In a published opinion in United States v. Williams, __ M.J. __, 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.
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:
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.
The Article 120 amendments: is death a statutorily authorized punishment for rapes occurring on or after 28 June 2012? (I think not)
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):
- Rape (Art. 120 (a))
- Sexual Assault (Art. 120 (b))
- Aggravated Sexual Contact (Art. 120 (c))
- Abusive Sexual Contact (Art. 120 (d))
- Stalking (Art. 120a)
- Rape of a Child (Art. 120b (a))
- Sexual Assault of a Child (Art. 120b (b))
- Sexual Abuse of a Child (Art. 120b (c))
- Indecent Viewing, Visual Recording, or Broadcasting (Art. 120c (a))
- Forcible Pandering (Art. 120c (b))
- 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.
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.
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:
I recently had reason to visit the legal office at Naval Air Station Whidbey Island. I spent two years as SJA at Whidbey Island, and it’s one of my favorite places in the world. The base and surrounding community feel like a time capsule from 40 years ago. EA-6B Prowlers—now being displaced by an F/A-18 variant—are still seen in the sky, along with the aging P-3, a maritime patrol version of a 1950’s turboprop airliner. The air station is strewn with modest, semi-permanent buildings erected during the Second World War, making it look like a Beetle Bailey panel. The base—and some local old-timer retirees—enthusiastically support one of the Navy’s few remaining officers’ clubs. The surrounding town of Oak Harbor is small, dense with Navy vets, and fervently loyal to Naval Aviation. I received only one or two aircraft noise complaints during my time there as SJA. I also received a call from an angry citizen asking if the First Amendment required that the base exchange carry Jane Fonda’s autobiography. Waves of change seem to just wash over Whidbey Island.
My purpose for going to Whidbey was to escort a Navy Captain to see the office and meet with the staff. I didn’t sit in on the meetings, so I had some time. While I was in a no-longer-used wing of the legal building, I noticed an old poster with the UCMJ printed in small print on it. I’d seen these before, but hadn’t seen one in a long while. I always liked these posters. Whenever I look at one it seems like I see something that I hadn’t seen before, or had known about and forgotten. Seeing the whole UCMJ on one sheet makes you think about it differently for some reason.
As I scanned the punitive articles, I paused at Article 120. Of course it was the pre-2007 version. I decided that if they ever update the poster to include the new one, it probably won’t fit on one sheet anymore. New Article 120 might have to go on its own poster. Past the punitive articles were the miscellaneous provisions. It had been a while since I had read Article 137, requiring that much of the UCMJ, including all the punitive articles, be explained to every enlisted member upon entry onto active duty, again six months later, and again at every reenlistment. I don’t remember this statute being given effect anywhere I have ever served. Perhaps there is an instructional block on the UCMJ in boot camp that checks this box. But who tracks folks for their six month anniversary? Has anyone seen a reenlistment accompanied by a UCMJ brief?
My mind went back to the new Article 120. You could hurt yourself trying to explain that. As to the burden shifting in that article, the most forthright explanation one could give to a new member is: no one—not even lawyers—really knows what it means, and it is the policy of military judges to ignore that part of the law.
I thought some more about the implications of a requirement to explain the law to those most affected. The rest of criminal law is largely indifferent to a potential defendant’s legal knowledge. It’s a requirement that says something about our expectations of our legal system and the people who live with it. If you are required to explain the law to service members, it follows that the law shouldn’t be incomprehensible to them.
I think this principle might partly explain why most of the code is so succinct and elegant. It was written to be understood, usually in one reading. Admittedly, practitioners have for a long time had to make use of sources from outside the code in interpreting the code. That might mean drawing on service usage (what is a safeguard and how do you force one?), or judicially created common law principles for example. But I think it’s okay that the code isn’t completely self-contained without reference to our legal and military heritage. Think back to Judge Baker’s dissent in Fosler. Judge Baker, drawing on almost two centuries of Supreme Court precedent, reminds us that
“[T]he military is, by necessity, a specialized society separate from civilian society.” [Parker v. Levy, 417 U.S. 733 (1974)] at 743. And it has, by necessity, “developed laws and traditions of its own during its long history.” Id. Because of the special distinctions separating it from the civilian society, “the military has developed what ‘may not unfitly be called the customary military law’ or ‘general usage of the military service.’” Id. at 744 (quoting Martin v. Mott, 12 Wheat. 19, 35, (1827)). The UCMJ “cannot be equated to a civilian criminal code,” id. at 749 . . .
If you accept that it’s okay to refer to service usage and general legal principles to supplement and provide context to our understanding of military law, then it suddenly becomes possible to write statutes that can be explained to service members.
Look at Article 121, for example. You might remember from law school that there isn’t anything trickier or more complex in criminal law than larceny. It’s hard to define, hard to plead, and hard to prove. But the 140 words that make up Article 121 do just fine. You can read the article, understand it, and explain it. Or look at the scant 104 words that comprise Article 128 assault. It’s easy to understand. If you’re a practitioner, it draws on things you already know. Those 104 words get a lot done. So if 104 words are good, the 2,835 words of Article 120 should be great, right? I think we’ve all arrived at the same answer. Maybe part of what’s wrong with Article 120 is that it is completely untethered from the principle promoted by Article 137, and thus also from the “general usage of the military service.” It attempts to be self-sufficient. But in its quest to become comprehensive, it became incomprehensible. Service members don’t get a meaningful Article 137-chance to understand the rules and conform their conduct. Even though the statute bursts with defined terms and should, in theory, give clearer notice of proscribed conduct, it gives much less notice. Even lawyers think it’s gobbledygook.
The thesis, then, of this stream of consciousness (if there is one) is that the Fosler problem—or at least Judge Baker’s problem with Fosler—is related in some fundamental way to the Article 120 problem. Both the majority in Fosler and the drafters of Article 120 could be accused of having a certain blind spot for the “customary military law.” Both uprooted a settled practice in reliance on a statute; one an old statute interpreted a new way, and the other a brand new statute that feels as out of place in our code as Jane Fonda in the Whidbey O Club.
I know Congress is having another crack at Article 120. I hope they have Article 137 in mind when they draft the new new Article 120. If an E-7 can’t read it and then explain it to an E-1, it shouldn’t be in the code. It’s a special kind of system that doesn’t just presume knowledge of the law on the part of a potential accused. It’s a separate system that operates in a separate society. I hope Congress remembers that this year.