- the elements of indecent acts are: (1) the accused engaged in certain conduct; and (2) the conduct was indecent; the offense of indecent acts occurs when any person engages in indecent conduct, which is defined as that form of immorality relating to sexual impurity that is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations
- as charged in this case, indecent acts (committing a sexual act in an open and notorious manner) is not a lesser included offense of aggravated sexual assault (engaging in a sexual act with an incapacitated person); as charged in this case and under the government’s lesser included theory, there is no additional fact that the members would need to find in order to convict for the offense of aggravated sexual assault which would be unnecessary to convict for the offense of indecent acts; neither requires a factual finding which the other does not; the first element of both offenses is established by the same set of facts: the “sexual act” (aggravated sexual assault) and “certain conduct” (indecent acts) refer to the digital penetration of the victim’s vagina; the second element of each offense is also established by the same alleged fact: the victim was substantially incapable of declining participation (aggravated sexual assault); and the conduct was indecent because the victim was substantially incapable of declining participation (indecent acts); although the MCM in effect at the time recognized that treating indecent acts as a lesser included offense of aggravated sexual assault was appropriate depending on the factual circumstances in each case, under the facts of this case, where there is no additional fact that the members would need to find in order to establish the offense of aggravated sexual assault which would be unnecessary to establish the offense of indecent acts, the two offenses do not stand in a relationship of greater/lesser offense, because a rational trier of fact could not acquit on the greater offense and convict on the lesser offense
- in his instructions on indecent acts as a lesser included offense of aggravated sexual assault, the military judge improperly instructed the members on a theory indecency on which appellant was neither charged nor on notice, where he instructed the members that engaging in a sexual act in the presence of others is considered “open and notorious” behavior which could constitute an indecent act; “open and notorious” is not a basis or theory for the offense of aggravated sexual assault, and that instruction was the first mention in the trial of the “open and notorious” theory; the military judge went on to instruct the members that the greater offense of indecent acts differed from the offense of aggravated sexual assault as it did not require them to find that the victim was substantially incapable of declining participation, but only that the act itself was indecent; in providing these instructions, the military judge essentially took the “substantially incapable of declining participation” theory for the offense of indecent acts off the table and instead provided the members with detailed instructions as to the “open and notorious” theory for the offense; this error resulted in material prejudice because the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; because appellant was neither charged with nor on notice of the offense of indecent acts under the “open and notorious” theory until the military judge’s instruction, he was not on fair notice to defend against that offense and his due process rights were violated
CAAF Opinion Digest · III.A.45.11 · Crimes Pre-2019 offenses
Article 120 - Rape, Sexual Assault, and Other Sexual Misconduct
Offenses committed before 1 January 2019 (pre-2016 amendment) — opinions from the 1999 through 2020 Terms of Court.
For offenses on or after 1 January 2019 see
III.AA — Article 120 - Rape and Sexual Assault Generally.
** post-2007 Amendment
2 digested opinions, 2011–2012 Terms
(k) Indecent Act
2012 (September Term)
2011 (September Term)
- the elements of the offense of indecent acts include (a) that the accused engaged in certain conduct, and (b) that the conduct was indecent conduct; indecent conduct is defined, in part, as that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations; this court has held that “language” can be, or be part of, “conduct” in a particular case
- during a Skype Internet conversation, appellant’s request to his 14-year-old stepdaughter to expose her breasts so that he could observe them utilizing the web camera constituted an attempt to commit an indecent act; appellant’s request was an overt act that constituted direct movement toward the commission of an indecent act; but for his stepdaughter’s refusal to lift her shirt, appellant would have viewed his stepdaughter’s breasts
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Last updated by the court: Oct 13, 2026 · mirrored Oct 29, 2026 · digest page IIIA45.11 · Always confirm a holding against the opinion itself (linked from each case name).