Opinion Analysis: The offense of sexual abuse of a child under Article 120b(c) does not preempt the Article 134 offense of indecent language (involving a child), in United States v. Avery
CAAF decided the Army case of United States v. Avery, __ M.J. __, No. 19-0259/AR (CAAFlog case page) (link to slip op.), on February 27, 2020. The court finds that the enumerated Article 134 offense of indecent language (with any person, but with a greater maximum punishment when a child is involved) is not preempted by Article 120b(c) (2012), which criminalizes lewd acts with a child (a legal term of art that includes indecent communications), because there is no indication that Congress intended that result and because the Article 134 offense covers conduct that Article 120b(c) does not. Accordingly, the conviction and the decision of the Army CCA are affirmed.
Judge Ryan writes for a unanimous court.
CAAF granted review to determine:
Whether the specification of Charge II, alleging the communication of indecent language to a child in violation of Article 134, UCMJ, was preempted by Article 120b.
Specialist (E-4) Avery was convicted of communicating indecent language to a child under the age of 16 in violation of Article 134. The conviction was based on vulgar Facebook communications with the twelve year-old stepdaughter of another soldier. Avery’s defense counsel did not object to the charge at trial, but on appeal Avery claimed that when Congress enacted the offense of sexual abuse of a child (in Article 120b(c) (2012)), it intended that offense to apply to all indecent communications involving children and thereby preempted application of the Article 134 offense of indecent language in situations involving children.
Article 134 broadly prohibits “all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital.” The President enumerates offenses under Article 134 by exercising his Article 56 power to set maximum punishments. The enumerated offense of indecent language criminalizes oral and written communications – without regard to the age of the recipient or any criminal intent – that are indecent and either prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces. The maximum punishment authorized by the President for such acts includes confinement for six months and a bad-conduct discharge, but if the recipient of the communication is a child under the age of 16 then the President authorizes a greater punishment including confinement for two years and a dishonorable discharge.
While the President enumerates offenses under Article 134, the preemption doctrine limits Article 134’s otherwise “expansive scope [by] prohibiting ‘application of Article 134 to conduct covered by Articles 80 through 132.'” Slip op. at 4 (quoting Manual for Courts-Martial, United States pt. IV, para. 60.c.(5)(a) (2012 ed.) (moved to para. 91.c.(5)(a) in the 2019 ed.)). But CAAF applies the preemption doctrine narrowly, with two exacting requirements. First, Congress must have intended to limit prosecution in a certain area to just those specific offenses covered by Articles 80-132. Second, the Article 134 offense at issue must be “composed of a residuum of elements of a specific [Article 80-132] offense.” Slip op. at 4 (quoting United States v. Curry, 35 M.J. 359, 360–61 (C.M.A. 1992)).
Neither of those requirements is satisfied with respect to the Article 134 offense of indecent language and the Article 120b(c) offense of sexual abuse of a child.