U.S. v. Green, 68 M.J. 266

Core Criminal Law Subjects: Crimes: Article 134 - Indecent Language Pre-2019 offenses

1. 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
2. (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
3. 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
4. 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
5. 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
6. the indecency of a word or sound must be evaluated in the context in which it is made
7. 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

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

1. an appellate court reviews the issue of legal sufficiency de novo; in reviewing for legal sufficiency of evidence, this court must determine, whether, considering the evidence in the light most favorable to the prosecution, a reasonable fact-finder could have found all the essential elements beyond a reasonable doubt