2006
(the minor
status of the victim is an element
of the offense of indecent acts with a child; there is nothing in the
plain
language of Article 134 or in the MCM explanation of this offense
indicating
that the minor status of the victim is merely an aggravating factor in
determining the degree of the accused’s guilt).
(even though the
government can establish the
offense of indecent acts with another, to prove the more serious
offense of
indecent acts with a child, the government must also prove the
additional fact
and element that the child was under the age of sixteen).
(the defense of
mistake of fact is available
to a military accused who is charged with committing indecent acts with
a child).
(the minor
status of the victim is an element
of the offense of indecent acts with a child, not an aggravating
factor; an
honest and reasonable mistake of fact defense as to the victim’s age
under
Article 134, UCMJ, does not fall away simply because the act is
indecent for
reasons other than the victim’s minor status).
United
States v. Rollins, 61 M.J. 338 (the offense of committing indecent
acts
with another has three elements: (1) that the accused committed a
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; the determination of whether an act is
indecent requires examination of all the circumstances, including the
age of
the victim, the nature of the request, the relationship of the parties,
and the
location of the intended act; an act is indecent if it signifies that
form of
immorality relating to sexual impurity which is not only grossly
vulgar,
obscene, and repugnant to common propriety, but tends to excite lust
and
deprave the morals with respect to sexual relations).
(in
this case,
the evidence was legally sufficient to sustain a conviction of
committing
indecent acts with another, despite the accused’s contention that the
evidence
did not demonstrate the requisite commission of a wrongful act “with”
another
person, where the evidence showed that the accused, while in the
parking lot of
a commercial establishment open to the public, gave a pornographic
magazine to
a person under eighteen years of age as part of a plan or scheme to
stimulate
mutual masturbation; a reasonable factfinder could conclude that such
conduct
amounted to the commission of a service-discrediting indecent act
“with”
another person in violation of Article 134).
(the accused’s conviction of committing indecent acts with another
based on
evidence showing that the accused, while in the parking lot of a
commercial
establishment open to the public, gave a pornographic magazine to a
person
under eighteen years of age as part of a plan or scheme to stimulate
mutual
masturbation did not violate the First Amendment where the offense did
not
involve a simple exchange of constitutionally protected material, but
instead
involved a course of conduct designed to facilitate a sexual act in a
public
place; even if his conduct were subject to the heightened standard of
review
applicable to First Amendment claims in civilian society, the armed
forces may
prohibit service-discrediting conduct under Article 134 so long as
there is a
reasonable basis for the military regulation of the accused’s conduct;
the
military has a legitimate interest in deterring and punishing sexual
exploitation
of young persons by members of the armed forces because such conduct
can be
prejudicial to good order and discipline, service discrediting, or
both; the
accused had no right under the First Amendment to exchange pornographic
materials with a young person as part of a plan or scheme to stimulate
a sexual
act in a public place).
United
States v. Baker, 57 MJ 330 (the offense of
"indecent
acts or liberties with a child" may be prosecuted at court-martial as a
service discredit, or disorder, under Article 134, UCMJ; see
paragraph
87b(1), Part IV, Manual; lack of consent by the child to the act or
conduct is
not essential to this offense; consent is not a defense; see
paragraph
87c(1), Part IV, Manual).