United States v. Vaughan

STATES, Appellee, UNITED Class,

Sonya VAUGHAN, Airman First R. Force, Appellant.

U.S. Air 02-0313.

No.

Crim.App. No. 34107. Appeals for

U.S. Court of Armed Forces.

Argued Oct. Jan.

Decided

2001). granted following We review of issue:

WHETHER CHILD NEGLECT THAT DOES NOT RESULT IN HARM TO THE CHILD IS AN OFFENSE UNDER THE UNIFORM CODE MILITARY OF JUSTICE. reasons, following

For the the decision of the lower court is affirmed.

Appellant Spangdahlem stationed Base, Germany, Air off-base resided Pickliessem, infant daughter nearby her Germany. originally The Government charged leaving daughter her with her unat- periods tended on time divers occasions for ranging up from 30-45 minutes to six hours. response Appellant’s motion to dismiss BAKER, J., neglect charge the child opinion for failure to state delivered of the offense, Court, GIERKE, judge held that EFFRON and ERDMANN, JJ„ CRAWFORD, joined. periods support shorter time did not C.J., charge neglect, opinion filed an concurring in but allowed the the result. Gov- proceed ernment to longer peri- time Appellant: Captain For Karen L. Hecker Appellant conditionally pleaded guilty od. Brown, (argued); Major Jejferson B. Major days-old her Fried, A. Maria and Lieutenant Colonel daughter, SK, alone her crib for six hours (on brief); Beverly Knott Major Jejferey p.m. from 11:00 5:00 a.m. while she went A. Vires. to a club away. that was 90 minute drive Appellee: Major Douglas For John D. had She called the child’s father earlier in (argued); Lieutenant Colonel LeEllen day, agreed and he to watch SK while Coacher Lieutenant Lance B. Colonel went she to the club. When the father did (on brief). Sigmon arrive, not Appellant any- left for the club way. At Appel- the time she left the lant he going believed that was not to show Judge BAKER the opinion delivered up, previous since he failed had to do so on Court. occasions. further She testified she gen- was tried members at a locked door and that no one other than eral court-martial. She was convicted of father, fact, key. father had a The did specifications three charge of assault and one up during Appel- not show to care for SK neglect,” of “child in violation of Articles 128 apparent lant’s absence. SK suffered no Military Uniform Code Justice during Appellant’s harm absence. UCMJ], [hereinafter §§ 10 U.S.C. 928 and charged neglect” with “child as a “ser- 934, respectively. Appellant contested one of vice-discrediting” offense under clause 2 of specifications the assault and entered a con- Article 134. plea charge neglect” ditional on the of “child 134, preserving Appellant challenges under Article issue of her conviction on First, charge whether stated an The three argues offense. bases. she that she did adjudged approved provided subject sentence not notice that conduct was discharge, for a bad-conduct criminal confinement sanction under Article 134 and months, pay grade specific charge judge’s and reduction to E-l. that the Appeals The subsequent guidance, provide Court Criminal affirmed the did proper findings specific and sentence. United v. States notice as to the elements of the Vaughan, (A.F.Ct.CrimApp. Second, argues 56 M.J. 706 offense. she that her con- Citing Levy, this Court has held Parker of child ne- falls outside the definition duct process, a as matter of service being due glect harmed because SK notice’ that his Third, argues must have “‘fair she actions member left alone. he can punishable” before discrediting. [is] address conduct not service We were Article 134 with a service argument in turn. each Bivins, discrediting 49 at 330. offense. M.J. Discussion in the This Court has found such notice A. Fair Notice MCM, law, law, military case federal state law, military usage, and military custom and process requires “fair Due notice” IV, regulations. para. Part at See MCM subject act is to crimi that an forbidden 60.c.(4)(b)-(c) (permitting fed- offenses under Bivins, 49 nal sanction. United States v. Arti- charged law to under eral state (C.A.A.F.1998). 328, 330 It also re M.J. (list- 134); IV, paras. cle Part at 60-114 id: quires applica the fair notice as to standard offenses); ing specified Article 134 Article Parker v. ble to the forbidden conduct. (2002) 137, UCMJ, (requiring 10 U.S.C. 937 755, 2547, 733, 94 41 Levy, 417 U.S. S.Ct. explanation punitive UCMJ members (1974). Parker, Supreme 439 the L.Ed.2d 77-134, §§ Articles 10 U.S.C. 877-934 in gave meaning concepts to these the Court 150, (2002)); 42 Boyett, States v. M.J. United 133, UCMJ, of Article 10 context U.S.C. (C.A.A.F.1995)(noting that 153-54 a court (2002) and Article 134.1 933 may judicial regulations take notice custom). military as evidence United language The Court held the Guerrero, 295, M.J. 298 States v. 33 vague Article 134 was not so that service (C.M.A.1991)(citing military 137 and Article could not conduct members understand what no- customs on civilian dress as evidence of and, therefore, proscribed Article was 134 dressing”). prosecution tice for “cross for facially Id. vagueness. not void for at was Therefore, question Appellant the is whether 756-57, vagueness,” 94 S.Ct. 2547. ‘Void for fair had notice child alone ruled, “means criminal the Court re presented, under six hours the conditions sponsibility should not attach where one harm, apparent subject and without reasonably not understand that his could con Article 134. sanction under 757, proscribed.” at templated conduct is Id. 94 S.Ct. 2547. The Court noted that inter neglect agree not Both sides that child Court, authorities, pretations by military specifically as an Article listed the MCM examples as well as the Manual the Therefore, must 134 offense. we look else- (2002 Courts-Martial, ed.), United States where to determine whether MCM], [hereinafter the limited broad reasonably contemplated should have language reach literal of Article 134. sanction, subject to criminal conduct 753-54, at At the Id. 94 S.Ct. 2547. same simply not moral condemnation that time, preclude appli Court did not future accompanies parenting. bad specifical cation of Article 134 to actions ly “But mentioned the MCM. even (1) Law Case though uncertainty sizable areas of scant, Military law area is coverage may of the articles remain after case in this interpretation arguably provide sup- their official authoritative can be read to some sources, port Appel- sup further content both Government’s and plied position. Army lant’s The even in these areas less Court Criminal formalized 754, usage.” Appeals Id. at held that does custom and 94 S.Ct. 2547 has that child added). 134 (emphasis not result in harm is not Article 757-58, 2547, 733, U.S. 94 S.Ct. 1. That the accused did or failed to do certain (1974). acts; L.Ed.2d 439 The Manual Courts- for [hereinafter Martial, That, circumstances, (2002 ed.) United States under the ac- requirements ... of a MCM] lists two Article 134 if cused’s conduct was nature bring bring upon conduct discredit the armed forces. addressed "of a nature IV, (l)-(2). para. at armed Id. at Part 60.b. discredit forces”: harm, prohibit- regulation clearly can offense absent constitute a criminal offense. Wallace, ing the conduct. United States v. The locus of the conduct does not 561, (A.C.M.R.1991). In con- M.J. change the measure of notice. trast, Air Force Court United States charged through assimilation of Foreman, 28008, ACM No. 1990 WL Germany, through ap- state statute in but *1, at *2 CMR LEXIS plication appli- of Article uniform (A.F.C.M.R. 25,1990), May unpub- held in an cation worldwide. opinion, lished while “is offense, viable” an Article 134 facts (3) Custom presented during providence inquiry in that case were insufficient to sustain Fair depend notice does not conviction. While these cases are case law or state statute alone. Parker trolling, they the lower demonstrate Levy, Supreme recognized Court that in contextual, approaches courts’ been have addition constructions of Articles 133 and that service have been members heretofore provided by MCM neglect under Article 134 with child courts, usage” “less formalized custom and for children Significant- unattended. scope further of pro- define the conduct ly, Appellant’s relevant service court has 754, scribed Article 134. 417 U.S. at gone ruling furthest that an offense of view, 2547. In our S.Ct. there established neglect] “[child is viable under clause of military protecting dependents custom of Foreman, Article 134.” 79309 at WL Dependents integral part from harm. are *1,1990 at *2. CMR LEXIS specialized military community Supreme Court addressed Parker. especially dependents

(2) This is true of based Law State overseas over whose welfare United argues further did not she responsibility States bears increased in the receive fair notice state from statutes that ties, absence normal familial and social as her conduct overseas was criminal under Ar- array public well services available Moreover, ticle if even statutes state Moreover, depen- within the United States. provided general neglect notice that child heightened dents can often se- overseas face sanction, subject to criminal several curity concerns. require finding those statutes a of substantial neglect harm in order to a (DOD) sustain Department Several of Defense Thus, according Appellant, conviction. ab- Defense, regulations apply. Department of harm, showing plea sent a of substantial 6400.1, Family Advocacy Directive Program improvident. 23,1992) 6400.1], (July [hereinafter Directive example, Family Advocacy addresses the view, preponderance In our of states (FAP). Program “program The FAP is a support contrary laws a A ma- conclusion. designed prevention, to address identifica- jority by Appel- of state statutes submitted tion, evaluation, treatment, rehabilitation, fol- (34 48, lant including the District of Co- lowup, reporting family violence. lumbia) criminalize child designed FAPs consist efforts of coordinated protected regard- context relationship, prevent family and intervene in eases of harm less of actual when the distress, promote healthy family and to life.” duty places conduct violates care and para. at Directive Id. E2.1.5. 6400.1 Thus, the child at risk of harm.2 the bet- states that the local FAP office shall generally ter view is that state statutes immediately an act notified when of child provide serve to constructive notice that 5-6, supervi- para. Id. at 6.1. It fur- through absence abuse occurs. care, sion or with an attendant risk of defines the term as follows: ther conviction, Appellant's Appen- 2. At 33 states These listed as an the time or misdemeanor. are statutorily and the District of made Columbia opinion. dix to this neglect” criminally punishable felony "child (C.A.A.F.1995). need not decide whether We Neglect. Includes Abuse Child and/or law, military maltreatment, regulation, state injury, emo- custom sexual requirements meet the maltreatment, law alone would neces- case deprivation tional Parker,3 enunciated sities, process an for notice due or combinations together, addressed wel- conclude that when responsible for the child’s We individual reasonably understood appellant should indicating that circumstances fare under subject to contemplated conduct was that her is harmed or threat- the child’s welfare military criminal sanction. encompasses acts The term both ened. part responsible on the

and omissions person. Specification Sufficiency added). (emphasis para. Id. at E.2.1.3 argument has two Appellant’s process due further (February military provi- subsequently judge’s the and Significantly, Directive 6400.1 mandates inquiry pursuant to v. United States dence alleged that of instances of child in the case (1969), Care, 535, 40 247 18 C.M.A. C.M.R. neglect abuse: and/or specific properly the elements did not define ... en- local FAP office shall [T]he Thus, Appellant not on of the offense. was pro- implementation following the sure of specifically as to conduct was fair notice what cedures: disagree. proscribed under Article 134. We conducting providence inquiry, the In the military law en- 6.1.3. Notification of military judge that the advised investigative agencies. and forcement neglect offense of child elements the public the 6.1.4. Notification of local charged under Article 134 as follows: were (in protective agency alleged child specification this is The first element of only) cases in the United States abuse January 2 or about that between on by agreement over- and where covered 1999, January at or near on or about 3 seas. Pickliessem, you your Germany, neglected the applicable Observance 6.1.5. daughter, [SK]. alleged rights of offenders. you is that did so The second element 6.1, 5-6, paras. Directive 6400.1 6.1.3-6.1.5. super- your in house [SK] without added). (emphasis period or care for an unreasonable vision Thus, provides regulation DOD notice time, regard for mental or without the potentially subject that child is [SK], health, safety, or welfare military investigation. criminal DOD While a child third element is that is [SK] The regulations are not the as service same age year. the of one offenses, may take notice UCMJ this Court And the fourth element that under regulations evidence of notice circumstances, to the your conduct was Article offense. through custom of an discipline prejudice good order and Boyett, United States M.J. 6400.1, Department of Defense Directive would have us conclude that that The Government 23, 1992), (July explic- AdvocacyProgram inherently Family appellant was on notice that her inherently crimi- itly that not intended to create it states it is duct was unlawful because However, rights, preclude nally wrongful. important enforceable that does not ex- an distinction military understanding id. See its use as evidence of 6400.1, custom. between common sense ists light para, baby 2.4. our conclusion in a crib six hours that a left unattended for above, “in- question we need not address parenting fair notice that such con- bad criminally punishable. we note herent notice." duct is While you’ve armed forces or And I know left her nature before brief bring occasions, so, maybe up discredit the armed forces. to 30 minutes or if longer that’s correct. But this is a much immediately The Government corrected time, period of six to seven hours. four, military noting judge on element you ISo need to make sure that feel only had been the child you agree you comfortable that that what discrediting” as “service under the second simple negligence. did was more than clause of Article 134. While had your That means that decision leave plea, subject earlier entered a conditional any emergency her —and this wasn’t motion her to dismiss for failure to an state you you made leave the had offense under Article she did not chal- something care take else? lenge specific elements of the offense No, ACC: ma’am. Rather, judge. defined just you It was MJ: for whatever wanted judge reviewed elements facts with personally, to do correct? Appellant ensuring understanding of the relationship During Yes, between fact and law. ACC: ma’am. Care inquiry, example, It simple negligence. MJ: than more

judge elaborated on the four elements your That means that to be failure there offense: supervise during her and care for time, all, period this negligence When we talk about first MJ: case, you agree was unreasonable. Do that that talking culpable we’re negli- about period period gence, time was unreasonable where it’s above what would be your simple of time to leave her house negligence. “Culpable negligence” alone? degree greater ais of carelessness than Yes, ACC: ma’am. simple negligence. “Simple negligence” is Again, anybody coming MJ: without requires the absence of due care. The law take care of her? everyone at all times to demonstrate due Yes, ACC: ma’am. safety care for of others. And what you agree potentially, MJ: And do that reasonably careful would demon- depending upon what might happen— strate under the same or similar circum- sometimes little babies can have milk or stances. That is what care due means. something, they vomit and can little Now, culpable negligence, MJ: on the oth- amounts, they potentially, or could if hand, act, negligent er is a act failure or to they’re side, back their or their or reckless, wanton, accompanied by gross, that, anything Again, like choke. that disregard or deliberate for the foreseeable happen. you fortunate, didn’t And were consequences conduct, your to results you baby because when came home others, of merely instead a failure to use okay. right? Is that grossness. care. larger due So it’s a It’s Yes, ACC: ma’am. simple negligence. than So those are the agree you during MJ: But do that that you definitions and the elements. Do feel things period poten- of time number of you like understand those? tially happened? could have Yes, ma’am.

ACC: Yes, ACC: ma’am. mean, baby

IMJ: could have needed So, Okay. you agree MJ: do then that a you diapers changed. agree So that that month-and-a-half, age, of that about a an was then unreasonable time to leave supervision generally to her, needs have or disregard and that that was a for her mental, someone around them to watch over them? health, physical safety, her potential welfare? Yes, ma’am. ACC: Yes, ACC: ma’am. you I MJ: Now know that at other times briefly, might thing, leave and that’s one you agree we talked about that. And I’m not And do under that MJ: that

allowing go circumstance, knowing government again, forward. that he IV, e.g., para. not, Part at knowing the See MCM going up or UCMJ. show 16.b.(3) (dereliction c(3) performance in up, that past he hadn’t & in the shown 34.c.(3) duties); haz- para. (improper you id. at using the should you were not care (in- 44.c.(2)(a) vessel); arding para. id. at ensuring somebody going manslaughter by culpable negli- voluntary be there take care her? (e) 80.b.(2) (firearm, para. & gence); at id. Yes, ACC: ma’am. para. discharging-through negligence); id. at And, again, you that this is agree do MJ: 85.c.(2) (homicide, Finally, con- negligent). negligence? culpable than It’s more mere mili- majority statutes and sistent with simple neg- more negligence. That’s than military tary regulation, custom you agree? Do ligence. harm, showing of judge require a but did not Yes, ACC: ma’am. of due care measured rather an absence An is not Article 134 offense regard physi- mental an absence of for the specifically in the must have listed MCM health, safety child. cal or welfare criminality provide an words of accused approach is This consistent our against with notice as to the elements regarding the offense of clusion enumerated v. he or she must defend. United States Carson, maltreatment. United States Davis, (C.M.A.1988).4 26 M.J. (C.A.A.F.2002) (finding prose- M.J. 410 a specification Article 134 states that require cution maltreatment does not allege listed in the be used MCM harm, proof “[i]t rather physical mental MCM, IV, general Part offense show, only necessary as measured from 60.e.(6)(c). Here, para. because totality objective viewpoint light of MCM, was not in the the mili offense listed circumstances, ac- accused’s herself, tary judge defined elements reasonably tions could have caused specifying the her defini without source of suffering”). or mental harm or Based on the tions. circumstances, totality of the trier of fact view, must determine an accused’s actions In our whether elements she listed reasonably physical or neglect” could have caused capture the of “child essence suffering. take regulation mental harm We do not reflected custom and majority military judge’s well as of state statutes. The issue with the conclusion judge correctly properly plead determined that this ease that could culpable negligence requires possibility to such a in the case of a newborn just in simple negligence. and not infant for six hours in a She further left alone crib negligence that apartment concluded was defined locked with all the attendant risks by suffocation, go choking, what was reasonable the circum of or fire. We need under stances, i.e., defining specific no SK unattended for further in the elements equated gross requirement time” an 134 of- “unreasonable the first Article Moreover, culpable negligence. do these are fense —that the accused did failed to general usage acts or terms and common within certain acts.5 Whether omissions Davis, 754, Levy, specifications upheld the 5. See U.S. at 755-56 In were be- Parker 417 they alleged place the time the (1974)(noting challenge cause and Levy the could not discrediting duct occurred and that it was and vagueness Uniform of Article 134 Code of Mili- discipline. prejudicial good order and "The UCMJ], tary § 10 U.S.C. 934 [hereinafter Justice sufficiency the is true test of an indictment (2002), "hypothetically applied to the conduct as whether it could have been made more definite UCMJ, others”). In the context of the this certain, it the but whether contains elements expertise the area of law would benefit from charged, the offense intended to be and suffi- interim, political review of the branches. the . ciently apprises he the defendant of what must custom, decision, military built as it is on meet; and, prepared case other be statute, regulation, defense and state will further against proceedings are taken him for similar potential regarding applica- serve the as notice offense, accuracy whether the record shows with neglect. tion Article 134 to instances of child may plead acquittal extent to what he a former reasons, legal policy prefer, for Davis, We sound 26 conviction.” United States v. M.J. or 445, first, but branches address this issue other (C.M.A.1988)(quoting 448 United States v. Sell, (1953)). legitimate questions the law 3 C.M.A. 202 we cannot eschew C.M.R. case, neglect” Appellant’s amount “child under finding Article we no of fact by given above, in conditionally plead guilty as measured the elements because she to the Therefore, rely depend another instance will on the facts offense. we on the Care Thus, inquiry. the fact.6 evaluated trier of we given hold that the elements the satisfied, are on We based the facts

judge gave Appellant sufficient notice. The Appellant’s plea provident case that military judge properly defined “child ne- regarding service-discrediting element glect” culpably conduct, negligent unrea- only offense.7 Not did violate totality sonable under the of the circum- states, many service custom and the norms of stances, that caused a risk of harm to the living her actions while abroad would not child. reflect well on the military. United States (3) (“‘Discredit’ IV, para. MCM Part 60.c. C. Service Discredit injure reputation means to of. This punishable ... clause makes conduct which Having found that tendency has a bring service into notice that the offense disrepute tends to lower it in the require does not actual harm to the we esteem.”); public Guerrero, 298; 33 M.J. at Appellant’s now look to final contention that Davis, 26 M.J. at 448. The behavior of U.S. not, any event, her conduct was service- service members abroad the face of is and, therefore, discrediting not an offense countries, many armed forces in IV, para. Part MCM 60.b. An reputation equally at stake unlawful act can serve to establish service worldwide. Bivins, (prosecut discredit. at 330 M.J. ing reasons, bigamy, specified even though bigamy findings For these we affirm the met); Davis, and sentence of the Air elements 26 M.J. at 448 Force Court of Crim- (noting Appeals. inal generally that conduct illegal reason). discrediting very tends to be result, urges adoption As a the Government Appendix per se rule of service discredit conviction, appellant’s At the time of However, neglect. given case of child states and the District of Columbia statutori-

range of might reasonably conduct that ly neglect” criminally made “child punishable specified above, under the elements felony as a or misdemeanor. alia, raising questions inter regarding fact time, risk, location, we decline to do so. “[a]ny person ... having Arizona: given Whether a neglect” act of “child custody care or ... such child causes or criminal amounts to conduct under permits Article placed ... a in a invariably questions present will of fact situation where its or health is endan- (1997) for the trier of fact to gered determine. This will ...” Ariz.Rev.Stat. equally be part true of the second of the severity depending test: The of this offense varies discrediting. whether the conduct was on whether or not the circumstances were argued by duty say both parent responsible sides. Our is to party what the location of the or given the law is in the context case or the time relative to the location child. controversy. military judge during 7. The addressed issue (West Comp. 6. See III. Stat. Ann. 5/12-21.5 Care, pursuant inquiry to United States v. statute, Supp.1998). example, The Illinois for (1969), C.M.A. 40 C.M.R. 247 as follows: gives a nonexhaustive list factors of to consider you agree somebody MJ: do So that if out determining “whether a child was left without this, people about health, there heard and other knew regard physical safety, the mental or community, they about this in this that 12-21.5(a). would or of that Id. at child[.]” welfare look down Air Force member The statute includes: the duration of time that unaccompanied baby-sit- unsupervised, their child ter, without a the child was left the condition left, any supervision, anybody checking and location where the or on child the time of conditions, day night, protection lengthy period or weather for that from child time? elements, Yes, light, adequate natural heat ACC: ma’am. necessary sion, to maintain injury death. Id. services likely serious or to cause health, including physical mental Deskins, Ariz. 731 child’s See Arizona person a supervision prudent ... (finding that statuto ... (Ct.App.1986) P.2d 104 overbroad). well-being ry vague not too or would consider essential language is child____ may Neglect of be a child engages “[kjnowingly 2. Arkansas: single on a repeated on conduct or based creating a risk of serious duct substantial reason- or ... could incident omission physical harm or mental welfare one to the in, ably expected to result serious be to be a minor.” Ark.Code know the actor risk of injury, mental or a substantial or (1997). §Ann. 5-27-204 death, Fla. Ann. ch. to child.” a Stat. custody “having or 3. the care California: (1998). 827.03(3)(a)(l)-(2) any child, permits willfully ... causes or “willfully permits causes such 9. Idaho: or in a placed ... child to be situation may that its placed to in such situation person health be where his or or be ” guilty endangered.... be endangered, person is of a misdemeanor.” or health (b)(1998). (1998). 18-1501(1), (2) § The The § 273a sever- Cal.Penal Code Idaho Code ity depending severity depending varies on wheth- this offense offense varies likely to likely er or not the circumstances were or the circumstances were whether injury or cause death. Id. serious injury cause or death. Id. serious “permits 4. a child to be Colorado: unrea care of person having the “[a] 10. Indiana: poses sonably placed a situation which a dependent knowingly ... who or intention- life injury threat to the child’s or places dependent in a ally[] situation 18-6-401(1) § health....” Colo.Rev.Stat. health____” may endanger his life or (1998). 35-46-l-4(a)(l) (1998). § Ind.Code “willfully unlawfully 5. Connecticut: or Iowa: 11. any age permits causes or child under mother, father, person A who is the “[a] years placed a situation that to be such custody person having or some other endangered, life or of such child is limb recklessly knowingly ... ex- or likely injured who health of child is to be such danger poses person such hazard or any likely ... impair does act health ” reasonably against person ... which such cannot such child.... Conn. Gen.Stat. (1999). expected protect person’s § (1996). § self....” Iowa Code 726.3 person guilty “[a] Delaware: endan- gering [bjeing of a child the welfare when: “knowingly in a that cre- acts manner parent, guardian person legally or other to a minor’s ates a risk child or substantial custody the care of a child safety physical, mental or emotional health or [kjnow- old[,] years person less than 18 [wjillfully deprives a or minor ... injurious ingly likely in manner acts food, shelter, necessary clothing, health care physical, to the mental or moral welfare of supervision appropriate the child or child____” Ann. tit. Del.Code reasonably age, minor’s when (1998). 1102(a)(1) necessary provisions and able to make the deprivation substantially harms the “any person Columbia: District of physical, or or emotional child minor’s mental provide any for who shall refuse or to 726.6(l)(d) (1996). § health....” Iowa Code age years, of of which he child under the parent guardian, or be the or such she shall inten “[ejndangering a child is 12. Kansas: food, clothing prevent and shelter as will unreasonably tionally causing permit or and safety of suffering and secure the such age years to ting a the- be child under of 18 (1999). § 22-902 child....” D.C.Code Ann. life, in which the child’s placed a situation body may injured or endan caregiver’s or or health be “a failure omis- 8. Florida: (1998). care, supervi- gered.” §Ann. a child Kan. Stat. provide sion to with the old____” Kentucky: years child less than seventeen 568.0501.(1)(1999). § Mo.Rev.Stat. “recklessly permits per- A. ... another endangers “knowingly 18. Montana: custody son whom of he has actual to be duty care, violating child’s welfare a thereby: physical injury; [c]auses abused protection, support.... or theOn issue of may [pjlaces or him in a situation that cause whether has been a there violation of the physical injury____” Ky.Rev. him serious duty care, support, protection, 508.120(l)(a)-(b) (1998). § Stat. Ann. following ... ... [evidence]: is admissible “ phys ‘[a]buse’ means the infliction of abandonment; neglect; proper lack of medi- pain, injury, injury, ical mental or or the care, shelter, food; clothing, cal deprivation by person of services a which are bodily past injury.” evidence of Mont.Code necessary to maintain the health and welfare (5) (1998). 45-5-622(1), §Ann. person____” Ky.Rev.Stat. a Ann. “knowingly, intentionally, 19. Nebraska: or 508.090(1)(1998). § negligently permits or a minor causes “[c]hild Louisiana: desertion is the in- [pjlaced be: a endangers situation that criminally negligent exposure tentional or physical or her his life or or mental health age a years, by food, child under the of ten deprived a necessary clothing, [or care, shelter, person who custody, § has the or control or care----” Neb.Rev.Stat. 28- (c) (1999). 707(l)(a), danger against of the to a or hazard reasonably expect- which the child cannot be “[w]illfully 20. Nevada: a causes child who himself, protect ed to or the desertion or years age placed is less than ... be child, knowing abandonment of or hav- may in a situation where the child suffer ing reason to that the believe child could be physical pain suffering or mental as the re exposed to danger. such hazard or Whoever neglect; responsible sult of abuse [i]s or or commits the crime shall desertion safety for the welfare or of a child and who fined not more five than hundred dollars or permits placed or allows that child ... to be months, imprisoned more than six may in a situation where the child suffer 14:93.2.1(A)- § or both.” La.Rev.Stat. Ann. physical pain suffering or mental as the re (B)(1) (1998). neglect____ sult abuse or ‘Permit’ means permission person a reasonable would “recklessly endangers 15. Maine: grant and which amounts to a health, safety or welfare child under 16 care, responsibility attending custody years age by violating duty of care or control of a minor child.” Nev.Rev.Stat. protection.” 17-A, Ann. tit. Me.Rev.Stat. (3)(c) (1998). 200.508(1)(a)-(b), §Ann. 554(1)(C) (1998). § Jersey: “[c]ruelty 21. New a child shall parent, 16. Minnesota: legal guardian, “[a] exposing [of] consist a child to unneces- willfully deprives or caretaker who sary hardship, fatigue physical or or mental food, necessary clothing, shelter, care, health injure tend strains the health or supervision appropriate age, to the child’s physical well-being or moral of such child. parent, guardian, when the or caretaker is Neglect any of a child shall consist reasonably necessary provi- able to make acts, anyone following having the custody deprivation likely and the sions harms or is (a) willfully failing or control of the child: substantially physical, harm the child’s provide proper food, care and sufficient mental, guilty health emotional of ne- (b) clothing, maintenance ... or failure to do child____” glect aof Ann. Minn.Stat. permit necessary to be done act 609.378(1)(1998). well-being____” the child’s or moral (1998). § 9:6-1 N.J. Stat. Ann. person 17. Missouri: “[a] commits the endangering crime of the welfare of a child in 22. New Mexico: “‘child’ means degree negli- he the second if with criminal eighteen years age; who is less than ‘ne- gence in a glect’ proper acts manner creates sub- means that child is without life, subsistence, body parental stantial risk to the or of a control of health care and edu- duty by violating a safety cation, nec- or other care or control medical care, support.” or Ohio Rev.Code protection, faults essary well-being of the his because 2919.22(A)(1998). §Ann. guardian custodi- parents, or or of his habits refusal, to able neglect an or or when their 27. Oklahoma: them; so, ‘negligently’ provide do “ ‘[ajbuse means harm or neglect’ A. negligence and means refers to criminal a health or wel- harm to child’s threatened of the person a or should have known knew responsible for the child’s by person a fare danger acted a reckless involved and welfare____” Ann. tit. Okla. Stat. health or disregard safety or of the for the health 7102(B)(1)(1997). 10, § child____ a consists of Abuse “[a]ny parent person other who B. or intentionally negligent- person knowingly, or willfully maliciously engage in child or shall cause, causing ly, justifiable or without willfully ... or or who shall abuse or placed permitting a child to be in a situation cause, any procure permit maliciously or endanger life or may child’s done, upon conviction be acts to be shall said §30-6- health....” N.M. Stat. Ann. imprisonment ... or a punished by (C)(1) (1998). 1(A)(1) (3),— fine____” 10, § Stat. Ann. tit. Okla. “knowingly manner 23. acts in a New York: (1997). likely injurious physical, to the mental to be Oregon: 28. ... or of a child ... less than moral welfare of crim person commits the crime “[a] A. old____” years Penal Law seventeen N.Y. degree [t]he if: inal mistreatment the first 260.10(1) (1998). Watson, § New See York v. person, legal duty provide in violation a 644, 700 182 Misc.2d N.Y.S.2d person intentionally ... or care for another (N.Y.Crim.Ct.1999)(finding legally sufficient necessary adequate knowingly withholds year two claim for seven old alone for food, care or attention from physical medical unharmed, noting that and one-half hours but intentionally person; ... or that other or may choose not to convict fact-finders dependent person ... knowingly leaves facts). such place period at a for such unattended “[a]ny parent 24. North Carolina: likely endanger may the health time as years any other age, than 16 or less person____ used in or of that As welfare supervision of person providing care to or per ‘Dependent person’ means this section ... creates to be such child who or allows age physical because of either or son who injury, physical risk of created a substantial disability upon anoth dependent or mental acciden- or to such child other than provide person’s er guilty tal means is Class 1 misdemean- 163.205(1)(a)-(b)(C), § needs.” Or.Rev.Stat. § 14- or of child abuse.” N.C. Gen.Stat. (2) (1997). 318.2(a) (1999). custody person having or control “[a] parent, guardian, Dakota: “a or North years age commits of a child under 10 any willfully other custodian of child who if, degree in the second crime of child following offenses is commits negligence, person leaves with criminal felony: provide guilty [flails of a class C any place for unattended in or at the child control, proper care or parental subsistence likely period of time as necessary for the ... or care or control other health or of such child.” endanger the welfare health, mental, child’s or emotional physical, 163.545(1)(1997). § Or.Rev.Stat. § N.D. 14-09- or morals.” Cent.Code parent, guardian, or Pennsylvania: “[a] 22(l)(b) (1997).. supervising welfare of a person other years an of- parent, age commits person, is the child under “[n]o 26. Ohio: who custodian, knowingly endangers the custody if he welfare guardian, person having fense care, duty by violating a control, parentis of a of the child loco support.” years age protection shall 18 Pa. Cons.Stat. eighteen (1998). 4304(A) health or create risk to the Ann. a substantial 40 guardian “[i]t

30. South Carolina: a A. parent, unlawful for “[n]o or custodian child, person charge custody who or a child ... has of a shall or with criminal knqwingly cause, negligence permit guardian or to the parent child, who is the contribute or of a or endangering by the child’s life or health responsible support who for the care and care, violating duty protection sup- or place aof child to: the child at unreasonable 6-4-403(a)(ii) port.” Wyo. § Stat. Ann. life, risk of harm affecting the child’s (1999). health, safety____” or mental or S.C.Code 20-7-50(A) (1998). §Ann. B. “[njegleet respect child by responsible means failure or refusal those “ 31. Texas: ‘abandon’ means to leave for the provide adequate child’s welfare to any place in providing child without reason- care, maintenance, supervision any ... or child, necessary able and care the under necessary other care for the well be- child’s reasonable, circumstances under no 14-3-202(a)(vii) ing.” Wyo. § Ann. Stat. similarly situated would adult leave a child (1997). age ability. person A an commits CRAWFORD, Judge (concurring Chief in if, care, having custody, offense or control result): the years, younger a child than 15 he intentional- agree While I with the ly result reached any place abandons the child under majority, disagree the I with their rationale. expose circumstances that child to my view, inherently illogical sepa- it is unreasonable risk harm.” Tex. Penal questions rate of notice and service-discredit- 22.041(a)-(b) (1999). §Ann. Code ing inquiries conduct into two distinct be- 32. Vermont: question cause each is intertwined with and dependent upon the other. A. person exposes “[a] who abandons or age years, whereby child under two 2 Clause of Article Uniform Code of the life or health endangered, of such child is Military (UCMJ), § Justice 10 934 U.S.C. imprisoned shall be not more years than ten (2002), states that “all conduct nature $1,000 or fined not more than or both.” Vt. bring forces,” discredit the armed (1998). 13, § Ann. Stat. tit. though specifically criminalized anoth- Article, er cognizance UCMJ “shall be taken age years, “[a] over of 16 byof a ... court-martial be and shall having custody, charge or care of a child punished at discretion of that court.” years assaults, under ten age, willfully who Thus, in contrast to most criminal statutes treats, neglects ill exposes or abandons or acts, speak prohibited in terms of clause procures or such or causes speaks general Article 134 terms of assaulted, ill-treated, to be neglected, aban- prohibited acts which create effect. exposed, or doned in a manner to cause such Nonetheless, Article 134 is not void unnecessary suffering, endanger or to vagueness under Due Process Clause health, his imprisoned shall be not more than Levy, the Fifth Amendment. Parker v. years $500, two or fined not more than or U.S. 94 S.Ct. L.Ed.2d 439 (1999) 13, § both.” Vt. tit. Stat. Ann. (1974) (holding judicial of Arti- constructions Virginia: any “[i]t shall unlawful for cle 134 narrowed the reach of its broad person employing having or custody language supplied examples willfully negligently or or cause covers). Thus, question duct it permit endangered the life of such child to be fairly case is whether on no- injured, health of such child to be tice prohibited that her conduct created the willfully negligently permit to cause or effect, service-discrediting i.e. was within the placed such child to be in a situation that its was, meaning of 134. If she Article she then life, health or morals be endan- prosecuted could that Article. ____” (1998). gered Ann. Va.Code 40.1-103 brief, Appellant argues In her alter- Wyoming: First, native: that she was not on notice

41 only punishes ser- 2 Article 134 subject Clause prosecution under conduct was Therefore, it is second, vice-discrediting conduct. 134, that her conduct was Article conduct vio- majority impossible to on notice one’s ac- be service-discrediting. The distinct, also 2 Article 134 without lates cepts arguments ad- clause these service-dis- being on the conduct is individually. the lack-of- notice them As to dresses the statute. crediting meaning the recognizes within majority the argument, notice way the differently, simply is no there specifically in Stated is not listed “child Courts-Martial, majority’s test can be prong the first [Manual the United ed.) test (2002 offense,” prong of the the second as an Article 134 satisfied without ] States they being that is because also satisfied —and it has to “look elsewhere deter- components the same Appellant mine have reason- are intertwined whether should imagine analysis. a conclusion ably contemplated that was I cannot her conduct sub- his an accused on notice ject M.J. this Court that was sanetion[.]” to criminal 58 at 31. prosecuted under her could be conduct law, (i.e. military Looking case elsewhere — 134, the was not Article but that conduct criminalizing neglect, 34 statutes state service-discrediting. evidencing military regulations and DOD Thus, agree with in this major- the while I the result protecting dependents), custom of case, I man- ity are reach that result a different that when these sources “ad- finds earlier, is only question the together, Appellant ner. As stated dressed should reason- contemplated fairly notice ably Appellant whether was on have understood that her service-discrediting within subject military her was conduct was criminal conduct meaning of Article 134. See United sanction.” Id. at 33. 360, Sullivan, 42 366 v. M.J. States non-service-discrediting argu- As (C.A.AF.1995)(whether officer reasonable ment, majority states: would his conduct service-discred- know was given neglect” “child Whether act Guerrero, iting); States 33 M.J. United under amounts to criminal conduct Arti- (C.M.A.1991) 295, no- (“appellant 297 onwas questions invariably present cle will 131 brings tice that which ... discredit conduct fact for the trier fact to determine. upon Navy an Article is offense under equally part second This will be true of the 134.”). whether was the test: the conduct dis- question, important To answer that it is crediting. objective inquiry first to is an note that added). (emphasis majority Id. at The 36 one. It not whether was on “Appellant’s plea provi- then concludes notice that conduct like was service- hers service-discrediting regarding dent ele- rather, discrediting under Article but reaching In ment of the offense.” Id. at 36. person would whether a reasonable enlisted conclusion, majority focuses on the Appellant’s was be on notice that conduct like custom, fact that violated and, therefore, service-discrediting pun and did so abroad. Sullivan, 42 ishable Article 134. under See (whether Thus, majority clearly officer” states there is a M.J. “reasonable First, service-discrediting two-part must on knew conduct was test. an accused be 134); prosecuted United v. Hart notice that her conduct can be under Article States second, 125, 130 (C.M.A.1994)(“Any assuming wig, rea under Article 134. And 39 M.J. recognize notice, con [the her conduct sonable would accused is must officer disrepute service-discrediting. bringing an risk issue] how can accused duct would Yet (1) punisha- profession,” in violation notice that conduct is himself and his be on 933.) (em (2) 133, UCMJ, Article ble clause of Article while it U.S.C. Frazier, added); phasis still must be determined whether United States v. (C.M.A.1992)(“a effect, prohibited reasonable duct created the i.e.—ser- M.J. view, my possi- military doubt that the that is would no vice-discredit? officer charged in this constituted activities case ble. unbecoming codes; officer”)(emphasis statutory and, conduct most criminal sec- omitted). ond, added & footnote un- which —however eccentric or usual —would not viewed as criminal Whether a reasonable enlisted outside context. The former would Appellant’s know that conduct like category prejudicial good order and service-discrediting meaning within the discipline service-discrediting or is depends Article 134 on what “service-discred- (or been) very gener- reason that it is has iting” means. It means “conduct has a which ally recognized illegal; activity, as tendency bring disrepute the service into nature, prejudice its unlawful tends to public to lower it in tends esteem.” good order or to discredit the On service. Courts-Martial, Manual supra at Part hand, category the other latter is ille- IV, 60.c.(3). para. because, context, gal solely in the result, question As a finally becomes: prejudice good its is to order or to effect person fairly Would a reasonable enlisted discredit the service. Appellant’s on notice that conduct such as punished Davis, could be under Article tend- States v. United 26 M.J. ing (C.M.A.1988). bring disrepute the service into See United Fos- also States v. public lower it in ter, (C.M.A.1994)(“enumer- esteem? The answer to 40 M.J. yes, major- for all the reasons cited ated articles [of UCMJ] are rooted in the ity, already and also because this Court has principle per that such conduct se is either stated: prejudicial good discipline order forces”). appear encompass brings Ap-

Article 134 would two discredit to the armed First, general pellant’s clearly catego- of conduct: conduct falls into classes generally recognized ry which is or “generally recognized illegal” has been conduct is, illegal therefore, under the common or under per service-discrediting. law se Instruction 6400.3 notes DOD above, ar- facets. As addressed policy “[pjrovide a safe and it is DOD fair that child gues that she not on notice personnel and for DOD secure environment un- subject to criminal sanction neglect was Defense, In- Department of their families.” Additionally, Appellant con- Article 134. der 6400.3, Family Advocacy Com- struction appeal whether or not she tends on para. 4.1. Team mand Assistance charge, notice, general the Government’s 3,1989).

Case Details

Case Name: United States v. Vaughan

Court Name: Court of Appeals for the Armed Forces

Date Published: Jan 24, 2003

Citation: 2003 WL 168453

Docket Number: 02-0313/AF

Court Abbreviation: C.A.A.F.