U.S. v. Zachary, 63 M.J. 438

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a military judge has a duty under Article 45, UCMJ, to explain to the accused the defenses that he raises during a providence inquiry; Article 45(a) requires that, in a guilty-plea case, inconsistencies and apparent defenses must be resolved by the military judge or the guilty pleas must be rejected

Core Criminal Law Subjects: Crimes: Article 134 - Indecent Acts or Liberties with a Child Pre-2019 offenses

1. 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
2. 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
3. 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
4. the defense of mistake of fact is available to a military accused who is charged with committing indecent acts with a child
5. 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

Core Criminal Law Subjects: Defenses: Mistake of Fact

1. the defense of mistake of fact is available to a military accused who is charged with committing indecent acts with a child
2. an honest and reasonable mistake of fact as to the alleged victim’s age is a valid defense to the offense of indecent acts with a child because it negates an element of the Article 134 offense, even though the acts are indecent for reasons other than the victim’s minor status, i.e., by occurring in the presence of a third party; the mistake of fact is not simply a mitigating factor relevant to the degree of the accused’s culpability
3. it is a basic principle of criminal law that an honest and reasonable mistake of fact can negate the mens rea requirement to a general intent crime; mistake of fact is a defense where, if the circumstances were as the accused believed them to be, the accused would not be guilty of the offense; neither the President nor Congress intended age to be a strict liability element as to the crime of indecent acts with a child
4. mistake of fact as to age is now a clearly delineated defense for the crimes of sodomy and carnal knowledge
5. a mistake of fact defense is available as to the offense of indecent acts with a child regardless of whether other facts may establish indecency
6. 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

Trial Stages: Merits: Guilty Pleas

1. a military judge has a duty under Article 45, UCMJ, to explain to the accused the defenses that he raises during a providence inquiry; Article 45(a) requires that, in a guilty-plea case, inconsistencies and apparent defenses must be resolved by the military judge or the guilty pleas must be rejected; where an accused is misinformed as to possible defenses, a guilty plea must be set aside
2. a military judge erred in accepting the accused’s guilty plea to indecent acts with a child, where the accused set up a matter inconsistent with his guilty plea when he raised on the record the possibility that he had an honest and reasonable mistake as to the victim’s age
3. although the accused’s alleged mistake as to the victim’s age precluded the acceptance of his guilty plea to the offense of indecent acts with a child, his statements during the providence inquiry, during which he admitted performing a sexual act on the victim in the presence of a third party, adequately supported a finding of guilty to the lesser included offense of indecent acts with another

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. in analyzing offenses charged under the general article, Article 134, UCMJ, an appellate court looks at both the statute and the President’s explanation in the MCM to determine the elements of the offense
2. a guilty plea is set aside upon a showing that a substantial basis in law and fact for questioning the guilty plea exists