CAAFlog » Article 125

In a very interesting published opinion in United States v. Bass, 74 M.J. 806, No. 201400229 (N-M. Ct. Crim. App. May 27, 2015) (link to slip op.), a three judge panel of the NMCCA holds that the military judge erred in instructing the members on the offense of consensual sodomy in violation of Article 125 as a lesser included offense (LIO) of the offense of forcible sodomy in violation of Article 125 (the alleged offenses occurred before Article 125 was repealed and replaced in the FY14 NDAA). The CCA also holds that the judge did not err in instructing the members that they could use the charged sexual offenses as propensity evidence under Military Rule of Evidence 413 (a similar conclusion was recently reached by the Army CCA, as discussed here). The NMCCA reverses the appellant’s convictions for consensual sodomy, sets aside the sentence, and orders a sentence rehearing.

Update: The panel reconsidered this opinion, issuing a new opinion reaching the same result on August 18, 2015 (available here).

The appellant was charged with sexual assault of two female sailors, one of whom had a prior consensual relationship with the appellant. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of member with enlisted representation, of sexual harassment and wrongful sexual contact involving one of the sailors, and of consensual sodomy (as a LIO of forcible sodomy) involving the other sailor (the one with whom he had the prior relationship). The appellant was sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a dishonorable discharge.

At trial, without objection from the appellant’s defense counsel, the military judge instructed the members that consensual sodomy is a LIO of forcible sodomy:

The lesser included offense of non-forcible sodomy differs from the charged offense of forcible sodomy, in that non-forcible sodomy does not require you to be convinced beyond a reasonable doubt that the sodomy was committed by force and without the consent of the other person. However, in order to find the accused guilty of this lesser included offense, you must find beyond a reasonable doubt both that the physical act of sodomy occurred and that it involved public behavior; an act of prostitution; persons who might be injured, coerced or who were situated in relationships where consent might not easily be refused; or of a unique military interest.

Slip op. at 5 (quoting record). But the NMCCA finds that this instruction was erroneous because a conviction of consensual sodomy requires aggravating factors that remove the sexual activity from the liberty interest identified by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003). CAAF identified those factors in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), and it held in United States v. Castellano, 72 M.J. 217 (C.A.A.F. 2013) (CAAFlog case page), that determining the existence of such Marcum factors is a matter for the trier of fact.

In Bass, the NMCCA applies Castellano to conclude that the aggravating factors must be stated in the specification:

The CAAF’s binding interpretation that Marcum factors represent additional facts necessary to prove a criminal act of sodomy——as opposed to factors to guide judges in making legal determinations——constrains us to conclude that, as a result, they must be pleaded in a sodomy specification.

Slip op. at 7.

Read more »

In United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008) (link to slip op.), a divided CAAF concluded that the defense of mistake of fact as to age does not apply to a charge of non-forcible sodomy with a child under the age of 16 in violation of Article 125 (of note, Article 125 was amended by section 1707 of the FY14 NDAA, eliminating non-forcible sodomy as an offense). But Congress has long provided a statutory defense of mistake of fact as to age in a prosecution for certain sexual offenses with a child in violation of Article 120, enacting the first such defense in Section 1113 of the National Defense Authorization Act for 1996, 110 Stat. 186, 462 (1996). Such a defense provides that a service member accused of a sexual act with a child under the age of 16 is not guilty if the accused reasonably (but wrongly) believed that the child was at least 16 and the child was in fact at least 12.

This creates the possibility that a service member who commits sexual activity with a child under the age of 16 while under the reasonable but mistaken belief that the child is over 16 may be charged with an offense under Article 120 for which there is a defense of mistake, with an offense under Article 125 for which there isn’t a defense of mistake, or with both.

It’s both charges in the ongoing Army court-martial of Private Hernandez: sexual assault of a child, sexual abuse of a child, and sodomy with a child in violation of Articles 120b (2012) and 125. The case is ongoing because the Army CCA has now issued two opinions on a Government petition for extraordinary relief, first denying the petition in an unpublished summary disposition by a three-judge panel, and then granting the petition in the form of a writ of prohibition in an en banc published opinion. United States v. Gross, Military Judge, and Hernandez, Real Party in Interest, No. 20140293 (A. Ct. Crim. App. Jun. 5, 2014) (per curiam) (Hernandez I) (link to unpub. op.), rev’d on recon. en banc, 73 M.J. 864, (A. Ct. Crim. App. Aug. 28, 2014) (Hernandez II) (link to slip op.).

At issue is the action of the military judge on the accused’s efforts to have the defense of mistake of fact as to age applied to the sodomy charge, despite CAAF’s opinion in Wilson.

Read more »

This is part two of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.

Of the 15 NDAA provisions identified in the first part of this series, seven of them affect the earliest stages of a court-martial prosecution. They are:

  • § 1701, creating “Article 6b. Rights of the victim of an offense under this chapter.”
  • § 1716, codifying the special victims counsel program in 10 U.S.C. § 1044e, “Special Victims’ Counsel for victims of sex-related offenses.”
  • § 1703, amending Article 43 to eliminate the 5-year statute of limitations on sexual assault (Art. 120(b)) and sexual assault of a child (Art. 120b(b)). This section applies only to offenses committed on or after December 26, 2013.
  • § 1705(a), amending Article 56 to create a mandatory minimum of dismissal or dishonorable discharge for the offenses of rape (120(a)) or sexual assault (120(b)), rape of a child (120b(a)) or sexual assault of a child (120b(b)), forcible sodomy (125), or attempts to commit these offenses. This takes effect and applies only to offenses committed on and after June 24, 2014 (180 days from enactment).
  • § 1705(b), amending Article 18 to confer jurisdiction over the 1705(a) offenses to only general courts-martial. This also takes effect and applies only to offenses committed on and after June 24, 2014 (180 days from enactment).
  • § 1708, requiring the President to amend the non-binding discussion to R.C.M. 306.
  • § 1707, repealing the offense of consensual sodomy.

Discussion of each of these provisions follows.

Read more »

CAAF decided United States v. Castellano, No. 12-0684/MC, 72 M.J. 217 (CAAFlog case page) (link to slip op.), on May 23, 2013, finding that since an act of sodomy may not be criminalized unless there are factors that remove sexual activity from the protected liberty interest identified by the Supreme Court in Lawrence v. Texas, then the existence of such factors must be determined by the trier of fact, reversing the NMCCA and setting aside the finding of guilty of sodomy and the sentence.

Judge Ryan writes for a unanimous court, with Judge Stucky concurring in a separate opinion in which he voices some non-dispositive (to this case) disagreement with the rest of the court.

The Appellant was convicted (in accordance with his pleas) of adultery, and (contrary to his pleas) of one specification of attempted adultery, two specifications of indecent conduct, one specification of sodomy (as a LIO of forcible sodomy), and two specifications of assault consummated by a battery (as LIOs of aggravated sexual contact), by a general court-martial composed of members with enlisted representation. He was sentenced to confinement for eighteen months, reduction to E-1, total forfeitures, and a bad-conduct discharge.

The NMCCA set-aside the assault convictions due to the trial military judge’s failure to properly instruct the members on the availability of the defense of mistake of fact as to consent. The CCA then reassessed and approved the adjudged sentence.

The NMCCA also considered, and rejected, a challenge to the trial military judge’s application of the factors outlined in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). In Marcum, CAAF applied the liberty interest identified by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), to sodomy prosecutions under Article 125, UCMJ, via a three-part test: “First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?” Marcum, 60 M.J. at 206-207.

The Appellant argued that the trial military judge erred when he considered the Marcum factors as a question of law, and refused to submit them to the members for their determination as de facto elements. The NMCCA rejected this argument, as it had before (see United States v. Useche, 70 M.J. 657 (N-M.Ct.Crim.App. 2012), rev. denied, 71 M.J. 379 (C.A.A.F. 2012); see also United States v. Stratton, No. 201000637 (N-M.Ct.Crim.App. Jan. 26, 2012) (unpublished) (discussed here)), and as it did again afterward (see United States v. Pearce, No. 201100110 (N-M.Ct.Crim.App. Nov. 28, 2012) (unpublished)). The NMCCA’s rejection of the Marcum-factors-as-elements argument hasn’t prevented that court from granting relief (it set-aside the findings in Stratton after concluding that the military judge improperly applied the factors), but that court has consistently held – as it did in this case – that “[j]udicially created principles, such as the Marcum factors, are not elements of offenses.” United States v. Castellano, No. 201100248 (N-M.Ct.Crim.App. Jun. 26, 2012). And the NMCCA is not alone. The AFCCA reached the same conclusion in United States v. Harvey, 67 M.J. 758, 763 (A.F.Ct.Crim.App. 2009), rev. denied, 68 M.J. 489 (C.A.A.F. 2010) (“The appellant asserts that the Marcum factors are de facto elements of his Article 133, UCMJ, offense and that it was error for the military judge not to instruct the members on the Marcum factors. We disagree.”).

But CAAF explains that this conclusion is wrong. Judge Ryan begins her discussion by explaining that “in Lawrence, the Supreme Court identified a constitutionally protected liberty interest in private sexual activity between ‘full[y] and mutual[ly] consent[ing]’ adults.” Slip op. at 10 (quoting Lawrence v. Texas, 539 U.S. 558, 578 (2003)). She continues, explaining that in Marcum, the court upheld the constitutionality of Article 125’s criminalization of sodomy by construing the statute to apply only to acts of sodomy that involve a factor identified by the Supreme Court as not involved in Lawrence, or a factor unique to the military environment that affect the nature and reach of Lawerence. This leads to a critical analytical turning point: Marcum factors are not statutory elements, however “but for the presence of a Marcum factor, the act of sodomy would not be subject to criminal sanction.” Slip op. at 11-12. Accordingly, the existence of such a factor cannot be left to the military judge’s discretion.

Read more »

The last scheduled oral argument at CAAF in January is in United States v. Castellano, No. 12-0684/MC, on the following granted issue:

In Miller v. California, the Supreme Court held that the trier of fact must determine whether judicially-created factors that distinguish between constitutionally-protected and criminal conduct are satisfied. The factors identified in United States v. Marcum are an example of such factors but the lower court held that the military judge must determine whether the Marcum factors are satisfied. Who determines whether they have been satisfied?

Lance Corporal Castellano was originally charged with unspecified sexual assaults and forcible sodomy involving multiple alleged victims. However, he was convicted (in accordance with his pleas) of adultery, and (contrary to his pleas) of two specifications of indecent conduct, one specification of sodomy (as a LIO of forcible sodomy), and two specifications of assault consummated by a battery (as LIOs of the unspecified sexual assault charges), by a general court-martial composed of members with enlisted representation. He was sentenced to confinement for eighteen months, reduction to E-1, total forfeitures, and a bad-conduct discharge.

However, in June, 2012, the NMCCA set-aside the assault convictions due to the trial military judge’s failure to properly instruct the members on the availability of the defense of mistake of fact as to consent. The CCA then reassessed and approved the adjudged sentence.

The NMCCA also considered, and rejected, a challenge to the trial military judge’s application of the factors outlined in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). In Marcum, CAAF applied the liberty interest identified by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), to sodomy prosecutions under Article 125, UCMJ, via a three-part test: “First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?” Marcum, 60 M.J. at 206-207.

Specifically, this Appellant argued before the NMCCA that the trial military judge erred when he considered the Marcum factors as a question of law, and refused to submit them to the members for their determination as de facto elements. The NMCCA rejected this argument, as it had before (see United States v. Useche, 70 M.J. 657 (N-M.Ct.Crim.App. 2012), rev. denied, 71 M.J. 379 (C.A.A.F. 2012); see also United States v. Stratton, No. 201000637 (N-M.Ct.Crim.App. Jan. 26, 2012) (unpublished) (discussed here)) and as it has again since (see United States v. Pearce, No. 201100110 (N-M.Ct.Crim.App. Nov. 28, 2012) (unpublished)). The NMCCA’s rejection of the Marcum-factors-as-elements argument hasn’t prevented that court from granting relief (it set-aside the findings in Stratton after concluding that the military judge improperly applied the factors), but that court has consistently held – as it did in this case – that “[j]udicially created principles, such as the Marcum factors, are not elements of offenses.” United States v. Castellano, No. 201100248 (N-M.Ct.Crim.App. Jun. 26, 2012).

And the NMCCA is not alone: The AFCCA reached the same conclusion in United States v. Harvey, 67 M.J. 758, 763 (A.F.Ct.Crim.App. 2009), rev. denied, 68 M.J. 489 (C.A.A.F. 2010) (“The appellant asserts that the Marcum factors are de facto elements of his Article 133, UCMJ, offense and that it was error for the military judge not to instruct the members on the Marcum factors. We disagree.”). Moreover, the Marcum factors appear in another case this term: United States v. Goings, No. 11-0547/AF. In that case, CAAF is asked to apply the Marcum factors to a conviction of indecent acts in violation of Article 134 (though that case was tried by a military judge alone, limiting the analytical similarities between it and Castellano).

All these factors mean that CAAF’s decision to grant review of this issue make this case one to watch closely. And the Appellant’s brief opens with some strong language:

Read more »

NMCCA dismisses a conviction for consensual homosexual sodomy in United States v. Stratton.  It’s unpublished but worth the read.

Appellant was accused of forcible sodomy, but was convicted of consensual sodomy.  That means Lawrence and Marcum had to be discussed.  Read this case for the following:

  • A discussion and reiteration of a “private” location is . . .  The discussion may be fruitful beyond an Article 125 case.
  • A discussion of and that “the military judge’s ruling that the general disruption to the unit [of the investigation of the charges] implicated the third Marcum prong is untenable (emphasis added).
  •   When a TC proffers something to the court, double-tap that for accuracy, and vice-versa.
  • Broad talismanic incantations are as unhelpful in analyzing Marcum factors as they are in Mil. R. Evid. 404(b), situations.
  • The court avoided the issue of whether Marcum “effectively incorporated new elements into the Article 125, UCMJ, charge and that these new elements should have been properly plead and submitted to the trier of fact. Essentially, the appellant argues that the Marcum factors are questions of fact to be answered by the trier of fact.”  Slip op. at  5, 6 n.1.
  • The court avoided the issue:

      I.   POST-LAWRENCE, SODOMY IS NOT A CRIME UNLESS THERE ARE ADDITIONAL CRIMINAL ELEMENTS THAT FURTHER A LEGITIMATE STATE INTEREST.  OVER DEFENSE OBJECTION, THE MILITARY JUDGE INSTRUCTED THE MEMBERS THAT SODOMY WAS A LESSER INCLDUED OFFENSE OF THE CHARGED CRIME OF FORCIBLE SODOMY.  THE MEMBERS THEN RETURNED A VERDICT OF NOT GUILTY TO FORCIBLE SODOMY, BUT GUILTY TO SODOMY.  THE THEORY OF PROSECUTION FOR SODOMY WAS BASED ON ADDITIONAL FACTS ALLEGED BY THE GOVERNMENT AFTER THE TRIAL BEGAN.  THESE FACTS WERE: (1) NOT ELEMENTS DEFINED BY CONGRESS UNDER ARTICLE 125, UCMJ, (2) NOT ALLEGED ON THE CHARGE SHEET; AND (3) NOT SUBMITTED TO THE MEMBERS AND PROVED BEYOND A REASONABLE DOUBT.  IS APPELLANT’S CONVICTION FOR CONSENSUAL SODOMY UNCONSTITUTIONAL IN LIGHT OF THESE DUE PROCESS VIOLATIONS?

If you ever find yourself on Jeopardy! and hear Alex Trebek say, “The reason the UCMJ’s sodomy provision was not repealed in 2011,” the correct response is:  “What is bestiality?”  Allow me to explain.

We previously noted the changes that the National Defense Authorization Act made to the UCMJ.  But that statute is also notable for a change that it doesn’t make.

The Senate’s version of the DOD Authorization Act would have repealed Article 125, which criminalizes sodomy.  The revised version of Article 120 defines “sexual act” to include contact between the penis and not only the vulva, but also the anus or mouth.  As a result, what used to be (and still is) forcible sodomy under Article 125 is also covered by Article 120.  But Article 125 covered (and still does) another offense, as well:  bestiality.  And that offense isn’t covered by Article 120.  A strange coalition emerged to oppose the repeal of Article 125 due to concern over bestiality.  The conference committee report suscintly summarizes the outcome: 

The Senate amendment contained a provision (sec. 551) that would amend section 920 of title 10, United States Code (Article 120 of the Uniform Code of Military Justice (UCMJ)), to separate Article 120, UCMJ, into three separate articles applying to the offenses of rape and sexual assault, sexual offenses against children; and other non-consensual sexual misconduct offenses. The provision would also repeal section 125 of title 10, United States Code (Article 125 of the UCMJ), the offense of sodomy.

The House bill contained no similar provision.

The House recedes with an amendment that would delete the repeal of section 125 of title 10, United States Code (Article 125 of the UCMJ).

157 Cong. Rec. H 8583 (daily ed. Dec. 12, 2011). Read more »

In two separate per curiam opinions and one summary disposition, CAAF remanded three drug lab confrontation cases to the Air Force Court of Criminal Appeals for consideration of whether the confrontation error was harmless beyond a reasonable doubt.  The per curiam cases were United States v. Cavitt and United States v. Dollar.  The summary disposition came in United States v. Garcia-Varela.

CAAF also specified the following confrontation issue in United States v. Sweeney :

WHETHER THE COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW IN DECLINING TO APPLY MELENDEZ-DIAZ v. MASSACHUSETTS, 129 S. CT. 2527 (2009), IN ASSERTING THAT UNITED STATES v. MAGYARI, 63 M.J. 123 (C.A.A.F. 2006), “FOUND DRUG LABORATORY REPORTS TO BE NON-TESTIMONIAL IN NATURE,” AND IN HOLDING (1) THAT DRUG LABORATORY DOCUMENTS WERE NON-TESTIMONIAL IN NATURE, (2) THAT THE LAB REPORT WAS A RECORD OF A REGULARLY CONDUCTED ACTIVITY OF THE NAVY DRUG SCREENING LABORATORY THAT QUALIFIED AS A BUSINESS RECORD AND FIRMLY ROOTED HEARSAY EXCEPTION UNDER M.R.E. 803(6), AND (3) THAT THERE WAS NOTHING TO SUGGEST THAT THE LAB REPORT WAS GENERATED FOR COURT-MARTIAL USE.  SEE UNITED STATES v. BLAZIER, 69 M.J. 218 (C.A.A.F. 2010); UNITED STATES v. BLAZIER, 68 M.J.439 (C.A.A.F. 2010); AND UNITED STATES v. HARCROW, 66 M.J. 154 (C.A.A.F. 2008).

In non-Blazier II news, CAAF granted review of an Article 125 liberty interest issue in the Coast Guard case of United States v. Medina:

WHETHER THE GOVERNMENT VIOLATES THE APPELLANT’S CONSTITUTIONALLY PROTECTED LIBERTY INTERESTS BY FAILING TO MEET THE MANDATORY FACTORS IDENTIFIED BY THIS COURT FOR A CONVICTION UNDER UCMJ, ARTICLE 125.

CAAF ordered the parties not to file briefs on this issue, which didn’t receive any treatment at CGCCA.

Yesterday we noted Major Joel P. Cummings’ very interesting article on Article 125 in the most recent Army Lawyer, available here. Twice in the article, MAJ Cummings opines that Marcum essentially created a new “prejudicial to good order and discipline” element for consensual sodomy charges preferred under Article 125. Is Article 125, Sodomy a Dead Letter in Light of Lawrence v. Texas and the New Article 120?, Army Law., Jan. 2009, at 7, 9 (“the Marcum court essentially added to Article 125 the element of prejudice to good order and discipline from Article 134.”; “In effect, the Marcum court made consensual sodomy like an Article 134 offense requiring an element of prejudice to good order and discipline.”).

We also noted that during yesterday’s oral argument in Harvey at the Air Force Court, both the appellate defense and appellate government counsel agreed that Marcum had created a new de facto element for consensual sodomy charges tried under Article 125 (though the appellate government counsel argued that this de facto element didn’t apply to consensual sodomy charges tried under Article 133). Unbeknownst to me until today, at some point yesterday the Air Force Government Trial and Appellate Counsel Division (JAJG) tried to call an oral argument Mulligan. This is from a motion JAJG filed yesterday at some point after the oral argument:

Appellee would like to clarify a position taken by counsel during oral argument concerning the applicability of the Marcum factors. In cases where Marcum factors apply, the factors do not involve questions of fact that would be given to the members to determine. The United States does not believe that Marcum factors apply or should be given as part of the instructions to panel members in cases where a violation of Article 133, UCMJ, is charged. As explained during oral argument, a charge of Article 133 is wholly different in its nature and the considerations involved than a charge of Article 125. If, however, this Court determines that Marcum factors apply when Article 133 is charged, this means that the military judge should consider the Marcum factors as a question of law to determine if the charge is constitutional as applied to an accused. It does not mean that the members are given instructions as if the Marcum factors are a part of the elements to determine findings of fact. This is the position of the United States despite counsel’s statements during oral argument.

Likewise, in cases like Marcum where a violation of Article 125, UCMJ, is charged, the Marcum factors apply in that the Court should consider the factors as a matter of law to determine whether the charge is constitutional as applied to that case. This is what the Court did in Marcum regarding sodomy with a subordinate, and the Court found that the charge was Constitutional as applied rather than remanding the case for a finding of fact. The application of the Marcum factors does not mean that the factors become a part of the elements for sodomy or that instructions to the members should include the Marcum factors. Marcum means that the Court should consider the Marcum factors as a matter of law to determine whether the charge is constitutional as applied.

I’m actually surprised by JAJG’s attempt to walk back its position. If I were government counsel at a court-martial, I would prefer that the members rather than the military judge decide whether the case fell within one of the three Marcum factors. If it’s treated as a question of fact, then the members decide it, subject only to a factual and legal sufficiency review by the CCA and possible legal sufficiency review by CAAF and the Supremes. If, on the other hand, it’s treated as a question of law, then it’s subject to de novo review by the CCA, by CAAF, and by the Supremes. On the defense side of the house, at the trial level I would prefer it to be a question of law that I could ultimately win at CAAF rather than a factual question that the members would, in essence, definitively resolve. In some future Article 125 prosecution, a trial defense counsel who has the same view as me can now rely the government’s Harvey motion from yesterday in support.

Today the Air Force Court of Criminal Appeals heard a fascinating argument in which the government and the defense agreed that Marcum created an additional de facto element that must be satisfied in an Article 125 prosecution. The government, however, argued that that additional element didn’t need to be satisfied in the Harvey case because his act of consensual, noncommercial, private same-gender oral sex charged under Article 133 rather than under Article 125. The argument should result in an interesting opinion.

Also today, with impecable timing, the January 2009 issue of the Army Lawyer went up on the web with a lead article about Article 125. Major Joel P. Cummings, Is Article 125, Sodomy a Dead Letter in Light of Lawrence v. Texas and the New Article 120?, Army Law., Jan. 2009, at 1. Here’s a link.

Military justice practitioners will also be interested in the issue’s article on military justice in a deployed setting, available here. Captain A. Jason Nef, Getting to Court: Trial Practice in Deployed Environment, Army Law., Jan. 2009, at 50.

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.

CAAF apparently enjoyed the oral argument in United States v. Wilson, No. 06-0870/AR, so much that it has invited further briefing in the case. Still unclear is whether CAAF will hold a second oral argument.

In the daily journal for 3 May, CAAF ordered briefing on the following issue:

IS THE DEFENSE OF MISTAKE OF FACT AS TO AGE AVAILABLE WITH RESPECT TO A CHARGE OF SODOMY WITH A CHILD UNDER THE AGE OF 16, ARTICLE 125, 10 U.S.C. § 825?

CAAF also invited all of the other appellate government and defense divisions to weigh in with amicus briefs.

Here’s the issue that CAAF originally granted in Wilson:

WHETHER THE ARMY COURT ERRED BY AFFIRMING THE FINDINGS AND SENTENCE WHERE THE MILITARY JUDGE, IN ACCEPTING APPELLANT’S GUILTY PLEA TO SODOMY WITH A CHILD UNDER 16, INSTRUCTED APPELLANT THAT HIS HONEST AND REASONABLE MISTAKE OF FACT DID NOT CONSTITUTE A DEFENSE.

Funny, I would have guessed that the new issue would have come up in the course of briefing and arguing the old issue.