Yesterday CAAF granted review in this Army case:
No. 19-0259/AR. U.S. v. Robert S. Avery. CCA 20140202. 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 granted on the following issue:
WHETHER THE SPECIFICATION OF CHARGE II, ALLEGING THE COMMUNICATION OF INDECENT LANGUAGE TO A CHILD IN VIOLATION OF ARTICLE 134, UCMJ, WAS PREEMPTED BY ARTICLE 120b.
Briefs will be filed under Rule 25.
The Army CCA’s decision is available here. It does not address preemption.
The preemption doctrine states that Article 134 cannot be used to prosecute conduct covered by Articles 80-132. See ¶ 91.c.(5)(a), Part IV, Manual for Courts-Martial (2019 ed.). See also United States v. Wheeler, 77 M.J. 289 (C.A.A.F. 2018) (CAAFlog case page).
Avery was convicted of communicating indecent language to a child under the age of 16, as an enumerated offense under Article 134. That offense criminalizes the communication of indecent language – without regard to the age of the recipient or any criminal intent – under circumstances that are either prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces, however the MCM authorizes a grater punishment when the recipient is under the age of 16.
Article 120b (2012), in contrast, criminalizes any lewd act with a child, and the definition of a lewd act includes (among other things):
intentionally communicating indecent language to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person
any indecent conduct, intentionally done with or in the presence of a child, including via any communication technology, that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.
CAAF’s review, it seems, will address whether the Government can use the Article 134 offense of indecent language to prosecute an accused for indecent communications when it can’t prove an intent to abuse, humiliate, degrade, or arouse, or when it can’t prove the tender age of the recipient, or both. If CAAF says it can’t, then that would likely cast doubt on the viability of other well-settled Article 134 offenses, such as self-injury without intent to avoid service (see malingering; see also United States v. Caldwell, 72 M.J. 137 (C.A.A.F. 2013) (CAAFlog case page)) and negligent homicide (see murder and manslaughter; see also United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011), United States v. McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011), and A Mobius Strip of Citation).