CORE CRIMINAL LAW SUBJECTS: Crimes: Article 120b - Rape and Sexual Assault of a Child (*** post-2012 Amendment)

(c) Sexual Abuse of a Child:

2015 (September Term)

United States v. Busch, 75 M.J. 87 (in this case, where the accused’s offense of sexual abuse of a child took place after the effective date of the 2012 amendments to Article 120, but before Executive Order No 13,643 was promulgated, Part IV of the MCM did not include sentence maximums for Article 120 offenses; the military judge determined the maximum punishment for the Article 120b(c), UCMJ, offense of sexual abuse of a child that was not listed in the MCM by holding that the charged offense was “closely related” to the offense of indecent liberties with a child under RCM 1003(c)(1)(B)(i) for purposes of determining the maximum sentence of sexual abuse of a child; this was error because when the UCMJ was amended in 2012, the offense of indecent liberties with a child, which was in the 2008 edition of the MCM, was repealed and was no longer a listed offense for the comparison purposes of RCM 1003(c)(1)(B)(i); the proper analysis for this case is found in RCM 1003(c)(1)(B)(ii); that subsection addresses charged offenses which are not closely related to any offenses listed in Part IV and directs a comparison to offenses in the United States Code, or as authorized by the custom of the service; because there are no comparable offenses in the United States Code, the custom of the service is the correct comparison; the custom of the service, as used in RCM 1003(c)(1)(B)(ii), simply means the penalty authorized for those offenses which have traditionally been used in the military justice system to charge service members under the same or similar factual circumstances; in this case, the military justice system has traditionally charged the factual circumstance of exposing one’s genitals in the presence of minors with the offense of indecent liberties with a child; prior to 2008, the maximum period of confinement that could be imposed for indecent liberties with a child was seven years; however, in 2008, when the offense was moved from Article 134 to Article 120, the maximum sentence was increased to fifteen years of confinement; accordingly, the use of this fifteen-year maximum sentence for the past seven years is sufficient to create a custom of the service under RCM 1003(c)(1)(B)(ii)).

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