(Pre-2007
Amendment -- Offenses charged
under the law in effect before 1 Oct 2007)
2020 (October Term)
United States v. Adams, 81 M.J. 475 (Congress’s 2016 amendments to Article 43, UCMJ, reduced the statute of limitations for indecent liberties with a child charged under Article 134, UCMJ, and sodomy with a child charged under Article 125, UCMJ, to five years – see US v. McPherson, 81 MJ 372 (CAAF 2021)).
(the savings clause in the 2016 amendments to Article 43, UCMJ, did not apply in this case and prevent the five-year statute of limitations from barring the rehearing of indecent liberties with a child charged under Article 134, UCMJ, and sodomy with a child charged under Article 125, UCMJ, because the original charges were not dismissed as defective or insufficient for any cause but rather were repreferred as new charges for the same offenses with only minor changes and the government reassured the military judge that the new charges and specifications were exactly the same as the original charges; for the savings clause in Article 43(g), UCMJ, to apply, the original charges must have been dismissed because they were defective or insufficient in some manner).
(a plain reading of the 2016 version of Article 43(b), UCMJ, provides that the statute of limitations for the charges in this case under Articles 125 and 134, UCMJ, was five years; if appellant had been properly advised of this issue by the military judge at trial as required by RCM 907(b)(2)(B), he undoubtedly would have raised the issue as a defense; accordingly, the statute of limitations error here was clear and prejudiced appellant’s defense and substantial rights).
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).
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
(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).