Opinion Analysis: Recklessness is (again) the minimum mens rea for an orders violation in United States v. Haverty, No. 16-0423/AR
CAAF decided the Army case of United States v. Haverty, 76 M.J. 199, No. 16-0423/AR (CAAFlog case page) (link to slip op.), on Tuesday, April 25, 2017. Considering a single issue that was specified by the court itself, and applying the Supreme Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), CAAF finds that recklessness is the minimum mens rea (mental state) to sustain a conviction of hazing in violation of Army Regulation 200-20 paragraph 4-20. The court reverses the appellant’s conviction of violation of Article 92 for requiring the consumption of excessive amounts of alcohol as an initiation rite of passage.
Judge Ohlson writes for the court, joined by all but Judge Stucky who concurs with the majority’s conclusion on the mens rea issue but dissents from the majority’s finding of prejudice.
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 [SPC BB] to consume alcohol.” Slip op. at 5 (quoting instructions). The alcohol consumption occurred while Haverty helped the other soldier prepare for a field exercise, and the order allegedly violated included a sweeping prohibition against conduct that “unnecessarily causes another military member or employee, regardless of Service or rank, to suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful.” Slip op. at 4 (quoting AR 600-20). That language, incidentally, was changed in 2014 and now requires that the conduct be committed “recklessly or intentionally.” AR 600-20 ¶ 4-19.a(1) (available here); a change that incorporates the standard announced in today’s opinion.
But for Haverty the military judge did not instruct the members on any necessary mens rea to violate the hazing order, and the members returned a finding of guilty. The Army CCA considered numerous issues on appeal but did not address the mens rea required to violate this order. CAAF then specified a single issue questioning the adequacy of the judge’s instructions:
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.
Today’s decision is Judge Ohlson’s fourth opinion of the court on mens rea issued since March of last year. The first was United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page), which held that an accused must have acted with at least reckless disregard for the true age of a person to whom he provided alcohol in order to be convicted of violating the order prohibiting providing alcohol to an underage person. The second was United States v. Rapert, 75 M.J. 164 (C.A.A.F. Mar. 18, 2016) (CAAFlog case page), which held that the element of wrongfulness in the Article 134 offense of communicating a threat, as specified by the President, requires proof of an accused’s mens rea. The third was United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016), cert denied, __ S. Ct. __ (Oct. 3, 2016) (CAAFlog case page), which held that there is no scenario where an accused could innocently engage in the kind of conduct prohibited by the general intent military offense of maltreatment.
Yet today’s decision doesn’t begin where those decision ended, but rather starts from basic principles to conclude that violation of a hazing order requires at least that the accused acted recklessly; the same requirement that was added to the order in 2014.