U.S. v. Avery, 79 M.J. 363

Core Criminal Law Subjects: Crimes: Article 120b - Rape and Sexual Assault of a Child Pre-2019 offenses › (c) Sexual Abuse of a Child

1. both Articles 120b and 134, UCMJ, criminalize indecent language to a child under the age of sixteen
2. Article 120b(c), UCMJ, sexual abuse of child, prohibits lewd acts upon a child, including indecent language to a child as described in Article 120b(h)(5)(C), UCMJ
3. Article 120b(c), UCMJ, does not criminalize “indecent language” qua indecent language; instead, Article 120b(c), UCMJ, proscribes lewd acts upon children, and lewd acts is defined to include indecent language with an intent to abuse, humiliate, or degrade or to gratify the sexual desire of any person; it thus criminalizes neither all indecent language, nor vulgar language as a whole, but only indecent language that constitutes a lewd act -- that is, a sexually unchaste or licentious act
4. whether language is indecent depends in part on context
5. 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
6. 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
7. 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
8. 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

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

1. whether an Article 134, UCMJ, offense is preempted depends on statutory interpretation
2. the preemption doctrine limits the general article’s expansive scope, prohibiting application of Article 134 to conduct covered by Articles 80 through 132; this doctrine is designed to prevent the government from eliminating elements from offenses under the UCMJ, in order to ease its evidentiary burden at trial
3. a limitation similar to the preemption doctrine prevents the government from charging conduct under a novel Article 134, UCMJ, specification where that conduct is already criminalized by an enumerated Article 134, UCMJ, offense
4. an offense listed in Articles 80 through 132, UCMJ, will only preempt an Article 134, UCMJ, offense if (1) Congress intended to limit prosecution for a particular area of misconduct to offenses defined in those specific articles of the Code, and (2) the offense charged is composed of a residuum of elements of a specific offense; simply because the offense charged under Article 134, UCMJ, embraces all but one element of an offense under another article does not trigger operation of the preemption doctrine; in addition, it must be shown that Congress intended the other punitive article to cover a class of offenses in a complete way; and an appellate court will only find a congressional intent to preempt in the context of Article 134, UCMJ, where Congress has indicated through direct legislative language or express legislative history that particular actions or facts are limited to the express language of an enumerated article

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

1. both Articles 120b and 134, UCMJ, criminalize indecent language to a child under the age of sixteen
2. whether language is indecent depends in part on context
3. 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
4. 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
5. 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
6. 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

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

1. whether an Article 134, UCMJ, offense is preempted depends on statutory interpretation, which is a question of law that an appellate court reviews de novo