- private consensual sexual activity is not punishable under Article 134, UCMJ, as an indecent act absent aggravating circumstances; and the presence or absence of an aggravating circumstance is a question of fact to be resolved by the factfinder
- in this case, where the CCA concluded that the government failed to prove the existence of any aggravating circumstance of a private consensual sexual activity charged under Article 134, UCMJ, beyond a reasonable doubt and applied the correct legal principles, the CAAF could not set aside the CCA's determination that the accused's conviction for indecent conduct was factually insufficient
CAAF Opinion Digest · III.AA.104 · Crimes Offenses on/after 1 Jan 2019
Article 134: Indecent Conduct
Offenses committed on or after 1 January 2019 (post-2016 amendment) — opinions from the 2021 Term of Court forward.
3 digested opinions, 2022–2025 Terms
2025 (October Term)
2023 (October Term)
- the elements of indecent conduct enumerated in the Manual for Courts-Martial are (1) that the accused engaged in certain conduct; (2) that the conduct was indecent; and that under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces; (ii) was of a nature to bring discredit upon the armed forces; or (iii) both; indecent is defined 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; indecent conduct includes offenses previously proscribed by indecent acts with another except that the presence of another person is no longer required
- the presidentially-enumerated Article 134, UCMJ, offense of indecent conduct provided the accused with constitutionally-required fair notice that committing sexual acts with a sex doll with the physical characteristics of a female child to simulate sexual acts with a minor was subject to criminal sanction; simply stated, the elements and accompanying definition of "indecent" provide servicemembers with fair notice that the specific act of penetrating with one's penis the anal and vaginal orifices of a lifelike sex doll with the physical characteristics of a prepubescent child is, indeed, prohibited under Article 134
2022 (October Term)
- conduct that is constitutionally protected for civilians could still qualify as prejudicing good order and discipline or bringing discredit upon the military; however, images viewed for sexual gratification do not necessarily lose their First Amendment protection
- in this case, where appellant was charged with indecent conduct by searching the internet for pornographic videos using the search terms “rape sleep” and “drugged sleep,” such a charge implicated the First Amendment right to be free from unwanted government intrusion into one’s privacy
- in this case, where appellant was charged with indecent conduct and that conduct implicated a First Amendment constitutional gray area with respect to the right to privacy, the plea colloquy needed to establish why possibly constitutionally protected material could still be service discrediting in the military context; in the absence of a colloquy between the military judge and appellant that contained an appropriate discussion and acknowledgment on the part of appellant between permissible and prohibited behavior, there was a substantial basis in law for questioning the plea, the military judge abused his discretion in accepting the plea, and the plea was improvident
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Last updated by the court: Oct 13, 2026 · mirrored Oct 29, 2026 · digest page IIIAA104 · Always confirm a holding against the opinion itself (linked from each case name).