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).
(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).
2009 (September Term)
United
States v. Green, 68 M.J. 266 (indecent
language is that which is grossly
offensive to modesty, decency, or propriety, or shocks the moral sense,
because
of its vulgar, filthy, or disgusting nature, or its tendency to incite
lustful
thought; language is indecent if it tends reasonably to corrupt the
morals or
incite libidinous thoughts; the language must violate community
standards).
(the elements of indecent
language under
Article 134, UCMJ, are (1) that the accused orally or in writing
communicated
to another person certain language, (2) that such language 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 term “language” is not
defined in the MCM
under the indecent language offense of Article 134, UCMJ; in the
absence of any
evidence to the contrary, ordinary definitions suffice; the term is
defined as
any organized means of conveying or communicating ideas, especially by
human
speech, written characters, or sign language; in this case, the charged
language “mmmm-mmmm-mmmm” meets that definition of “language;” it need
not be a
word; it was an audible sound that was meaningful under the
circumstances of the
case).
(the
MCM’s definition of indecent language has two
alternative definitions, either of which may be relied upon under the
offense: (1) grossly offensive to
modesty, decency, or propriety, or shocks the moral sense, because of
its
vulgar, filthy, or disgusting nature; or (2) grossly offensive because
of its
tendency to incite lustful thought; the final two sentences of the
definition: “[l]anguage is indecent if
it tends reasonably to corrupt morals or incite libidinous thoughts. The language must violate community
standards[,]” do not create separate definitions but rather modify and
further
explain the two alternative definitions).
(whether
the utterance “mmmm-mmmm-mmmm” constitutes “indecent”
language cannot be determined in isolation; the entire record of trial
must be
examined to determine the precise circumstances under which the charged
language was communicated).
(the
indecency of a
word or sound must be evaluated in the context in which it is made).
(the
specification charging appellant with indecent language under Article
134,
UCMJ, for uttering “mmmm-mmmm-mmmm” as he grabbed
and
pulled the victim’s shirt down and was looking at her breasts
was
legally sufficient in the context of the
utterance;
appellant and the victim were not social friends and this was not a
case
involving conduct that reflected a common, accepted practice in the
workplace;
the record clearly reflected that appellant had previously demonstrated
his
sexual predatory nature in a number of encounters with the victim; and
the
victim immediately reacted by calling appellant a “disgusting pervert;”
in
the context of this case, the language met the MCM’s definition of
indecent
language by being grossly offensive to modesty, decency, or propriety
because
of its vulgar, filthy, or disgusting nature).