Pending Issues and Concerns

Breaking news.

Can you have salacious conversations online about sex and children?

I suppose you can. But should you, especially if you are a military officer--of course not.

[A] more exacting standard of conduct can be traced back at least to “the days of knighthood” where “knights were held to a higher standard of conduct than their fellow countrymen” in “the Court of Chivalry.” James Snedeker, Military Justice under the Uniform Code 887 (1953).

In United States v. Meakin an Air Force Lieutenant Colonel found out the hard way. He:
  • Used the pseudonym “John Jones."
  • He conversed online and described in lurid detail the abuse, molestation, and rape of children with individuals through email, chat rooms, and instant messaging.
  • He never gave his actual name, said he was a member of the USAF, or said he was commissioned officer.
  • He did not use a government computer to converse.
  • He did not, apparently, send the emails or messages from anywhere other than his private, off-base home.
  • He tried to keep his discussions secret.
  • He requested nude photographs of daddydaycare80’s three- or four-year-old daughter; 
  • He made offers to let daddydaycare80 sexually exploit Appellant’s own nineyear-old daughter (he did not in fact have a daughter).
  • He gave detailed descriptions of forcing both daughters to perform oral sex; suggestions that the adults hire a prostitute to engage in sex acts with daddydaycare80’s daughter; descriptions of urinating inside of the child; and discussions of forcing the child to eat food containing semen in order to acclimate her to the taste.
  • He sent a photograph of an erect penis to “daddydaycare80,” asking if his daughter would like it.
  • While “daddydaycare80” did not actually have a daughter, he clearly believed that “daddydaycare80” was offering a real child for sexual exploitation.
Unbeknownst to Appellant, one of his online “friends” was actually a detective working in the Internet Child Exploitation Unit of the Holton Regional Police Service in Ontario, Canada.
 
Slip op. at 2. And, 

This series of internet correspondence ultimately culminated in an agreement to meet in person.

The Court of Appeals rejected his First Amendment and Privacy defenses. In this case, observations applicable to other situations involving a commissioned officer the CAAF wrote:

[T]his Court has previously held an officer’s conduct need not violate other provisions of the UCMJ or even be otherwise criminal to violate Article 133, UCMJ. United States v. Lofton, 69 M.J. 386, 388 (C.A.A.F. 2011). “The gravamen of the offense is that the officer’s conduct disgraces him personally or brings dishonor to the military profession such as to affect his fitness to command the obedience of his subordinates so as to successfully complete the military mission.” Id. (internal quotation marks omitted) (citation omitted); see also Parker v. Levy, 417 U.S. 733, 763 (1974) (Blackmun, J., with whom Burger, C.J., joined, concurring) (“[T]here are things which are malum in se and . . . things which are merely malum prohibitum. . . . In military life there is a higher code termed honor, which holds its society to stricter accountability; and it is not desirable that the standard of the Army shall come down to the requirements of a criminal code.” (internal quotation marks omitted) (citation omitted)). Third, this Court has long held that “[t]he conduct of an officer may be unbecoming even when it is private.” Moore, 38 M.J. at 493. Indeed, we have recognized that “[c]onduct which is entirely unsuited to the status of an officer and a gentleman often occurs under circumstances where secrecy is intended.” United States v. Norvell, 26 M.J. 477, 478 (C.M.A. 1988). Conduct that violates Article 133, UCMJ, may consist of an “action or behavior in an unofficial or private capacity which, in dishonoring or disgracing the officer personally, seriously compromises the person’s standing as an officer.” MCM pt. IV, para. 59.c.(2) (emphasis added). 

Slip op. at 12.

Can you be guilty of a sexual offense if you conduct sexual acts in front of a child?

The Army Court of Criminal Appeals supports a yes answer to the question, but not in the specific facts of United States v. Lino, decided in April 2019.

In Lino, the accused had some sort of activity in bed while the females daughter was in the room. He was charged with engaging in "sexual intercourse." The appellate court found the evidence insufficient to prove actual sexual intercourse happened and was proved. The conviction was dismissed. The case is a fact specific decision. In their opinion, the Court observed:

Pursuant to our review of the record, we simply do not find the government proved the charged language of “[having] sexual intercourse” beyond a reasonable doubt.1 As the defense counsel intimated, the government could have charged broader language to encompass a wider variety of sexual conduct, but it did not. It is clear that something of a sexual nature was happening under the blankets, but the evidence did not sufficiently prove that such activity involved “sexual intercourse.”

Another way to look at the opinion is the suggestion that had the prosecution charged differently a conviction might have been affirmed.

So why the question? Do not some parents allow their child to sleep in their room at night? What if the parents engaged in sexual acts during the night? Well--it looks like the military considers that and will charge that as a crime.