Argument Preview: Determining the mental state required to commit hazing in United States v. Haverty, No. 16-0423/AR
CAAF will hear oral argument in the Army case of United States v. Haverty, No. 16-0423/AR (CAAFlog case page), on Wednesday, November 16, 2016, after the oral argument in Swift. The case presents a single issue – specified by the court – that questions the mens rea required for hazing in violation of a general regulation:
Whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for an Article 92, UCMJ, violation of Army Regulation 600-20, which prohibits requiring the consumption of excessive amounts of alcohol as an initiation rite of passage.
Sergeant (E-5) Haverty was convicted of numerous offenses by a general court-martial composed of members with enlisted representation. One offense was violation of Article 92 for hazing by “wrongfully requiring Specialist [BB] to consume alcohol.” App. Br. at 3 (citing record). The alcohol consumption occurred while Haverty helped the other soldier prepare gear for a field exercise. Haverty verbally pressured the other soldier into consuming approximately two shots of liquor while preparing the gear. The prosecution characterized this as “order[ing] her to drink alcohol,” in closing argument. App. Br. at 8 (quoting record). Haverty was also convicted of other (touching) offenses committed against the other solder during this encounter, including cruelty and maltreatment, aggravated sexual contact, abusive sexual contact, indecent viewing, and assault consummated by battery. Gov’t Br. at 6.
Last term, in United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page), CAAF held that an accused charged with providing alcohol to minors in violation of an order prohibiting such conduct must act with at least reckless disregard for the true age of the minors in order to be guilty of an orders violation. Haverty returns CAAF to the question of mens rea (mental state) required to violate an order, this time in the context of hazing.
CAAF granted review and ordered briefing in two new cases last week:
No. 16-0423/AR. U.S. v. Joseph R. Haverty. CCA 20130559. 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 hereby granted on the following issue specified by the Court
WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO INSTRUCT THE PANEL ON THE MENS REA REQUIRED FOR AN ARTICLE 92, UCMJ, VIOLATION OF ARMY REGULATION 600-20, WHICH PROHIBITS REQUIRING THE CONSUMPTION OF EXCESSIVE AMOUNTS OF ALCOHOL AS AN INITIATION RITE OF PASSAGE.
Briefs will be filed under Rule 25.
The Army CCA’s opinion in Haverty is available here. The granted issue (specified by the court) is similar to the issue in United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page).
No. 16-0424/MC. U.S. v. Mark J. Rosario. CCA 201500251. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE LOWER COURT ERRED IN CONDUCTING ITS ARTICLE 66(c), UCMJ, REVIEW BY FINDING AS FACT ALLEGATIONS THAT SUPPORTED CHARGES OF WHICH APPELLANT WAS ACQUITTED TO AFFIRM THE FINDINGS AND SENTENCE.
Briefs will be filed under Rule 25.
The NMCCA’s opinion in Rosario is available here. The case involves a conviction of sexual harassment but acquittals of related sexual contact and assault offenses. Affirming the harassment conviction, the CCA noted that “when the same evidence is offered in support of two separately charged offenses, as the physical encounters were here, ‘an acquittal on one [may] not be pleaded as res judicata of the other.'” Slip op. at 4 (quoting Dunn v. United States, 284 U.S. 390, 393 (1932)) (marks in original).