- 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
CAAF Opinion Digest · III.A.89 · Crimes Pre-2019 offenses
Article 134 - Indecent Language
Offenses committed before 1 January 2019 (pre-2016 amendment) — opinions from the 1999 through 2020 Terms of Court.
2 digested opinions, 2009–2019 Terms
2019 (October Term)
2009 (September Term)
- 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
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Last updated by the court: Oct 13, 2026 · mirrored Oct 29, 2026 · digest page IIIA89 · Always confirm a holding against the opinion itself (linked from each case name).