Amendment -- Offenses charged
under the law in effect before 1 Oct 2007)
2009 (September Term)
United States v. Yammine, 69 M.J. 70 (indecent acts with a child under Article 134, UCMJ, is not a lesser included offense of forcible sodomy under Article 125, UCMJ).
v. Sutton, 68 M.J. 455
(the elements of indecent liberties with
a child clearly contemplates two actors, as the MCM refers to “the
refers to the victim as a “certain person” or “this person”).
2008 (September Term)
United States v. Miller, 67 M.J. 87 (the offense of taking indecent liberties with a child requires that the act be committed in the physical presence of the child; and a constructive presence created through the use of an audio-visual system will not suffice; physical presence requires that an accused be in the same physical space as the victim).
(appellant’s online act of masturbation sent over the internet using a web camera to an undercover detective posing as a 14-year-old girl was not sufficient to satisfy the physical presence element of the charge of attempting to take indecent liberties with a child; appellant was not in the same physical location as the detective while he was masturbating, and the appellant’s constructive presence via the web camera was insufficient to satisfy the physical presence requirement without completely disregarding the plain meaning of “physical presence” as used in the MCM explanation of the offense).
United States v. Zachary, 63 M.J. 438 (the elements of indecent acts with a child are (1) that the accused committed a certain act upon or with the body of a certain person; (2) that the person was under 16 years of age and not the spouse of the accused; (3) that the act of the accused was indecent; (4) 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 (5) 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; lack of consent by the child to the act or conduct is not essential to this offense; consent is not a defense).
(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 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. Rodriguez-Rivera, 63 M.J. 372 (when a person is charged with taking indecent liberties, the liberties must be taken in the physical presence of the child; in this case, the evidence was legally insufficient to sustain appellant’s conviction for taking indecent liberties with a child by watching pornographic movies with her; although there was evidence to establish that the child watched a pornographic movie at appellant’s house, she never testified that appellant was physically present when she did so; thus, there was no evidence that could lead a reasonable member to conclude that appellant watched a pornographic movie “with” the child).
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).(not all sexual conduct between a service person and a person under the age of 16 is per se indecent and therefore a crime; not all sexual conduct between a service person and a person under the age of 16 is indecent because the alleged victim is legally incapable of consenting to sexual acts; factual consent of the alleged victim may be irrelevant to determining whether a service person is guilty of indecent acts with a child).