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.

Avery’s brief explains:

The Specification of Charge II alleged that SPC Avery communicated indecent language to a child under the age of sixteen in violation of Article 134, UCMJ. (JA 27). That offense consists of the following elements:

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

(2) That the person to whom the language was communicated was a child under the age of 16;

(3) That such language was indecent; and,

(4) 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.

MCM, pt. IV, para. 89.b. Under the third element, the military judge defined “indecent” as:

[T]hat which is grossly offensive to modesty, decency, or propriety or shocks the moral sense, because of its vulgar, filthy or disgusting nature, or its tendency to incite lustful thought. Language is indecent if it tends reasonably to corrupt morals or incite libidinous thoughts. The language must violate community standards. MCM, pt IV, para. 89.c. Thus, as the government charged this statement, SPC Avery’s intent was irrelevant to a determination of his guilt.

The elements of Article 120b(c), UCMJ, are:

(1) That the accused intentionally communicated indecent language to a child3 by any means; and

(2) That the accused did so with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person.

MCM, pt. IV, para. 45b.a.(c), (h). Although Article 120b(c) does not define “indecent language,” at least one military court has applied the definition of “indecent language” contained in Article 134, UCMJ. United States v. Yang, 2019 CCA LEXIS 127, No. 201800127 (N-M. Ct. Crim. App. Mar. 25, 2019).

App. Br. at 11-12 (emphasis added). Considering that, Avery argues that by charging him under Article 134 rather than under Article 120b(c), “the government circumvented a key element—that of the mens rea of an accused—and significantly lessened its evidentiary burden at trial.” App. Br. at 13.

The Government Division responds by pointing to different evils addressed by the different offenses:

Sexual abuse of a child in violation of Article 120b(c), UCMJ, and indecent language communicated to a child in violation of Article 134, UCMJ, are aimed at addressing different criminal conduct that has historically been treated as separate and distinct offenses. Given this clear difference in conduct, its enactment of Article 120b(c), UCMJ, further expresses Congress’s intent to, in that particular statute, only occupy the field of offenses that protect children from sexual predation. As such, Congress left indecent language communicated to a child under Article 134, UCMJ, undisturbed and a finding of preemption is inappropriate.

Gov’t Div. Br. at 15. The Government Division also highlights how the facts of this case illustrate why Congress might have intended to distinguish between indecent communications made with a certain specific intent and those made without any particular intent:

An example of when “indecent language communicated to a child” should be charged under Article 134, UCMJ, is found in the present case. Appellant called Miss HK, a thirteen year old child, a “cum guzzling gutter slut” during a name calling duel. (JA 27, 43-44, 55). The panel correctly found that such act constituted language which is indecent and of a nature to bring discredit upon the armed forces. (JA 23). Even though the panel was not required to find that appellant communicated this language with the specific intent required under Article 120b(c), UCMJ, Congress did not intend to legalize calling a minor child a“cum guzzling gutter slut” merely because the perpetrator lacked specific sexual  intent. This case shows exactly the type of offense that falls outside of Article 120b(c), UCMJ, but is fully within the confines of “indecent language communicated to a child” under Article 134, UCMJ.

Gov’t Div. Br. at 16-17.

Additionally, the Government Division makes a pretty convincing argument about how application of preemption could lead to an absurd result:

In addition to the obscene name calling found in the present case, under appellant’s position, Congress would have inexplicably intended to allow soldiers to joke or boast (instances not meeting the intent requirement of Article 120b(c), UCMJ) about such things as bestiality, necrophilia, or other shocking and obscene descriptions of sexual activity no matter the potential damage to the public perception of the service or the harm the military community as a whole. This would create a situation where a soldier in uniform could approach an unwitting civilian father with two young children, joke about engaging in obscene sexual behavior, and the military could punish the soldier for communicating such indecent language to the father under Article 134, UCMJ, but not to the minor children.

Gov’t Div. Br. at 17.

Yet Avery’s reply brief argues that Congress intended exactly that result:

Specialist Avery does not dispute that an offense of communicating indecent language to someone sixteen or older is an offense under Article 134 because nothing about Article 120 indicates Congress intended to occupy the field of sexually charged statements to adults. Congress, when passing the 2012 amendment to the UCMJ had this information before it and knew about the principles of preemption. Had it been concerned about a statutory “void” of indecent communications to children without a requiring a specific intent, it could have legislated communicating indecent language to a child with a general intent. It did not. But, anything obscene directed toward someone under sixteen was now preempted by Article 120b because it “proscribes committing a ‘lewd act’ upon a child” and defines “lewd act” to “include . . . communicating indecent language to a child.” MCM, (2012 ed.) App’x 23, p. A23-16.

Reply Br. at 3-4.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

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