In a published opinion in United States v. Johnston, __ M.J. __, No. 201400338 (N-M. Ct. Crim. App. Jan. 21, 2016) (link to slip op.), a three-judge panel of the NMCCA reverses the appellant’s conviction of indecent exposure in violation of Article 120c(c), for sending text-message pictures of his erect penis to a 14 year-old girl, because the evidence leaves the CCA unconvinced that the appellant exposed himself in an indecent manner.
Judge Marks, writing for the panel, explains that Article 120c(c), which took effect on June 28, 2012, lacks the element of public exposure that was present in the prior (2006) version of Article 120 and in the enumerated Article 134 offense that was in effected before that:
Unlike prior versions, this statute requires neither a public setting nor a public view.2 By removing such an element, Congress sought to criminalize “situations in which the exposure is indecent – even if committed in a place where it would not be reasonably be [sic] expected to be viewed by people other than the members of the actor’s family or household.” MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), App. 23, at ¶ 45c.a. This amendment reflected the Court of Appeals for the Armed Forces’ (CAAF) more expansive interpretation of indecent exposure in United States v. Graham, 56 M.J. 266 (C.A.A.F. 2002), discussed infra. It also left “an indecent manner” as the only element making intentional exposure criminal.
Johnston, slip op. at 3-4. Considering the President has (still) not promulgated guidance for this statute, the CCA “turn[s] to case law for objective factors to help define the parameters of an indecent manner. Three factors emerge as hallmarks of indecent conduct: (1) lack of consent; (2) involvement of a child; and/or (3) public visibility.” Slip op. at 4.
Considering these factors, Judge Marks concludes that the evidence depicts the child “as a willing and active participant in graphic sexual fantasies shared via text, or ‘sexting,'” slip op. at 7, that “the sustained volleys of sexually explicit messages and A.C.’s repeated requests for details of imagined sexual encounters with the appellant are inconsistent with claims that photos of the appellant’s penis came without her invitation or consent,” slip op. at 8, that there is “unrefuted evidence supporting the appellant’s reasonable mistake of fact as to A.C.’s age during the period charged in the specification,” slip op. at 9, and finally that there was no evidence of public visibility, slip op. at 9.
Returning to the elements, the Government proved through the photographs themselves that the appellant intentionally exposed his penis. The evidence, however, leaves us unconvinced that he exposed himself in an indecent manner. The photograph’s “tend[ency] to excite sexual desire” is apparent from the relationship and pattern of sexting surrounding it. But the evidence points to private conduct toward someone he reasonably perceived to be a consenting adult. This case has none of the three hallmarks of indecency but all three of the factors comprising the liberty interest identified in Lawrence. Consent, age (or a reasonable mistake of fact as to age), and privacy leave us with a reasonable doubt that the appellant’s conduct was indecent. Therefore, we set aside the finding of guilty to the Second Additional Charge II and its sole specification, violation of Article 120c(c) from 1-31 December 2012, for factual insufficiency.
Slip op. at 9.