In Rehaif v. United States, 139 S. Ct. 2191 (2019) (SCOTUSblog case page), the Supreme Court held that the word knowingly in 1018 U.S.C. §924(a)(2) – which states the punishment for unlawful possession of a firearm in violation of other statutes – applies to the material elements of the other statutes. Writing for a 7-2 majority of the Court, Justice Breyer explained that:

As a matter of ordinary English grammar, we normally read the statutory term knowingly as applying to all the subsequently listed elements of the crime.

139 S. Ct. at 2196 (marks and citations omitted). In a pointed dissent, Justice Alito (joined by Justice Thomas) excoriated the majority for “casually overturn[ing] the long-established interpretation of an important criminal statute.” 139 S. Ct. at 2201.

Last week CAAF cited Rehaif to grant further review in this Army case:

No. 19-0104/AR. U.S. v. Nicholas E. Davis. CCA 20160069. On consideration of Appellant’s petition for reconsideration of this Court’s order denying the petition for grant of review __ M.J. __ (Daily Journal June 18, 2019), and in light of United States v. Rehaif, 139 S. Ct. 2191, 2196 (2019), it is ordered that the petition for reconsideration is granted, that the order denying the petition for grant of review is vacated, and the petition for grant of review is granted on the following issue:


Briefs will be filed under Rule 25.

The reference to denial of the petition for review is wrong. CAAF granted review in this case in April as a trailer to United States v. McDonald, 78 M.J. 376 (C.A.A.F. Apr. 17, 2019) (CAAFlog case page). CAAF then summarily affirmed in light of McDonald in June, declaring that “military judge did not err in instructing the court members that for the affirmative defense of mistake of fact as to consent to apply, the mistake must have been reasonable as well as honestly held” (noted here).

Article 120c(a)(2) makes it an offense to, without legal justification or excuse, knowingly photograph, videotape, film, or record by any means 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. The Manual for Courts-Martial suggests that the offense has three elements:

(a) That the accused knowingly recorded (photographed, videotaped, filmed, or recorded by any means) the private area of another person;

(b) That said recording was without the other person’s consent; and

(c) That said recording was made under circumstances in which the other person had a reasonable expectation of privacy.

¶ 45c.b.(1), MCM (2016 ed.) (moved to ¶ 63.b.(1) in 2019 ed.).

Davis was convicted of violating that statute for recording the buttocks of another soldier while she was bent over, facing away from him, and having sexual intercourse with him (while also engaging in sexual activities with a third soldier). A three-judge panel of the Army CCA affirmed the conviction in an opinion available here. The opinion did not address mens rea or mistake of fact as to consent, but it did hold that:

Private JE [the alleged victim] had a reasonable belief that her “private area,” her buttocks, would not be captured because appellant never mentioned recording their sexual act. She did not consent to such recording and no cameras were visible to her while engaging in sex with appellant. 10 U.S.C. § 920c(d)(3). We conclude PV2 JE had a reasonable expectation of privacy that her buttocks would not be recorded by appellant, her sexual partner, while engaging in sexual intercourse behind a locked door in a motel room.

United States v. Davis, No. 20160069, slip op. at 12 (A. Ct. Crim. App. Aug 16, 2018).

The Air Force CCA recently considered the issue that CAAF granted review to decide in Davis, holding that the mens rea of knowingly does not apply to the consent element. Writing for a three-judge panel of the CCA, Judge Posch held that:

As properly instructed by the military judge, Article 120c(a)(2), UCMJ, requires that an appellant knowingly record by any means the private area of another person to convict. . . .

We discern Congress intended Article 120c(a)(2), UCMJ, to have one knowledge mens rea requirement as the military judge instructed, and no others, and we must construe the statute accordingly. Haverty, 76 M.J. at 204. Consequently, the military judge did not err in failing to instruct on a knowledge mens rea requirement to the ‘consent’ and ‘reasonable expectation of privacy’ elements of the indecent recording offense.

United States v. Bessmertnyy, No. ACM 39322, slip op. at 28-29 (A.F. Ct. Crim. App. June 14, 2019) (available here) (emphasis in original).

One Response to “CAAF to review the mens rea for indecent recording in light of Rehaif”

  1. Nathan Freeburg says:

    Reihaf has been read by a fair number of folks as leading toward a specific intent requirement for federal offenses. If so, MacDonald was dead before it came out and ACCA had it right the first time. I haven’t had a chance to litigate this yet.