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

(c) Sexual Abuse of a Child:

2019 (October Term)

United States v. Avery, 79 M.J. 363 (both Articles 120b and 134, UCMJ, criminalize indecent language to a child under the age of sixteen). 

(Article 120b(c), UCMJ, sexual abuse of child, prohibits lewd acts upon a child, including indecent language to a child as described in Article 120b(h)(5)(C), UCMJ). 

(Article 120b(c), UCMJ, does not criminalize “indecent language” qua indecent language; instead, Article 120b(c), UCMJ, proscribes lewd acts upon children, and lewd acts is defined to include indecent language with an intent to abuse, humiliate, or degrade or to gratify the sexual desire of any person; it thus criminalizes neither all indecent language, nor vulgar language as a whole, but only indecent language that constitutes a lewd act -- that is, a sexually unchaste or licentious act). 

(whether language is indecent depends in part on context). 

(where the Article 134, UCMJ, offense of indecent language to a child was created prior to its Article 120b(c), UCMJ counterpart, Congress did not implicitly intend to preempt the enumerated Article 134, UCMJ, offense, at least insofar as it applies to indecent language that is not sexual; in addition the direct legislative language and express legislative history of Article 120b(c), to the extent they reveal congressional intent at all, do not indicate an intent for that article to occupy either the entire field of misconduct involving children or indecent language generally; the scant legislative history, if anything, indicates that the ambit of Article 120b, UCMJ, is limited to sexualoffenses against children).

(the scope of indecent language prohibited under Article 134, UCMJ, extends well beyond that language that constitutes the lewd acts with children with which Article 120b(c), UCMJ, is concerned; language that is grossly offensive because of its tendency to incite lustful thought is criminalized; however, in addition, language that, according to community standards, is grossly offensive to modesty, decency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or disgusting nature is also criminalized). 

(in the Article 134, UCMJ, offense of indecent language to a child, because there is a class of indecent language communicated to a child that is, according to community standards, grossly offensive or shocks the moral sense because of its vulgar, filthy, or disgusting nature, yet that is not sexual -- and thus not, without more, a lewd act -- Article 134, UCMJ, is not merely a residuum of Article 120b, UCMJ; one element of Article 134, UCMJ, can be satisfied in two different ways, and Article 120b(c), UCMJ, covers only one of them). 

(in this case, where the language communicated in the enumerated Article 134, UCMJ, offense of indecent language to a child was indecent because of its vulgar, filthy, or disgusting nature, and not because of its sexual nature, there is no indication that Congress intended Article 120b(c), UCMJ (sexual abuse of a child), to cover this type of misconduct and preempt the Article 134, UCMJ, offense; the Article 134, UCMJ, offense of indecent language is more than a residuum of Article 120b(c), UCMJ, and Congress has not expressly or indirectly indicated that it intended Article 120b(c), UCMJ, to cover the entirety of offenses involving indecent language communicated to children; as such, under the facts of this case, Article 120b, UCMJ, does not preempt the charged Article 134, UCMJ, offense of indecent language). 

2018 (October Term)

United States v. Rodriguez, 79 M.J. 1 (per Article 120b(c), UCMJ, any person who commits a lewd act upon a child is guilty of sexual abuse of a child and shall be punished as a court-martial may direct; a lewd act means any sexual contact with a child; sexual contact is defined as any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person; touching may be accomplished by any part of the body; the statute clearly requires that the charged sexual act be accompanied by a specific intent). 

(appellant’s conviction for sexual abuse of a child was legally sufficient because sufficient circumstantial evidence supported the conclusion that appellant kissed his child’s feet with the specific intent to arouse or gratify his sexual desires where he sent photographs of the child’s feet in sexually explicit text messages with his paramour, the paramour personally observed appellant kissing the child’s feet and she believed he was using them as sexual foreplay, and appellant shared his feet-based sexual fantasies with his paramour). 

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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