United States v. Joseph

WISS, Judge

(concurring in the result):

I

Most judges — including those on this Court — profess to reject lawmaking as an appropriate aspect of their judicial role. The propriety of such judicial restraint surely is no more clear, in terms of both sound government and constitutional principles, than in the context of substantive criminal law.

The process of criminalizing certain conduct is a uniquely political (viz., legislative) one: It is an exercise that requires candid suggestion that a particular act is socially unacceptable; public debate on the efficacy of that suggestion and the perimeters that society will insist or permit be drawn *402around proscribed activity; and ultimately an up-or-down vote by lawmakers as to whether, after all, the act will be criminally condemned. It is, thus, a process that is distinctively one to be followed by the politically responsive and politically responsible elements of government.

In this scheme, courts and the judges on them are law-takers in the substantive criminal-law context, not lawmakers. We must resist the call that occasionally is voiced that asks us to act where others have not to proscribe a particular act or course of action as criminal.1 It is a call for a political decision, not for a legal one, and that decision is not within the province of courts to make. See generally United States v. Lawson, 36 MJ 415, 423 (CMA 1993) (Wiss, J., concurring in the result).

In other words, when the Government comes before a court of law and tries to fit a round peg of conduct into a square hole of a punitive statutory provision, it is not the proper function of the court to reshape the hole so that it will accept the peg and, in the process, distort the hole’s character. Rather, it is the proper limit of the court’s function to consider whether the hole— politically determined — already is large enough so that the peg fits within it.

This case illustrates a most troubling social dilemma, made so by the mutual presence of several factors. The physical act that underlies the claimed prohibition reflects one of but a few of the most fundamental, instinctive urges of those in the animal kingdom. That act, however, arises in the context of its being a significant vehicle for the spread of one of the most feared and fearsome health threats that has faced humanity. Without doubt, the question of whether acting out the instinctive urge of sexual activity should be curbed — and, if so, at what point and under what circumstances — is a vexing social/political topic. It is not, however, an appropriate legal issue before a court of law.

Nonetheless, no court, including this one, can entirely avoid the matter. Until such time that the social/political conversation is had in the political compartments of government, courts have been and will be faced with prosecutorial efforts to proceed with whatever tools that arguably are presently available. The legal difficulty, of course, is that none of those tools was created with the idea then in mind that it should be crafted for this sort of situation.

Thus, the round peg and the square hole.

II

The Government in this case has elected to prosecute appellant’s activity as an aggravated assault, in violation of Article 128, Uniform Code of Military Justice, 10 USC § 928. Much of the debate by the parties in this Court has concerned whether appellant’s infected semen, under all the circumstances involved here, was a means likely to produce grievous bodily harm— that is, whether there was aggravation. I agree with my colleagues’ treatment of that dispute.

Before there can be an aggravated assault, however, there must be an assault, see Art. 128(b) — and that more fundamental question is given such quick notice in the majority opinion as to be virtually unaddressed there.2 Moreover, despite the *403implication in the majority opinion to the contrary, United States v. Womack, 29 MJ 88 (CMA 1989), and United States v. Woods, 28 MJ 318 (CMA 1989), were not even assault cases — the former was a prosecution under Article 90, UCMJ, 10 USC § 890, for violating a “safe-sex” order, and the latter was a prosecution under Article 134, UCMJ, 10 USC § 934, for engaging in an inherently dangerous act by unprotected sex with another while knowing the presence of HIV infection and its consequences. Although United States v. Stewart, 29 MJ 92 (CMA 1989), was a prosecution under Article 128, it involved sex without use of a condom or any other barrier to the infected semen. The same is true of United States v. Johnson, 30 MJ 53 (CMA), cert. denied, 498 U.S. 919, 111 S.Ct. 294, 112 L.Ed.2d 248 (1990) — the only other case in our precedents where an HIV-related sexual act was charged as an assault under Article 128. Thus, none of these cases is particularly helpful in determining whether there was an assault at all in this case.

The Chief Judge, though, does extensively analyze this question, but in the process he embraces a questionable theory not necessary to resolve this case. He concludes not only that there was an assault under the “attempt” theory, 37 MJ at 400-401, with which I agree for reasons to be stated infra, but also that there was an assault under some theory of a culpably negligent battery. 37 MJ at 400-401. The majority reaches a similar determination, when it holds that reasonable factfinders could find a battery in this case and that “[i]t is black letter law that every battery includes an assault” (37 MJ at 395) — with the unstated but necessarily implied conclusion that all batteries, thus, are within the scope of Article 128.3

I would prefer not to write on this expanded expoundment of the law of assault, since it does not seem to be within the granted issue and certainly was not briefed or orally argued in this Court; I would prefer, instead, to limit this aspect of our decision on the granted issue to concluding, as I do, infra, that an assault could be found here under the “attempt” theory.

Nonetheless, the views expressed by the majority and ■ separately by the Chief Judge, summarized above, prod me, reluctantly, to explore beyond this limited border. The language of Article 128 legislatively establishes both the crime of assault and the limits of that crime, and this Court is bound by those legislative limits. I am not convinced that that language permits the majority’s conclusion that “every battery includes an assault” as Congress has defined assault for us; instead, I believe that the majority has reached that eonelu*404sion through flawed logic. I am not convinced, either, that that language includes a culpably negligent battery within the scope of “assault” as Congress has defined it; the legal authorities relied upon by the Chief Judge are infirm support for his conclusion that it does.

A

My beginning must be the statute. In the section that is relevant to the underlying crime of assault, Article 128(a) provides:

Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct.

It seems entirely clear that Congress, thus, has carefully and specifically defined what it has chosen to proscribe as “assault”: an attempt or offer with unlawful force or violence to do bodily harm to another. It seems just as clear that Congress, thus, has made it legally immaterial “whether or not the attempt or offer is consummated” — that is, whether a battery occurs.

The undeniable language of Article 128, therefore, would appear to have two results. If an act constitutes an attempt or offer, it may be an assault whether or not a battery occurs; conversely, even if an act occurs that at common law or in other jurisdictions constitutes a battery, it is not within Article 128 unless it is an offer or attempt.

The former needs no amplification. The latter, however, might benefit from illustration. Example: A man carries gasoline in a glass bottle in the trunk of his car to use if he runs out of fuel, and he intends to harm no one with it; yet, it explodes and injures a nearby pedestrian. Likely, under most definitions of that term, the man has committed a battery by doing bodily harm to another through his culpable negligence. It would seem just as likely, though, that his act does not fall within either the attempt or offer theories of assault: He did not “specific[ally] inten[d] to inflict bodily harm,” see para. 54c(l)(b)(i), Part IV, Manual for Courts-Martial, United States, 1984; and, since the bottle of gasoline was inside the car’s trunk, the injured bystander did not see it and so did not apprehend any threat of injury from the man’s negligent act, see para. 54c(l)(b)(2). Thus, given a statute like Article 128, which specifically defines assault as an offer or attempt — and which thereby also would seem to limit assault to an offer or attempt — that man has not committed an assault.

I do not suggest that that result necessarily is desirable. I only suggest that that appears to be the legally required reading of what Congress has chosen to proscribe. The remedy, if any is thought necessary, is to either legislatively expand assault to include a culpably negligent battery or enact a separate battery statute. The remedy is not to judicially distort clear and unambiguous statutory language. I fear, however, that that is what my colleagues do here; and in my view, that amounts to judicial legislation of a substantive crime.

B

In fairness to my colleagues, they are not the first on this Court to apparently enlarge the coverage of Article 128. United States v. Redding, 14 USCMA 242, 244, 34 CMR 22, 24 (1963), did acknowledge a theory of a culpably negligent battery as an assault under Article 128, but it did so without any analysis of where that theory may be found in that statute. United States v. Torres-Diaz, 15 USCMA 472, 35 CMR 444 (1965), did the same, relying heavily on Redding. The Torres-Diaz opinion quoted a passage from Redding in which the Court had drawn an analogy to “ ‘involuntary manslaughter, which of course may be committed by culpable negligence.’ ” 15 USCMA at 474, 35 CMR at 446, quoting United States v. Redding, 14 USCMA at 244, 34 CMR at 24. Regrettably, the Court in each case overlooked the fact that Congress had expressly articulated culpable negligence as a theory of manslaughter in Article 119(b)(1), UCMJ, 10 *405USC § 919(b)(1), in contrast to resounding silence in that regard in Article 128. It would seem that, when Congress wanted to criminally punish culpably negligent conduct, it knew how to do so.4

In addition to the precedents of this Court — precedents without obvious legal foundation in the statute (or, indeed without even any attempt to find legal foundation) — the Chief Judge relies on civilian case law and commentary to support this theory of assault by culpably negligent battery. The harsh light of critical examination, however, reveals these looming, seemingly imposing shadows to be inconsequential to this analysis. For instance, United States v. Mosel, 563 F.2d 322 (7th Cir.1977), cert. denied, 435 U.S. 927, 98 S.Ct. 1496, 55 L.Ed.2d 523 (1978), involved a statute different from ours; and R. Perkins and R. Boyce, Criminal Law at 173-77 (3d ed. 1982), simply nowhere suggests that a statute, like ours, that itself defines assault as limited to “attempt” or “offer” to do bodily harm (whether or not the bodily harm actually is inflicted) also somehow includes a third option of culpably negligent battery.

Of some importance, it should be noted that, as the Chief Judge candidly acknowledges, the discussion from W. Clark and W. Marshall, A Treatise on the Law of Crimes § 191 at 242 (4th ed.1940), in footnote 5 of his opinion, 37 MJ at 400, distinguishes between the crime of assault that is created by language virtually identical to Article 128, on the one hand, and a battery, on the other. The Chief Judge also makes clear that the discussion there of the role of culpable negligence is limited to a battery and does not extend to an assault as that treatise — and Article 128 — define assault.

The Chief Judge’s quotation from Perkins, An Analysis of Assault and Attempts to Assault, 47 Minn.L.Rev. 71, 91 (1962), is no more helpful to him. Indeed, my careful. reading of the quoted passage — as well as an unquoted earlier portion of the same paragraph — points up the likely error of such a reading of Article 128:

Originally, “assault” as a criminal offense meant an attempt to commit a battery, while “assault” as a tort meant an intentional act wrongfully placing another in apprehension of receiving an immediate battery. The original concept of criminal assault has been changed by the incorporation of the tort concept and by the addition of a requirement of present ability____ Also, because terms used in criminal definitions are not always limited to their literal meanings, courts sometimes have interpreted “assault,” which is an intentional act, to include both an assault and a battery, even though the battery may be an unintentional act, such as an act of criminal negligence____

The clear language of Article 128 is precisely the type of statute that Perkins referred to as merging the original criminal and tortious concepts of assault — an attempt or offer to do bodily harm. The interpretation of “assault” that “courts sometimes have” rendered as including criminally negligent battery, however, does not appear available to this Court, simply because — apparently unlike the statutes in the cases that Perkins had in mind — our statute defines “assault.” In this context, a holding by this Court that Article 128 includes a culpably negligent battery would not be an “interpretation”; it would be legislation.5

Finally, similar comments apply to the Chief Judge’s reliance on the roots of Arti*406cle 128 — Article of War (AW) 93 and § 48, Naval Courts and Boards (1937). AW 93, headed “Various Crimes,” made unlawful “manslaughter, mayhem, arson, burglary, housebreaking, robbery, larceny, penury, forgery, sodomy, assault with intent to commit any felony, assault with intent to do bodily harm with a dangerous weapon, instrument, or other thing, or assault with intent to do bodily harm." (Emphasis added.) In the context of such a congressionally undefined “assault,” the President’s interpretation in paragraph 180A:, Manual for Courts-Martial, U.S. Army, 1949, which the Chief Judge quotes in footnote 3 of his opinion, was consistent with what Perkins says other courts have done with similarly unrestricted legislation.6 As already pointed out, though, Article 128 does not leave “assault” similarly undefined or unrestricted.

As for § 48, Naval Courts and Boards, that provision actually contradicts the expansive reading of the language in Article 128. Section 48 refers to “[sjtriking and assaulting his superior officer” and includes “[sjtriking,” “[ajssaulting,” “[ajttempting” to strike, and “[tjhreatening” to strike a superior officer while in the execution of his office. The third paragraph of Article 4 of the Articles for the Government of the Navy (AGN), which § 48 concerns, mirrors this language: “strikes or assaults, or attempts or threatens to strike or assault____” The language of both AGN 4 and § 48 of Naval Courts and Boards obviously is reflected in Article 128’s coverage of attempts or offers to do bodily harm, whether the harm is inflicted; it just as obviously is not a basis for creative interpretation of Article 128 to include a culpably negligent battery.

Ill

The struggle reflected in this discourse, fortunately, does not deter a reasoned disposition of the instant appeal. Under the “attempt” theory of violation of Article 128, the crime is shown by proof of a specific intent to inflict bodily harm and an overt act that amounts to more than mere preparation. See para. 54e(l)(b)(i), Part IV, 1984 Manual, supra. Appellant knew he was infected with HIV; he knew its communicable nature and the danger it offered a sex partner; he knew that certain steps, like use of a condom, would significantly reduce that threat; yet, there was evidence that he was willing and imminently prepared to have sex with Petty Officer W without taking any protective steps and without advising her of the risk that that presented — indeed, the evidence reflects that he acquiesced to obtaining and using a condom only when Petty Officer W issued the ultimatum of that or nothing.

I agree with the Chief Judge that this furnished an adequate evidentiary basis upon which reasonable factfinders could find that appellant specifically intended to inflict bodily harm on Petty Office W. See generally United States v. Stewart, 29 MJ 92 (finding aggravated assault where act of sex was by HIV-infected accused who knew the risks attendant to that act but who did not use any protective barrier and who did not advise sex partner of his condition). Specifically reserved, in my view, is any decision regarding other hypothetical factual scenarios and how they may or may not fit into one of the “square holes” of the UCMJ as it now exists.

. Or, indeed, to decriminalize a particular act or course of action that a statute makes criminal. See United States v. Henderson, 34 MJ 174 (CMA 1992); accord United States v. Fagg, 34 MJ 179 (CMA), cert. denied, — U.S. -, 113 S.Ct. 92, 121 L.Ed.2d 54 (1992).

. The majority’s effort to avoid this discussion is not logically developed. In footnote 3 of that opinion, 37 MJ at 395, the majority points to the fact that sexual intercourse is "a deliberate, physical touching” and from that springs to the conclusion that, accordingly, it does not “need to ponder whether an intentional touching satisfies an 'attempt-to-do-bodily-harm’ theory or an ‘offer-to-do-bodily-harm’ theory.” Instead, the majority suggests that all it needs to concern itself with is "whether this touching constituted “bodily harm’ and whether it was done ‘in a manner likely to produce death or grievous bodily harm.’ ”

This totally overlooks the fact that the act of assault is not sexual intercourse but, rather, was the touching of appellant’s lover with appellant’s HIV-infected, semen. Under the majority’s view, if a man — who was HIV-infected but did not know as much — had sexual intercourse with a *403woman and she became infected as a result, he would be guilty of criminal assault: The sexual intercourse was a deliberate physical touching and the touching constituted bodily harm. As this hypothetical illustrates, the need to address the various theories of assault and to determine which are available under Article 128 hardly is a "collateral, academic discussion,” as the majority asserts. 37 MJ at 395 n.3. Instead, I view it as the heart of this case, and I regret that the majority does not engage in the discussion.

. In this respect, the majority, like the Chief Judge, appears to have seized a license to articulate a theory of guilt under Article 128 that arguably is not found in the statutory language. Borrowing from the President’s view of the scope of Article 128, the majority summarizes the elements of an offense under that provision to include the possibilities of an accused who “ ‘attempted to do, offered to do, or did bodily harm to a certain person.' ” 37 MJ 395 n.2. See para. 54b(l), (2), and (4), Part IV, Manual for Courts-Martial, United States, 1984. The Court, in an opinion again authored by Judge Cox, uncritically wrote similarly in United States v. Johnson, 30 MJ 53, 56 (CMA), cert. denied, 498 U.S. 919, 111 S.Ct. 294, 112 L.Ed.2d 248 (1990), relying on paragraph 54b(4).

I simply note here that reference to the statutory language itself does not appear to uncover a third theory of proscription. See opinion, infra. Whether bodily harm actually is inflicted appears to be specifically irrelevant under our statute to whether an assault was committed; instead, that question seems to be limited to whether the accused "attempts or offers with unlawful force or violence to do bodily harm to another.” Art. 128(a) (emphasis added). If so, any more expanded view by the President of Article 128's scope is legally insignificant. See United States v. Mance, 26 MJ 244, 252 (CMA), cert. denied, 488 U.S. 942, 109 S.Ct. 367, 102 L.Ed.2d 356 (1988); United States v. Cothern, 8 USCMA 158, 23 CMR 382 (1957); United States v. Jenkins, 7 USCMA 261, 22 CMR 51 (1956).

. The other two cases cited by the Chief Judge—United States v. Mayville, 15 USCMA 420, 35 CMR 392 (1965), and United States v. Singletary, 14 USCMA 146, 33 CMR 358 (1963) — merely casually accept that "assault and battery" is included within Article 128.

. For the same reason, this Court is not free to interpret Article 128 to include culpably negligent batteries simply because, as the Chief Judge writes, § 211.1(1), ALI Model Penal Code, reprinted in ALI Model Penal Code and Commentaries (Part II) 173 (1980), does so. The Model Penal Code is a subjective expression of what ought to be law; Article 128 is the law for the military justice system.

. Ironically, notwithstanding the broad presidential interpretation quoted by the Chief Judge, the sample specification (# 96) suggested for “Assault with intent to ... do bodily harm” under Article of War 93 was limited to one who, "did, ... with intent to ... (do him bodily harm), commit an assault ... by feloniously and willfully (striking)( [or other offensive touching of])” the victim. See Manual for Courts-Martial, U.S. Army, 1949 at 324. There was no mention of any culpably negligent striking or other culpably negligent battery.