United States v. French

EVERETT, Chief Judge

(dissenting):

For the moment, forcefully eject from your memory all of the facts — so vividly set out in the majority opinion — that may be gleaned from the evidence in this case. Instead, focus solely on this scenario, stark and unadorned with embellishing circumstances:

A stepfather is standing at the bedside of his young stepdaughter in the family home, and he asks his stepdaughter “if he [can] climb into bed with her.”

Is his request indecent?

Likely, you would protest at this point, pleading: “But I need more information! For instance, what are the circumstances under which he makes his request? Is the girl ill? Is she cold? Has she just awakened from a nightmare? Has she heard something outside her window that has frightened her? Is there some other reason why she might need parental comforting? Turning to the stepfather, is he fully clothed or not? Is he making any physical gesture that might further give meaning to his words? Without more information,” you assert, almost indignantly, “this language means NOTHING to me.”

And you would be right!

I

Specification 2, that is at issue here, originally alleged:

In that [appellant] did, at Hinesville, Georgia, on or about 11 April 1988, take indecent liberties with Alisha Mannette Rocha, a female under the age of 16 years, not the wife of the said [appellant], by asking the said Alisha Mannette Rocha if he could climb into bed with her.

Defense counsel moved to dismiss this specification on the basis that the act alleged was not legally sufficient to constitute an indecent liberty. Notwithstanding *62trial counsel’s resistance to the motion, the military judge indicated he was inclined to agree with defense counsel on this contention; but he also indicated that he believed that the specification was sufficient to allege “communicating indecent language.”

In response, trial counsel urged the military judge to conclude, instead, that the offense of indecent acts with another was alleged. Trial counsel explained that he had concern whether the specification alleged indecent language. To constitute that offense, the specification had to contain language within its four corners that was offensive either by itself or under the circumstances alleged. Because the Government did not believe this specification met those standards, the Government had consciously avoided charging that offense. Therefore, trial counsel urged the military judge not to convert the original specification into that offense but, instead, to convert it into one of committing indecent acts with another.

Nonetheless, the military judge did as he had indicated he was inclined to do: He ruled that the specification set out above did not legally allege committing indecent liberties but that it did allege “communicating indecent language.”

At this point, defense counsel again moved to dismiss the specification. This time he asserted that the specification was not legally sufficient to allege indecent language, as trial counsel had pointed out, and that the defense had not been on notice to defend against this charge. As to the latter complaint, the military judge offered the defense a continuance, which the defense declined. On the merits of the motion, though, the military judge overruled counsel’s objection.

In the Court of Military Review, appellant renewed his objection to the legal adequacy of the specification to state the offense of communicating indecent language. In response, the court had this to say:

In our opinion, the military judge correctly denied the motion. Under the circumstances of this case, particularly the prior sexual abuse of the victim by the appellant and the interaction and conversations between the victim and the stepfather, the language of the specification was indecent and was sufficiently alleged in the specification to be a lesser included offense of the charge originally alleged.
It is clear that the language does not have to be indecent on its face. The circumstances of the communication must be carefully looked at as well, and must fairly allege libidinous conduct violating commonly accepted community standards. The military judge correctly denied the motion and correctly discerned that, under the circumstances, the language made out the lesser included offense of communicating indecent language.

Unpub. op. at 2-3 (emphasis added; citations omitted).

II

Paragraph 89c, Part IY, Manual for Courts-Martial, United States, 1984, explains that “ ‘[ijndecent’ 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.” The Drafters’ Analysis indicates that “[tjhis paragraph is new and is based on United States v. Knowles, 15 U.S.C.M.A. 404, 35 C.M.R. 376 (1965); United States v. Wainwright, 42 C.M.R. 997 (A.F.C.M.R.1970). For a general discussion of this offense, see United States v. Linyear, supra [3 M.J. 1027 (N.C.M.R. 1977) ].” Manual, supra at A21-102 (Change 3).

The parties agree that, in light of the reference to Wainwright, the governing principle is that the allegedly indecent language must be itself indecent or, if “not indecent on its face, the necessary implication or innuendo of indecency must be clearly discernible from the four corners of the specification itself.” United States v. Wainwright, supra at 1000. The misstep in the court below occurred when that court did not limit itself to the four corners *63of the specification in looking either for inherently indecent language or for circumstances that would make otherwise innocuous language indecent. Instead, while the opinion refers to the need for the specification to “fairly allege libidinous conduct,” it is quite clear that the court actually looked to the evidence of record and to the other specifications facing appellant at trial in order to conclude that the language in the specification was indecent “[u]nder the circumstances of this case.”

While this is not entirely clear from the majority opinion, that misstep appears to be repeated in this Court. Concededly, the majority refers to “[t]he four corners of the specification.” 31 MJ 57, 60. However, when setting out to rationalize its conclusion of indecency, the majority begins with, “Under the facts of this case ...” 31 MJ at 60. To reiterate, the facts of the case — viz., the evidence of record— have nothing to do with whether the specification sufficiently alleges indecent language. See United States v. Wainwright, supra.

Moreover, if the majority does not make this error, it is unclear from its opinion what the basis is for its affirming the adequacy of this specification. Does the majority find the language itself indecent, or does it rely on alleged circumstances to infer indecency?

If it is the language that the majority relies upon, is the majority opinion truly to be read for the proposition that a parent, who asks his young child “if he could climb into bed with her” in the nighttime and in the family home, is asking something that is inherently indecent? This is a parent, in the family home, talking to a child of tender years — not a total stranger, in a school playground. The opening segment of this opinion illustrates — but certainly does not exhaust — rather common instances in which such a comforting offer might be made under quite innocent circumstances. Has this Court become so jaded by the onslaught of child-abuse cases that we infer — in knee-jerk fashion — that such a request must be indecent under all circumstances?

And if the circumstances are the key, what are the circumstances alleged in the specification that are relied upon by the majority to taint this otherwise innocuous request as indecent? There simply is none.

In his separate concurring opinion, Judge Sullivan appears to rely upon the allegation in the specification that the language was “indecent” as sufficient to meet appellant’s challenge. He correctly cites United States v. Holland, 12 USCMA 444, 445, 31 CMR 30, 31 (1961), and United States v. Gaskin, 12 USCMA 419, 421, 31 CMR 5, 7 (1961), for this proposition. In my view, though, this allegation adds nothing.

Whether the language was “indecent” is the conclusion that must be reached before an accused can be convicted. Indeed, the Court in Holland acknowledged as much when it observed that “the allegation [‘indecently’] actually defines the character of the accused’s act.” 12 USCMA at 445, 31 CMR at 31 (emphasis added). But that conclusion will be based upon the words uttered and the circumstances under which they were communicated. It is the words themselves (if they are per se indecent) — and, if necessary, the circumstances (if the words are not per se indecent) — that must be alleged, not the conclusion. Alleging the conclusion of indecency is not tantamount to alleging either words that are indecent or circumstances under which words were uttered that make them indecent. While the decision reached in Holland supports Judge Sullivan’s view, its rationale does not.

Indeed, the very case acknowledged by the majority as the authoritative and definitive case upon which this Article 134 crime is based — United States v. Wainwright, supra — is to the contrary. While the majority opinion quotes extensively from that opinion, the following portion of that opinion (not quoted by the majority) is critical at this point:

We are not prepared to conclude, however, that expressions otherwise barren *64of libidinous innuendo, when given their ordinary meaning, can be infused with criminality by the simple expedient of alleging them to be indecent. In short, words of pleading designed to impart criminality “cannot serve to supply an otherwise missing element of the offense.” United States v. Fleig, supra, at page 65 [16 USCMA 444, 445, 37 CMR 64, 65 (1966).

Id. at 1000.

As the majority correctly acknowledges, “Specifications which are challenged immediately at trial will be viewed in a more critical light than those which are challenged for the first time on appeal. See United States v. Bryant, 30 MJ 72, 73 (CMA 1990); ...” 31 MJ at 59. Appellant challenged this specification vigorously at trial and has done so relentlessly on appeal; indeed, even the prosecution at trial expressed a view similar to appellant’s as to the adequacy of this specification to allege indecent language. With all due respect, I suggest that even a casual consideration— much less a critical one — compels such a view.