF decided the Coast Guard case of United States v. Rodriguez, __ M.J. __, No.18-0350/CG (CAAFlog case page) (link to slip op.), on June 20, 2019. Reviewing a conviction of sexual abuse of a child that was based on the act of kissing the child’s feet, CAAF finds the evidence legally sufficient and affirms the conviction and the decision of the Coast Guard CCA.
Judge Sparks writes for a unanimous court.
CAAF granted review to determine:
Whether United States v. Orben, which established what the government must show to prove intent for indecent liberties under Article 134 (the precursor to Article 120b), applies to the intent element of Article 120b(c), sexual abuse of a child.
There are four major versions of Article 120, UCMJ. The first was in effect from 1951 to 2007 and prohibited rape, which was defined as sexual intercourse by force and without consent. The second was in effect from October 1, 2007, to June 27, 2012, and it fundamentally reformed the prosecution of sex crimes under the UCMJ by codifying 36 separate offenses into the one, far-reaching Article. The third was in effect from June 27, 2012, until December 31, 2018, and it largely restyled the 2007 version by dividing it into Article 120 (for adult sex offenses), 120b (for child sex offenses), and 120c (for other sexual misconduct). Finally, the current version was enacted as part of the Military Justice Act of 2016, it took effect on January 1, 2019, and it largely mirrors the 2012 version.
Rodriguez involves the 2012 version; specifically, Article 120b(c) which defined (and still defines) the offense of sexual abuse of a child as committing a lewd act upon a child. A lewd act is a legal term of art that encompasses a wide variety of activity including any sexual contact. A sexual contact is also a legal term of art that is defined in Article 120 (and incorporated into Article 120b by reference). That definition, however, changed significantly between the 2012 and 2019 versions of Article 120. Under the 2012 version, a sexual contact included any touching of any part of the body if accompanied by a sexual intent:
(2) Sexual contact. The term ‘sexual contact’ means . . .
(B) any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.
Article 120(g)(2) (2012). Congress significantly narrowed the definition in the 2019 version, limiting a sexual contact to:
touching, or causing another person to touch, either directly or through the clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body or an object.
Article 120(g)(2) (2019). Rodriguez, however, involves the broader, 2012 definition.
Boatswain’s Mate Second Class (E-5) Rodriguez was convicted of sexual abuse of a child and adultery in violation of Articles 120b (2012) and 134, and sentenced to reduction to confinement for 18 months, reduction to E-1, and a bad-conduct discharge. Rodriguez’s sexual abuse conviction was of this specification:
In that [Appellant], on active duty, did, at or near Nederland, Texas, on divers occasions, between December 2014 and April 2015, commit a lewd act upon V.G., a child who had not attained the age of 12 years, to wit: kissing V.G.’s feet with his lips, with an intent to arouse and gratify his own sexual desire.
Slip op .at 1-2 (emphasis added). The child and her mother (Rodriguez’s fiancé) both testified that Rodriguez kissed the child’s feet, though “their testimony indicates [Rodriguez] exhibited no outward signs he was kissing V.G.’s feet with an intent to arouse or gratify his sexual desire.” Slip op. at 3. Rather, Rodriguez’s sexual intent was proven by text messages that Rodriguez exchanged with his paramour (who was married to one of his subordinates). In those messages Rodriguez expressed a sexual fetish involving feet and also referenced V.G.
On appeal, Rodriguez challenged the legal sufficiency of the evidence to prove the existence of sexual intent at the time he kissed the child’s feet, characterizing the kissing as “a fatherly, nonsexual” act and the text messages “as pure sexual fantasy.” Slip op. at 3. CAAF, however, is unconvinced.
Rodriguez elected to be tried by a military judge alone, and the military judge made special findings when convicting Rodriguez, including that:
The evidence of intent to arouse and gratify the sexual desire of [Appellant] is demonstrated most significantly through [his] text messages to [Mrs. EJ]. Both preceding and following other sexually explicit text conversations, [Appellant’s] expressing an ability to put another woman’s small foot into his mouth like he does with V.G.’s was compelling evidence of sexual intent when kissing V.G.’s feet. The evidence was further strengthened by additional admissions by [Appellant] that he would pose V.G.’s feet for [Mrs. EJ] for purposes of foreplay and stating that he would like to see [Mrs. EJ] lick V.G.’s feet and suck on his.
United States v. Rodriguez, No. 1450, slip op. at 6 (C.G. Ct. Crim. App. Jun. 27, 2018) (link to slip op.) (marks in original) (quoting record). Writing for the unanimous CAAF, Judge Sparks finds those special findings to be supported by the record:
the military judge’s (1) apparent inference that Appellant was sexually aroused by V.G.’s feet and (2) ultimate conclusion that this arousal sufficiently demonstrated Appellant had a sexual intent when he kissed V.G.’s feet between December 2014 and April 2015 are supported by strong circumstantial evidence contained in the record.
. . .
E.J. was in a sexual relationship with Appellant from December 2014 through April 2015 and provided ample testimony about Appellant, his feet-based sexual fantasies, their relationship, and her personal observations of Appellant kissing V.G.’s feet. Her testimony made clear she believed Appellant was sexually attracted to V.G.’s feet as he was using them as sexual “foreplay.” It was thus reasonable for the military judge to infer Appellant had a specific sexual intent when he kissed V.G.’s feet between December 2014 and April 2015, just as he had a sexual intent when he sent the lewd text messages.
Slip op. at 7-8.
Judge Sparks’ opinion turns on the standard of review for legal sufficiency, which questions only whether any reasonable fact-finder could have found all of the elements proven beyond a reasonable doubt while “drawing every reasonable inference from the evidence of record in favor of the prosecution.” Slip op. at 8 (quoting United States v. Pacheco, 56 M.J. 1, 5 (C.A.A.F. 2001)). With all reasonable inferences favoring the prosecution, the military judge’s special findings (as supported by the record) provide ample support for Rodriguez’s conviction.
The opinion does not, however, turn on United States v. Orben, 28 M.J. 172 (C.M.A. 1989), which involved a conviction of indecent liberties with a child (from the pre-2007 days) for showing the child magazine pictures depicting nudity. The conviction in Orben was affirmed, with the court observing that:
even displaying to a child a nude body on an anatomical chart or pictures of nude aborigines in the National Geographic magazine might constitute taking indecent liberties, if accompanied by behavior and language of an accused which demonstrated his intent to arouse his own sexual passions, those of the child, or both.
28 M.J. at 174-75. Put differently, it wasn’t the images so much as it was the accompanying sexual intent that established the crime in Orben. Judge Sparks observes that CAAF:
initially granted review to determine whether Orben applies to Article 120b(c), UCMJ, sexual abuse of a child. But, we need not make that determination, for, as above, the unremarkable notion that a crime must consist of both a mens rea and an actus reus is deeply rooted in American jurisprudence, and did not, therefore, originate in dicta in Orben.
Slip op. at 5-6. It’s hard to see, however, how Orben stands for anything more than the requirement of both actus reus and mens rea – an act coupled with a the necessary mental state.
As the military judge’s special findings detailed and Judge Sparks’ opinion explains, both were present in this case.
• CGCCA opinion
• Blog post: CAAF grants review
• Appellant’s brief
• Appelllee’s (Gov’t Div.) brief
• Appellant’s reply brief
• Oral argument audio (wma mp3)
• CAAF opinion
• Blog post: Opinion analysis