CORE CRIMINAL LAW SUBJECTS: Crimes: Article 134 - Indecent Acts or Liberties with a Child

(Pre-2007 Amendment -- Offenses charged under the law in effect before 1 Oct 2007)


2020 (October Term)

United States v. McPherson, 81 M.J. 372 (the 2016 version of Article 43(b), UCMJ, that provided for a five-year statute of limitation for indecent acts with a child applied to this case where the accused was convicted of committing indecent acts with a ten-year-old child occurring in 2004 but the charges were not received by the summary court-martial convening authority until 2017 when the child was 23 years old; § 5225(f) of the NDAA 2017 specifically provided that the amendments to Article 43, UCMJ, applied to the prosecution of any offense committed before the date of the enactment of this subsection if the applicable limitation period has not yet expired, and in this case, that period had not expired where the earlier version of Article 43 allowed such specifications to proceed to trial if they were received before the child victim attained the age of 25; the language “before, on, or after” the statute’s enactment date indicated unambiguously Congress’s intention to apply specific provisions retroactively; accordingly, this specific statutory provision overcame the presumption that the statute of limitations in effect at the time of the offense controlled). 

(the amendments that § 5225 of the NDAA 2017 made to the definition of “child abuse offense” in Article 43(b)(2)(B), UCMJ, were substantive and retroactively shortened the period of limitations for the specifications of indecent acts with a child in this case charged under Article 134, UCMJ, where the plain language of the 2016 version of Article 43(b)(2)(B), UCMJ, did not include offenses under Article 134 under the definition of “child abuse offense”). 

(section 5225(f) of the NDAA 2017 made the amendments to Article 43(b)(2)(B) applicable to the prosecution of any offense committed before, on, or after the date of the enactment of this subsection; the date of enactment was December 23, 2016, and on that date the 2016 version of Article 43, UCMJ, barred prosecutions of the specifications at issue in this case, indecent acts with a child).

(indecent acts with a child did not fall within the definition of “child abuse offense” in the 2016 version of Article 43(b)(2)(B), UCMJ, where the statute uses the words “constitutes . . . any offense in violation of” the articles in the enumerated list of offenses (to include Article 120b, UCMJ) instead of the words “would constitute” a violation of the articles in the enumerated list; the acts described in the indecent act specifications in this case likely “would constitute” offenses under Article 120b, UCMJ, if that Article had existed in 2004 and if the charge sheet had informed the accused that he was accused of violating that article; but because a person cannot violate a statute that did not exist at the time of his acts, the accused’s acts could not constitute violations of Article 120b, UCMJ, an article that did not exist in 2004; and the charge sheet accused the accused of violating Article 134, UCMJ, an entirely different article; the acts alleged in the specifications therefore were not acts that constituted a “child abuse offense” within Congress’s definition in the 2016 version of Article 43(b)(2)(B), UCMJ). 

(in this case, application of the plain text of the 2016 version of Article 43, UCMJ, which shortened the statute of limitation for indecent acts with a child committed in 2004 to five years, was not absurd (1) where it was not absurd for a statute of limitations to bar prosecution of a person who committed a heinous crime, (2) where Congress could have rationally intended to enact a statute of limitations of five years when an earlier Congress had done the same, (3) where the 2016 amendments did not create an internal inconsistency when the changes in the statute were not in conflict with each other because a court could enforce the plain meaning of each change exactly as written, and (4) where a likely legislative purpose cannot prevail over the plain meaning of a statute when the results of the plain meaning are not inherently absurd).

(in this case, the military judge committed plain error where (1) the statute of limitations barred the prosecution of the indecent acts with a child offenses and the military judge failed to inform the accused that he had a defense as required by RCM 907(b), (2) the error was prejudicial because if the military judge had informed the accused about the period of limitations, the accused surely would have asserted the period of limitations as a defense, and where the error was clear and obvious because the 2016 version of Article 43(b), UCMJ, clearly applied to this case because § 5225(f) of the NDAA 2017 plainly said that it did; Article 43(b)(1), UCMJ, clearly set a five-year period of limitations because the longer period in Article 43(b)(1)(B), UCMJ, plainly did not apply to indecent act with a child offenses charged under Article 134, UCMJ).   

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). 


United States v. Sutton, 68 M.J. 455 (the elements of indecent liberties with a child clearly contemplates two actors, as the MCM refers to “the accused” and 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). 


2006

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 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. 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). 

 

2005


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).


2002

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).



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