CAAFlog » Article 120 (2006)

Yesterday CAAF granted review in this Army case:

No. 18-0347/AR. Michael J. Gonzales. CCA 20130849. 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 AGGRAVATED SEXUAL CONTACT OF A CHILD IS A LESSER INCLUDED OFFENSE OF RAPE OF A CHILD.

Briefs will be filed under Rule 25.

The only opinion available on the Army CCA’s website is this one from 2017, in which the CCA set aside the findings and authorized a rehearing because of a Hills error. That opinion addressed convictions for acts alleged to have occurred in 2010 and 2011. At that time Article 120(b) defined the offense of rape of a child as:

(b) Rape of a Child.-Any person subject to this chapter who-

(1) engages in a sexual act with a child who has not attained the age of 12 years; or

(2) engages in a sexual act under the circumstances described in subsection (a) with a child who has attained the age of 12 years;

is guilty of rape of a child and shall be punished as a court-martial may direct.

Additionally, Article 120(g) defined the offense of aggravated sexual contact with a child as:

(g) Aggravated Sexual Contact With a Child.-Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (b) (rape of a child) had the sexual contact been a sexual act, is guilty of aggravated sexual contact with a child and shall be punished as a court-martial may direct.

Sexual act and sexual contact were defined in Article 120(t) as:

(1) Sexual act.-The term “sexual act” means-

(A) contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or

(B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(2) Sexual contact.-The term “sexual contact” means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.

In a published opinion in United States v. Williams, 75 M.J. 663, No. 20140401 (A. Ct. Crim. App. Mar. 30, 3016) (link to slip op.), a three judge panel of the Army CCA splits 2-1 to hold that the offense of indecent exposure in violation of Article 120(n) (2006) and 120c(c) (2012) does not include showing a person a photograph or digital image of one’s genitalia.

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I’m not sure what adjective to use for the facts of United States v. Jagassar, No. 38228 (A.F.Ct.Crim.App. Feb. 4, 2014) (link to unpub. op.). Appellant pleaded guilty to numerous sexual offenses, including a specification of indecent acts in violation of Article 120(k) (2006). Before the CCA, he raises (for the first time) an as-applied challenge to the constitutionality of that offense. The application involves this fact pattern:

The appellant and Senior Airman (SrA) DJ met when they were both stationed at Dover Air Force Base, Delaware. They began dating in September 2010 and dated until August 2011. During the course of their relationship, the appellant persuaded SrA DJ to take pictures of herself inserting various items into her vagina and then send them to him via text message. While SrA DJ was initially reluctant to do so, she eventually agreed and willingly engaged in the conduct

Slip op. at 2. The opinion describes – in some detail – the “various items,” and you can read page two if you really want to know. I’ll just say that there were tree branches, and there were sea creatures. Yes, sea creatures.

The military judge expressed concern over Appellant’s guilty plea to this offense, asking Appellant “to elaborate on why he thought this consensual and private activity of two adults constituted an indecent act.” Slip op. at 2. The judge ultimately accepted the plea for three reasons: Because Appellant admitted that he “manipulated” the woman into committing the acts, because the acts were “unhygienic,” and because the woman “suffered physical pain as a result of inserting a tree branch into her vagina.” Slip op. at 3.

You’re likely thinking, “gross.” Well, that’s basically how the CCA affirms the plea. There are some more factual details in the following excerpt, but I’ve also used some brackets:

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Over at 31(b)log, Jim Clark of TJAGLCS has posted this interesting commentary exploring the impact of feminist theory on the evolution of rape laws.

From the folks that brought you the Art. 31(b)log, here is a 9-page primer on the new Art. 120.  For anyone that has Lexis-Nexis, just login and it should be free.  I think that leaves our baby blue brethren out in the cold, no?  From the Lexis-Nexis website, here’s a description of the primer:

Congress defines military sexual crimes in Article 120 of the Uniform Code of Military Justice (UCMJ). 10 U.S.C.S. § 920 et.seq. Effective on June 28, 2012, the newest version of military sexual crimes more successfully shifts the focus to the offender, but is not without its problems. This Emerging issues Analysis by Jim Clark, professor of Criminal Law at The Judge Advocate General’s Legal Center and School, the US Army’s ABA-accredited legal center in Charlottesville, Va., explores the changes effected by the new, new Article 120.

Sadly, I didn’t know there was a civilian professor at the Army JAG School.

That’s the interesting question addressed by this post on the TJAGLCS Crim Law Department’s 31(b)log.

Today’s NYT Op-Ed focuses on the continuing problem of sexual assault in the military. There have been some recent proposed structural changes to the UCMJ by members of Congress and it looks like more tweaking of Article 120 may be in the offing.

Congress just removed death as an authorized punishment for the offense of rape of a child in the military as of 28 June 2012.  That decision has particular resonance in light of the Supreme Court’s opinion in Kennedy v. Louisiana and its aftermath.

In Kennedy v. Louisiana, 554 U.S. 407 (2008), the Supreme Court held that death isn’t a constitutionally permissible punishment for rape of a child.  Then, in an episode in which CAAFlog played a role, the Supreme Court revisited its decision because it had overlooked that the National Defense Authorization Act for Fiscal Year 2006 had authorized the death penalty for rape of a child, belying the opinion’s claim that there was no federal statute allowing rape of a child to be punished by death.  As a result, the Supremes modified the original Kennedy opinion while the five justices in the majority issued a statement reserving judgment on the constitutionality of death for rape of a child as a military offense:  Read more »

The National Defense Authorization Act for Fiscal Year 2012, which President Obama signed on New Year’s Eve, includes amendments to the UCMJ.  [The complete text of the UCMJ as amended is available here.]

The statute amended four UCMJ articles and created two new ones — though the amendments to two articles (Articles 43 and 118) were merely conforming amendments.

The statute fixed one clerical error while creating another.   Section 542 of the statute fixed a misspelling in Article 47, amending Article 47(A) “by striking ‘subpenaed’ both places it appears and inserting ‘subpoenaed’.”  But section 541 of the statute, in enacting a new Article 120(f), referred to  “the Rules for Court-Martial” rather than “the Rules for Courts-Martial.”  Perhaps some future DOD Authorization Act will include a technical amendment fixing that mistake.

As previously noted, one section of the statute (section 542) amends Article 47 to allow subpoenas duces tecum to be issued for Article 32 investigations.  This portion of the statute is now in effect. But the most important UCMJ change included in the statute is the amendment of Article 120 and creation of two new UCMJ articles dealing with sex offenses.

It wouldn’t be accurate to say that the statute repeals the 2006 version of Article 120, since that will remain in effect for offenses committed between 1 October 2007 and 27 June 2012.  But for acts committed from 28 June 2012 on, Article 120 will be different.

Before the 2006 amendment (Pub. L. No. 109-163, § 552, 119 Stat. 3136,  3257) , Article 120 was a 196-word statute covering rape and what was then known as “carnal knowledge.”  The portion dealing with rape was only 50 words:

(a)  Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.

. . . .

(c)  Penetration, however slight, is sufficient to complete either of these offenses.

The 2006 amended version ballooned to 2,830 words.  It covered rape, rape of a child, aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual contact, aggravated sexual abuse of a child, aggravated sexual contact with a child, abusive sexual contact, abusive sexual contact with a child, indecent liberty with a child, indecent act, forcible pandering, wrongful sexual contact, and indecent exposure.  One military judge famously likened the revised Article 120 to what 100 monkeys at typewriters might produce.  And CAAF held that the statute “results in an unconstitutional burden shift.”  United States v. Prather, 69 M.J. 338, 340 (C.A.A.F. 2011).

The 2011 amended version of Article 120 weighs in at 1,074 words.  It covers rape, sexual assault, aggravated sexual contact, and abusive sexual contact.  The statute creates two new UCMJ articles that are a combined 1,330 words.  The first, Article 120b, covers rape of a child, sexual assault of a child, and sexual abuse of a child.  The second, Article 120c, is titled “Other sexual misconduct” and covers indecent viewing, visual recording, or broadcasting; forcible pandering; and indecent exposure.

I plan to post a couple of thoughts about the revision to Article 120, so stay tuned to this same bat channel.

As the Hill reports here, President Obama today signed the National Defense Authorization Act for Fiscal Year 2012, while issuing a signing statement objecting to detention policy provisions in the statute.

As a result of the President’s signature, starting tomorrow, subpoenas duces tecum can be issued to obtain evidence for Article 32 investigations.  And 180 days from now, a new version of Article 120 will come into effect, along with a new Article 120b dealing with rape and sexual assault of a child and a new Article 120c dealing with other sex offenses.  Time permitting, I’ll post  more about the changes to Article 120 over the extended weekend.

The National Defense Authorization Act for FY2012 (H.R. 1540) contains language that almost-completely revises Article 120, UCMJ. The bill was presented to the President for signature on December 21 and, absent a major political shift (a pocket veto appears impossible), will become law. The amendments will take effect 180 days after enactment.

The “Revised Article 120” splits sexual offenses into three Articles (plus Article 120a – Stalking) and eliminates some of the most difficult aspects of the “New Article 120.” The Revised Article 120:

  • Delineates  11 offenses (including stalking):
    1. Rape (Art. 120 (a))
    2. Sexual Assault (Art. 120 (b))
    3. Aggravated Sexual Contact (Art. 120 (c))
    4. Abusive Sexual Contact (Art. 120 (d))
    5. Stalking (Art. 120a)
    6. Rape of a Child (Art. 120b (a))
    7. Sexual Assault of a Child (Art. 120b (b))
    8. Sexual Abuse of a Child (Art. 120b (c))
    9. Indecent Viewing, Visual Recording, or Broadcasting (Art. 120c (a))
    10. Forcible Pandering (Art. 120c (b))
    11. Indecent Exposure (Art. 120c (c))
  • Simplifies defenses to include all defenses available under the Rules for Courts-Martial (of note: An accused must prove a marriage or mistake of fact as to age (defenses to certain offenses with a child) by a preponderance of the evidence).
  • Repeals language that eliminated “consent” and “mistake of fact as to consent” as issues (except for offenses against children (Art. 120b)).
  • Repeals the burden-shift for an affirmative defense (Art. 120 (t)(16)).
  • Expands the definition of “bodily harm” to explicitly include non-consensual sexual acts and contact.
  • Expands the definition of “sexual act” to include contact between the penis and the “vulva or anus or mouth,” and to include penetration of the vulva or anus or mouth by “any part of the body” or object.
  • Expands the definition of “sexual contact” in include touching of “any body part of any person” if done with requisite intent.

After the break I reproduce the “revised” text, noting repealed sections of the “new” text with strikeouts, new language in the “revised” text with underlines, and my notations in italics.

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CAAF heard oral argument in United States v. King, No. 11-0583/NA, on Monday 12 December. The case questions whether indecent language amounts to indecent conduct in violation of Article 120(k) (“indecent acts”).

The appellant’s counsel began his argument by setting out two reasons why the court should answer the issue in the negative and find that the specification at issue failed to state an offense. First, he argued that the definitions of “indecent conduct” and “indecent liberty” make this plan. Second, he argued that legislative history reveals that the offense of indecent acts was never intended to criminalize indecent language. Both of these arguments boil down to a parsing of the language of the text of Article 120(t)(11), which states:

The term “indecent liberty” means indecent conduct, but physical conduct is not required. . . . An indecent liberty may consist of communication of indecent language so long as the communication is made in the physical presence of the child.

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Here’s a link to a new McClatchy article on the amendments to Article 120 contained in the conference committee’s version of the National Defense Authorization Act for Fiscal Year 2012.  Of course, the bill may be vetoed as a result of disagreement between the White House and Congress over detetainee policy matters.

Congress amended Article 120, UCMJ, effective 1 October 2007. This new Article 120, codified at 10 U.S.C. § 920, is really a remarkable piece of legislation. It encompasses 36 offenses, it contains a legal impossibility, error can result no matter how the members are instructed, it compelled the government to certify a case to CAAF even though the government prevailed at the CCA, you could hurt yourself trying to explain it, it is apparently constitutional, and now it is remarkably flexible.

This week the N-MCCA released an unpublished opinion in United States v. Wilkins, No. 201000289 (N-M Ct. Crim. App., 29 Nov 2011) (hereinafter Wilkins II). This case was considered on remand from CAAF for reconsideration in light of McMurrin, Girouard, Bonner, and Alson, after the N-MCCA affirmed in United States v. Wilkins, No. 201000289 (N-M Ct. Crim. App., 24 March 2011) (hereinafter Wilkins I). In Wilkins I, the N-MCCA found (1) no prejudicial error in the burden-shifting scheme for an affirmative defense under Article 120 because the military judge did not instruct the members of any burden on the defense, and (2) no prejudicial error in instructing the members that abusive sexual contact under Article 120(h) is a LIO of aggravated sexual assault under Article 120(c). The second issue is the subject of the remand.

The facts are best described in Wilkins II:

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McClatchy Newspapers has posted three more articles about the military’s prosecution of sexual offense cases.  See here, here, and here.