A proposal for a new enumerated Article 134(1)(2) offense

A proposal that a military defense lawyer might face in the future. LtCol Greg Curley, Exploitation. 230 Mil. L. Rev. 421 (2023). The author proposes the adoption of an enumerated offense under UCMJ Art. 134, which he suggests would criminalize “Precursor Behaviors to Sexual Assault.” As part of the offense, he also suggests what most of us would consider a service-connection requirement. He suggests,

Exploitation is a separate and distinct offense from a sexual assault, and both the exploitation and the consummated offense that was its object may be charged, tried, and punished. The commission of the intended offense may satisfy the intent element of the exploitation charge.

He does not address whether the offense should be labeled a lesser included offense, the potential for multiplicity questions, or whether the acts of the new offense are res gestae acts that may be separately punished. This will be an area of litigation for military defense counsel.

Likewise, given the victim’s subsequent testimony that the “price [she] had to pay” to attend the football game was submitting to sodomy [*13] by appellant, her statements were res gestae to the admissible Mil. R. Evid. 413 post-football game sexual assault evidence. See United States v. Metz, 34 M.J. 349, 351 (C.M.A 1992) (holding that res gestae evidence is admissible to place evidence in context); United States v. Gaddy, ARMY 21050227, 2017 CCA LEXIS 179, at *5 (Army Ct. Crim. App. 20 Mar. 2017) (summ. disp.) (“When conduct is inexorably intertwined with the alleged offense itself, it is not ‘other sexual behavior,’ but rather becomes part of the res gestae of the offense. That is, the testimony ‘was admissible as part of the same transaction as the assault.”) (citing United States v. Peel, 29 M.J. 235, 239 (C.A.A.F. 1989)).

United States v. Moore, No. ARMY 20140875, 2022 CCA LEXIS 140, at *12-13 (A. Ct. Crim. App. Mar. 7, 2022).

Res gestae evidence is vitally important in many trials. * Id. at 393. See also United States v. Peel, 29 M.J. 235, 239 (CMA 1989). It enables the factfinder to see the full picture so that the evidence will not be confusing and prevents gaps in a narrative of occurrences which might induce unwarranted speculation: Indeed, a rule limiting the admissibility of testimony like that of [victim] would provide an inducement to prefer more charges in order to avoid lack of continuity in the evidence received. At a time when multiple charges for a single transaction are already common place as a means for meeting the exigencies of proof, we are not anxious to provide an added inducement for overcharging.

United States v. Metz, 34 M.J. 349, 351 (C.A.A.F. 1992).

He does, in his proposal, make the offense a specific intent one (to which an accused’s level of intoxication may be a defense), and he does acknowledge “there will likely be constitutional challenges to the proposed crime (e.g., void for vagueness, notice, or overbreadth).”