From U.S. v. Rocha, decided Friday by the U.S. Air Force Court of Criminal Appeals, in an opinion by Judge Natalie Richardson, joined by Judge Eric Cadotte:
A general court-martial … convicted Appellant … of … indecent conduct—engaging in sexual acts with a sex doll with the physical characteristics of a female child—in violation of Article 134, Uniform Code of Military Justice (UCMJ)…. The military judge sentenced Appellant to a bad-conduct discharge, 90 days of confinement, forfeiture of all pay and allowances, and reduction to the grade of E-1….
Appellant raises several assignments of error, asserting: (1) private masturbation with a doll is constitutionally protected conduct; (2) Appellant did not have fair notice that private masturbation with a doll was subject to criminal sanction; (3) [and various procedural objections] ….. Because we find in Appellant's favor on issue (2), we do not address the remaining issues….
"[A]ll disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital" are punishable at trial by court-martial. Article 134, UCMJ, 10 U.S.C. § 934…. "'Discredit' means to injure the reputation of." The service-discrediting clause of "Article 134 makes punishable conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem." …
[The elements] of Indecent Conduct under Article 134 … include: (1) the accused engaged in certain conduct, (2) the conduct was indecent, and (3) that, under the circumstances, the conduct was of a nature to bring discredit upon the armed forces. "'Indecent' means 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."
The elements of Specification 2 of the Charge in this case include (1) Appellant engaged in conduct, to wit: engaging in sexual acts with a sex doll with the physical characteristics of a female child, (2) the conduct was indecent, and (3) that said conduct was of a nature to bring discredit upon the armed forces….
"The primary obstacle to prosecuting a servicemember under [Article 134, UCMJ,] is that the servicemember must be on 'fair notice' that his conduct was punishable under the Uniform Code." Fair notice can come from "the [Manual for Courts-Martial], federal law, state law, military case law, military custom and usage, and military regulations." Accordingly, a servicemember may be prosecuted for service-discrediting conduct "even if the conduct is not specifically listed in the Manual for Courts-Martial."
In United States v. Merritt, the United States Court of Appeals for the Armed Forces (CAAF) considered whether the appellant was on fair notice that his conduct—viewing child pornography—alleged in violation of Clauses 1 and 2 of Article 134, UCMJ, was criminal. The CAAF noted that during the charged time frame, "the 'viewing' of child pornography was not criminalized under the UCMJ, the MCM, military custom or usage, the comprehensive federal statutes, or the majority of state statutes." The CAAF found that none of the [relevant authorities] provided the appellant with notice in that case, and found the appellant lacked sufficient notice the viewing of child pornography was subject to criminal sanction in 2006. The CAAF set aside the finding of guilty to that specification.
The day after it decided Merritt, the CAAF decided In Warner, the CAAF considered whether the appellant was on fair notice that his conduct—charged as possessing images of "child erotica"—alleged in violation of Clauses 1 and 2 of Article 134, UCMJ, was criminal. The court found:
Simply put, although child pornography is a highly regulated area of criminal law, no prohibition against possession of images of minors that are sexually suggestive but do not depict nudity or otherwise reach the federal definition of child pornography exists in any of the potential sources of fair notice set out in Vaughan and available to [the a]ppellant. It follows that the [a]ppellant received no such notice….
Should Appellant have been on notice that sexual acts performed with an inanimate object, alone and in a private setting, and unknown to others, that did not also involve any clearly prohibited conduct (e.g., production or possession of child pornography), were subject to criminal sanction? We answer this question in the negative.
Traditionally, obscenity or indecency "must, as a general thing, involve or touch other persons." This is not to say that indecent acts must be committed with another. Our review of case law reveals several hallmarks of criminally indecent conduct, to include: (1) minors or others who do not consent or may not easily either refuse or manifest lack of consent; (2) prostitution, contraband, or other precursor or concurrent criminal conduct; and (3) in public, or in an open and notorious manner. Appellant's case includes none of these factors. Even looking beyond the recognized hallmarks, we find meager support for the contention that Appellant otherwise had constitutionally required fair notice that the conduct at issue was criminally indecent.
In its brief to this court, the Government notes that the offense of indecent conduct is an enumerated offense under Article 134, UCMJ, in the Manual for Courts-Martial. However, the fact that it is enumerated as an offense does not end the inquiry into whether Appellant was provided constitutionally required notice that his conduct was criminally indecent. The Government has not identified—and we ourselves have not found—anything in the MCM, federal law, military case law, military custom and usage, military regulations, or even state law that criminalized the type of conduct for which Appellant was convicted. We agree with Appellant that "none of the sources listed in Vaughan, nor the record itself, show that masturbating with a child sex doll was subject to criminal sanction."
The Government argues to this court that Appellant's conduct involved a minor and was public. We disagree. First, the Government claims, "Though Appellant is correct that the sex doll in this case is not an 'actual minor,' … Appellant's conduct nonetheless 'involves minors' since he used the doll to simulate sexual acts with actual minors." We disagree. Appellant's conduct was an actual sexual act with an object that may have simulated a minor but plainly was not an actual minor. Additionally, internal thoughts and feelings—which in this case did not include Appellant pretending the doll was an actual child during his sexual activity—do not transform the doll into a "minor."
{We find this caution regarding possession of images that are not child pornography apt to this case involving a doll of a child: "If an accused's subjective reaction to otherwise constitutionally protected images places the images in Article 134's crosshairs, the danger of sweeping and improper applications of the general article would be wholly unacceptable." United States v. Moon (C.A.A.F. 2014) (reviewing a conviction for unlawful possession of images that did not meet any recognized definition of child pornography). "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." Lawrence v. Texas.}
Next, the Government argues Appellant's conduct was not a "fully private matter," as Appellant had the doll shipped to an Airman, "then used the child-like sex doll multiple times in his on-base dorm room and in a shared common area," and the doll was discovered during a dorm inspection. The record does not support a conclusion that Appellant masturbated with the doll in any shared space—including the shower. And that the doll was shipped to another Airman and eventually discovered during a dorm inspection are not "public" or "open and notorious" circumstances that would put one on fair notice that masturbating with the doll was criminal.
The Government asserts Appellant was on actual notice that his conduct was proscribed. We disagree. As no source provided fair notice, it is improbable Appellant could have had actual notice. Moreover, what the Government and our colleague in the dissent characterize as evidence of consciousness of guilt—e.g., concealing the doll's purchase and presence in his room, and minimizing his interactions with the doll in his statements to AFOSI agents—we find instead is better viewed as evidence of Appellant's efforts to keep his activity with his doll a wholly private matter.
Put another way, Appellant was not concealing a crime but instead was concealing his "weird" actions. Even Appellant feeling "bad" or "disgusted" is weak evidence to support knowledge that his activities were criminal. As the CAAF noted in Merritt, "the fact that a servicemember may be ashamed of certain conduct is not sufficient by itself to equate to due process notice that the conduct was subject to criminal sanction."
We find Appellant did not have fair notice that his alleged conduct was punishable as indecent conduct, and Appellant suffered material prejudice to his constitutional due process right to such notice.
Here are some more factual details from the majority opinion:
Appellant purchased online a short silicone doll with female physical characteristics, including oral, anal, and vaginal orifices and small breasts. {Witnesses described the doll as being between one-and-a-half and four feet tall. It appears from photographs in the record that the doll was on the taller side of this range.} {We make no finding concerning whether the doll was a representation of a child.} Appellant had the doll shipped to another Airman's house; Appellant lived on base and could not receive the package at his on-base postal box. Appellant also purchased clothing for the doll.
About three weeks after Appellant received the doll, Appellant's commander ordered an inspection of the dorms, including Appellant's dorm room. Command representatives received a briefing from agents from the Air Force Office of Special Investigations (AFOSI) before beginning their inspection. Appellant shared a kitchen and bathroom with another Airman, but had his own separate bedroom. A sergeant entered Appellant's bedroom to inspect it, and saw something on the bed. She called over to Appellant's first sergeant, who saw "a very life like doll on the bed." Near the clothed doll were two body pillows, each with a female anime character on the pillowcase….
Appellant agreed to speak with the AFOSI agents. As the AFOSI agents began to question Appellant about the doll, Appellant said that recently he has "started to realize that if somebody sees [the doll] in [his] room then they're going to get some weird idea." Appellant admitted he would "like to be open, more open about this kind of stuff," and warned agents that he talks "about some weird stuff." Several times during the interview, Appellant stated he was "uncomfortable" talking about the doll.
In his interview with the agents, Appellant agreed the doll looked like a child. He explained that a larger doll would not fit well in his small dorm room, and would be more difficult to move around. Appellant explained how he benefitted emotionally from the doll. For example, he said to agents that after the box with the doll arrived: "I opened it up and dressed it up and we started talking. You know it wasn't an especially great day that day, so it helped a lot actually, and it was a lot easier than talking to my pillows because you know anime isn't real." Appellant named the doll Adele. He interacted with the doll in many ways, such as washing and applying baby powder to it, sitting it in a chair with a blanket or a book, and changing its clothes. Appellant denied taking the doll out of his dorm room.
Appellant admitted to owning "basically what is a child sex doll." Appellant told the agents that on three occasions in his bedroom, he masturbated using the anal or vaginal orifice of the doll but did not ejaculate in it. Each time, Appellant started to think, "[W]hat if this was a life, what if this was real," so he stopped his sexual activity with it. When asked whether he ever was "picturing Adele as real" and was "in to it," Appellant answered, "Real as in, like, a real child, somebody's daughter[?] No. No." Appellant denied having any sexual interest in children….
Judge Tom Posch dissented:
I believe Appellant was not deprived of fair notice that his conduct was subject to criminal sanction. In that regard, circumstantial evidence at trial showed Appellant endeavored to conceal his purchase of the doll. He admitted during questioning by investigators that he arranged to have it shipped to an address off base because "it's obvious it's not good to have something like that on a military base." (Emphasis added). He admitted having the doll was "not good because that is representative of a real-life human being."
Furthermore, Appellant initially lied to investigators about whether he engaged in sexual acts with the doll. Appellant stated that, after he committed sexual acts with the doll, he "felt bad because [he] did like it up until the point where [he] started thinking about if it were … somebody's daughter and [he] felt … disgusted with" himself. Under these circumstances, Appellant did not lack fair notice that his conduct was indecent and therefore punishable.
The majority cites United States v. Merritt (C.A.A.F. 2013), for the rule that an accused's feeling shame is insufficient to prove constitutional notice. However, Appellant's admissions went further than embarrassment, reaching consciousness of guilt in the way he described concealing his purchase and possession of the doll and initially lying about how he used it for sexual gratification. His admissions show awareness that the doll was "obvious[ly]" incompatible with keeping it on a military installation. In no small measure, the inference that Appellant actually knew it would be incompatible with military law to use a doll with the physical characteristics of a child in the manner it was designed, and that the Government charged, is objectively reasonable. Put simply, Appellant's admissions show he did not lack constitutionally required fair notice of what was forbidden.
Merritt can be distinguished another way. Unlike the offense that was charged in that case, objectively reasonable notice of the charged conduct includes the fact that the offense of indecent conduct is proscribed by an enumerated offense in the Manual for Courts-Martial. Consistent with the language of the specification at issue, "indecent conduct" includes acts that may not involve others. In that regard, the MCM explains that unlike "offenses previously proscribed by '[i]ndecent acts with another,' … the presence of another person is no longer required." …
The Government argues, moreover, that the offense of "Indecent Conduct" is inherently expansive in its reach. It argues that the President cannot reasonably be required to foresee or enumerate with specificity all possible acts of indecent conduct, which, per the enumerated offense, covers "immorality relating to sexual impurity which [are] grossly vulgar, obscene, and repugnant to common propriety, and [which] tend[ ] to excite sexual desire or deprave morals with respect to sexual relations." I agree with the Government that Appellant had objectively reasonable notice that engaging in sexual acts with a child-like sex doll was proscribed by statute when evidence showed he engaged in the conduct alleged in Specification 2 of the Charge …. Appellant's furtive behavior is inferential evidence that a reasonable person would know that using it to simulate anal and vaginal intercourse with an actual child was service discrediting.
Congratulations to Lieutenant Colonel Todd J. Fanniff and Major Spencer R. Nelson, who represented the defendant.
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