United States v. Wilson, __ M.J. ___, No. 06-0870/AR (C.A.A.F. Feb. 25, 2008), is a complex and difficult case. That’s probably why it was argued twice. The issue is whether a reasonable and honest mistake of fact defense applies to the Article 125 offense, as codified in the MCM, of sodomy with a child under the age of 16.
In an opinion by Judge Ryan, a three-judge majority held that no such defense applies. Chief Judge Effron and Judge Baker separately dissented.
While the three opinions demand study and serious thought, my preliminary assessment is that the majority got it wrong (though I wouldn’t be at all suprised if someone can present some law I’m overlooking that demonstrates that, no, it is my preliminary assessment that is wrong).
I reach the same destination as the two dissenters, though by a sometimes diverging and sometimes converging path. Not that my views are important, but for anyone interested, I set them out at length below.
While I believe that this is a jurisprudentially fascinating case and an important one, I think the Kabul Klipper can safely keep his Golden CAAF bolted onto his mantle. I don’t see the Supremes granting cert where the accused actually pled guilty to the offense that a cert petition would challenge (though I would be happy if events proved me wrong).
Private Wilson went to a special court-martial where he pled guilty to and was found guilty of various offenses including carnal knowledge and sodomy with a child younger than 16. During the providence inquiry, the military judge advised him that a reasonable and honest mistake as to the age of the girl involved in the sodomy was irrelevant.
As I read the opinion, it says that sodomy with a child under 16 is a strict liability offense — or, in the words of R.C.M. 916(j), an offense for which “the accused’s knowledge or intent is immaterial as to an element” — rather than a general intent offense. But I see nothing in Article 125 or paragraph 51 of Part IV of the Manual that would separate sodomy from the vast middle ground of general intent offenses. Indeed, what separates sodomy from the old Article 120 rape offense, which military law has long held to be a general intent offense? See, e.g., United States v. Langley, 33 M.J. 278 (C.M.A. 1991). Based on the admittedly non-binding discussion following R.C.M. 916(j), it looks like the Manual‘s drafters intended the “knowledge or intent is immaterial” provision to apply only to offenses that the MCM specifically established as strict liability offenses, like carnal knowledge and improper use of a countersign. Significantly, neither sodomy generally nor sodomy with a child under 16 specifically receives such treatment in the Manual. From this, I would conclude that sodomy is a general intent offense (as military law has long held; see, e.g., United States v. Herbert, 35 M.J. 266, 268 (C.M.A. 1992); but see United States v. Strode, 43 M.J. 29 (C.A.A.F. 1995)), and that sodomy with a child under 16 is a general intent offense. If so, then the President made the defense of a reasonable and honest mistake of fact defense available through R.C.M. 916(j).
I believe that in deciding whether a reasonable and honest mistake of defense is available, the proper focus is on R.C.M. 916(j). And, if so, then part of the Wilson majority’s jurisprudential approach actually appears to support a reasonable and honest mistake of fact defense for sodomy with a child younger than 16.
Please pull out your 1995 MCM. Look at Part IV, para. 45.c(2): “It is no defense that the accused is ignorant or misinformed as to the true age of the female . . .; it is the fact of the girl’s age and not his knowledge or belief which fixes his criminal responsibility.” Now look at Part IV, para. 51.c. Note the lack of any similar language. In Wilson, the majority tells us that the “Supreme Court has consistently held that ‘”[Where] Congress includes particular language in one section of a statute but omits it in another section . . . it is generally presumed that Congress acts intentionally and purposely in the disparate . . . exclusion.”‘” As the Wilson majority’s author wrote last year, “It is a well established rule that principles of statutory construction are used in construing the Manual for Courts-Martial . . . .” United States v. Custis, 65 M.J. 366, 370 (C.A.A.F. 2007). Then doesn’t it follow that when the President used strict liability language to describe carnal knowledge but didn’t use such language to describe sodomy and sodomy with a child younger than 16, then the latter offense is not a strict liability offense? And, even more importantly for current purposes, doesn’t the use of such language to describe carnal knowledge suggest that it is an offense that for R.C.M. 916(j)’s purposes makes “knowledge or intent . . . immaterial” while the absence of such language to describe sodomy or sodomy with a child under 16 suggests that Article 125 does not fall within that R.C.M. 916(j) excpetion to the availability of a reasonable and honest mistake of fact defense to a general intent offense?
And the fact that the Manual specifically prohibited a reasonable and honest mistake of defense as to carnal knowledge while not including any such prohibition as to sodomy with a child under 16 offers an alternative rationale for Congress’s failure to mention the latter offense while legislating limitations on the former’s strict liability status. After all, a Member of Congress in 1996 who wanted a reasonable and honest mistake of fact defense to apply to sodomy with a child under 16 would probably have concluded that the defense was already available without any need for congressional intervention. Of course, I’m not suggesting that any Member of Congress actually went through that thought process. And I thoroughly agree with the Supreme Court’s “resist[ance to] reading congressional intent into congressional inaction.” Kimbrough v. United States, 128 S. Ct. 558, 573 (2007). But I make this point to demonstrate that Congress’s decision to amend Article 120 while leaving Article 125 alone should not be read as somehow reflecting a congressional determination that sodomy with a child under 16 is and should be a strict liability offense.
So, on balance, I would conclude that both sodomy generally and sodomy with a child under 16 are general intent offenses for which the President has made the honest and reasonable mistake of fact defense available. If either Congress or the President didn’t like that conclusion, then they could change it — just as either could change Wilson‘s result if displeased with its conclusion. Of course, bureaucratic inertia being what it is — and Article 125 being something of a third rail of military justice, as Chief Judge Effron’s dissent alludes to — suggests that in this instance, CAAF will probably have the final word. That clearly isn’t the majority’s intent — the majority interprets the law as those three judges find it; they obviously aren’t attempting to impose their will on the Executive or Congress and the majority would no doubt follow the law in the other direction if that’s where they thought it led or if the Executive or Congress expressly created a reasonable and honest mistake of fact defense to sodomy with a child under 16. But if the same issue were to arise in some future contested case, perhaps the Kabul Klipper will have to take out his monkey wrench to loosen the Golden CAAF’s bolts.