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21. Sexual Offenses

https://cite.case.law/mj/75/636/

 

CHAPTER 21

Sexual Offenses

 

  1.       Rape and Sexual Assault Generally

  2.       Rape and Sexual Assault of a Child

  3.       Article 120a

  4.       Other Sexual Misconduct

  5.       Sodomy and Bestiality (2012-2018)

  6.       Child Pornography

 

This Chapter discusses the law pertaining to sexual offenses in effect as of 1 January 2019.  For offenses occurring between 29 June 2012 and 1 January 2019, refer to the 2018 Criminal Law Deskbook.  For offenses occurring prior to 28 June 2012, refer to the Appendix of this Chapter. 

 

I. RAPE AND SEXUAL ASSAULT GENERALLY

 
 
 

A. Generally.  MCM, pt. IV, ¶ 60; UCMJ art. 120.

1. The first step in determining whether an offense meets the statutory definition of a crime under Article 120 is determining whether a sexual act or sexual contact occurred.

a) Sexual Act:  (1) penetration of the vulva, anus or mouth by the penis; (2) contact between the mouth and the penis, vulva, scrotum, or anus; or (3) the penetration, however, slight, of the vulva or penis or anus of another by any part of the body or any object, with the intent to abuse/humiliate/harass/degrade or with the intent to gratify sexual desires. Note that penetration by the penis is therefore by definition a general intent offense.  A sexual act is required for rape and sexual assault offenses.

b) Sexual Contact:  (1) touching, or causing another to touch, either directly or through clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person, with intent to abuse, humiliate, harass, or degrade any person or gratify the sexual desire of any person.  Touching may be accomplished by any part of the body or an object.  A sexual contact is required for aggravated sexual contact and abusive sexual contact offenses.

2. The next step is to determine what actions the accused took, or in some instances, what status the victim was in at the time of the offense.  This will determine which offense is at issue.

a) Rape and aggravated sexual contact occur when the accused takes one of the following actions to accomplish the sexual act or sexual contact:

(1) Using unlawful force against the victim

(2) Using force causing or likely to cause death or grievous bodily harm to any person

(3) Threatening death, grievous bodily harm, or kidnapping to any person

(4) Rendering the victim unconscious

(5) Administering intoxicant/drug by force or threat of force, or without knowledge or consent of the victim

b) Sexual assault and abusive sexual contact occur when the accused takes one of the following actions to accomplish the sexual act or sexual contact, or when the victim is in one of the statuses described:

(1) Threatening the victim or placing him/her in fear

(2) Without consent

(3) Making a fraudulent representation that the sexual act/contact serves a professional purpose

(4) Inducing a belief that the accused is another person

(5) When the victim is asleep, unconscious, or otherwise unaware that the sexual act/contact is occurring, and the accused knew or should have known of such condition

(6) When the victim is incapable of consent due to impairment by a drug/intoxicant/other similar substance, or due to mental disease or defect or physical disability, and the accused knew or should have known of such condition

c) Unlawful Force.  Unlawful Force is defined as an “act of force done without legal justification or excuse.”  “Force” is further defined separately in the statute.  Therefore, the government must prove more than that the accused used merely some amount of unlawful force to accomplish the sexual act or sexual contact – that is, the unlawful force must also amount to use of a weapon, use of physical strength or violence as is sufficient to overcome, restrain, or injure a person, or inflicting physical harm sufficient to coerce or compel submission by the victim.  See United States v. Thomas, 74 M.J. 563 (N-M. Ct. Crim App. 2014).

(1) Body weight alone does not meet the statutory definition of force.  See United States v. Thomas, 74 M.J. 563 (N-M.C.C.A. 2014); United States v. Soto, 74 M.J. 180 (A.F.C.C.A. 2014), aff'd, 74 M.J. 350 (C.A.A.F. 2015).

(2) Rolling an incapacitated victim over onto his back in order to place penis into the victim’s mouth does not meet the statutory definition of force, though it may have met the elements under an “incapable of consent” theory.  United States v. Parker, 75 M.J. 603 (N-M. Ct. Crim. App. 2016).

d) Incapable of consenting. The term “incapable of consenting” means the person is “incapable of appraising the nature of the conduct at issue; or physically incapable of declining participation in, or communicating [unwillingness] to engage in, the sexual act at issue.”   This statutory language is modeled after the judicially-crafted definition where the government has alleged the victim was incapable of consenting: victims are incapable of consenting when they “lack[] the cognitive ability to appreciate the sexual conduct in question or lack[] the physical or mental ability to make or to communicate a decision about whether they agreed to the conduct” United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016).  

(1) Article 120(b)(3) requires proof beyond a reasonable doubt that the accused had actual knowledge that victim could not consent or reasonably should have known that the victim could not consent. Thus, mistake of fact is not a “defense” to sexual assault; it is an attack on an element.  The government is required to disprove, as a matter of course, a mistake of fact in every case under Article 120(b)(3).  Therefore, it is not appropriate to instruct members on a mistake of fact defense in these cases. United States v. Teague, 75 M.J. 636 (A. Ct. Crim. App. 2016)

(2) Incapable of consent raises three questions:  was the victim aware of the nature of the sexual conduct at issue; was the victim able to communicate her unwillingness to engage in the conduct; and was the victim otherwise able to make competent decisions. United States v. Wilson, No. ARMY 20130601, 2016 WL 2726275 (A. Ct. Crim. App. 2016), review denied, (C.A.A.F. 2016) (where victim’s testimony answered all three questions in the affirmative, the two specifications alleging substantial incapacity were legally insufficient).

(3) “Impairment” is a different concept than incapable of consent, and impairment matters only insofar as it renders a victim of incapable of consenting.  See United States v. Newlan, 2016 CCA LEXIS 540 (N-M. Ct. Crim App.  2016) (suggesting a model instruction to define “impairment” which focuses on impairment’s impact on a victim’s capacity to consent).

e) Consent.

(1) Definition. 

(a) The term “consent” means a freely given agreement to the conduct at issue by a competent person.  An expression of lack of consent through words or conduct means there is not consent. Lack of verbal or physical resistance does not constitute consent.  Submission resulting from the use of force, threat of force, or placing another person in fear also does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue does not constitute consent. 

(b) A sleeping, unconscious, or incompetent person cannot consent.  A person cannot consent to force causing or likely to cause death or grievous bodily harm or to being unconscious.  A person cannot consent while under threat or in fear or when force causing or likely to cause death or grievous bodily harm is used, or when threatened or placed in fear that any person will be subjected to death, grievous bodily harm, or kidnapping. 

(c) All surrounding circumstances are to be considered in determining whether a person gave consent.

(2) Per Executive Order 13640 of 16 Sep 2016, “lack of consent is not an element of any offense under [Article 120] unless expressly stated.”  Lack of consent is expressly stated as an element in only two offenses:  where the government alleges the accused administered a drug or intoxicant without the victim’s consent, and where the government alleges the sexual act or sexual contact was without the victim’s consent. 

(3) Evidence of consent is potentially admissible as to any offense under Article 120.  This is because evidence of consent “may preclude the causal link between the sexual conduct and the charged method.” U.S. DEP’T OF ARMY, PAM. 27-9, Military Judges Benchbook.  For example, if members believe the alleged victim consented in an unlawful force case, then the government has not proven that the accused used unlawful force.

(4) Mistake of Fact as to Consent is potentially a defense as to almost all offenses under Article 120.  This is because the accused’s honest and reasonable mistake of fact as to consent “may preclude the causal link between the sexual conduct and the charged method.” U.S. DEP’T OF ARMY, PAM. 27-9, Military Judges Benchbook.  For example, if members believe the accused honestly and reasonably was mistaken as to whether the victim consented in a bodily harm case, then the government has not proven that the accused caused the sexual act via an offensive touching.

(a) Because mistake of fact is “baked into the elements” in incapable of consent cases, it is not a required instruction even if the evidence otherwise would have raised mistake of fact as a defense. United States v. Teague, 75 M.J. 636 (A. Ct. Crim. App. 2016).

(b) While the accused need not testify in order to warrant the instruction, there must be some evidence introduced during the trial “to which the members could attach credit” to the proposition that the accused both honestly and reasonably believed the victim consented. See United States v. Davis, 75 MJ 537 (A.C.C.A. 2015).

B. Lesser included offenses (LIO).  The below cases are representative of LIO case law in the arena of Article 120 for offenses occurring prior to 1 January 2019.  Note that whether an offense is an LIO of another, particularly in the context of Article 120, can be very fact specific; as such, the below cases are intended as guideposts only.  Practitioners are advised to follow the guidance contained in Article 79 and Appendix 12A when determining whether an offense constitutes an LIO of another offense. 

1. Sexual Assault by Causing Bodily Harm is an LIO of Rape by Force.  United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010).  Note that this case is based on the 2007 statute, but the definitions are similar enough to use this as precedent in a post-2012 case.  Also note that the analysis in this case would not apply in cases where the sexual act is alleged to be the bodily harm.  In those cases, sexual assault by bodily harm would not be an LIO.

2. Assault consummated by a battery is an LIO of Wrongful Sexual Contact.  United States v. Bonner, 70 M.J. 1 (C.A.A.F. 2011).  The same analysis would apply to the current Abusive Sexual Contact offense.   

3. Assault consummated by a battery is not an LIO of Sexual Assault where the bodily harm alleged is the penetrative act.  United States v. Hackler, 75 M.J. 648 (N-M.Ct.Crim.App. 2016).  However, Assault consummated by a battery is an LIO of Abusive Sexual Contact.  Id.

4. Assault consummated by a battery is not an LIO of Abusive Sexual Contact by Fear, where the fear alleged does not include fear of bodily harm.  United States v. Riggins, 75 M.J. 78 (C.A.A.F. 2016).

C. Exigencies of proof/charging in the alternative.  The appellate courts recognize that Article 120 cases often lend themselves to charging in the alternative.  See United States v. Elespuru, 73 M.J. 326 (C.A.A.F. 2014).  Military judges should ordinarily dismiss one of the charges based on the principle of unreasonable multiplication of charges only after findings have been reached.  Id.  Practitioners are advised to request the military judge to conditionally dismiss until such time as appellate review has been completed.  See, e.g., United States v. Hines, 75 M.J. 734 (A. Ct. Crim. App. 2016) fn 4  (MJ “should clearly state that the dismissal of the one specification is conditioned on a second specification surviving appellate review.”).  See also United States v. Thomas, 74 M.J. 563 (N-M. Ct. Crim App. 2014), United States v. Parker, 75 M.J. 603 (N-M.Ct.Crim.App. 2016).  Consolidation of specifications may also be appropriate as an alternative to dismissal.  See United States v. Nelms, 2016 CCA LEXIS 227 83 (N-M.Ct.Crim.App. 2016)

D. Statute is gender neutral.

E. Defenses.  Marriage is not a defense.

F. Maximum punishments were prescribed via Executive Order 13643 of 15 May 2013 and Executive Order 13825 of 1 March 2018.  Mandatory minimum sentences of dishonorable discharge or dismissal were prescribed by statute on 24 June 2014 for the following offenses: Rape, Sexual Assault, Rape of a Child, Sexual Assault of a Child, Forcible Sodomy, and attempts of these offenses.  For offenses occurring between 28 June 2012 and 14 May 2013, see United States v. Busch, 75 MJ 87 (CAAF 2016).

II. RAPE AND SEXUAL ASSAULT OF A CHILD

 

A. Generally.

1. The definitions for sexual act and sexual contact found within Article 120b are identical to those found within Article 120, except the term sexual act also includes the intentional touching, not through clothing, of the genitalia of child with intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

2. The definition of force is slightly different in that Article 120b does not require the physical harm to be “sufficient to coerce or compel submission;” rather, physical harm by itself may be enough.  Note that physical harm is but one theory of force available.

3. Rape of a Child

a) Any sexual act with a child under 12 is Rape of a Child, and no defense of mistake of fact as to age exists.  In addition, the government need not prove the accused knew the age of the child.

b) Any sexual act with a child between 12 and 16 caused by force against any person, threatening or placing a child in fear, rendering a child unconscious, or administering a drug or intoxicant constitutes Rape of a Child.

4. Sexual Assault of a Child

a) Any sexual act committed on a child between 12 and 16 is sexual assault of a child.  Mistake of fact as to age is a defense, though the defense bears the burden of proof by a preponderance of the evidence. In addition, the government need not prove the accused knew the age of the child.

b) Offenses against children may still be prosecuted under Article 120 (for example, if the government believes the accused had a reasonable mistaken belief that the child was 16 or older, it could still charge under an Article 120 theory of liability should one exist).

5. Sexual Abuse of a Child

a) Sexual Abuse of a Child is defined as committing a lewd act upon a child.

b) The term ‘lewd act’ means—

(1) any sexual contact with a child;

(2) intentionally exposing one’s genitalia, anus, buttocks, or female areola or nipple to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arose or gratify the sexual desire of any person;

(3) 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; or

(4) 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.

B. Maximum punishments were prescribed via Executive Order 13643 of May 15, 2013.  Mandatory minimum sentences of dishonorable discharge or dismissal were prescribed by statute on 24 June 2014 for the following offenses: Rape, Sexual Assault, Rape of a Child, Sexual Assault of a Child, Forcible Sodomy, and attempts of these offenses. For offenses occurring between 28 June 2012 and 14 May 2013, see United States v. Busch, 75 MJ 87 (C.A.A.F. 2016).

III. ARTICLE 120a

A. Mails; Deposit of Obscene Matter. Article 120A (2019-)

1. Elements.

a) That the accused deposited or caused to be deposited in the mails certain matter for mailing and delivery;

b) That the act was done wrongfully and knowingly; and

c) That the matter was obscene.

2. Explanation.

a) Whether something is obscene is a question of fact. 

b) Obscene is synonymous with indecent, meaning that 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. 

B. Stalking.  Article 120A (2012-2018).

1. Elements.

a) That that accused wrongfully engaged in a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm to himself or herself or a member of his or her immediate family;

b) That the accused had knowledge, or should have had knowledge, that the specific person would be placed in reasonable fear of death or bodily harm, including sexual assault, to himself or herself or a member of his or her immediate family; and

c) That the accused’s acts induced reasonable fear in the specific person of death or bodily harm to himself or herself or to a member of his or her immediate family.

2. For a discussion of what actions may constitute this offense, see generally United States v. Gutierrez, 73 MJ 172 (C.A.A.F. 2014).

 

 

IV. OTHER SEXUAL MISCONDUCT

 

 

 

 

 

 

A. Maximum punishments were prescribed via Executive Order 13643 of May 15, 2013.

B. Indecent viewing is only criminal insofar as the viewing is done “live” and in-person; viewing a recording of another’s private area, even if the recording was done without consent, is not criminal.  See United States v. Quick, 74 M.J. 517 (N-M. Ct. Crim. App. 2015), aff’d, 2015 CAAF LEXIS 703 (C.A.A.F. 2015).

C. It is not indecent exposure to take a picture of one’s genitals and then show that picture to another person; the offense requires a showing of the actual body part, not just an image.  United States v. Williams, 75 M.J. 663 (A. Ct. Crim. App. 2016)See also United States v. Uriostegui, 75 MJ 857 (N-M.Ct.Crim.App. 2016) (pointing out that unlike Article 120b, Article 120c does not specifically mention communications technology).

D. Whether an exposure is done in an “indecent manner” may be judged based on several factors, such as consent, relative ages of the parties, and whether the exposure was in public or private. United States v. Johnston, 75 MJ 563 (N-M.Ct.Crim.App. 2016).

E. Indecent Conduct under Article 134.

1. As of 16 September 2016, the President enumerated Indecent Conduct as an Article 134 offense.  MCM, pt. IV, ¶ 104.  

a) Indecent conduct includes offenses previously proscribed by “Indecent Acts with Another” (prior to October 2007), with one important change: physical presence is no longer required.

b) For the purposes of this offense, the words “conduct” and “acts” are synonymous. 

2. In some circumstances Indecent Acts may be charged for conduct occurring after 28 June 2012, by charging the conduct under Clause 1 and/or 2 of Article 134.  See United States v. Quick, 74 M.J. 517 (N-M.Ct.Crim.App. 2015). 

V. Sodomy and Bestiality (2012-2018)

A. Consensual Sodomy.  The offense of Sodomy under Article 125 was repealed in December 2013; therefore, consensual sodomy is no longer an offense under the UCMJ.  See generally, Lawrence v. Texas, 539 U.S. 558 (2003)

B. The offenses of Forcible Sodomy and Bestiality under Article 125 were deleted by 2016 MJA. 

1. Forcible Sodomy is now covered under the definition of Sexual Act in Article 120. 

2. Bestiality is now covered under Article 134 (Animal Abuse), Sexual Act With an Animal, MCM, pt. IV, ¶ 92b(2).

VI. Child Pornography

A. Prior to 12 January 2012 there was no enumerated crime addressing child pornography in the UCMJ and the President had not listed a child pornography offense under Article 134.  Crimes in the military that involve child pornography prior to 12 January 2012 must be charged under a general article (Article 133 or Article 134); see ¶ G.

B. Article 134 specifically criminalizes four child pornography offenses:

1. Possessing, receiving, or viewing

2. Possession with the intent to distribute

3. Distribution

4. Producing

C. There are few reported cases on this offense.  Much of the case law developed prior to 12 January 2012 is still applicable; as such, practitioners should review ¶ G in its entirety as well. 

D. Note that child pornography as enumerated under Article 134  is defined as either (a) “an obscene visual depiction of a minor engaging in sexually explicit conduct” or (b) “a visual depiction of an actual minor engaging in sexually explicit conduct” (emphasis added). 

1. Obscenity is not defined within the text of the MCM.  Practitioners should look to the myriad of case law defining obscenity if necessary.  Note also that the C.A.A.F., in interpreting 18 U.S.C. § 2256(8)(B), has determined that a “graphic” exhibition of what appears to be a minor must necessarily include nudity.  United States v. Blouin, 74 M.J. 247 (C.A.A.F. 2015).  Whether the C.A.A.F. would require nudity for an “obscene” depiction of what appears to be a minor remains to be seen.

2. The word “obscene” is omitted from the model specification listed in the MCM; trial counsel should nevertheless allege obscenity when unable to definitively prove that the depictions are of actual minors.

E. Sexually explicit conduct is defined in part as a “lascivious exhibition of the genitals or pubic area of any person.”  This definition is not further defined within the MCM.  Because it mirrors the definition found within 18 U.S.C. § 2256, military judges ordinarily read the definition found within subsection (8) of that statute.  In turn, “[o]nce the military judge elects to use the statutory definition of child pornography under 18 U.S.C. § 2256(8), the Child Pornography Prevention Act (CPPA), the evidence must meet that definition.”  United States v. Morris, 2014 CCA LEXIS 645, *4 (N-M.Ct.Crim.App. 2014), aff’d, 2015 CAAF LEXIS 685 (C.A.A.F. 2015).

1. When the images depict an actual minor, the lascivious exhibition need not include nudity, and "the contours of the genitals or pubic area [need not] be discernible or otherwise visible through the child subject's clothing." United States v. Knox, 32 F.3d 733, 746 (3d Cir. 1994)See also United States v. Morris, 2014 CCA LEXIS 645 (N-M.Ct.Crim.App. 2014).

2. In determining whether a display is lascivious, military courts look to the non-exclusive factors outlined in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986).  These factors are:

a) whether the focal point of the visual depiction is on the child's genitalia or pubic area;

b) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

c) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

d) whether the child is fully or partially clothed, or nude;

e) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

f) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986).

g) Note:  The Dost factors are considerations for the Court, however, “there may be other factors that are equally if not more important in determining whether a photograph contains a lascivious exhibition” and the court reaches that conclusion “by combining a review of the Dost factors with an overall consideration of the totality of the circumstances.” United States v. Roderick, 62 M.J. 425, 429–30 (C.A.A.F. 2006).  See also United States v. Watkins, No. ARMY 20140275, 2016 WL 3208750, at *2 (A. Ct. Crim. App. 2016) (child’s testimony that she was not trying to be sexy was not dispositive; the accused’s intent also mattered, and he clearly solicited the picture for his sexual pleasure.  The backdrop of the picture – a bathroom mirror – favored neither side of the equation, but overall the picture qualified as child pornography); United States v. Gould, No. ARMY 20120727, 2016 WL 4177576, at *1 (A. Ct. Crim. App. 2016) (images of eight year old’s crotch where she was wearing underwear were not child pornography, but Judge Wolffe in dissent notes he would have found them to be child pornography under the totality of the circumstances as appellant admitted attraction to the child, had the child sleep in his bed, and admitted the photos were part of his pornography).  However, see ¶D.1 – the C.A.A.F. seemingly does require nudity, despite the fact that it is but one factor per Dost.

h) Note: as discussed in ¶ D.1 above, depictions of a virtual child or a child not identifiable as an actual child might require nudity in order to qualify as “obscene.”  In that case, the Dost factors would still otherwise apply, though nudity would be a required factor.  Again, there is no “obscenity” requirement for depictions of actual minors.

3. It is an open question whether possession of child erotica – that is, nude and sexualized images of children which nevertheless do not depict “sexually explicit conduct” as defined within the MCM – is a viable offense under clause 1 or 2 of Article 134.  See United States v. Moon, 73 M.J. 382 (C.A.A.F. 2014).  Possession of non-nude images of children, even if sexualized, is not an offense.  United States v. Warner, 73 M.J. 1 (C.A.A.F. 2013).    

F. Other issues.

1. Constitutional error.  Even where some images are found not to meet the statutory definition of child pornography upon appellate review, there is no longer a requirement to set aside a guilty verdict as long as at least one of the images constituted non-Constitutionally protected material.  United States v. Piolunek, 74 M.J. 107 (C.A.A.F. 2015).  This case overturned United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012).

2. Multiplicity/UMC.  Because the MCM defines child pornography not as images but materials that contain them, it matters not that the images on each material were visually similar or identical for each count of possession.  Under the plain language of the MCM, accused completed the offense of possession each time he knowingly possessed, directly or constructively, a distinct material that contained visual depictions of child pornography.  As such, accused’s possession of each distinct material reflected a discrete and separately punishable unit of possession.  The President, with respect to the MCM and Article 134, UCMJ, intended to separately criminalize and punish possession of each material that contained child pornography.  Accordingly, the four possession specifications in this case represent four separate criminal acts under the relevant statute, rather than one criminal act charged four times, and the specifications were not multiplicitous. United States v. Forrester, 76 M.J. 479 (C.A.A.F. 2016)

G. Child Pornography – Before 12 January 2012. 

1. There are two ways to charge child pornography crimes committed prior to 12 June 2012 using Article 134:

a) Charge the criminal conduct using Article 134, clauses 1 and 2.

b) Charge a violation of an applicable federal statute using Article 134, clause 3.

2. Clauses 1 and 2, Article 134.

a) “It is a mystery to me why, after this [c]ourt’s ten-year history of invalidating convictions for child pornography offenses under clause 3, and of upholding convictions for such offenses under clause 2, we continue to see cases charged under clause 3.”  United States v. Medina, 66 M.J. 21, 29 n.1 (C.A.A.F. 2008) (Stucky, J., dissenting).

b) Possession of child pornography may be charged as a Clause 1 or Clause 2 offense.  United States v. Irvin, 60 M.J. 23 (C.A.A.F. 2004).

c) Virtual Child Pornography under Clauses 1 and 2. 

(1) United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004) (“The receipt or possession of “virtual” child pornography can, like “actual” child pornography, be service-discrediting or prejudicial to good order and discipline.”).

(2) United States v. Brisbane, 63 M.J. 106 (C.A.A.F. 2006) (“The knowing possession of images depicting sexually explicit conduct by minors, whether actual or virtual,  when determined to be service-discrediting conduct or conduct prejudicial to good order and discipline, is an offense under Article 134”).

(3) The maximum punishment for possession of virtual child pornography is 4 months.  United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011)Cf. United States v. Finch, 73 M.J. 144 (C.A.A.F. 2014).

d) Referencing an unconstitutional statutory definition of child pornography in the pleadings and instructing the members using the unconstitutional statutory definition created instructional error in an Article 133 child pornography case.  United States v. Forney, 67 M.J. 271 (C.A.A.F. 2009) (Effron, C.J., concurring in the result) (Erdmann, J., dissenting).   This analysis should also apply if the offense was charged under clauses 1 and 2 of Article 134.

e) The nature of the images is not dispositive as to whether receiving such images is PGO&D or SD.  United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003) (providence inquiry failed to establish whether accused pled guilty to possession of virtual or actual child pornography; no LIO of clause 1 or clause 2 because no discussion of PGO&D or SD).

f)  Although United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) provides the current state of the law regarding the relationship between the three clauses of Article 134, the following cases were affirmed under clause 2 of Article 134:

(1) United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000) (after finding that the military judge failed to adequately advise the accused of the elements of federal offense of possession of child pornography, under 18 U.S.C. § 2252(a)(4)(A), which he was charged with violating under clause 3 of Article 134, the Air Force court did not err by affirming the lesser included offense of service-discrediting conduct, under clause 2 of Article 134. 

(2) United States v. Augustine, 53 M.J. 95 (C.A.A.F. 2000) (affirming under clause 2 rather than clause 3 of Article 134). 

(3) United States v. Hays, 62 M.J. 158 (C.A.A.F. 2005) (holding the plea inquiry did not implicate the appellant’s First Amendment rights, thus placing the analysis under Sapp and Augustine; although the MJ did not discuss with appellant whether his conduct was service discrediting or prejudicial to good order and discipline, there is no doubt that appellant was aware of the impact of his conduct on the image of the armed forces; affirmed under Clause 2).

3. Clause 3, Article 134.

a) See generally MCM, pt. IV, ¶ 60c(4).

b) Key federal statutes.  The following federal statutes are available for charging various conduct involving the production, possession, transportation, and distribution of child pornography:

(1) 18 U.S.C. § 2251, Sexual Exploitation of Children.  Among other prohibitions, this provision covers the use of minors in the production of child pornography.

(2) 18 U.S.C. § 2252, Certain Activities Relating to Material Involving the Sexual Exploitation of Minors.  This child pornography provision was the predecessor to the computer-specific 18 U.S.C. § 2252A.

(3) 18 U.S.C. § 2252A, Certain Activities Relating to Material Constituting or Containing Child Pornography.  This is the federal provision that most comprehensively covers the use of computers and the Internet to possess, transport, and distribute child pornography.

(4) Statutory Definitions.  18 U.S.C. § 2256 contains the applicable definitions for child pornography offenses.

c) Amendments.

(1) The Effective Child Pornography Prosecution Act of 2007, Pub. L. No. 110-358 (Oct. 8, 2008) (adds "using any means or facility of interstate or foreign commerce" to several sections in 18 USC 2251, 2251A, 2252, and 2252A).

(2) The Enhancing the Effective Prosecution of Child Pornography Act of 2007, Pub. L. No. 110-358 (Oct. 8, 2008) (adds to 18 USC 2252(a)(4) and 2252A(a)(5) the following language after "possesses": "or knowingly accesses with intent to view").

(3) The Providing Resources, Officer, and Technology to Eradicate Cyber Threats to Our Children Act of 2008 (or The PROTECT Our Children Act of 2008), Pub. L. No. 110-401 (Oct. 13, 2008) (Sec 301 prohibits broadcast of live images of child abuse, Sec. 302 amends the definition of "visual image" under 18 USC 2256(5) by inserting "and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format", Sec. 304 prohibits the adaptation or modification of an image of an identifiable minor to produce child pornography).

d) Pleading Child Pornography Offenses Using Clause 3. 

(1) See MCM, pt. IV, ¶ 60c(6).

e) Actual versus Virtual Children.

(1) Using the CPPA and Clause 3, Article 134.

(a) In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the U.S. Supreme Court held that specific language within the definition of child pornography in the 1996 Child Pornography Prevention Act (CPPA) was unconstitutional.  Specifically, the definition impermissibly prohibited “virtual” child pornography in contravention of the First Amendment.  The “virtual image” language was contained in § 2256(8)(B) and § 2256(8)(D). 

(b) Following Ashcroft, the CAAF made the “actual” character of visual depictions of child pornography a factual predicate for guilty pleas under the CPPA.  United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003).

(c) Either the “appears to be” language or “conveys the impression” language found in the CPPA’s unconstitutional definition of child pornography can trigger the requirement to prove an “actual” child was used to make an image of child pornography.  United States v. Wolford, 62 M.J. 418 (C.A.A.F. 2006).

(2) Using Clauses 1 and 2, Article 134.  Child pornography, whether virtual or actual, can be prejudicial to good order and discipline and service-discrediting.  See United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004); United States v. Brisbane, 63 M.J. 106 (C.A.A.F. 2006). 

f) Issues.

(1) Unallocated Space

(a) Per United States v. Schempp, No. ARMY 20140313, 2016 WL 873852 (A. Ct. Crim. App. Feb. 26, 2016), review denied, (C.A.A.F. May 12, 2016), where all child pornography images were found in unallocated space, the government failed to show Defendant “possessed” them.  Possess “means to exercise control of something. Possession may be direct physical custody ... or it may be constructive.... Possession must be knowing and conscious.” “Here, as the appellant was unable to access any of the images in unallocated space, he lacked the ability to exercise “dominion or control” over these files.”

(2) Constitutionality of the Federal statute.

(a) In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the U.S. Supreme Court held that specific language within the definition of child pornography in the 1996 Child Pornography Prevention Act (CPPA) was unconstitutional.  Specifically, the definition impermissibly prohibited “virtual” child pornography in contravention of the First Amendment.  The “virtual image” language was contained in § 2256(8)(B) and § 2256(8)(D). 

(b) The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (Apr. 30, 2003), which amended 18 U.S.C. § 2252A to include a provision that prohibits the solicitation and pandering of child pornography.  United States v. Williams, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008) (holding the Act to be neither impermissibly vague nor overbroad and holding that offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment).

(c) The Protection of Children Against Sexual Exploitation Act, 18 U.S.C. § 2252.  Constitutional because its prohibition against knowing transport, shipment, receipt, distribution, or reproduction of a visual depiction of a minor engaged in sexually explicit conduct requires that the accused know that the performer in the depiction was a minor, thereby satisfying First Amendment concerns. United States v. X-Citement Video, 115 S.Ct. 464 (1994); United States v. Maxwell, 42 M.J. 568 (A.F. Ct. Crim. App. 1995), reversed in part United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996) (transmission of visual images electronically through the use of an on-line computer service is “transport in interstate or foreign commerce’ in light of legislative intent to prevent the transport of obscene material in interstate commerce regardless of the means used to effect that end and statute is constitutional in light of United States v. X-Citement Video, 115 S.Ct. 464 (1994) (statute contains a scienter requirement because the word “knowingly” must be read as applying to the words “use of a minor”). 

(3) Extraterritoriality.  Practitioners in overseas and deployed locations should ensure that the federal statute is applicable to the conduct at issue based on the time and location it occurred.  For offenses occurring after 1 January 2019, Article 134 provides that “crimes and offenses not capital” (i.e. “Clause 3” offenses) includes any conduct engaged in outside the United States, as defined in 18 U.S.C. § 5, that would constitute a crime or offense not capital if the conduct had occurred within the special maritime and territorial jurisdiction of the United States as defined in 18 U.S.C. § 7.

(a) United States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005).  Appellant pled guilty, in relevant part, to sending, receiving, reproducing, and possessing child pornography under Article 134, Clause 3, in violation of the CPPA.  The conduct was charged using 18 U.S.C. §2252A(a)(1–3).  Appellant’s misconduct took place in Germany, both at an off-post internet café, and in his on-post barracks room.  HELD:  1) The CPPA is not extraterritorial as there is no evidence of specific congressional intent to extend its coverage; 2) domestic application is possible under a “continuing offense” theory for sending material that flowed through servers in the United States; 3) appellant’s plea to specification 1 under clause 3 of Article 134 is improvident under O’Connor because of the focus on the unconstitutional definition of child pornography and the lack of focus on “actual” vs. “virtual” images; and 4) there was no reference to appellant’s conduct as service discrediting or prejudicial to good order and discipline.  Strong dissents from both C.J. Gierke and J. Crawford. 

(b) United States v. Reeves, 62 M.J. 88 (C.A.A.F. 2005).  The accused was stationed in Hanau, Germany and used the on-post library computer to receive and print out images of child pornography that had been sent over the Internet.   While still in Germany, he also used a video camera to record sexually explicit imagery of two German girls from about 200 feet away.  His conduct was charged using 18 U.S.C. §§ 2251 and 2252A(a)(1–3).  Citing Martinelli, the court held none of the following acts were continuing offenses with conduct that occurred in the United States, and as such, there could be no domestic application of the CPPA: (1) possession of child pornography at an on-post public library, land used by and under the control of the federal government; (2) receiving child pornography that had been transmitted through the internet; and (3) using minors to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.

(4) Definitions.  United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009).  The CPPA does not define “distribute.” The court looked to three sources for a definition of the term: (1) the plain meaning, (2) the manner Article III courts have interpreted the term, and (3) the guidance that the UCMJ provides through parallel provisions.  See also United States v. Craig, 67 M.J. 742 (N-M. Ct. Crim. App. 2009) (military judge read part of the definition of “distribute” from Article 112a, stating, “Distribute means to deliver to the possession of another.”) .

(5) Method of Distribution. 

(a) Yahoo! Briefcase.  United States v. Navrestad, 66 M.J. 262 (C.A.A.F. 2008).  Sending a hyperlink to a Yahoo! Briefcase during an internet chat session, where the Briefcase contained images of child pornography, does not constitute either distribution of child pornography as defined in the CPPA or possession of child pornography as affirmed by the ACCA under Clauses 1 and 2, where the link itself only provides a roadmap to the child pornography and where the accused did not download or print any of the images to his own computer.  The accused was initially charged under Clause 3 of Article 134, but Clause 1 and 2 language was added to both specifications prior to arraignment.  Convictions for both possession under Clauses 1 and 2, and distribution under the CPPA were set aside.  Note: Yahoo! discontinued its Briefcase service on 30 March 2009.

(b) KaZaA.  United States v. Ober, 66 M.J. 393 (C.A.A.F. 2008).  Using KaZaA to search for and download child pornography from host users over the Internet constituted transportation of child pornography in interstate commerce for purposes of 18 U.S.C. § 2252A(a)(1) because “a user’s download caused an upload on the host user’s computer.”

(c) Peer-to-Peer Software in General.  United States v. Christy, 65 M.J. 657 (A. Ct. Crim. App. 2007).  The accused downloaded peer-to-peer software and set up a “shared files” folder.  As part of his licensing agreement with the software company, he agreed to share all files in that folder, i.e., his child pornography, with other users.  While the term “distribution” is not defined in the statute, definitions found in federal case law are broad enough to cover the act of posting images in a shared file folder and agreeing to allow others to download from the folder.  Additionally, the accused’s conduct was “knowing” under the CPPA, as he admitted during his providence inquiry that he knew 1) that he was posting his child pornography images in a shared file folder, and 2) that anyone with the same peer-to-peer software both had his permission and the general ability to download the files he posted.

(6) Lesser included offenses: Clause 1 and Clause 2.  The use of Clause 1 and Clause 2 as a LIO to a Clause 3 offense has recently been limited by the CAAF holding in United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008).  The court holds that in order for either Clause 1 or Clause 2 to be considered as a LIO to a Clause 3 offense, the Clause 3 specification should contain Clause 1 or Clause 2 language.  If Clause 1 or Clause 2 language is absent from a Clause 3 offense, the opinion may yet allow for Clause 1 or Clause 2 to operate as a LIO provided the military judge clearly explains Clause 1 and Clause 2 and how they can operate as a LIO to the accused.  Prudence, however, dictates that counsel plead the Clause 1 and/or Clause 2 language to avoid the issue at trial. 

(7) Evidence to determine age of models.  United States v. Russell, 47 M.J. 412 (C.A.A.F. 1998) (accused admitted that he guessed the models were “13 or older”; a pediatrician testified that the females shown in the exhibits were not more than 15.5 years old; and members were able to look at the pictures and use their common sense and experience to conclude that the girls were under age 18); United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996) (government was only required to prove that accused believed the images depicted minors to support conviction for knowingly transporting or receiving child pornography in interstate commerce (18 U.S.C. § 2252); government was not required to prove that accused had basis for actual knowledge of the subjects’ ages).  United States v. Cendejas, 62 M.J. 334 (C.A.A.F. 2006) (factfinder can make the determination that pornographic images are actual children based upon a review of the images alone).

g) Other Applications.

(1) United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009).  As the CPPA does not expressly define “distribute,” the court looked to three sources for a definition of the term: (1) the plain meaning, (2) the manner Article III courts have interpreted the term, and (3) the guidance that the UCMJ provides through parallel provisions.  Considering these sources, under the CPPA, distribution of child pornography through the Internet consists of two acts: (1) the posting of the image, where the image left the possession of the original user, and (2) the delivery of the image, where another user accessed and viewed the image.  Here, the accused posted the image to his Yahoo! profile prior to his entry on active duty.  The court reasoned that the profile serves as a “’public bulletin board’ such that all Internet users can access information posted by the profile’s owner.”  Although this was done prior to entering active duty, he accessed the account while on active duty and could have removed the image.  The offense of distribution occurred while he was on active duty when the ICE agent accessed and viewed the image that he had posted for others to view.

(2) United States v. Craig, 67 M.J. 742 (N-M. Ct. Crim. App. 2009).  As 18 U.S.C. § 2252A does not define “distribute,” the military judge read part of the definition of “distribute” from Article 112a, stating, “Distribute means to deliver to the possession of another.”  The plain meaning of the term “distribute” includes “the transfer of an item from the possession of one person into the possession of another.”  The military judge provided a correct statement of the law in defining “distribute.” 

(3) United States v. Smith, 61 M.J. 696 (N-M. Ct. Crim. App. 2005) (Appellant engaged in marketing adult entertainment for profit on the internet, posting hundreds of photos of females engaged in sexually explicit conduct, many of them minors.  Among other offenses, appellant ultimately pled guilty to violating 18 U.S.C. § 2257, under Clause 3, Article 134 for managing a website containing these depictions without maintaining proper records of each performer as that section requires.  HELD:  Appellant’s failure to determine the age and record the identity of the child performer bore a direct relationship to the Government’s interest in preventing child pornography).

(4) “Lascivious exhibition” category of sexually explicit conduct prohibited by § 2251(a).  United States v. Roderick, 62 M.J. 425 (C.A.A.F. 2006) (applying the “Dost” factors to determine “lascivious exhibition”).

(5) In prosecuting a violation of 18 U.S.C. § 2252 (a)(2) by knowingly receiving sexually explicit depictions of minors that have been transported in interstate commerce, “knowingly” applies to the sexually explicit nature of the materials and the ages of the subjects.  The Government does not have to prove that the accused knew that the sexually explicit depictions passed through interstate commerce.  The interstate commerce element is merely jurisdictional.  United States v. Murray, 52 M.J. 423 (C.A.A.F. 2000).

(6) “Viewing” child pornography was not an offense under 18 U.S.C. § 2252 until its 2008 amendment.  As such, viewing child pornography prior to the date of this amendment is likewise not chargeable under Article 134.  United States v. Merritt, 72 MJ 483 (C.A.A.F. 2014).

h) Multiplicity/UMC.

(1) United States v. Purdy, 67 M.J. 780 (N-M. Ct. Crim. App. 2009).  The accused downloaded child pornography from the Internet onto his personal computer while stationed in Belgium.  He then downloaded the images from the hard drive onto a compact disk and reformatted the hard drive, but retained the compact disk.  He was charged with both receiving and possessing child pornography under Clause 3 of Art. 134.  He pled guilty to both offenses under Clauses 1 and 2.   In this case, his act of saving the images to the CD-ROM “was a clear exercise of dominion . . . separate and apart” from his receipt of the images at an earlier point in time.  The conviction for both offenses was proper and the military judge did not commit plain error.

(2) United States v. Craig, 67 M.J. 742 (N-M. Ct. Crim. App. 2009). The accused used “LimeWire,” a peer-to-peer file-sharing software program to search for and download child pornography.  He downloaded the child pornography into a “share” folder on his hard drive.  He kept some of the images in the “share” folder, copied some to compact disks, and deleted others.  He pled guilty to both receipt and possession of child pornography under 18 U.S.C. § 2252A using Clause 3 of Art. 134. The court held that these two specifications were not facially duplicative and therefore military judge did not commit plain error in failing to dismiss these specifications as multiplicious.  The charges of receipt and possession “address at least two criminal actions by the [accused] each of which occurred at a different time within the charged time period and involved separate media.

Appendix:        SEXUAL OFFENSES BEFORE 28 June 2012

Because different versions of Article 120 exist, different laws may apply to the same case; therefore, practitioners must remain cognizant of (1) the date the offense occurred and (2) the statute of limitations when deciding which offenses to research. 

A. Changes in the Law

Right Arrow: Pre-2007Art. 120, Art. 134                                   

 

B.Pre-2007 Sexual Offenses

 

 
 
 

 

 

1. Rape (pre-1 October 2007).  MCM (2016 ed.), App. 27, ¶ 45.

a) Elements.

(1) That the accused committed an act of sexual intercourse; and

(2) That the act of sexual intercourse was done by force and without consent.

b) Article 120 has no spousal exemption and is gender-neutral.

c) Any penetration, however slight, is sufficient.  United States v. Aleman, 2 C.M.R. 269 (A.B.R. 1951).

d) In determining whether force and lack of consent occurred, a totality of the circumstances must be considered.  See United States v. Webster, 40 M.J. 384, 386 (C.M.A. 1994).

e) Lack of Consent.

(1) Competence to consent. 

(a) No consent exists where victim is incompetent, unconscious, or sleeping.  United States v. Booker, 25 M.J. 114 (C.M.A. 1987); United States v. Robertson, 33 C.M.R. 828 (A.F.B.R. 1963); United States v. Maithai, 34 M.J. 33 (C.M.A. 1992); United States v. Grier, 53 M.J. 30 (C.A.A.F. 2000).

(b) A child of tender years is incapable of consent.  United States v. Aleman, 2 C.M.R. 269 (A.B.R. 1951); United States v. Thompson, 3 M.J. 168 (C.M.A. 1977); see United States v. Huff, 4 M.J. 816 (A.C.M.R. 1978) (because victim is under 16, proof of age is proof of nonconsent allowing fresh complaint evidence).

(2) Resistance by Victim. 

(a) The lack of consent required is more than mere lack of acquiescence. If a victim in possession of his or her mental faculties fails to make lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that the victim did consent.  See MCM (2016 ed.), App. 27, ¶ 45.c.(1)(b).

(b) If victim is capable of resistance, evidence must show more than victim’s lack of acquiescence.  United States v. Bonano-Torres, 31 M.J. 175 (C.M.A. 1990) (acquiescence to intercourse with accused so the “victim” could go to sleep is insufficient for rape). 

(c) Consent may be inferred unless victim makes her lack of consent “reasonably manifest by taking such measures of resistance as are called for by the circumstances.”  United States v. Tollinchi, 54 M.J. 80 (C.A.A.F. 2000) (holding successful resistance by intoxicated seventeen-year-old victim to oral sodomy, followed by lack of resistance to intercourse, rendered rape conviction legally insufficient).

(d) Verbal protest may be sufficient to manifest a lack of consent sufficient to support rape.  United States v. Webster, 40 M.J. 384 (C.M.A. 1994) (evidence of unwavering and repeated verbal protest in context of a surprise nonviolent sexual aggression by boyfriend was considered reasonable resistance).

(3) Resistance by Victim Not Required. 

(a) Consent may not be inferred if resistance would have been futile, where resistance is overcome by threats of death or great bodily harm, or where the victim is unable to resist because of the lack of mental or physical faculties.  All the surrounding circumstances are to be considered in determining whether a victim gave consent, or whether he or she failed or ceased to resist only because of a reasonable fear of death or grievous bodily harm.  See MCM (2016 ed.), App. 27, ¶ 45.c.(1)(b).

(b) Proof of rape of a daughter by her father may not require physical resistance if intercourse is accomplished under long, continued parental duress.  United States v. Dejonge, 16 M.J. 974 (A.F.C.M.R. 1983); see United States v. Palmer, 33 M.J. 7 (C.M.A. 1991); see United States v. Davis, 52 M.J. 201 (1999); United States v. Young, 50 M.J. 717 (Army Ct. Crim. App. 1999) (compulsion may apply even when child is not a minor); see generally TJAGSA Practice Note, Proving Lack of Consent for Intra-Family Sex Crimes, Army Law., Jun. 1990, at 51.

(c) Cooperation with assailant after resistance is overcome by numbers, threats, or fear of great bodily harm is not consent.  United States v. Burt, 45 C.M.R. 557 (A.F.C.M.R. 1972); United States v. Evans, 6 M.J. 577 (A.C.M.R. 1978); United States v. Lewis, 6 M.J. 581 (A.C.M.R. 1978).

(d) Whether the rape victim was justified in resisting by words alone involves a factual issue whether she viewed physical resistance as impractical or futile. United States v. Burns, 9 M.J. 706 (N.C.M.R. 1980).

(4) Mistake as to Consent.  An honest and reasonable mistake of fact to the victim’s consent is a defense. United States v. Hibbard, 58 M.J. 71 (2003); United States v. Taylor, 26 M.J. 127 (C.M.A. 1988); United States v. Carr, 18 M.J. 297 (C.M.A. 1984); United States v. Davis, 27 M.J. 543 (A.C.M.R. 1988); United States v. True, 41 M.J. 424 (1995) (mistake of fact as to victim’s consent to intercourse cannot be predicated upon accused’s negligence; mistake must be honest and reasonable); United States v. Traylor, 40 M.J. 248 (C.M.A. 1994) (mistake of fact as to consent is not reasonable when based upon belief by accused that victim would consent to intercourse with anyone); United States v. Parker, 54 M.J. 700 (Army Ct. Crim. App. 2000) (evidence factually insufficient to sustain conviction where accused claimed he mistakenly believed that the victim consented to intercourse and sodomy where she and the accused engaged in a consensual relationship for several months before the first alleged rape, she sent mixed signals to the accused about their relationship and the relationship included consensual sexual acts).

(5) Consent Obtained by Fraud.  Consent obtained by fraud in the inducement (e.g., lying about marital status or desire to marry, a promise to pay money or to respect sexual partner in the morning) will not support a charge of rape.  Consent obtained by fraud in factum (i.e., a misrepresentation of act performed or some aspects of identity) can support a rape charge.  United States v. Booker, 25 M.J. 114 (C.M.A. 1987).

(6) Identity of partner.  The victim’s consent is not transferable to other partners.  United States v. Traylor, 40 M.J. 248 (C.M.A. 1994) (victim consented to sexual intercourse with one soldier but during intercourse, another soldier, the accused, penetrated the victim without first obtaining her consent and victim was not aware of the accused’s presence until he had already penetrated her without consent).

f) Relationship Between Elements of Lack of Consent and Force.  Although force and lack of consent are separate elements, there may be circumstances in which the two are so closely intertwined that both elements may be proved by the same evidence.  Consent induced by fear, fright, or coercion is equivalent to physical force.  Such constructive force may consist of expressed or implied threats of bodily harm. United States v. Simpson, 58 M.J. 368, 377 (C.A.A.F. 2003).

g) Force.

(1) When constructive force is not at issue and the victim is capable of resisting, some force more than that required for penetration is necessary; persistent sexual overtures are not enough.  United States v. Bonano-Torres, 31 M.J. 175 (C.M.A. 1990).

(2) If a victim is incapable of consenting, no greater force is required than that necessary to achieve penetration.  United States v. Grier, 53 M.J. 30 (C.A.A.F. 2000).

(3) United States v. Cauley, 45 M.J. 353 (C.A.A.F. 1996) (sufficient force where victim testified that she accompanied the accused without protest to his private quarters knowing that the accused intended to engage in sexual intercourse and offered no physical resistance as the accused removed her clothing and positioned her on the bed, but further testified that before sexual intercourse she told accused “no” several times and that she did “not want to do this” and “wanted to go home”, that she turned her face when he attempted to kiss her and that he used his legs to pry her legs open). But see United States v. King, 32 M.J. 558 (A.C.M.R. 1991) (evidence insufficient to show requisite force).

(4) Constructive Force. 

(a) If resistance would have been futile, where resistance is overcome by threats of death or great bodily harm, or where the victim is unable to resist because of the lack of mental or physical faculties, there is no consent and the force involved in penetration will suffice.  See MCM (2016 ed.), App. 27, ¶ 45.c.(1)(b).

(b) Constructive force, as a substitute for actual force, may consist of express or implied threats of bodily harm.  United States v. Bradley, 28 M.J. 197 (C.M.A. 1989) (threat of imprisoning husband); United States v. Hicks, 24 M.J. 3 (C.M.A. 1987); United States v. Palmer,  33 M.J. 7 (C.M.A. 1991) (parental figure can exert a psychological force over child that is constructive force).

(c) Force can be subtle and psychological, and need not be overt or physically brutal.  United States v. Torres, 27 M.J. 867 (A.F.C.M.R. 1989) clarified, 1989 CMR LEXIS 1042  (A.F.C.M.R. Nov. 15, 1989); United States v. Sargent, 33 M.J. 815 (A.C.M.R. 1991), aff’d, 36 M.J. 14  (C.M.A. 1992). 

(d) Constructive force in the form of parental compulsion is not limited to cases in which the victim is under 16 years of age.  Age is one factor to consider in determining whether victim’s resistance was overcome by parental compulsion. United States v. Young, 50 M.J. 717 (Army Ct. Crim. App. 1999) (accused started to “groom” and “condition” his stepdaughter when she was five years old; sexual intercourse started when she was 11 years old; accused was convicted of raping his stepdaughter from when she was 16 to 20 years old).

(e) Rank disparity alone is not sufficient to show constructive force.  Other factors are relevant. United States v. Simpson, 58 M.J. 368, 377 (C.A.A.F. 2003) (accused was in a power relationship, not a dating one, with the trainees he was accused of raping and the court noted: (1) the accused’s physically imposing size; (2) his reputation in the unit for being tough and mean; (3) his position as a noncommissioned officer; (4) his actual and apparent authority over each of the victims in matters other than sexual contact; (5) the location and timing of the assaults, including his use of his official office and other areas within the barracks in which the trainees were required to live; (6) his refusal to accept verbal and physical indications that his victims were not willing participants; and (7) the relatively diminutive size and youth of his victims, and their lack of military experience; and finally, the accused’s abuse of authority in ordering the victims to isolated locations where the charged offenses occurred). 

(f) United States v. Bright, 66 M.J. 359 (C.A.A.F. 2008).  The accused was a drill sergeant and was convicted of raping a female trainee on three separate occasions.  The court concluded there was insufficient evidence, based on totality of circumstances, regarding lack of consent.  First, the court observed that the record is devoid of any evidence that PVT W manifested a lack of consent or took any measures to resist sexual intercourse.  She made arrangements to meet him at a hotel knowing that sex would occur and she made her own way to the hotel to meet him.  On two occasions, she arrived at the hotel first and waited for him.  Additionally, even though she resisted sodomy on one occasion, there is no evidence that she resisted “normal sexual intercourse” in any way, verbal or physical.  The court next concluded that there is no evidence to support the inference that resistance would have been futile or that he resistance would have been overcome by threats of death or grievous bodily harm.  The accused never threatened her physically—the only threat was to take away her pass status.  Finally, the court distinguished PVT W’s perceived futility of resistance from the facts in United States v. Simpson, 58 M.J. 368 (C.A.A.F. 2003) (where the accused ordered his victims into isolated areas, initiated sexual activity, and then refused to accept “verbal and physical indications that his victims were not willing participants”) and United States v. Clark, 35 M.J. 432 (C.M.A. 1992) (where the accused cornered the victim in a “small shed with brick walls and a metal door and . . . positioned himself between the door and the victim”).

h) Lesser Included Offenses.  When considering the lesser included offenses under the “old Article 120,” it is important to consider the lesser included offenses as they existed prior to October 2007.  However, it is also important to consider the current case law with regard to lesser included offense.  See United States v. Medina, 66 M.J. 21, 27 (C.A.A.F. 2008); United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009); United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). While Appendix 27 of the 2012 MCM contains the “old Article 120” offenses as well as the “old Article 134” offenses, that, at the time were considered lesser included offenses, you must consider the strict elemental test in determining what are the actual lesser included offenses.  In order for an accused to be on notice of a lesser included offense, the government must allege every element, expressly or by necessary implication, including the terminal element of an Article 134 offense.

(1) Carnal knowledge.  Carnal knowledge is a lesser included offense of rape when the pleading alleges that the victim has not yet attained the age of 16 years. 

(2) Attempted rape. 

(a) Accused who was dissuaded by the victim from completing the rape and abandoned the act could be found guilty of attempted rape.  United States v. Valenzuela, 15 M.J. 699 (A.C.M.R. 1983), aff’d in part, rev’d in part on multiplicity grounds, 16 M.J. 305  (C.M.A. 1983).  But see United States v. Byrd, 24 M.J. 286 (C.M.A. 1987) (voluntary abandonment is a defense to attempted rape, but evidence insufficient to establish defense in this case).  See MCM, pt. IV, ¶ 4.c.(4).  

(b) United States v. Polk, 48 C.M.R. 993 (A.F.C.M.R. 1974) (gross and atrocious attempt to persuade the victim to consent to intercourse is not attempted rape but may be indecent assault).

i) Multiplicity.

(1) Rape and aggravated assault are multiplicious for findings.  United States v. Sellers, 14 M.J. 211 (C.M.A. 1982) (summary disposition); see United States v. DiBello, 17 M.J. 77 (C.M.A. 1983).

(2) Rape and communication of a threat are multiplicious for findings.  United States v. Hollimon, 16 M.J. 164 (C.M.A. 1983).

(3) Two rapes of same victim are not multiplicious for any purpose where first rape completely terminated before second rape began.  United States v. Ziegler, 14 M.J. 860 (A.C.M.R. 1982); accord United States v. Turner, 17 M.J. 997 (A.C.M.R. 1984).

(4) Rape and extortion are not multiplicious for findings or sentence.  United States v. Hicks, 24 M.J. 3 (C.M.A. 1987).

(5) Rape and adultery charges are not multiplicious for findings.  United States v. Hill, 1997 CAAF LEXIS 1093 (Sept. 30, 1997); United States v. Mason, 42 M.J. 584 (Army Ct. Crim. App. 1995). 

(6) Rape, sodomy, and indecent acts or liberties with a child are separate offenses.  United States v. Cox, 42 M.J. 647 (A.F. Ct. Crim. App. 1995), aff’d, 45 M.J. 153 (C.A.A.F. 1996).

j) Punishment.

(1) United States v. Stebbins, 61 M.J. 366 (C.A.A.F. 2005).  Appellant pled guilty to rape and sodomy of a child under the age of twelve.  LWOP is an authorized punishment for rape after November 18, 1997 (extending the reasoning of United States v. Ronghi, 60 M.J. 83 (C.A.A.F. 2004)). 

(2) Capital Punishment. 

(a) Although UCMJ art. 120(a) authorizes the death penalty for rape, a plurality of the Supreme Court in Coker v. Georgia, 433 U.S. 584 (1977) held that the death penalty for the rape of an adult woman was cruel and unusual punishment regardless of aggravating circumstances.  R.C.M. 1004(c)(9), revised to account for Coker, limits the death penalty for rape to cases where the victim is under the age of 12 or where the accused maimed or attempted to kill the victim.  See generally United States v. Straight, 42 M.J. 244, 247 (C.A.A.F. 1995). 

(b) In 2008, the Supreme Court held that the death penalty for the rape of a child is unconstitutional where the child was not killed.  In Kennedy v. Louisiana, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008), the Court held that a Louisiana statute authorizing the imposition of the death penalty for the rape of a child under the age of 12 is prohibited by the Eighth Amendment and Fourteenth Amendments and is unconstitutional.  The holding states specifically that “a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional.”  Slip Opinion at 10.   The case does not include the UCMJ in its survey of jurisdictions that provide death as the maximum punishment for the rape of a child under 12 years of age.  In denying a petition for rehearing based on the exclusion of the military from the survey of jurisdictions retaining the death penalty for child rape, the Court stated that the fact that the Manual for Courts-Martial “retains the death penalty for rape of a child or an adult . . . does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context. . . .”  Suggesting, perhaps, that there may be facts, circumstances, or policy reasons justifying death as a punishment for child rape when committed by a member of the military, the court declined to “decide whether certain considerations might justify differences in the application of the Cruel and Unusual Punishments Clause to military cases . . . .”  See Kennedy v. Louisiana, No. 07-343 (U.S. Oct. 1, 2008) (statement accompanying denial of petition for rehearing). 

2. Carnal Knowledge.  MCM (2016 ed.), App. 27, ¶ 45; UCMJ art. 120(b).

a) Elements.

(1) That the accused committed an act of sexual intercourse with a certain person;

(2) That the person was not the accused’s spouse; and

(3) That at the time of the sexual intercourse the person was less than 16 years of age.

b) This offense is gender-neutral.

c) Article 120(d), UCMJ, provides special defense to carnal knowledge based upon mistake of fact as to the age of the victim.

(1) The accused bears both the burden of production and persuasion for this defense.

(2) The defense applies only if the victim has attained the age of 12.

(3) The accused must establish by a preponderance of the evidence that the mistake by the accused as to the age of the victim was both honest and reasonable.

d) Honest and reasonable mistake as to identity of accused’s sexual partner constitutes a legal defense.  United States v. Adams, 33 M.J. 300 (C.M.A. 1991).

e) The victim is not an “accomplice” for purposes of a witness credibility instruction.  United States v. Cameron, 34 C.M.R. 913 (A.F.B.R. 1964).

f) Marriage.

(1) Government may prove that the accused and the prosecutrix were not married without direct evidence on the issue.  United States v. Wilhite, 28 M.J. 884 (A.F.C.M.R. 1989).

(2) Carnal knowledge form specification is sufficient even though it does not expressly allege that the accused and his partner were not married.  United States v. Osborne, 31 M.J. 842 (N.M.C.M.R. 1990).

g) Multiplicity.  Carnal knowledge and adultery are not multiplicious for findings.  United States v. Booker, No. 97-0913, 1999 CAAF LEXIS 637 (C.A.A.F. Feb. 19, 1999)(unpublished).

h) Statute of Limitations.  United States v. McElhaney, 54 M.J. 120 (C.A.A.F. 2000) (statute of limitations codified at 18 U.S.C. § 3283, which permits prosecution for offenses involving sexual or physical abuse of children under the age of 18 until the child reaches the age of 25, does not apply to courts-martial as UCMJ Article 43 provides the applicable statute of limitations for courts-martial).  Willenbring v. Neurauter, 48 M.J. 152 (C.A.A.F. 1998) (statute of limitations under Article 43 does not bar trial for rape, as any offense “punishable by death” may be tried at any time without limitation, even if it is referred as a noncapital case), aff’d, 57 M.J. 321  (C.A.A.F. 2002).

3. Forcible sodomy; bestiality.  MCM (2016 ed.), pt. IV, ¶ 51; UCMJ art. 125.

a) The text of Article 125, UCMJ was amended effective 26 December 2013 to cover only acts of bestiality and forcible sodomy.  The elements are:

(1) Forcible Sodomy:

(a) That the accused engaged in unnatural carnal copulation with another person of the same or opposite sex

(b) That the act was done by unlawful force or without the consent of the other person

(2) Bestiality:

(a) That the accused engaged in unnatural carnal copulation with an animal.

(b) Penetration, however slight, is sufficient to complete an offense    under either subsection.

b) Notably, in some cases the same act could be charged under either Article 125 or Article 120/120b.  There has been some suggestion that Article 125 is therefore no longer a viable charge as it relates to sodomistic acts.  See United States v. Gross, 73 M.J. 864 (A.C.C.A. 2014)(Krauss, E., dissenting).

c) Sodomy – Elements pre-26 December 2013.

(1) That the accused engaged in unnatural carnal copulation with a certain other person or with an animal.

(2) (If applicable) That the act was done with a child under the age of 16.

(3) (If applicable) That the act was done by force and without the consent of the other person.

d) Constitutionality.

(1) Before Lawrence v. Texas, 123 S.Ct. 2472 (2003), it was clear that Article 125 was constitutional, even as applied to private, consensual sodomy between spouses. 

(2) United States v. Allen, 53 M.J. 402 (C.A.A.F. 2000) (Constitutional right to privacy (engaging in sexual relations within a marital relationship) must bear a reasonable relationship to activity that is in furtherance of the marriage.  As part of a pattern of abuse, the accused beat his wife, solicited her to prostitute herself, and anally sodomized her.  Prior to the assaults, she had refused anal sodomy, because she was forcibly sodomized as a teenager).

(3) United States v. Thompson, 47 M.J. 378 (C.A.A.F. 1997) (accused could not claim that an act of consensual sodomy with his wife was protected by the constitutional right to privacy, where his wife performed fellatio on him in an attempt to divert his attention away from reloading a pistol which had misfired moments before when he put it against her head and pulled the trigger).

(4) Article 125’s prohibition of “unnatural carnal copulation” is not unconstitutionally vague.  United States v. Scoby, 5 M.J. 160 (C.M.A. 1978). 

(5) Lawrence:  However, in Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court overruled as unconstitutional a Texas law criminalizing consensual homosexual sodomy.  In that case the Court stated that “[t]he State cannot demean a homosexual person’s existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”

(6) Post-Lawrence cases

(a) United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). Appellant was an NCO supervisor of junior airmen newly assigned to his flight.  He regularly socialized with his subordinates, who often spent the night at his off-post home after parties.  Appellant was charged, inter alia, with forcible sodomy under Art. 125 but was convicted of the lesser included offense of non-forcible sodomy.  The CAAF affirmed Marcum’s conviction, holding that as applied to appellant and in the context of his conduct, Art. 125 is constitutional.  The court assumed without deciding that appellant’s conduct involved private sodomy between consenting adults, appellant’s conduct was nevertheless outside the liberty interest recognized in Lawrence.  Specifically, appellant was the airman’s supervising NCO and knew his behavior was prohibited by service regulations concerning improper senior-subordinate relationships.  Here, the situation involved a person “who might be coerced” and a “relationship where consent might not easily be refused,” facts the Supreme Court specifically identified as not present in Lawrence.  The CAAF explicitly did not decide whether Art. 125 would be constitutional in other settings.

(b) Marcum 3-Part Test for determining when the Constitution allows the prohibition of sodomy:

(i) Is the accused’s conduct within the liberty interest identified by the Supreme Court in Lawrence?

(ii) Does the conduct encompass any behavior or factors identified as outside the analysis in Lawrence (i.e., public acts, prostitution, minors, persons who might be injured or coerced or who might not easily refuse consent)?

(iii) Are there additional factors relevant solely in the military environment that affect the reach of the Lawrence liberty interest?

(c) United States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004) (non-forcible sodomy that violated service regulations prohibiting improper relationships between members of different ranks; citing Marcum, his conduct fell outside any liberty interest recognized in Lawrence).

(d) United States v. Christian, 61 M.J. 560 (N-M. Ct. Crim. App. 2005) (consensual sodomy between accused, a recruiter, and “RW,” originally a volunteer ASVAB tutor at the accused’s recruiting office; although private and not specifically excepted under Lawrence, appellant’s conduct implicated military-specific interests described in the third prong of the Marcum framework.  Specifically, his role as a Marine recruiter & his violation of a recruit depot general order).  United States v. Bart, 61 M.J. 578 (N-M. Ct. Crim. App. 2005) (consensual sodomy between co-workers in violation of SecNavy Instruction, involved adultery, and one partner murdered a spouse to continue the relationship combined to violate Marcum third prong).

(e) United States v. Smith, 66 M.J. 556 (C.G. Ct. Crim. App.  2008).  Assuming arguendo that the conduct was not the result of extortion, the sodomy in this case was between two consenting first-class cadets in different chains of command.  As such, the court observed that the conduct appeared to fall within the Lawrence liberty interest.  However, addressing the Marcum factors, the court found that Coast Guard Academy regulations prohibit sexual activities between cadets on board military installations, even if consensual.  As there is a regulation prohibiting the behavior, the court held that the conduct constituting sodomy fell outside the protected liberty interest recognized in Lawrence v. Texas.

(f) United States v. Harvey, 67 M.J. 758 (A.F. Ct. Crim. App.  2009).  In a prosecution of sodomy under Art. 133 as conduct unbecoming, military judge did not err in failing to instruct the members on the Marcum factors.  “Whether an act comports with law, that is, whether it is legal or illegal [in relation to a constitutional or statutory right of an accused] is a question of law, not an issue of fact for determination by the triers of fact.”

e) Acts Covered.

(1) “Unnatural carnal copulation” includes both fellatio and cunnilingus.  United States v. Harris, 8 M.J. 52 (C.M.A. 1979).

(2) Some penetration, however, is required.  UCMJ art. 125; United States v. Barrow, 42 M.J. 655 (A.F. Ct. Crim. App. 1995) (holding “intercourse” is a synonym for “copulation” and connotes act of penetration that the term “oral sex” does not), aff’d, 45 M.J. 478 (C.A.A.F. 1997); United States v. Deland, 16 M.J. 889 (A.C.M.R. 1983) aff’d in part, rev’d in part on multiplicity grounds, 22 M.J. 70 (C.M.A. 1986).  Penetration, however slight, by male genital into orifice of human body except the vagina is sufficient.  United States v. Cox, 23 M.J. 808 (N.M.C.M.R. 1986). Specification alleging “licking the genitalia” was not inconsistent with the penetration required for sodomy.  United States v. Cox, 18 M.J. 72 (C.M.A. 1984); United States v. Green, 52 M.J. 803 (N-M. Ct. Crim. App. 2000) (victim’s testimony that the accused’s head was between her legs, his hands were on her thighs, her legs were spread apart, his mouth was on her vagina, he performed “oral sex,” and he “was in between” her was sufficient to prove penetration). However, proof of licking, without proof of penetration, is insufficient for guilt.  United States v. Milliren, 31 M.J. 664 (A.F.C.M.R. 1990); see generally TJAGSA Practice Note, Sodomy and the Requirement for Penetration, Army Law., Mar. 1991, at 30 (discussing Milliren).

f) Evidence is sufficient to prove forcible sodomy where the child victim submitted under compulsion of parental command.  United States v. Edens, 29 M.J. 755 (A.C.M.R. 1989), aff’d, 31 M.J. 267 (C.M.A. 1990).  Evidence of a threat by the accused to impose nonjudicial punishment upon the victim, under the circumstances, was not sufficient to prove forcible sodomy.  United States v. Carroway, 30 M.J. 700 (A.C.M.R. 1990).

g) The defense is entitled to an accomplice instruction when the victim participates voluntarily in the offense.  United States v. Goodman, 33 C.M.R. 195 (C.M.A. 1963).

h) Multiplicity.

(1) Attempted rape and forcible sodomy or rape and forcible sodomy arising out of the same transaction are separately punishable.  United States v. Dearman, 7 M.J. 713 (A.C.M.R. 1979); accord United States v. Rogan, 19 M.J. 646 (A.F.C.M.R. 1984) (Burglary, rape, and sodomy were all separately punishable offenses since different societal norms were violated in each instance.  Burglary is a crime against the habitation, rape an offense against the person, and sodomy an offense against morals); United States v. Rose, 6 M.J. 754 (N.C.M.R. 1978).

(2) Despite unity of time, offenses of sodomy and indecent liberties with a child were separate for findings and sentencing.  United States v. Cox, 18 M.J. 72 (C.M.A. 1984).  Accord United States v. Cox, 42 M.J. 647 (A.F. Ct. Crim. App. 1995), aff’d 45 M.J. 153 (C.A.A.F. 1996).

4. Indecent Acts or Liberties with a Child.  MCM (2016 ed.), App. 27, ¶ 87.

a) The discussion that follows pertains to Indecent Acts or Liberties with a Child as it existed under Article 134 prior to October 2007.

b) Elements. 

(1) Physical contact.

(a) That the accused committed a certain act upon or with the body of a certain person;

(b) That the person was under 16 years of age and not the spouse of the accused.

(c) That the act of the accused was indecent;

(d) That the accused committed the act with intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of the accused, the victim, or both; and

(e) 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. 

(2) No physical contact.

(a) That the accused committed a certain act;

(b) That the act amounted to the taking of indecent liberties with a certain person;

(c) That the accused committed the act in the presence of this person.

(d) That the person was under 16 years of age and not the spouse of the accused.

(e) That the accused committed the act with intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of the accused, the victim, or both; and

(f) 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. 

c) Not limited to female victim.

d) Consent is not a defense, as a child of tender years is incapable of consent.  However, factual consent of an alleged victim is relevant on the issue of indecency.  Consensual petting between an eighteen-year-old and a fifteen-year-old is not necessarily outside the scope of the offense of indecent acts with a child, but it is a question for the members under proper instructions.  Here, the military judge committed plain error when she failed to provide adequately tailored instructions on the issue of indecency after a court-martial member asked for such instructions.  United States v. Baker, 57 M.J. 330 (C.A.A.F. 2002). 

e) Requires evidence of a specific intent to gratify the lust or sexual desires of the accused or the victim.  United States v. Johnson, 35 C.M.R. 587 (A.B.R. 1965); see United States v. Robertson, 33 M.J. 832 (A.C.M.R. 1991) (absent a specific intent to gratify lust, accused’s act of buying 14 year-old daughter a penis shaped vibrator and “motion lotion” did not amount to an indecent act), rev’d on other grounds, 37 M.J. 432 (C.M.A. 1993). 

f) Physical presence required; constructive presence insufficient.  See United States v. Miller, 67 M.J. 87 (C.A.A.F. 2008) (constructive presence through web-cam and Yahoo! chatroom insufficient for an attempted indecent liberties charge).

g) Application.

(1) Indecent acts. 

(a) Physical contact is required.  United States v. Payne, 41 C.M.R. 188 (C.M.A. 1970) (accused placed hand between child’s legs); United States v. Sanchez, 29 C.M.R. 32 (C.M.A. 1960) (accused exposed his penis to child while cradling child in his arms.); see United States v. Rodriguez, 28 M.J. 1016 (A.F.C.M.R. 1989), aff’d, 31 M.J. 150 (C.M.A. 1990) (rubbing body against female patients); United States v. Cottril, 45 M.J. 485 (C.A.A.F. 1997) (accused touching child’s vaginal area to the point of pain while bathing her was indecent, regardless of child’s purported enjoyment of touchings, given accused’s admissions that his acts excited his lust to point of masturbation).

(b) Offense of indecent acts or liberties with a child is not so continuous as to include all indecent acts or liberties with a single victim, without regard to their character, their interrupted nature, or different times of their occurrences, and accused may be charged with more than one offense as a result of one act with a single victim. United States v. Neblock, 45 M.J. 191 (C.A.A.F. 1996).

(2) Indecent liberties. 

(a) No physical contact is required, but act must be done within the physical presence of the child.  United States v. Miller, 67 M.J. 87 (C.A.A.F. 2008) (constructive presence through web-cam and Yahoo! chatroom insufficient for an attempted indecent liberties charge); United States v. Brown, 13 C.M.R. 10 (C.M.A. 1953) (accused’s exposure of his penis to two young girls constituted an indecent liberty); see United States v. Thomas, supra at ¶ G.3. (participation of the child required); see United States v. Robba, 32 M.J. 771 (A.C.M.R. 1991) (victims presence implied); see also United States v. Brown, 39 M.J. 688 (N.M.C.M.R. 1993) (holding that a person sleeping in the room did not participate in accused’s masturbation, and thus charge of indecent acts with another could not lie).

(b) Indecent liberties with a child can include displaying nonpornographic photographs if accompanied by the requisite intent. United States v. Orben, 28 M.J. 172 (C.M.A. 1989); see TJAGSA Practice Note, Displaying Nonpornographic Photographs to a Child Can Constitute Taking Indecent Liberties, Army Law., Aug. 1989, at 40 (discusses Orben); United States v. Marrie, 39 M.J. 993 (A.F.C.M.R. 1994) (showing victim material that, while not legally pornographic, is accompanied by behavior or language that demonstrates his intent to arouse his own sexual passions, those of the child, or both), aff’d, 43 M.J. 35  (C.A.A.F. 1995).

(c) Multiple acts of indecent liberties may occur simultaneously. United States v. Lacy, 53 M.J. 509 (N-M. Ct. Crim. App. 2000) (accused exposed his genitals, masturbated, and showed a pornographic video to two children simultaneously; the court adopted a “different victims” standard for indecent liberties, because the purpose of the offense is the protection of the individual person).

(d) Indecent liberties and indecent exposure are not necessarily multiplicious. United States v. Rinkes, 53 M.J. 741 (N-M. Ct. Crim. App. 2000) (accused’s convictions of indecent liberties with a child and indecent exposure before an adult did not constitute an unreasonable multiplication of charges as considering the differing societal goals and victims, the specifications were aimed at distinctly separate criminal acts). 

5. Indecent Assault.  MCM (2016 ed.), App. 27, ¶ 63.

a) The discussion that follows pertains to Indecent Assault as it existed under Article 134 prior to October 2007.

b) Elements.

(1) That the accused assaulted a certain person not the spouse of the accused in a certain manner;

(2) That the acts were done with the intent to gratify the lust or sexual desire of the accused; and

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

c) Nonconsensual offense requiring assault or battery.  The assault or battery need not be inherently indecent, lewd, or lascivious but may be rendered so by accompanying words and circumstances.  United States v. Wilson, 13 M.J. 247 (C.M.A. 1982).  See United States v. Hester, 44 M.J. 546 (Army Ct. Crim. App. 1996) (victim was a virtual stranger to accused and the two of them were engaged in official business of processing victim into the unit, touching of victim’s thigh was an offensive touching which, when done with specific intent to gratify the accused’s lust, was an indecent assault).

d) Intent.

(1) Requires accused’s specific intent to gratify his lust or sexual desires.  United States v. Jackson, 31 C.M.R. 738 (A.B.R. 1962); see also United States v. Birch, 13 M.J. 847 (C.G.C.M.R. 1982) (kissing victim against her will without evidence of specific intent to gratify lust or sexual desires was only a battery); United States v. Campbell, 55 M.J. 591 (C.G. Ct. Crim. App. 2001) (although male accused’s tickling and similar touchings of female shipmates was unwelcome, boorish, and improper, the court could not reasonably describe the actions as indecent); United States v. Proper, 56 M.J. 717 (C.G. Ct. Crim. App. 2002) (pulling coveralls of a female subordinate away from her chest factually insufficient to prove that accused acted with intent to gratify his sexual lusts or desires even though he made comments about her breasts).

(2) The assault or battery must be committed with a prurient state of mind. United States v. Arviso, 32 M.J. 616 (A.C.M.R. 1991) (evidence established specific intent of accused to gratify his lust or sexual desires when he inserted his finger into anus of female patients after examination by physicians); United States v. Hoggard, 43 M.J. 1 (1995) (holding evidence of attempted kiss legally insufficient to establish indecent intent); United States v. Hester, 44 M.J. 546 (Army Ct. Crim. App 1996).

e) Can be committed by a male on a woman not his spouse or by a female on a male not her spouse.  United States v. Johnson, 17 M.J. 251 (C.M.A. 1984).

f) An accused can be found guilty of indecent assault and not guilty of rape even though both the victim and the accused acknowledge that intercourse occurred.   United States v. Watson, 31 M.J. 49 (C.M.A. 1990); United States v. Wilson, 13 M.J. 247 (C.M.A. 1982).

g) Lack of consent.

(1) Unlike rape, mere lack of acquiescence is sufficient lack of consent for indecent assault; actual resistance is not required.

(2) If accused stops advances after he knows of lack of consent, evidence is legally insufficient for indecent assault. United States v. Ayers, 54 M.J. 85 (C.A.A.F. 2000) (government failed to prove lack of consent as there was no unwanted sexual touching as she was a “willing participant” when the accused touched her and kissed her, but when the accused tried to progress to sexual intercourse the ‘victim’ drew the line, and the accused did not cross that line, the ‘victim’ continued the relationship by calling the accused after the initial incident and agreed to meet him; during subsequent incident, accused stopped advances after ‘victim’ demonstrated lack of consent), aff’d by 55 M.J. 243  (C.A.A.F. 2001).

h) Mistake of fact defense.  Accused’s plea of guilty to indecent assault was provident even when accused stated during providency that “I personally just thought [at the time] that she was [consenting] and that it wasn’t unreasonable;” statement failed to raise mistake of fact defense and was not in substantial conflict with plea.  United States v. Garcia 44 M.J. 496 (1996), aff’d, 48 M.J. 5  (C.A.A.F. 1997).

i) Indecent assault is lesser included offense of indecent acts with child. United States v. Kibler, 43 M.J. 725 (Army Ct. Crim. App. 1995), aff’d, 46 M.J. 160 (C.A.A.F. 1996), cert. denied 523 U.S. 1011  (1998).     

6. Indecent Exposure.  MCM (2016 ed.), App. 27, ¶ 88.

a) The discussion that follows pertains to Indecent Exposure with a Child as it existed under Article 134 prior to October 2007.

b) Elements.

(1) That the accused exposed a certain part of the accused’s body to public view in an indecent manner;

(2) That the exposure was willful and wrongful; 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. 

c) Negligent exposure is insufficient; “willfulness” is required.  United States v. Manos, 25 C.M.R. 238 (C.M.A. 1958) (law enforcement officer viewed exposure through accused’s window); United States v. Stackhouse, 37 C.M.R. 99 (C.M.A. 1967) (evidence was insufficient to sustain the accused’s conviction of three specifications of indecent exposure where, in each instance, the accused was observed nude in his own apartment by passersby in the hallway looking in the partly open door of the apartment; such evidence is as consistent with negligence as with purposeful action and negligence is an insufficient basis for a conviction of indecent exposure); accord United States v. Ardell, 40 C.M.R. 160 (C.M.A. 1969); United States v. Burbank, 37 C.M.R. 955 (A.F.B.R. 1967) (plea of guilty to indecent exposure was not rendered improvident by stipulated evidence that the accused did nothing to attract attention to himself and may not even have been aware of the presence of the young females who saw him, where the accused admitted he had exposed himself in the children’s section of the base library, a place so public an intent to be seen must be presumed); United States v. Shaffer, 46 M.J. 94 (1997) (evidence supported the conclusion that accused’s exposures were “willful” so as to sustain conviction for indecent exposure where, on each occasion of exposure, accused was naked, facing out of his open garage, towards the street, in unobstructed view, during daylight hours and never made an attempt to cover himself or remove himself from view when seen).

d) “Public” exposure is required.  To be criminal the exposure need not occur in a public place, but only be in public view.  United States v. Moore, 33 C.M.R. 667 (C.G.B.R. 1963) (accused, who exposed his penis and made provocative gestures while joking with fellow seamen on board ship, was guilty of indecent exposure).  “Public view” occurs when the exposure is done in a place and in a manner that is reasonably expected to be viewed by another.  United States v. Graham, 56 M.J. 266 (2002) (accused exposed himself to his 15-year-old baby-sitter in the bedroom of his home by inviting her into the bedroom and then allowing his towel to drop in front of her.  The accused’s actions caused a normally private place, i.e., the bedroom, to become public, as he reasonably expected the babysitter to view his naked body), aff’d, 56 M.J. 266 (C.A.A.F. 2002).

e) Exposure must be “indecent.”  Nudity per se is not indecent; thus, an unclothed male among others of the same sex is generally neither lewd nor morally offensive.   United States v. Caune, 46 C.M.R. 200 (C.M.A. 1973).

f) United States v. Jackson, 30 M.J. 1203 (A.F.C.M.R. 1990) (rejecting indecent acts with another and affirming indecent exposure instead).

g) Indecent exposure via webcam.  United States v. Ferguson, No. 10-0020 (C.A.A.F. Mar. 22, 2010) (accused admitted sufficient facts to affirm conviction for indecent exposure via Internet webcam to a law enforcement agent posing as a teenager).

7. Indecent Acts With Another.  MCM (2016 ed.), App. 27 ¶ 90.

a) The discussion that follows pertains to Indecent Acts With Another as it existed under Article 134 prior to October 2007.

b) Elements. 

(1) That the accused committed a certain wrongful act with a certain person;

(2) That the act 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. 

c) An indecent act is defined as “that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene and repugnant to common propriety, but which tends to excite lust and deprave the morals with respect to sexual relations.”  MCM (2016 ed.), App. 27 ¶ 90c.

d) Physical touching not required, but participation of another is required.

(1) United States v. McDaniel, 39 M.J. 173 (C.M.A. 1994) (accused’s instructions to female recruits to disrobe, change positions, and bounce up and down while videotaping them without their knowledge was sufficient participation).

(2) United States v. Brown, 39 M.J. 688 (N.M.C.M.R. 1993) (some minimal observation or actual participation by another person is required for the offense to lie; a victim who is asleep while the accused masturbates in her presence will not suffice).  See also United States v. Thomas, 25 M.J. 75 (C.M.A. 1987); United States v. Murray-Cotto, 25 M.J. 784 (A.C.M.R. 1988). Contra United States v. Jackson, 30 M.J. 1203 (A.F.C.M.R. 1990); United States v. Kenerson, 34 M.J. 704, (A.C.M.R. 1992); United States v. Proctor, 58 M.J. 792 (A.F. Ct. Crim. App. 2003); but see United States v. Jackson, 30 M.J. 1203 (A.F.C.M.R. 1990) (holding victim provided “inspiration,” not participation).

(3) United States v. Rollins, 61 M.J. 338 (2005).  Appellant was convicted of several 134 offenses, including an indecent act with JG, “by giving him a pornographic magazine and suggesting that they masturbate together.”  HELD:  The indecent act specification is affirmed.  A reasonable factfinder could conclude that appellant committed a service discrediting indecent act “with” another by giving a person under the age of eighteen a pornographic magazine to stimulate mutual masturbation while in a parking lot open to the public. 

(4) United States v. Johnson, 60 M.J. 988 (N-M. Ct. Crim. App. 2005).  Appellant pled guilty, in relevant part, to indecent acts with another  HELD:  The indecent act specification is affirmed.  Here, appellant’s conduct in watching and encouraging his friend’s sexual encounter constituted active participation, citing United States v. McDaniel, 39 M.J. 173 (C.M.A. 1994).

e) No specific intent is required.  United States v. Brundidge, 17 M.J. 536 (A.C.M.R. 1983); United States v. Jackson, 31 C.M.R. 738 (A.B.R. 1972).

f) Acts covered.

(1) Acts not inherently indecent may be rendered so by the surrounding circumstances. United States v. Proctor, 34 M.J. 549 (A.F.C.M.R. 1992) (spanking young boys on the bare buttocks found to be indecent under the circumstances), aff’d, 37 M.J. 330  (C.M.A. 1993).

(2) Private, heterosexual, oral foreplay between two consenting adults that does not amount to sodomy is not an indecent act. United States v. Stocks, 35 M.J. 366 (C.M.A. 1992).

(3) Not limited to female victim.

(a) United States v. Annal, 32 C.M.R. 427 (C.M.R. 1963) (crime was committed when Army captain forcefully grabbed another male and tried to embrace him).

(b) United States v. Holland, 31 C.M.R. 30 (C.M.A.1961) (officer was convicted of indecent act by grabbing certain parts of the anatomy of another male officer).

(c) United States v. Moore, 33 C.M.R. 667 (C.G.B.R.1963) (consensual homosexual acts may constitute the offense of indecent acts with another).

(4) Consensual intercourse in the presence of others can constitute an indecent act.  United States v. Tollinchi, 54 M.J. 80 (C.A.A.F. 2000); United States v. Brundidge, 17 M.J. 586 (A.C.M.R. 1983).

(5) Indecent acts, charged as a violation of UCMJ art. 134, need not involve another person.  United States v. Sanchez, 29 C.M.R. 32 (C.M.A. 1960) (chicken); United States v. Mabie, 24 M.J. 711 (A.C.M.R. 1987) (corpse).

(6) Physically restraining victims in public restroom while accused masturbated is an indecent act. United States v. Eberle, 44 M.J. 374 (C.A.A.F. 1996).

(7) Fornication.  Purely private sexual intercourse between unmarried persons is normally not punishable.  United States v. Hickson, 22 M.J. 146 (C.M.A. 1986), overruled on other grounds by United States v. Hill, 48 M.J. 352  (C.A.A.F. 1997).  Context in which the sex act is committed may constitute an offense (e.g.,  public fornication, fraternization, etc.).  See United States v. Berry, 20 C.M.R. 325 (C.M.A. 1956) (two soldiers took two girls to a room where each soldier had intercourse with each of the girls in open view; such “open and notorious” conduct was service discrediting).  See also, United States v. Woodard, 23 M.J. 514 (A.F.C.M.R. 1986) vacated and remanded on other grounds, 23 M.J. 400 (C.M.A. 1987), findings set aside on other grounds, 24 M.J. 514 (A.F.C.M.R. 1987) (private, consensual, intimate contact between a married officer and a 16-year-old babysitter was, under the circumstances, an indecent act).

(8) “Open and notorious” fornication between consenting adults was an offense under Article 134 prior to October 2007.  The act is open and notorious when the participants know that a third party is present or when performed in such a place and under such circumstances that it is reasonably likely to be seen by others, even though others actually do not view the acts.  Sexual intercourse in a barracks room behind a pinned up sheet, while two roommates were awake and suspicious, was open and notorious. United States v. Izquierdo, 51 M.J. 421 (C.A.A.F. 1999); see United States v. King, 29 M.J. 901 (A.C.M.R. 1989).

(a) Consensual fondling of a female soldier’s breasts was not “open and notorious” conduct when it occurred in the accused’s private bedroom with the door closed but unlocked.  The accused was holding a promotion party with about forty attendees in a room next to his bedroom.  Although there was a possibility that someone from the party would enter the bedroom and observe the sexual activity, the accused’s plea to indecent acts was improvident because it was not reasonably likely that a third person would observe the conduct.  United States v. Sims, 57 M.J. 419 (C.A.A.F. 2002).

(b) The accused’s plea of guilty to committing an indecent act by videotaping intercourse and sodomy with his future wife was provident.  The potential that the videotape would be viewed by others, together with the salacious effect on the person doing the taping and viewer alike, contributed to the conclusion that the act of videotaping was indecent.  United States v. Allison, 56 M.J. 606 (C.G. Ct. Crim. App. 2001).

(9) Webcam cases.  Broadcasting live sexual images to a child over the Internet via webcam may constitute indecent acts with another under Article 134.  See United States v. Parker, No. 20080579 (A. Ct. Crim. App. Aug. 31, 2009) (unpub.).  Where the child victim is actually a law enforcement officer, the courts have affirmed attempted indecent acts with another.  See United States v. Lorenz, No. 20061071 (A. Ct. Crim. App. Apr. 20, 2009) (unpub.); United States v. Miller, No. 36829, 2009 WL 1508494 (A.F. Ct. Crim. App. Apr. 30, 2009) (unpublished).

g) Consent is not a defense.  United States v. Carreiro, 14 M.J. 954 (A.C.M.R. 1982); United States v. Johnson, 4 M.J. 770 (A.C.M.R. 1978); United States v. Woodard, 23 M.J. 514 (A.C.M.R. 1986), set aside on other grounds, 24 M.J. 514 (A.F.C.M.R. 1987);  United States v. Thacker, 37 C.M.R. 28 (C.M.A. 1966) (dicta).

h) Fornication. Not a per se UCMJ violation.  United States v. Snyder, 4 C.M.R. 15 (C.M.A. 1952).  See also United States v. Blake, 33 M.J. 923 (A.C.M.R. 1991) (fornication, in and of itself, is not a crime in military law).

C. Article 120 (2007)

 
 

1. Rape, Sexual Assault, and Other Sexual Offenses (1 October 2007 version).  MCM (2016 ed.), pt. App. 28, ¶ 45; UCMJ art. 120 (2008).

a) Effective date: 1 October 2007.  Implementing Executive Order signed 28 September 2007 (E.O. 13447).

b) Statute best considered in three parts: the “Big Four” offenses, the child sexual abuse offenses, and the remaining sexual offenses:

(1) The “Big Four” offenses: rape, aggravated sexual assault, aggravated sexual contact, and abusive sexual contact.

(a) By adding “w/ a child” to each of these four, the titles for eight of the statute’s fourteen offenses emerge.

(b) Consent and mistake of fact as to consent are affirmative defenses only available to these “Big Four” offenses.

(c) Statutory definitions for “sexual act” and “sexual contact,” along with the set of attendant circumstances identified in the statute, combine to define each of the four offenses.

(2) The Child Sexual Abuse Offenses:  rape of a child, aggravated sexual assault of a child, aggravated sexual abuse of a child, aggravated sexual contact with a child, abusive sexual contact with a  child, and indecent liberty with a child.

(3) The four remaining sexual offenses include: indecent act, forcible pandering, wrongful sexual contact, and indecent exposure.

c) Start with defining whether or not a “sexual act” or a “sexual contact” has been committed, then determine which set of attendant circumstances apply to arrive at the proper offense.

(1) “Sexual Act” (MCM 2016 ed., App. 28, ¶ 45a(t)(1)).

(a) The penetration described by “sexual act” excludes male-on-male sexual activity.

(b) Broader conduct than merely sexual intercourse.

(c) If penetration accomplished by hand, finger, or any object, specific intent requirement that must be alleged and proved: “with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.”

(2) “Sexual Contact” (MCM 2016 ed., App. 28, ¶ 45a(t)(2)).

(a) May encompass same conduct proscribed by Article 125, Sodomy, including male-on-male sexual activity.

(b) Specific intent requirement for all sexual contacts that must be alleged and proved: “with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.”

(3) “Lewd Act” (MCM 2016 ed., App. 28, ¶ 45a(t)(10)).

(a) Requires intentional “skin-to-skin contact” with the genitalia of another person.

(b) Requires the specific intent “to  abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.”

(c) Applies only to Aggravated Sexual Abuse of a Child (Art. 120(f)).

(4) “Force” (MCM 2016 ed., App. 28, ¶ 45a(t)(5)).

(a) While “without consent” is no longer an element of any of the “Big Four” offenses, “force” is defined using terms that nonetheless invoke the concept of “consent.”  Specifically, the statute says force means action to compel submission of another or to overcome or prevent another’s resistance.  (emphasis added).  These emphasized phrases may cause the government to prove lack of consent as part of its “force” proof.

(b) The concept of “constructive force,” developed by case law prior to the revision of Article 120, is defined out of the new Article 120’s definition of “force” and appears elsewhere in other statutory definitions.

(5) At this time, the difference between “rendering” another person unconscious or “administering” an intoxicant to another person (for purposes of establishing rape or aggravated sexual contact) and taking advantage of incapacitation (for purposes of establishing an aggravated sexual assault or abusive sexual contact) appears to be the extent to which the principal caused the victim’s incapacitation.

(6) “Threatening or placing that other person in fear” of anything less than death or grievous bodily harm is defined at MCM (2016 ed.), App. 28, ¶ 45a(t)(7) and National Defense Authorization Act, FY2006, PL 109-163, 119 Stat. 3260-1.  This definition includes classic examples of the “old” Article 120’s doctrine of constructive force.  By statutory definition, “threatening” for purposes of establishing an aggravated sexual assault or an abusive sexual contact includes: A threat:

(a) To accuse a person of a crime;

(b) To expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt, or ridicule; or

(c) Through the use or abuse of military position, rank, or authority, to affect or threaten to affect, either positively or negatively, the military career of some person.

(7) The Military Judge’s Benchbook now contains a definition for
“substantially incapacitated.”  See DA Pam 27-9, Military Judges’ Benchbook, ¶ 3-45-5, subpara. d and ¶ 3-45-6, subpara. d.

d) Child Sexual Abuse Offenses. 

(1) The six child sexual abuse offenses are:  rape of a child (Art. 120(b)), aggravated sexual assault of a child (Art. 120(d)), aggravated sexual abuse of a child (Art. 120(f)), aggravated sexual contact with a child (Art. 120(g)), abusive sexual contact with a child (Art. 120(i)), and indecent liberty with a child (Art. 120(j)).

(2) Practitioners can best navigate the child sexual abuse framework by using the facts of the case to answer the following three questions:

(a) How old is the child (under 12, between 12 and 16, or over 16)?

(b) What type of sexual touching occurred (sexual act, sexual contact, lewd act, or some other type)?

(c) What type of inducement was employed (none, “rape-level,” “aggravated sexual assault-level”)?

Once answers to these three questions are obtained, the practitioner can then navigate the elements of the six child abuse offenses in order of severity.

(3) Aggravated Sexual Abuse of a Child.  MCM 2016 ed., App. 28, ¶ 45a(f).

(a) Requires a “Lewd Act” as defined at MCM 2016 ed., App. 28, ¶ 45a(t)(10).

(b) Specific intent requirement for all lewd acts that must be alleged and proved: “with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.”

(4) Indecent Liberty with a Child. (MCM 2016 ed., App. 28, ¶ 45a(j)).

(a) Requires specific intent “to arouse, appeal to, or gratify the sexual desire of any person” or “to abuse, humiliate, or degrade any person.”

(b) Physical touching is not required.  See MCM (2016 ed.), App. 28, ¶ 45a(t)(11).

(c) May include communication of indecent language and exposure of one’s genitalia, anus, buttocks, or female areola or nipple to a child.  See MCM 2016 ed., App. 28, ¶ 45a(t)(11).

(d) Requires “Physical Presence” with the child.  See MCM (2016 ed.), App. 28, ¶ 45a(j), (t)(11); United States v. Miller, 67 M.J. 87 (2008) (applying old Indecent Liberties with a Child provision in Art. 134, constructive presence through webcam is insufficient).

e) The remaining four offenses.  The following notes are intended to alert the practitioner to issues involved with litigating these last four offenses.

(1) Wrongful Sexual Contact.  MCM (2016 ed.), App. 28, ¶ 45a(m).

(a) Relies on the same definition of “Sexual Contact” employed by the “Big Four” offenses.

(b) Sexual contact occurs “without that other person’s permission.”  This language may impose an affirmative consent requirement on the principal.  In other words, the statutory language seems to suggest that a principal must ask for affirmative consent from the other party to engage in the conduct that might amount to sexual contact.

(c) The statutory language for this offense is taken directly from 18 U.S.C. § 2244(b).

(2) The following three offenses were all Article 134 offenses before the statutory change.  As such, the implementing executive order, signed 28 October 2007, deleted these offenses from Article 134.  In removing these offenses from Article 134, the requirement that the conduct be either prejudicial to good order and discipline or service discrediting has been eliminated.

(a) Indecent Act.  MCM (2016 ed.), App. 28, ¶ 45a(k).  Proscribes “indecent conduct,” which is defined by statute.  Contains no specific intent requirement. The statutory language specifies “voyeurism”-types of offenses, but the Benchbook instruction also imports traditional concepts of “open and notorious” sexual behavior. See DA Pam 27-9, Military Judges’ Benchbook, ¶ 3-45-9, note 2.

(b) Forcible Pandering.  MCM (2016 ed.), App. 28, ¶ 45a(l).  Replaces only the “compel” portion of Article 134, Pandering.

(c) Indecent Exposure.  MCM (2016 ed.), App. 28, ¶ 45a(n).  Proscribes exposure which occurs in an “indecent manner.”  “Indecent” is defined at MCM (2016 ed.), App. 28, ¶ 45c(3).

f) Although a listing of lesser included offenses for the Article 120 offenses may be found both in paragraph (d) and (e) of the implementing executive order,  see MCM (2016 ed.), App. 28, ¶ 45d & e, practitioners should reference supra ¶ B.1.h, this chapter, for a general discussion on determining LIOs.

(1) United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010)(finding that aggravated sexual assault by causing bodily harm is a lesser included offense of rape by force and that the military judge did not err in providing the instruction, even though neither party requested it). 

(2) United States v. Bailey, No. 200800897 (N-M. Ct. Crim. App. Sep. 29, 2009) (unpub.).  In a single incident, the accused engaged in various acts of sexual physical contact.  He was charged with three specifications under Art. 120.  Specification 1 alleged “sexual contact causing bodily harm,” Specification 2 alleged abusive sexual contact, and Specification 3 alleged wrongful sexual contact.  The accused pled guilty to Specification 3 (wrongful sexual contact), and not guilty to the other two specifications.  The military judge accepted his plea to Specification 3, but also convicted him of abusive sexual contact, finding that “the previously pleaded-to wrongful sexual contact was committed by placing the victim in fear of physical injury or other harm, constituting abusive sexual contact.”  The military judge considered the two offenses “multiplicious for sentencing.” The N-MCCA held that the two specifications were multiplicious for findings and the military judge erred in not dismissing the wrongful sexual contact specification upon finding the accused guilty of the ”more aggravated abusive sexual contact” specification.  The MCM (2008 ed.) lists wrongful sexual contact as an LIO of abusive sexual contact “depending on the factual circumstances.”  See 2008 MCM, App. 28, ¶ 45.e.(8).  The court reasoned that “the only significant difference between the specifications [is] the additional element of placing the victim in fear,” which was proven in the contested portion of the trial.  As such, the military judge erred and there was prejudice in the form of an additional conviction, as well as increased punitive exposure.  The court also found that the conviction for the specification constituted an unreasonable multiplication of charges.  Although the specifications were merged for sentencing, corrective action with respect to the findings was necessary.

g) Affirmative Defenses.

(1) The 2007 version of Article 120 assigns burdens for all affirmative defenses raised in the context of an Article 120 prosecution:  “The accused has the burden of proving the affirmative defense by a preponderance of evidence.  After the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist.”

(a) Unconstitutional Burden Shift.  United States v. Prather, 69 M.J. 338 (C.A.A.F. 2011) (where an accused raises the affirmative defense of consent to a charge of aggravated sexual assault by engaging in a sexual act with a person who was substantially incapacitated, the statutory interplay among the relevant provisions of Art 120, results in an unconstitutional burden shift to the accused.) 

(b) Double-shift impossible.  United States v. Prather, 69 M.J. 338 (C.A.A.F. 2011) (where the members are instructed consistent with the statutory scheme, the error cannot be cured with standard “ultimate burden” instructions.)  This provision improperly assigns two separate burdens of persuasion to two separate parties on a single issue, creating a “legal impossibility.”  See also Major Howard H. Hoege, III, Overshift: The Unconstitutional Double Burden-Shift on Affirmative Defenses in the New Article 120, Army Law., May 2007, at 2; Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (citing 9 J. Wigmore, Evidence § 2489 (3d ed. 1940)(stating, “the burden of persuasion ‘never shifts.’”).

(c) In the MJ Benchbook (DA Pam 27-9), the Army Trial Judiciary has taken the approach of treating affirmative defenses which will arise under Article 120 prosecutions just like the majority of other affirmative defenses recognized by the MCM and case law.  In other words, “some evidence” will raise a defense and once the defense is raised, the government will have the burden of proving beyond a reasonable doubt that the affirmative defense does not exist.  See, e.g., DA Pam 27-9, para. 3-45-3, note 10.

(d) See James G. Clark, “A Camel is a Horse Designed by Committee”:  Resolving Constitutional Defects in Uniform Code of Military Justice Article 120’s Consent and Mistake of Fact as to Consent Defenses, ARMY LAW., July 2011, at 3.

(2) Facial Challenges.

(a) United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010).  In a prosecution of an aggravated sexual contact involving force under Art. 120(e), the trial judge dismissed the charge, finding that consent was an “implied element” and concluding that Article 120 unconstitutionally shifted the burden of proof on an element from the Government to the defense.  This occurred after the defense case in chief, before instructions and findings.  The government appealed under Article 62 and the N-MCCA reversed, holding that, under the facts of the case, proof of the element of force does not require proof of lack of consent and the affirmative defense of consent does not unconstitutionally shift the burden of proof to the defense.  The CAAF, in a 3-2 decision, affirmed the N-MCCA’s decision, and remanded the record of trial to the military judge.  The court made two key interpretations of the language of the new Article 120: (1) absence of consent is not a fact necessary to prove the crime of aggravated sexual assault, and (2) the words “consent is not an issue” in Article 120(r) do not prohibit the factfinder from considering evidence of consent when determining whether the prosecution has proved the element of force beyond a reasonable doubt (see also Martin v. Ohio, 480 U.S. 228 (1987)).  Next, the court confirmed the interlocutory posture of the case, noting that there were no instructions, no closing arguments, and no findings.  The court then found that the military judge erred in treating lack of consent as an element of the offense and in concluding that the affirmative defense scheme is unconstitutional.  Although the court did not rule on the constitutionality of the statute as applied to the accused in this case due to its interlocutory nature, the court cautioned that the constitutionality may be affected by the content of instructions, the sequence of the instructions, and any waiver of instructions.  In a dissenting opinion, which Judge Erdmann joined, Judge Ryan concludes that “’ [force’ and ‘consent’  . . . are two sides of the same coin,” and “making consent an affirmative defense . . . relieves the government of [the burden of proof as to an element] and unconstitutionally requires the defendant to disprove force.”    

(b) United States v. Crotchett, 67 M.J. 713 (N-M. Ct. Crim. App. 2009) (holding that a facial challenge to Art. 120(c), Aggravated Sexual Assault, fails because the court’s “construction of the statute leads to the conclusion that Article 120(c)(2)(C) does not mandate a shift to the defense of the burden of proof as to any element).

(c) United States v. Rozmus,  No. 200900052, 2009 WL 2893176 (N-M. Ct. Crim. App. Sep. 10, 2009) (unpub.) (facial challenge fails because court extends the holding of Crotchett to Article 120(c)(2)(b)).

(3) Instructions.

(a) United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010).  The constitutionality of the statute may be affected by the content of instructions, the sequence of the instructions, and any waiver of instructions.  “A properly instructed jury may consider evidence of consent at two different levels: (1) as raising a reasonable doubt as to whether the prosecution has met its burden on the element of force; and (2) as to whether the defense has established an affirmative defense.”

(b) United States v. Medina, 69 M.J. 462 (C.A.A.F. 2011).  In a prosecution of an aggravated sexual assault involving an incapacitated victim under Art. 120(c), the trial judge gave instructions for consent that mirrored the model instructions provided in the Military Judges’ Benchbook and departed from the plain language from the statute regarding the assignment of burdens regarding the affirmative defense of consent. Specifically, the military judge instructed the members that “The prosecution has the burden to prove beyond a reasonable doubt that consent did not exist.”  The panel convicted the accused. United States v. Medina, 69 M.J. 462 (C.A.A.F. 2011) (“Although, in the absence of a legally sufficient explanation, the military judge’s decision not to employ the terms of the statute constituted error, we are satisfied that the error was harmless beyond a reasonable doubt.”)

(c) United States v. Rozmus,  No. 200900052, 2009 WL 2893176 (N-M. Ct. Crim. App. Sep. 10, 2009) (unpub.) (facial challenge fails because court extends the holding of Crotchett to Article 120(c)(2)(b), as applied challenge fails because no evidence of consent or mistake of fact as to consent raised at trial).

(4) Multiplicity and UMC.

(a) United States v. Oliva, No. 20080774 (A. Ct. Crim. App. Feb. 24, 2009) (unpublished).  The accused, a drill sergeant, was charged with two specifications of aggravated sexual assault under Art. 120.  Specification 1 alleged that he “caused the victim . . . to engage in a sexual act, i.e., penetration of her genital opening with [his] finger, by causing bodily harm in the form of bruises on her arm.”  Specification 2 alleged that he “engaged in a sexual act, i.e., penetration of [the victim’s] genital opening with his finger, by placing her in fear of [his] abuse of his military position to affect negatively her career.”  He pled not guilty to these offenses, however, he pled guilty to two specifications of the lesser included offense of wrongful sexual contact by “placing his finders in [her] vagina without legal justification or authorization and without her consent.”  He “pled guilty to the identical criminal conduct and acts for both specifications.”  The two specifications were multiplicious for findings and dismissed Specification 2.  The accused pled guilty to two specifications of wrongful sexual contact for the exact same underlying conduct.

(b) United States v. Bailey, No. 200800897 (N-M. Ct. Crim. App. Sep. 29, 2009) (unpub.).  In a single incident, the accused engaged in various acts of sexual physical contact.  He was charged with three specifications under Art. 120.  Specification 1 alleged “sexual contact causing bodily harm,” Specification 2 alleged abusive sexual contact, and Specification 3 alleged wrongful sexual contact.  The accused pled guilty to Specification 3 (wrongful sexual contact), and not guilty to the other two specifications.  The military judge accepted his plea to Specification 3, but also convicted him of abusive sexual contact, finding that “the previously pleaded-to wrongful sexual contact was committed by placing the victim in fear of physical injury or other harm, constituting abusive sexual contact.”  The military judge considered the two offenses “multiplicious for sentencing.” The N-MCCA held that the two specifications were multiplicious for findings and the military judge erred in not dismissing the wrongful sexual contact specification upon finding the accused guilty of the ”more aggravated abusive sexual contact” specification.  The MCM lists wrongful sexual contact as an LIO of abusive sexual contact “depending on the factual circumstances.”  See MCM (2008 ed.), App. 28, ¶ 45.e.(8).  The court reasoned that “the only significant difference between the specifications [is] the additional element of placing the victim in fear,” which was proven in the contested portion of the trial.  As such, the military judge erred and there was prejudice in the form of an additional conviction, as well as increased punitive exposure.  The court also found that the conviction for the specification constituted an unreasonable multiplication of charges. 

(c) United States v. Marshall, No. 200900533 (N-M. Ct. Crim. App. Feb. 10, 2010) (unpub.).  Accused engaged in sexual intercourse with an incapacitated victim.  When victim awoke and tried to get him to stop, he withdrew, began masturbating over top of her, and ejaculated onto her hair, stomach, and shirt.  The accused was convicted of both aggravated sexual assault and an indecent act, both under Art. 120.  Charges were neither multiplicious nor an unreasonable multiplication of charges.

(d) United States v. Swemley, No. 200900359 (N-M. Ct. Crim. App. Apr. 29, 2010) (unpub.).  Accused was charged with aggravated sexual assault of an incapacitated victim, but the panel convicted of the LIO of assault consummated by a battery by touching the victim and removing her clothing while she was asleep.   The N-MCCA found that the military judge did not err in instructing on assault consummated by battery as an LIO of aggravated sexual assault and the accused received the requisite notice that he could be convicted of this lesser offense.

(e) United States v. Elespru, 73 MJ 326 (C.A.A.F. 2014).  While it was proper for the government to charge wrongful sexual contact and abusive sexual contact for exigencies of proof, one of the charges should have been dismissed on UMC grounds where accused was convicted of both.

D. Article 120 (2012)

 

 

1. Rape and Sexual Assault Generally.  MCM, pt. IV, ¶ 45; UCMJ art. 120 (2012).

a) Effective date: 28 June 2012.  An implementing executive order has yet to be signed prescribing elements, explanations, lesser included offenses, and sample specifications under his authority pursuant to Article 36. Practitioners should refer to the appropriate statutory language and, to the extent practicable, use Appendix 28 as a guide.  Maximum punishments were prescribed via Executive Order 13643 of May 15, 2013.

b) One service court has defined “incapable of consent” as “incapable of entering a freely given agreement.”  United States v. Pease, 74 M.J. 763, 770 (N-M. Ct. Crim. App. 2015).  Further, “[t]o be able to freely give an agreement, a person must first possess the cognitive ability to appreciate the nature of the conduct in question, then possess the mental and physical ability to make and to communicate a decision regarding that conduct to the other person.”  Id.  NOTE: this case is pending review at the C.A.A.F. as of the time of this writing.

c) Aggravated Sexual Contact.  Statutory language:  Any person subject to this chapter who commits or causes sexual contact upon or by another person, if to do so would violate subsection (a) (rape) had the sexual contact been a sexual act, is guilty of aggravated sexual contact and shall be punished as a court-martial may direct.

d) Abusive Sexual Contact.  Statutory language:  Any person subject to this chapter who commits or causes sexual contact upon or by another person, if to do so would violate subsection (b) (sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct.

e) Statute is gender neutral.

f) Defenses.  Marriage is not a defense.

g) Definitions.  The definitions of sexual act and sexual contact have both been expanded from the 2007 definitions under Art. 120.  Though not specifically delineated in the statute, the touching may also be accomplished by an object.  United States v. Schloff, 74 M.J. 312 (C.A.A.F. 2015).

2. Stalking.  MCM, pt. IV, ¶ 45a; UCMJ art. 120a (2012).

a) Elements.

(1) That that accused wrongfully engaged in a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm to himself or herself or a member of his or her immediate family;

(2) That the accused had knowledge, or should have had knowledge, that the specific person would be placed in reasonable fear of death or bodily harm, including sexual assault, to himself or herself or a member of his or her immediate family; and

(3) That the accused’s acts induced reasonable fear in the specific person of death or bodily harm to himself or herself or to a member of his or her immediate family.

b) See infra ¶ XXXIV.E, this Chapter, for the discussion on Stalking.

3. Rape and Sexual Assault of a Child.  MCM, pt. IV, ¶ 45; UCMJ art. 120b (2012).

a) Effective date: 28 June 2012.  An implementing executive order has yet to be signed prescribing elements, explanations, lesser included offenses, and sample specifications under his authority pursuant to Article 36. Practitioners should refer to the appropriate statutory language and, to the extent practicable, use Appendix 28 as a guide.  Maximum punishments were prescribed via Executive Order 13643 of May 15, 2013.

b) The definition of lewd act has been expanded from the 2007 statutory language:

(1) The term ‘lewd act’ means—

(a) any sexual contact with a child;

(b) intentionally exposing one’s genitalia, anus, buttocks, or female areola or nipple to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arose or gratify the sexual desire of any person;

(c) 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; or

(d) 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.

4. Other Sexual Misconduct.  MCM, pt. IV, ¶ 45; UCMJ art. 120c (2012).

a) Effective date: 28 June 2012.  An implementing executive order has yet to be signed prescribing elements, explanations, lesser included offenses, and sample specifications under his authority pursuant to Article 36. Practitioners should refer to the appropriate statutory language and, to the extent practicable, use Appendix 28 as a guide.  Maximum punishments were prescribed via Executive Order 13643 of May 15, 2013.

(1) Indecent viewing is only criminal insofar as the viewing is done “live” and in-person; viewing a recording of another’s private area, even if the recording was done without consent, is not criminal.  See United States v. Quick, 74 M.J. 517 (N-M.Ct.Crim.App. 2015), aff’d, 2015 CAAF LEXIS 703 (C.A.A.F. Aug. 11, 2015).

(2) In some circumstances Indecent Acts may be charged for conduct occurring after 28 June, 2012, by charging the conduct under Clause 1 and/or 2 of Article 134.  See United States v. Quick, 74 M.J. 517 (N-M.Ct.Crim.App. 2015), aff’d, 2015 CAAF LEXIS 703 (C.A.A.F. Aug. 11, 2015).

E. Child Pornography – On or after 12 January 2012

1. Prior to 12 January 2012 there was no enumerated crime addressing child pornography in the UCMJ and the President had not listed a child pornography offense under Article 134.  Crimes in the military that involve child pornography prior to 12 January 2012 must be charged under a general article (Article 133 or Article 134); see ¶ H.

2. Article 134 specifically criminalizes four child pornography offenses:

a) Possessing, receiving, or viewing

b) Possession with the intent to distribute

c) Distribution

d) Producing

3. There are few reported cases on this offense.  Much of the case law developed prior to 12 January 2012 is still applicable; as such, practitioners should review ¶ H as well. 

4. Note that child pornography as enumerated under Article 134  is defined as either (a) “an obscene visual depiction of a minor engaging in sexually explicit conduct” or (b) “a visual depiction of an actual minor engaging in sexually explicit conduct” (emphasis added). 

a) Obscenity is not defined within the text of the MCM.  Practitioners should look to the myriad of case law defining obscenity if necessary.  Note also that the C.A.A.F., in interpreting 18 U.S.C. § 2256(8)(B), has determined that a “graphic” exhibition of what appear to be a minor must necessarily include nudity.  United States v. Blouin, 24 M.J. 247 (C.A.A.F. 2015).  Whether the C.A.A.F. would require nudity for an “obscene” depiction of what appears to be a minor remains to be seen.

b) The word “obscene” is omitted from the model specification listed in the MCM; trial counsel should nevertheless allege obscenity when unable to definitively prove that the depictions are of actual minors.

5. Sexually explicit conduct is defined in part as a “lascivious exhibition of the genitals or pubic area of any person.”  This definition is not further defined within the MCM.  Because it mirrors the definition found within 18 U.S.C. § 2256, military judges ordinarily read the definition found within subsection (8) of that statute.  In turn, “[o]nce the military judge elects to use the statutory definition of child pornography under 18 U.S.C. § 2256(8), the Child Pornography Prevention Act (CPPA), the evidence must meet that definition.”  United States v. Morris, 2014 CCA LEXIS 645, *4 (N-M.Ct.Crim.App. Aug. 28, 2014), aff’d, 2015 CAAF LEXIS 685 (C.A.A.F. July 15, 2015).

a) When the images depict an actual minor, the lascivious exhibition need not include nudity, and "the contours of the genitals or pubic area [need not] be discernible or otherwise visible through the child subject's clothing." United States v. Knox, 32 F.3d 733, 746 (3d Cir. 1994).  See also United States v. Morris, 2014 CCA LEXIS 645 (N-M.Ct.Crim.App. Aug. 28, 2014) , aff’d, 2015 CAAF LEXIS 685 (C.A.A.F. July 15, 2015).

b) In determining whether a display is lascivious, military courts look to the non-exclusive factors outlined in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986).  These factors are:

“1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;

2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.”

United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986).

c) Note: as discussed in ¶ G.4 above, depictions of a virtual child or a child not identifiable as an actual child might require nudity in order to qualify as “obscene.”  In that case, the Dost factors would still otherwise apply, though nudity would be a required factor.  Again, there is no “obscenity” requirement for depictions of actual minors.

6. It is an open question whether possession of child erotica – that is, nude and sexualized images of children which nevertheless do not depict “sexually explicit conduct” as defined within the MCM – is a viable offense under clause 1 or 2 of Article 134.  See United States v. Moon, 73 M.J. 382 (C.A.A.F. 2014).  Possession of non-nude images of children, even if sexualized, is not an offense.  United States v. Warner, 73 M.J. 1 (C.A.A.F. 2013).   

7. Other cases.

a) Even where some images are found not to meet the statutory definition of child pornography upon appellate review, there is no longer a requirement to set aside a guilty verdict as long as at least one of the images constituted non-Constitutionally protected material.  United States v. Piolunek, 74 M.J. 107 (C.A.A.F. 2015).  This case overturned United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012).

F. Child Pornography – Before 12 January 2012. 

1. There are two ways to charge child pornography crimes committed prior to 12 June 2012 using Article 134:

a) Charge the criminal conduct using Article 134, clauses 1 and 2.

b) Charge a violation of an applicable federal statute using Article 134, clause 3.

2. Clauses 1 and 2, Article 134.

a) “It is a mystery to me why, after this [c]ourt’s ten-year history of invalidating convictions for child pornography offenses under clause 3, and of upholding convictions for such offenses under clause 2, we continue to see cases charged under clause 3.”  United States v. Medina, 66 M.J. 21, 29 n.1 (C.A.A.F. 2008) (Stucky, J., dissenting).

b) Possession of child pornography may be charged as a Clause 1 or Clause 2 offense.  United States v. Irvin, 60 M.J. 23 (C.A.A.F. 2004).

c) Virtual Child Pornography under Clauses 1 and 2. 

(1) United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004) (“The receipt or possession of “virtual” child pornography can, like “actual” child pornography, be service-discrediting or prejudicial to good order and discipline.”).

(2) United States v. Brisbane, 63 M.J. 106 (C.A.A.F. 2006) (“The knowing possession of images depicting sexually explicit conduct by minors, whether actual or virtual,  when determined to be service-discrediting conduct or conduct prejudicial to good order and discipline, is an offense under Article 134”).

(3) The maximum punishment for possession of virtual child pornography is 4 months.  United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011).  Cf. United States v. Finch, 73 M.J. 144 (C.A.A.F. 2014).

d) Referencing an unconstitutional statutory definition of child pornography in the pleadings and instructing the members using the unconstitutional statutory definition created instructional error in an Article 133 child pornography case.  United States v. Forney, 67 M.J. 271 (C.A.A.F. 2009) (Effron, C.J., concurring in the result) (Erdmann, J., dissenting).   This analysis should also apply if the offense was charged under clauses 1 and 2 of Article 134.

e) The nature of the images is not dispositive as to whether receiving such images is PGO&D or SD.  United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003) (providence inquiry failed to establish whether accused pled guilty to possession of virtual or actual child pornography; no LIO of clause 1 or clause 2 because no discussion of PGO&D or SD).

f) Although United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) provides the current state of the law regarding the relationship between the three clauses of Article 134, the following cases were affirmed under clause 2 of Article 134:

(1) United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000) (after finding that the military judge failed to adequately advise the accused of the elements of federal offense of possession of child pornography, under 18 U.S.C. § 2252(a)(4)(A), which he was charged with violating under clause 3 of Article 134, the Air Force court did not err by affirming the lesser included offense of service-discrediting conduct, under clause 2 of Article 134. 

(2) United States v. Augustine, 53 M.J. 95 (C.A.A.F. 2000) (affirming under clause 2 rather than clause 3 of Article 134). 

(3) United States v. Hays, 62 M.J. 158 (C.A.A.F. 2005) (holding the plea inquiry did not implicate the appellant’s First Amendment rights, thus placing the analysis under Sapp and Augustine; although the MJ did not discuss with appellant whether his conduct was service discrediting or prejudicial to good order and discipline, there is no doubt that appellant was aware of the impact of his conduct on the image of the armed forces; affirmed under Clause 2).

3. Clause 3, Article 134.

a) See generally MCM, pt. IV, ¶ 91c(4).

b) Key federal statutes.  The following federal statutes are available for charging various conduct involving the production, possession, transportation, and distribution of child pornography:

(1) 18 U.S.C. § 2251, Sexual Exploitation of Children.  Among other prohibitions, this provision covers the use of minors in the production of child pornography.

(2) 18 U.S.C. § 2252, Certain Activities Relating to Material Involving the Sexual Exploitation of Minors.  This child pornography provision was the predecessor to the computer-specific 18 U.S.C. § 2252A.

(3) 18 U.S.C. § 2252A, Certain Activities Relating to Material Constituting or Containing Child Pornography.  This is the federal provision that most comprehensively covers the use of computers and the Internet to possess, transport, and distribute child pornography.

(4) Statutory Definitions.  18 U.S.C. § 2256 contains the applicable definitions for child pornography offenses.

c) Amendments.

(1) The Effective Child Pornography Prosecution Act of 2007, Pub. L. No. 110-358 (Oct. 8, 2008) (adds "using any means or facility of interstate or foreign commerce" to several sections in 18 USC 2251, 2251A, 2252, and 2252A).

(2) The Enhancing the Effective Prosecution of Child Pornography Act of 2007, Pub. L. No. 110-358 (Oct. 8, 2008) (adds to 18 USC 2252(a)(4) and 2252A(a)(5) the following language after "possesses": "or knowingly accesses with intent to view").

(3) The Providing Resources, Officer, and Technology to Eradicate Cyber Threats to Our Children Act of 2008 (or The PROTECT Our Children Act of 2008), Pub. L. No. 110-401 (Oct. 13, 2008) (Sec 301 prohibits broadcast of live images of child abuse, Sec. 302 amends the definition of "visual image" under 18 USC 2256(5) by inserting "and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format", Sec. 304 prohibits the adaptation or modification of an image of an identifiable minor to produce child pornography).

d) Pleading Child Pornography Offenses Using Clause 3. 

(1) See MCM, pt. IV, ¶ 60c(6).

e) Actual versus Virtual Children.

(1) Using the CPPA and Clause 3, Article 134.

(a) In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the U.S. Supreme Court held that specific language within the definition of child pornography in the 1996 Child Pornography Prevention Act (CPPA) was unconstitutional.  Specifically, the definition impermissibly prohibited “virtual” child pornography in contravention of the First Amendment.  The “virtual image” language was contained in § 2256(8)(B) and § 2256(8)(D). 

(b) Following Ashcroft, the CAAF made the “actual” character of visual depictions of child pornography a factual predicate for guilty pleas under the CPPA.  United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003).

(c) Either the “appears to be” language or “conveys the impression” language found in the CPPA’s unconstitutional definition of child pornography can trigger the requirement to prove an “actual” child was used to make an image of child pornography.  United States v. Wolford, 62 M.J. 418 (C.A.A.F. 2006).

(2) Using Clauses 1 and 2, Article 134.  Child pornography, whether virtual or actual, can be prejudicial to good order and discipline and service-discrediting.  See United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004); United States v. Brisbane, 63 M.J. 106 (C.A.A.F. 2006). 

f) Issues.

(1) Constitutionality of the Federal statute.

(a) In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the U.S. Supreme Court held that specific language within the definition of child pornography in the 1996 Child Pornography Prevention Act (CPPA) was unconstitutional.  Specifically, the definition impermissibly prohibited “virtual” child pornography in contravention of the First Amendment.  The “virtual image” language was contained in § 2256(8)(B) and § 2256(8)(D). 

(b) The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (Apr. 30, 2003), which amended 18 U.S.C. § 2252A to include a provision that prohibits the solicitation and pandering of child pornography.  United States v. Williams, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008) (holding the Act to be neither impermissibly vague nor overbroad and holding that offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment).

(c) The Protection of Children Against Sexual Exploitation Act, 18 U.S.C. § 2252.  Constitutional because its prohibition against knowing transport, shipment, receipt, distribution, or reproduction of a visual depiction of a minor engaged in sexually explicit conduct requires that the accused know that the performer in the depiction was a minor, thereby satisfying First Amendment concerns. United States v. X-Citement Video, 115 S.Ct. 464 (1994); United States v. Maxwell, 42 M.J. 568 (A.F. Ct. Crim. App. 1995), reversed in part United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996) (transmission of visual images electronically through the use of an on-line computer service is “transport in interstate or foreign commerce’ in light of legislative intent to prevent the transport of obscene material in interstate commerce regardless of the means used to effect that end and statute is constitutional in light of United States v. X-Citement Video, 115 S.Ct. 464 (1994) (statute contains a scienter requirement because the word “knowingly” must be read as applying to the words “use of a minor”). 

(2) Extraterritoriality.  Practitioners in overseas and deployed locations should ensure that the federal statute is applicable to the conduct at issue.

(a) United States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005).  Appellant pled guilty, in relevant part, to sending, receiving, reproducing, and possessing child pornography under Article 134, Clause 3, in violation of the CPPA.  The conduct was charged using 18 U.S.C. §2252A(a)(1–3).  Appellant’s misconduct took place in Germany, both at an off-post internet café, and in his on-post barracks room.  HELD:  1) The CPPA is not extraterritorial as there is no evidence of specific congressional intent to extend its coverage; 2) domestic application is possible under a “continuing offense” theory for sending material that flowed through servers in the United States; 3) appellant’s plea to specification 1 under clause 3 of Article 134 is improvident under O’Connor because of the focus on the unconstitutional definition of child pornography and the lack of focus on “actual” vs. “virtual” images; and 4) there was no reference to appellant’s conduct as service discrediting or prejudicial to good order and discipline.  Strong dissents from both C.J. Gierke and J. Crawford. 

(b) United States v. Reeves, 62 M.J. 88 (C.A.A.F. 2005).  The accused was stationed in Hanau, Germany and used the on-post library computer to receive and print out images of child pornography that had been sent over the Internet.   While still in Germany, he also used a video camera to record sexually explicit imagery of two German girls from about 200 feet away.  His conduct was charged using 18 U.S.C. §§ 2251 and 2252A(a)(1–3).  Citing Martinelli, the court held none of the following acts were continuing offenses with conduct that occurred in the United States, and as such, there could be no domestic application of the CPPA: (1) possession of child pornography at an on-post public library, land used by and under the control of the federal government; (2) receiving child pornography that had been transmitted through the internet; and (3) using minors to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.

(3) Definitions.  United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009).  The CPPA does not define “distribute.” The court looked to three sources for a definition of the term: (1) the plain meaning, (2) the manner Article III courts have interpreted the term, and (3) the guidance that the UCMJ provides through parallel provisions.  See also United States v. Craig, 67 M.J. 742 (N-M. Ct. Crim. App. 2009) (military judge read part of the definition of “distribute” from Article 112a, stating, “Distribute means to deliver to the possession of another.”) .

(4) Method of Distribution. 

(a) Yahoo! Briefcase.  United States v. Navrestad, 66 M.J. 262 (C.A.A.F. 2008).  Sending a hyperlink to a Yahoo! Briefcase during an internet chat session, where the Briefcase contained images of child pornography, does not constitute either distribution of child pornography as defined in the CPPA or possession of child pornography as affirmed by the ACCA under Clauses 1 and 2, where the link itself only provides a roadmap to the child pornography and where the accused did not download or print any of the images to his own computer.  The accused was initially charged under Clause 3 of Article 134, but Clause 1 and 2 language was added to both specifications prior to arraignment.  Convictions for both possession under Clauses 1 and 2, and distribution under the CPPA were set aside.  Note: Yahoo! discontinued its Briefcase service on 30 March 2009.

(b) KaZaA.  United States v. Ober, 66 M.J. 393 (C.A.A.F. 2008).  Using KaZaA to search for and download child pornography from host users over the Internet constituted transportation of child pornography in interstate commerce for purposes of 18 U.S.C. § 2252A(a)(1) because “a user’s download caused an upload on the host user’s computer.”

(c) Peer-to-Peer Software in General.  United States v. Christy, 65 M.J. 657 (A. Ct. Crim. App. 2007).  The accused downloaded peer-to-peer software and set up a “shared files” folder.  As part of his licensing agreement with the software company, he agreed to share all files in that folder, i.e., his child pornography, with other users.  While the term “distribution” is not defined in the statute, definitions found in federal case law are broad enough to cover the act of posting images in a shared file folder and agreeing to allow others to download from the folder.  Additionally, the accused’s conduct was “knowing” under the CPPA, as he admitted during his providence inquiry that he knew 1) that he was posting his child pornography images in a shared file folder, and 2) that anyone with the same peer-to-peer software both had his permission and the general ability to download the files he posted.

(5) Lesser included offenses: Clause 1 and Clause 2.  The use of Clause 1 and Clause 2 as a LIO to a Clause 3 offense has recently been limited by the CAAF holding in United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008).  The court holds that in order for either Clause 1 or Clause 2 to be considered as a LIO to a Clause 3 offense, the Clause 3 specification should contain Clause 1 or Clause 2 language.  If Clause 1 or Clause 2 language is absent from a Clause 3 offense, the opinion may yet allow for Clause 1 or Clause 2 to operate as a LIO provided the military judge clearly explains Clause 1 and Clause 2 and how they can operate as a LIO to the accused.  Prudence, however, dictates that counsel plead the Clause 1 and/or Clause 2 language to avoid the issue at trial. 

(6) Evidence to determine age of models.  United States v. Russell, 47 M.J. 412 (C.A.A.F. 1998) (accused admitted that he guessed the models were “13 or older”; a pediatrician testified that the females shown in the exhibits were not more than 15.5 years old; and members were able to look at the pictures and use their common sense and experience to conclude that the girls were under age 18); United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996) (government was only required to prove that accused believed the images depicted minors to support conviction for knowingly transporting or receiving child pornography in interstate commerce (18 U.S.C. § 2252); government was not required to prove that accused had basis for actual knowledge of the subjects’ ages).  United States v. Cendejas, 62 M.J. 334 (C.A.A.F. 2006) (factfinder can make the determination that pornographic images are actual children based upon a review of the images alone).

g) Other Applications.

(1) United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009).  As the CPPA does not expressly define “distribute,” the court looked to three sources for a definition of the term: (1) the plain meaning, (2) the manner Article III courts have interpreted the term, and (3) the guidance that the UCMJ provides through parallel provisions.  Considering these sources, under the CPPA, distribution of child pornography through the Internet consists of two acts: (1) the posting of the image, where the image left the possession of the original user, and (2) the delivery of the image, where another user accessed and viewed the image.  Here, the accused posted the image to his Yahoo! profile prior to his entry on active duty.  The court reasoned that the profile serves as a “’public bulletin board’ such that all Internet users can access information posted by the profile’s owner.”  Although this was done prior to entering active duty, he accessed the account while on active duty and could have removed the image.  The offense of distribution occurred while he was on active duty when the ICE agent accessed and viewed the image that he had posted for others to view.

(2) United States v. Craig, 67 M.J. 742 (N-M. Ct. Crim. App. 2009).  As 18 U.S.C. § 2252A does not define “distribute,” the military judge read part of the definition of “distribute” from Article 112a, stating, “Distribute means to deliver to the possession of another.”  The plain meaning of the term “distribute” includes “the transfer of an item from the possession of one person into the possession of another.”  The military judge provided a correct statement of the law in defining “distribute.” 

(3) United States v. Smith, 61 M.J. 696 (N-M. Ct. Crim. App. 2005) (Appellant engaged in marketing adult entertainment for profit on the internet, posting hundreds of photos of females engaged in sexually explicit conduct, many of them minors.  Among other offenses, appellant ultimately pled guilty to violating 18 U.S.C. § 2257, under Clause 3, Article 134 for managing a website containing these depictions without maintaining proper records of each performer as that section requires.  HELD:  Appellant’s failure to determine the age and record the identity of the child performer bore a direct relationship to the Government’s interest in preventing child pornography).

(4) “Lascivious exhibition” category of sexually explicit conduct prohibited by § 2251(a).  United States v. Roderick, 62 M.J. 425 (C.A.A.F. 2006) (applying the “Dost” factors to determine “lascivious exhibition”).

(5) In prosecuting a violation of 18 U.S.C. § 2252 (a)(2) by knowingly receiving sexually explicit depictions of minors that have been transported in interstate commerce, “knowingly” applies to the sexually explicit nature of the materials and the ages of the subjects.  The Government does not have to prove that the accused knew that the sexually explicit depictions passed through interstate commerce.  The interstate commerce element is merely jurisdictional.  United States v. Murray, 52 M.J. 423 (C.A.A.F. 2000).

(6) “Viewing” child pornography was not an offense under 18 U.S.C. § 2252 until its 2008 amendment.  As such, viewing child pornography prior to the date of this amendment is likewise not chargeable under Article 134.  United States v. Merritt, 72 MJ 483 (C.A.A.F. 2014).

h) Multiplicity/UMC.

(1) United States v. Purdy, 67 M.J. 780 (N-M. Ct. Crim. App. 2009).  The accused downloaded child pornography from the Internet onto his personal computer while stationed in Belgium.  He then downloaded the images from the hard drive onto a compact disk and reformatted the hard drive, but retained the compact disk.  He was charged with both receiving and possessing child pornography under Clause 3 of Art. 134.  He pled guilty to both offenses under Clauses 1 and 2.   In this case, his act of saving the images to the CD-ROM “was a clear exercise of dominion . . . separate and apart” from his receipt of the images at an earlier point in time.  The conviction for both offenses was proper and the military judge did not commit plain error.

(2) United States v. Craig, 67 M.J. 742 (N-M. Ct. Crim. App. 2009). The accused used “LimeWire,” a peer-to-peer file-sharing software program to search for and download child pornography.  He downloaded the child pornography into a “share” folder on his hard drive.  He kept some of the images in the “share” folder, copied some to compact disks, and deleted others.  He pled guilty to both receipt and possession of child pornography under 18 U.S.C. § 2252A using Clause 3 of Art. 134. The court held that these two specifications were not facially duplicative and therefore military judge did not commit plain error in failing to dismiss these specifications as multiplicious.  The charges of receipt and possession “address at least two criminal actions by the [accused] each of which occurred at a different time within the charged time period and involved separate media.

 

 

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