CAAFlog » October 2019 Term » United States v. Avery

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Washington, No. 19-0252/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Avery, No. 19-0259/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

CAAF will hear oral argument in the Army case of United States v. Avery, No. 19-0259/AR (CAAFlog case page), on Wednesday, January 15, 2020, after the argument in Washington. The court granted review of a single issue involving the preemption doctrine:

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, as an enumerated offense under Article 134. The President enumerates such offenses 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 any violation 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.

Prior to the revision of Article 120 that took effect in 2007, the UCMJ did not explicitly criminalize indecent language (including communicating indecent language to children). Rather, the communication of indecent language was punishable under Article 134, where the President had enumerated the offenses of indecent language (with anyone) and indecent acts or liberties (including language) with a child. See ¶¶ 87 and 89, Part IV, Manual for Courts-Martial (2005 ed.). The President had, in fact, criminalized a wide variety of sexual misconduct that was outside the scope of the then-narrow Article 120, and the Joint Service Committee opposed Congress’ rewrite of Article 120 on the basis that the enumeration of offenses under Article 134 made the rewrite unnecessary.

Nevertheless, in 2006 Congress rewrote Article 120, codifying numerous offenses formerly chargeable only under Article 134 including the offenses of indecent liberty with a child in Article 120(j) (2007) and of indecent act (including language) in Article 120(k) (2007). But Congress did not enact a specific prohibition on indecent language similar to the offense of indecent language (with anyone) enumerated by the President under Article 134. As a result, while some enumerated Article 134 offenses were deleted, the offense of indecent language remained.

Congress rewrote Article 120 a second time in 2011, creating the new offense of sexual abuse of a child in Article 120b(c) (and eliminating indecent liberty with a child under Article 120(j)), and eliminating the offense of indecent act under Article 120(k) (while creating more narrow offenses in Article 120c). Yet, again, the new offenses were not as broad as the Article 134 offense of indecent language, and so the Article 134 offense remained in the Manual. And it’s still there, at ¶ 105 of Part IV of the 2019 edition, with the same elements as it has had since before 2006:

(1) That the accused orally or in writing communicated to another person certain language;

(2) That such language was indecent; and

(3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

A note explains that where the person to whom the language was communicated was a child under the age of 16, that additional element should be added (to justify a greater maximum authorized punishment).

Avery was charged with that offense for indecent Facebook communications with the twelve year old stepdaughter of another soldier. His defense did not object to the charge at trial, but on appeal he claims 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 to children, thereby preempting application of the Article 134 offense of indecent language in situations involving children. His argument is bolstered by the fact that sexual abuse of a child requires a specific intent that is absent from the Article 134 offense of indecent language.

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Yesterday CAAF granted review in this Army case:

No. 19-0259/AR. U.S. v. Robert S. Avery. CCA 20140202. 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 granted on the following issue:

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.

Briefs will be filed under Rule 25.

The Army CCA’s decision is available here. It does not address preemption.

The preemption doctrine states that Article 134 cannot be used to prosecute conduct covered by Articles 80-132. See ¶ 91.c.(5)(a), Part IV, Manual for Courts-Martial (2019 ed.). See also United States v. Wheeler, 77 M.J. 289 (C.A.A.F. 2018) (CAAFlog case page).

Avery was convicted of communicating indecent language to a child under the age of 16, as an enumerated offense under Article 134. That offense criminalizes the communication of indecent language – without regard to the age of the recipient or any criminal intent – under circumstances that are either prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces, however the MCM authorizes a grater punishment when the recipient is under the age of 16.

Article 120b (2012), in contrast, criminalizes any lewd act with a child, and the definition of a lewd act includes (among other things):

intentionally communicating indecent language to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person

and

any indecent conduct, intentionally done with or in the presence of a child, including via any communication technology, that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

CAAF’s review, it seems, will address whether the Government can use the Article 134 offense of indecent language to prosecute an accused for indecent communications when it can’t prove an intent to abuse, humiliate, degrade, or arouse, or when it can’t prove the tender age of the recipient, or both. If CAAF says it can’t, then that would likely cast doubt on the viability of other well-settled Article 134 offenses, such as self-injury without intent to avoid service (see malingering; see also United States v. Caldwell, 72 M.J. 137 (C.A.A.F. 2013) (CAAFlog case page)) and negligent homicide (see murder and manslaughter; see also United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011), United States v. McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011), and A Mobius Strip of Citation).