United States v. Wilson

STATES, Lowery, Major and F. Man- Appellee, Tyesha E. Sean UNITED (on brief); gan Christopher J. Colonel II, O’Brien, Major Phelps John T. Colonel Private, WILSON, Ku, Ruhling N. II. Major Billy Alexander B. and Fansu Army, Appellant. Major Tami L. Dillahunt Appellee: For No. 06-0870. Colo- Captain (argued); Adam S. Kazin and Crim.App. No. 20040227. II Colo- Miller and Lieutenant nel John W. (on brief); Captain B. Shields nel Michele Appeals U.S. Court Marotta. Elizabeth G. the Armed Forces. Captain for Appellant: Amicus Curiae Argued April 2007 and Oct. Blazewick, JAGC, USN, Captain Robert Decided Feb. JAGC, USN, Taishoff, Lieutenant Robert JAGC, USN, Belsky, Thomas P.

Commander Kadlec, JAGC, USN, Kathleen Lieutenant Mizer, JAGC, L. Lieutenant Brian USN and (on brief) Navy-Marine Corps Ap- the—for pellate Division. Defense Judge opinion RYAN delivered the Court. court-martial, a mili special composed

A alone, pursu tary judge Appellant, convicted pleas, failing go appoint ant to his duty, place disobeying ed a commissioned officer, knowledge, carnal sixteen, in Articles child under violation of Uniform Code of Mili (UCMJ), §§ tary Justice U.S.C. adjudged sentence by the special approved court-martial and authority convening included a bad-conduct discharge, reduction to the lowest enlisted grade, days. The eighty and confinement for Army Ap United States Court of Criminal peals summarily findings and affirmed the Wilson, No. United States v. sentence. (A.Ct.Crim.App. May ARMY 20040227 2006) (unpublished). petition, granted review Appellant’s

On following issue: THE COURT WHETHER ARMY BY THE FIND- ERRED AFFIRMING THE INGS AND SENTENCE WHERE JUDGE, IN ACCEPTING MILITARY Appellant: Captain Ryan M. Suerth For APPELLANT’S GUILTY PLEA TO (argued); Frank Lieu- Captain Ulmer Henricks, A Major CHILD UNDER tenant Colonel Steven C. SODOMY WITH INSTRUCTED APPELLANT THAT military judge’s HIS asserts that the on statement point incorrect, HONEST AND argues REASONABLE MIS- this was and TAKE OF DID FACT NOT CONSTI- based on this incorrect statement of the law TUTE A plea DEFENSE.1 his should be set aside. hearing argument,

After this specified Court Analysis following issue for a second round of Generally, analysis as to whether a briefing argument govern- and all invited mistake of fact defense is available turns on ment appellate and defense divisions to file question whether a mistake with respect briefs as amici curiae: question negates to the fact in required a THE IS DEFENSE OF MISTAKE OF mental state charged. essential to the crime FACT AS TO AGE AVAILABLE WITH LeFave, Wayne R. Substantive Criminal A RESPECT TO CHARGE OF SODOMY (2d ed.2003). § Law 5.6 The answer to that WITH A CHILD UNDER THE AGE OF turn, question, in is a matter of 16, 125,10 § ARTICLE U.S.C. 825?2 construction, and, necessary, when an “‘in ” military judge The determined at trial that Congress.’ ference of the intent of Staples there Army States, was no such defense. The 600, 605, v. United Appeals agreed of Criminal summary 1793, 128 in a (quoting L.Ed.2d 608 disposition. agree. We Balint, There is no mistake 250, 253, States v. 258 U.S. 42 S.Ct. regard fact defense available 301, (1922)). may L.Ed. 604 The statute UCMJ, child’s in the Article offense fact, specifically list a mens rea for a and the sodomy with a child under the may mens rea differ for different facts that sixteen. constitute the crime. See Carter v. United States, 255, 268-69, 530 U.S. 120 S.Ct. Background Liparota L.Ed.2d 203 v. United facts, they pertain granted as States, 423 n. issues, specified only briefly need be 85 L.Ed.2d 434 providence inquiry recounted. The stip- statute, terms, Even where the its does ulation of facts Sep- show that on or about provide not a rea mens to a 13, 2003, through tember October fact, particular may courts read an intent Appellant had sexual intercourse and en- background in order to effectuate “the rule gaged day at least once a with TS. was, fact, favoring common law mens rea.” Sta- years TS during fifteen old ples, 511 U.S. at 619 n. 114 S.Ct. 1793. time. But Appellant TS told at their first scenarios, Under either of these two Rule for meeting September that she was (R.C.M.) 916(j)(l) Courts-Martial allows a eighteen years presents old. The record mistake of fact defense. conflicting evidence as to whether or when Appellant age. discovered actual TS’s question Nor do we that even where UCMJ, require offense statute does not mens rea with re- alleged Appellant fact, did spect particular “on divers occa- to a expressly whether [TS], ... sions commit impliedly, legislature child or or the executive trial, years.” of 16 may, policy, At explicitly as matter of add a military judge that, Appellant informed “it’s mistake of fact defense. See Article you UCMJ; also ignorant no defense if were 916(j)(2) mis- (providing R.C.M. a mis- age. informed as to true [TS]’s It’s the fact take of fact as to defense when the your of her knowledge or belief that sexual conduct involves a at least twelve, old).3 responsibility.” Appellant sixteen, affixes criminal years but less than (C.A.A.F.2007). case, 1. 64 MJ. 438 Appellant’s the time of have since been amended. See National Defense Authorization (C.A.A.F.2007). 2. 65 MJ. 254 (NDAA) Act for Fiscal Year Pub.L. No. 109-163, (West) UCMJ, 119 Stat. 3. We note that Article and the (to 920); 916(j) be codified as amended at 10 U.S.C. elucidation of the Article defense, 13,447, 56,179 applicable Fed.Reg. mistake of fact Exec. Order No. not, words, If though government other even she was under sixteen. prove any remaining question mens rea with is whether this Court

need particular provide a mistake of fact fact essential to the crime should nonetheless age, Ap- charged, a mistake of fact defense be defense with even where irrelevant, appropriate policymaker. pellant’s created of that fact is policymak- appropriate and even where the specification in this case ers have declined to do so. setting forth the violation of Article UCMJ, required allege the Government to (1) I. prove Appellant: engaged in (2) TS, sodomy with that TS was under 125, UCMJ, language Given the of Article of sixteen. See Manual Courts- for MCM, and the the manner in which almost

Martial, IV, para. United States 51.e. every jurisdiction in other criminal the Unit- (2005 ed.) (MCM) (listing facts that increase ed deals States issue 307(c)(3) punishment); the maximum respect in sexual offenses involv- (stating alleged). that such facts need to be children, ing and the studied inaction with charged While the conduct under Article respect sodomy to such a defense to awith UCMJ, criminal, in this ease remains an act President, by Congress child and the sodomy private consenting between imply decline to find or a mistake of fact be, may adults not absent some other fact. respect defense with of the child Texas, See Lawrence v. 539 U.S. under Article UCMJ.4 (2003) (rea 156 L.Ed.2d 508 soning constitutionally protected A. sodomy minors”); did “not involve United The mens rea with to a fact essen- Marcum, States v. 60 M.J. tial to “question offense is a (C.A.A.F.2004) (noting exceptions Lawrence’s “ Staples, construction.” 511 U.S. at minors, involving for cases persons or ‘who 604, 114 begin S.Ct. 1793. text We with the might injured be or coerced or who are situ question. statute Connecticut Nat’l in relationships ated might where consent ” Germain, Bank v. 503 U.S. easily be in upholding refused’ Article (1992). S.Ct. 117 L.Ed.2d 391 125, UCMJ, applied sodomy in a case of 125, UCMJ, states: command) (citation within the chain of omit ted). (a) Any person subject chapter to this who engages in copulation unnatural carnal It is because the criminal nature of the oppo- with another of the same or may depend conduct this case upon site guilty sex with an animal is fact of that we undertake the mens rea Penetration, sodomy. slight, however analysis fact, to that and not complete sufficient to the offense. because we otherwise hold that mens rea (b) Any person guilty sodomy found every must exist for fact that results in in- punished shall may be as a court-martial punishment every Thus, creased offense. direct. question is whether there is mens rea 125, UCMJ, to the fact that TS was under The text of Article simply does Appellant sixteen: whether specifically had to know that address the of the child (Oct. 2, 2007). changes support position These do not affect our that a mistake of fact de- analysis in this case as both the 2000 and 2006 fense exists with of the child 120, UCMJ, version of Article contain a mistake for the offense with a child under of fact defense as to the of a child when the dicta, Zachary opined sixteen. that such a criminality question of the conduct on turns defense would be available. Id. at 442. Howev- being younger the child older than twelve and er, Zachary was not a case an Article UCMJ, 120(d), than sixteen. See Article 125, UCMJ, sodomy charge. With that issue 120(o), UCMJ, § U.S.C. Court, presented squarely now to this we hold NDAA 119 Stat. at 3258-59. otherwise. parties opinion 4. Both cite this Court’s in United (C.A.A.F.2006), Zachary, States 63 M.J. 438 injury criminal “an can aggravated offense of with a law is that amount

child, inflicted explicit alone include an intent or a crime when intention.” let States, Morissette knowledge requirement for that offense. v. United L.Ed. 288 description of the in Arti But the offense MCM, construing the UCMJ and there- cle does not end our textual fore, wish, assumption is that there is no to Article analysis. Pursuant rule, general punish aas otherwise lawful (2000), § 836 and Article U.S.C. Staples, conduct a vicious will. See absent (2000), U.S.C. President (“Relying 511 U.S. at 114 S.Ct. 1793 punish set maximum different authorized rule, strength of the traditional we have specific an offense based on facts. ments for require no stated that offenses that mens rea States, Loving v. disfavored, generally and have suggested are 1737, 135 769-70, 116 S.Ct. L.Ed.2d 36 intent, congressional that some of indication delegated (recognizing that express required to implied, dispense is authority the to address modes the President crime.”) of a as an element mens rea proof punishment of and that a court-martial (citations omitted). Kelson, direct); may v. United States 3 M.J. (C.M.A.1977) 139, (stating that the 125, Articles 120 Statutes such as and 36, authority under President’s UCMJ, that, sexual conduct criminalize but UCMJ, only by requirement “is limited age some of factor such as the the ac- that rules be consistent with the Consti partner, may cused’s otherwise be lawful. laws”) (citations omitted). In tution or other Therefore, initially appears as if it this Court of Article the President the case imply would be its charter to a mens within alia, added, pled inter a factor that be respect age rea with under either article punishment proven to increase the and —the and to that and the determine 51.b., age pt. IV, para. the child.5 MCM of simply President that child intended 51.e. age, under also that be a certain but a defen- have reasonably dant knew or should known 40-41, supra pp. noted at we undertake As that fact. For if a mens rea existed with analysis rea to the fact mens age, a mistake fact the fact of of case, it age in this because that fact that is inexorably defense follow. See likely charged criminal in makes conduct 916(jXl). President’s this ease. But the addition of the the child fact of the also does not rea. explicit contain an mens C. 51.b., IV, para. (requiring 51.e. that the act Supreme excep But the has noted Court child who

was done with a had attained the assumption tions the common law other twelve, was but mens auguring wise in favor of rea. Most sixteen). often, Supreme Court has determined that when offense is deemed one be B. protecting “public directed welfare” no at explicit required. mens rea See United States v. The want of an mens rea with Freed, 1112, age of the 91 S.Ct. respect to the child does not end U.S. (1971); in the an ex- L.Ed.2d 356 United States v. Dot inquiry. Even absence of terweich, 281, text, 277, 134, press 64 S.Ct. in the we construe the 320 U.S. intent Behrman, (1943); v. light L.Ed. 48 States charged “background rules United crime 280, 287, 42 Staples, 258 U.S. S.Ct. L.Ed. the common law.” 511 U.S. Balint, (citing v. United States v. 114 S.Ct. 1793 United States Co., 66 L.Ed. 604 Gypsum S.Ct. United States 438 U.S. (1978)). why “public 436-37, discussing welfare 57 L.Ed.2d 854 context of rea, a mens require precept assumption A of the offenses” do bedrock case, with, question is no that R.C.M. Appellant was in the MCM and there 307(c)(3) to, complied pled with. guilty by added President was the factor another, be treated like other Supreme separate has noted children should Court by recognized But the convention exception to the mens rea re crime. common law Supreme is mirrored the actual quirement age of the child sexual —the Morissette, to the involving treatment of mens rea with offenses children.6 See (“Excep child in sexual offenses at 251 n. 72 S.Ct. 240 342 U.S. jurisdictions, in other and the differ- requirement] a mens rea came to children [to tions offenses, rape, in ent treatment of the same between Articles include sex such as which Convinced that cre- the victim’s actual was determinative 120 and UCMJ. under Article despite defendant’s reasonable belief that the ation of such defense consent.”); policymakers, a decision for girl had reached Video, Inc., Court, decline to read a mens rea v. X-Citement not this States child into 72 n. 130 L.Ed.2d 372 with (reiterating distinction described UCMJ. Morissette)-, also see United States Wil (8th Cir.2007)

cox, F.3d D. (recognizing noting the same and that federal uniformly rejected argument supported practice view is courts have This jurisdictions. right there is a constitutional other Absent the affirmative require- creation of either an actual mens rea the defendant made reason age); respect age as to the child’s also ment with to the of the child or a able mistake see Carpenter, Statutory Rape, proof L. mistake of fact defense even where Catherine On Liability, by required Strict and the Public mens rea is not otherwise Welfare Of Model, (2003) appropriate policy-making body, age- 53 Am. U.L.Rev. 313 an fense (cataloging jurisdictions criticizing based mistake of fact defense has been found Hernandez, respect by only allow an absence of mens rea with four courts. 39 Cal. State, 361, 673; age, making Rptr. the child’s thus of fact P.2d at mistake 393 Perez v. unavailable); (1990); Sayre, supra defense at note N.M. 803 P.2d 249 State v. (Utah Elton, 1984); (recognizing 72-74 that a mistake of fact 680 P.2d 727 State v. (Alaska 1978). Guest, respect defense is not available with to the P.2d But Per- ez, Elton, age of superseded the child sex offenses that are and Guest have been statute, dependent being speci leaving only on the child below a California as the age, though jurisdiction currently judi- fied operating even the offenses are not under a offenses). public cially welfare created mistake of fact defense. See 11.41.445(b) (2007); § Alaska Stat. N.M. course, Court, Supreme opin- Of while (West 2007); § Stat. Ann. 30-9-11 Utah ing in practice dicta that the historic is that (2007). §Ann. Code 76-2-304.5 age of the child falls outside the normal analysis public Twenty-two provision mode of and is akin to the have states no model, statutory welfare has never so held. And it their framework for a mistake of be, see, argue, e.g., People activity well as some fact defense when the sexual involves Hernandez, Cal.Rptr. v. 61 Cal.2d children: is neither a mens with there rea (1964); Carpenter, supra, respect age explicit 393 P.2d 673 nor an All defense. at that the absence of a mens rea states’ have declined but one those courts recognize child sex offenses is an a mistake of fact defense anachronism, sexual activities with to the of the child.7 nature, regulatory In our view it is incorrect to characterize sex and the maximum author- imprison- involving “public punishment twenty years offenses children welfare” ized includes Sayre, per See Francis Bowes Public ment. offenses se. An Article Welfare Offenses, "public 33 Colum. L.Rev. offense is not a welfare” offense. Such function, typically regulatory offenses serve a State, relatively penalties, Ala.App. have minor and almost never 79 So. Miller (1918); imprisonment. Staples, § involve 511 U.S. at see also Ala.Code 13A-6-62 616-18, 1793; Balint, Blake, (commentary); Conn.App. at 251- State v. State, 42 S.Ct. 301. Article is not 777 A.2d Pritchard v. states, government prove the accused knew explicit- that the very

In a few a mens rea is of the child. But both contain ly required to the defense, See, of fact limited to e.g., explicit Ann. child. Ohio Rev.Code (West 2007) 2907.04(A) only. a certain (prosecution § must children above 120(o), UCMJ, § 2006 NDAA Stat. prove knowledge or recklessness with re- 2243(d). 3258-59; ages 18 U.S.C. spect age of a child between the sixteen). thirteen and Under these remaining seven states and the Dis- schemes, government prove must prudential trict of Columbia have taken the age, the child’s but also that the defen- step explicitly forbidding a mistake of fact dant knew or should have known the child’s involving regard to sex crimes age. children, thereby foreclosing litigation of the raised in the instant case.9 sort states, twenty govern- another while jurisdictions departed prove ment the defendant knew or In those that have need reasonably known the from the historical treatment of sexual of- should have child, permitted children and legislatively created mistake of fact fenses exist, of fact defense with explicitly outlined in a mistake defense does child, changes statute, age of the have almost only for and most often is available always appropriate policy- been made a certain sexual acts with children above makers, judiciary. not the age.8 in a The latter model is mirrored both II. violation for carnal parties argue that this Court should other sexual offenses under Article analog, a mistake of fact defense with re- and the federal civilian 18 assume 2243(d) (2000). requires spect Neither of the child under U.S.C. 249419, 261.5, Olsen, 61, *4, (West 2007); People §§ 2004 WL at 288 v. 36 2004 Del. LEXIS State, (Del. 4, 2004); 638, 492, 52, Haywood Cal.Rptr. v. 283 *l-*2 Feb. Cal.3d (1984); 205 685 P.2d 57 203, 568, (2007); Gomez-Mendez, Ga.App. 642 S.E.2d 204 State v. see also United States Buch, 308, 599, 599, (9th Cir.2007). v. 83 Hawaii 926 P.2d 607 486 F.3d 603-04 405, (1996); Stiffler, State v. 117 Idaho 788 P.2d 220, 209, (1990); Tague, 222 State v. 310 N.W.2d (2007); § Ark. 8. Ariz.Rev.Stat. Ann. 13-1407 State, 253, (Iowa 1981); 212 Walker v. 363 Md. (2007); § Colo.Rev.Stat. Code Ann. 5-14-102 631, (2001); 768 632 Commonwealth v. A.2d (West 2007); Comp. § 720 Ill. Ann. 18-1-503.5 Montalvo, 85, 391, Mass.App.Ct. 50 735 N.E.2d (West 2007); Stat. Ann. Me.Rev.Stat. 5/12-17 Cash, 230, (2000); People 393-94 v. 419 Mich. 253, (2007); §§ Minn.Stat. Ann. tit. 17-A 254 822, State, (1984); 826 Collins v. 351 N.W.2d (West 2007); § Ann. 609.344 Mo. Ann. Stat. 918, 1997); (Miss. 691 So.2d 923 State v. Navar- (West 2007); § § 566.020 Mont.Code Ann. 45-5- rete, 171, 8, (1985); 221 Neb. 376 N.W.2d 11 (2007); (West § Stat. Ann. 30-9-11 511 2007); N.M. Nev; State, 865, 1063, Jenkins v. 110 877 P.2d (2007); § N.D. Cent.Code 12.1-20-01 Perrin, 483, (1994); v. 119 N.H. 1067 Goodrow (West 2007); §Ann. 2907.02 Or. Ohio Rev.Code 864, (1979); Anthony, State v. 403 A.2d 867-68 2007); (West § Pa. Rev.Stat. Ann. 163.325 18 573, 195, (1999); N.C.App. 516 S.E.2d 199 133 (West 2007); § Tenn.Code Cons.Stat. Ann. 3102 State, 775, (Okla.Crim.App. Reid v. 290 P.2d 784 (West 2007); § 39-11-502 Wash. Rev.Code Ann. Yanez, 759, (R.I. 1955); A.2d 764 State v. (West 2007); § W. Va.Code Ann. Ann. 9A.44.030 State, 434, 1998); 339 S.C. 529 S.E.2d Toomer v. 2007); (West Wyo. § § Ann. 6-2- 61-8B-12 Stat. 433, 719, Fulks, (2000); State v. 83 S.D. (2007). the mistake of Three states make 418, (1968), N.W.2d overruled on other in all cases mi fact defense available Ree, 557, grounds by State v. 331 N.W.2d 11.41.445(b) (2007); § Ind. nors. Alaska Stat. State, 848, (S.D.1983); Johnson v. 967 S.W.2d 35-42-4-3(c) (West 2007); Ky.Rev. § Code Ann. Searles, (Tex.Crim.App.1998); State v. 849-50 (West 2007). § Stat. Ann. 510.030 525, 1281, (1993); Rainey 159 Vt. 621 A.2d Commonwealth, 169 Va. 193 S.E. (2007); Stat. Ann. Fla. 9. D.C.Code is the state that California (West 2007); §Ann. 21- § 794.021 Kan. Stat. currently of fact defense into a reads mistake (2007); (2007); § Hernandez, La.Rev.Stat. Ann. 14:80C statute that does not include one. 2007); (West § N.Y. 2C14-5.C. N.J. Stat. Ann. Cal.Rptr. 393 P.2d at 673. But the courts 2007); (McKinney § Utah Code Penal Law 15.20 with children are have still noted that sex crimes § Wis. Stat. Ann. Ann. 76-2-304.5 liability crimes when the child is treated as strict (West 2007). § age. certain See Cal.Penal Code 939.43 below a legisla- statutory scheme or UCMJ, structure of the by to Article reference statute, expressed in the UCMJ, intent as the federal tive or executive R.C.M. 2243(d). provisions § All of the statutes respective histories of the different 18 U.S.C. instructive, Moreover, artic- not for the reasons parties are but fail to and the MCM. parties. ulated why, Congress if wished to conform explain 125, UCMJ, they practice, civilian

Article include simply amend the statute to did not A. age, thereby superseding a defense to or case, car- sodomy charge in this Like the age as a factor inclusion of the President’s 120, UCMJ, and knowledge under Article nal MCM, why President did or § 2243 crimi- “sexual acts” under 18 U.S.C. IV, para. 916(j), or amend R.C.M. activity based on nalize consensual sexual 51., mistake of fact defense as to to include a child. age.12 explicit of fact defense included mirroring as to Article in 18 but did similar defense U.S.C. First, where intended to create provide one UCMJ. mistake of fact defense

MCM, Analysis app. of Punitive Articles 23 age in a sexual offense when a of a child year the Presi- at A23-14. And the same defendant’s of that fact was other- dent included a mistake of fact defense as to charged, it wise irrelevant to the offense did 916(j)(2) for explicitly. so Articles 120 and provide but did not one for Article offenses of a and 18 U.S.C. deal with MCM, Analysis the Rules UCMJ. nature, and each criminalizes behav- similar app. for 21 at A21-64. Courts-Martial lawful, ior that could otherwise be but no inac- There is reason assume And, age. some factor such as as conceded President, by Congress tion and the who parties, none of the three statutes opportunities have had numerous to address require government prove that the ac- provi- the differences between the various Taking of the child. all cused knew the sions, requires somehow this Court read a together, it becomes clear that three statutes fact mistake of defense into Article only prove though government even need UCMJ.10 age, the fact of and not that an accused knew similarity parties argue that the fact, reasonably should have known that statutes, Congress’s to conform mili- desire Congress provided nonetheless a mistake of law, tary law to federal civilian and the fact respect ages to and fact defense with some 125, that the conduct under Article instances, some sexual activities some and ostensibly in this case would fall ages not for all and all sexual activities all world, § within 18 U.S.C. 2243 in the civilian instances. require us to read the defense into Article consistently 125, UCMJ, Supreme Court has held statutory to harmonize the “ Congress particular legislative that includes ‘[Where] scheme and effectuate intent.11 language of a omits arguments support These have no one section statute but policy- challenges suggested appropriate that It that the 10. To the extent constitutional is making may bodies have been reluctant to be- be available based on differences 125, UCMJ, policy because the amend Article regarding MCM, 125, UCMJ, tween the Articles 120 and military politi- homosexuals in 2243, parties § and 18 U.S.C. chose not to Wilson, cally sensitive. United States v. 66 125, challenge constitutionality of Article C.J., (Effron, dissenting). Taking hy- at 50 that UCMJ, in this case. true, setting pothesis as and aside the fact that sodomy, involves heterosexual the com- this case course, de- 11. Of the delineated mistake of fact agreement parties’ rule bination of the that the 120, UCMJ, fense in both Article and 18 U.S.C. reasons, changed policy be for with the should 2243, unnecessary § have been had there fact that it been difficult for elected assumed been a mens rea with either ex- change, still does not officials to effectuate that plicit or latent in the statute. See R.C.M. permit public policy this Court to make a deter- LeFave, 5.6(a). 916(j)(l); supra, by judicial §at mination fiat. sodomy. generally pre- it in ... it but did not include a defense for another section 104-112, 532, (1995); § Congress intentionally S.Rep. that acts No. at 243 sumed ” 104-131, 545, § purposely disparate H.R.Rep. in the ... exclusion.’ No. at 218 States, 104-106, 1113, § see 1996 NDAA Pub.L. No. Russello v. United 464 U.S. (1983) (citation (codified 296, 186, 78 L.Ed.2d 17 110 Stat. as amended at 10 S.Ct. (1996)). omitted); Corp. § see also Keene United U.S.C.

States, required Congress, In the De- (1993) (finding L.Ed.2d 118 that the use of partment of Defense General Counsel sub- phrase part statutory in one of a scheme report detailing proposed changes mitted a “only duty refrain from underscores our regarding sexual offenses under the UCMJ. reading phrase into the when statute Con- 108-767, H.R.Rep. No. at section). gress has left it out” of another (2004), Cong. U.S.Code & Admin.News construction, light of this rule of we decline pp. (Conf.Rep.). report This ex- to read a mistake of fact defense as to the plicitly requested that the mistake of age of the child into Article UCMJ. possible from defenses defense be removed to carnal under report requested that Arti- UCMJ. The also legislative expressed Nor does intent as 125, UCMJ, brought in cle be line with feder- through legislative support action a mistake by requiring prosecution al civilian law parties argue, of fact defense here. prove copulation the act of unnatural respective from the histories of Articles 120 report sug- was done force. The did not Congress intended to gest the inclusion of a mistake of scheme, legislative harmonize the but over- Defense, sodomy. Dept, defense to reviewing looked Article UCMJ. After Proposed Amendments to the Code Uniform statutes, history of both fail to see Military Justice with Initial DOD Draft support position. for this must assume We Complementary Proposed Changes to Congress background princi- understood the (submitted the Manual Courts-Martial rea, ples, supra, regarding discussed mens 7, 2005), April available construction, and the different http://www.dod.mil/dodgc/php/docs/HASC treatment of mens rea with Meeting42105.pdf. age in fact of the context of child sex of- succinctly, “Congress fenses. Put does not Representatives The House of did not ac- upon write a clean slate.” States v. cept Department of Defense recommen- Texas, Instead, it maintained the mistake dations. (citation omitted). (1993) L.Ed.2d of fact with defense for carnal case, we find no evidence that knowledge, passed an amendment to Ar- abrogate principle intended to reflected that created a series of ticle practice majority jurisdictions in the 109-89, graded H.R.Rep. offenses. No. (2005) (amendment that the crime of with a child does accepted at 332 109-360, § not contain a mens rea with to the H.R.Rep. No. at 703 age permit Cong. of the child or a mistake of fact (Conf.Rep.), U.S.Code & Admin.News 1678). legislative Congress p. defense absent action. See Moris- Neither house of sette, 125, UCMJ, proposed to Article 342 U.S. at n. 72 S.Ct. 240. amendments despite significant amendments to related first revisited the provisions. pertaining to sexual offenses involv- scheme NDAA, recently, ing Authori- Most in the 2006 Con- children the National Defense (NDAA) gress completely Article UCMJ. zation Act for Fiscal Year 1996. rewrote currently at 3257-63. As Congress added an affirmative defense of Stat. UCMJ, enacted, 120, UCMJ, only fact an Article Article covers mistake of for knowledge, rape of and carnal against person a over the the offenses offense committed also, alia, aggravated sexual assault but inter age of twelve and under the of sixteen child, law,” child, of a aggravated of a sexual abuse military law to federal civilian “conform respect to child, fact defense with mistake of a contact with aggravated sexual a child are of for the crime Id. Con- with a child. indecent liberties decisions, for this not decisions public policy provision fact gress a mistake of retained the Court. statute where version of the the new question de-

criminality conduct in being less than sixteen pended on the child III. old, age of Id. at years over the twelve. but of that there is no mistake conclusion Our a major revision to Despite this 3258-59. age for this as to the child’s fact defense many sexual offenses applicable to statute 125, UCMJ, dispositive as offense is minors, sodomy was not included originally granted issue. “This to the it, changes made again, no were within only the record rejects guilty plea where a redraft We decline to to Article UCMJ. fact for basis in law and shows a substantial UCMJ, to include a defense military review a questioning plea. a We added, might but did not. have guilty plea for an judge’s accept a decision v. Har- of discretion.” United States abuse contrary. (cita- (C.A.A.F.2007) Nor is executive action to row, 65 M.J. under- omitted). Manual Courts-Martial has The guilty plea is Appellant’s As tions for major gone amendments since R.C.M. four military judge’s correct state- rooted in the 916(j)(2) for added a mistake of defense law, Appellant’s application of the ment and knowledge in offense of carnal guilty plea provident. (2000 (1998 ed.); ed.); MCM MCM MCM Conclusion (2005 ed.). (2002 ed.); And in Army States The decision 916(j)(2) to com- itself was amended Appeals is affirmed. Court Criminal port the new version of Article 13,447, Fed.Reg. UCMJ. Exec. Order No. EFFRON, (dissenting): Judge Chief

56,179. Again, corresponding provision no sodomy. for was included majority that an honest and concludes of a sexual reasonable mistake as legislative or executive inaction is While partner a is not dispositive, the fact that neither Con- age of six- with a gress nor the acted with re- President have MCM, disagree. The years. respectfully I teen spect to Article or the of fact availability of the defense mistake specifically adding, and then maintain- while sodomy charge a is consis- as to for such ing, a mistake of fact defense with tent with the Manual Courts-Martial the child for Article for and our Court’s case law. against suggestion cuts that either Con- gress or the President intended to harmonize present appeal providence involves the legislative scheme. inquiry guilty plea. The conclusion of apply in contested majority also would cases, following example. as illustrated

B. party meet young soldiers attend Two Finally, note that Article identify opposite sex who members of the 916(j)(2), provide and R.C.M. a mistake In the college students. themselves fact defense for those acts committed events, couple develops a rela- each course against “attained the a child who has tionship sexual con- that includes consensual every legislature that years.” Almost twelve Eventually, come to the tact. various details defense, of fact has adopted command, including facts attention of tack, making a the defense taken similar relationships per- indicating that the involve only age. a certain available for children over age sons under the of sixteen. supra public are obvious note 8. There contact, for, on the nature of the sexual judgments and sound be- Based policy reasons whether, hind, charged with indecent acts with approach. But and at one soldier is sixteen, age the of while the point, the line should be drawn for a a child under what MISTAKE charged a THE second soldier is OF FACT DEFENSE age child under the of sixteen. Manual for 916(j)(l) R.C.M. describes the circum- Courts-Martial, IV, pt. paras. United States person may stances in which a defend (2005 ed.) (MCM). 51.f., trial, At 87.f. each against charged a on the of a offense basis the soldier testifies that he did not know that mistake of fact: person the other was under the of six- Except provided as otherwise this sub- teen, describing ini- the circumstances of the section, it is a defense to an offense meeting pertinent tial and other facts. held, ignorance a of accused result charged the trial of the soldier with indecent mistake, or an incorrect belief of the true person years, acts with a under sixteen that, if circumstances such the circum- military judge instructs the court-martial them, stances were as the accused believed defense, that mistake of fact a as to guilty accused not be finding and the members return a of not ignorance goes offense. If the or mistake guilty charge. on that In the trial requiring premeditation, an to element child, charged soldier with a intent, willfulness, specific knowledge or military judge give declines to the instruction fact, particular ignorance or mistake finding guilty. and the members return a need to have existed the mind of ignorance If accused. or mistake If disparity in treatment of these of- goes requiring only other element prescribed by had expressly fenses been general knowledge, ignorance intent or President, Congress or the that would settle or mistake must have existed the mind however, disparity, the issue. The is not of the accused and must have been reason- required by statutory either regulato- able under all the circumstances. Howev- ry pertinent text that describes the offenses. er, if knowledge the accused’s or intent is subject age, Neither statute addresses the element, igno- immaterial as to an then either as element of the offense or as a rance or mistake is anot defense. defense. See Articles 125 and Uniform rule, military judge Under the must (UCMJ), Military Code of Justice 10 U.S.C. goes decide whether the claimed mistake §§ provisions The Manual requiring an element of the offense knowl- describing the elements of each offense set so, edge If applies. or intent. the defense If proscribed forth the person contact with a intent or accused’s is immate- sixteen, under the but neither contains rial, apply. then the defense does not a limitation on the defense of mistake of fact IV, age. 51.b., paras. as to See MCM general, Congress neither nor the Pres- 87.b. regulated ident has restricted or otherwise application of the mistake fact doctrine disparity would result not from the specific offenses. express treatment of these offenses Con- has addressed mistake of fact with President, gress judicial or the but from knowledge, providing statutory carnal mis- interpretations general mistake of fact age. take of fact defense as to See Article defense set forth the President Rule for 920(d) (2000). 120(d), UCMJ, 10 U.S.C. (R.C.M.) 916(j)(l). Courts-Martial a mat- As recently added a number of other judicial interpretation, ter of the mistake sexual offenses 916(j)(l) fact defense in is available provided mistake of fact defense as to when the accused has been offenses, including ag- as to for certain 134, under Article with indecent acts assault, gravated aggravated sexual sexual person with a under the of sixteen. See contact, abuse, sexual and indecent abusive Zachary, States v. 120(o)(2). liberty. Article These amend- (C.A.A.F.2006). majority opinion, Under the ments became effective with to of- however, the same defense would not be occurring fenses on or after October (Oct. 13,447, 56,179 available with of sod- Fed.Reg. Exec. Order 2007). statutory provi- omy with a of sixteen. There is no similar in have so sodomy, to done sodomy. respect Article with respect sion with did granted UCMJ. in which the issue dicta in cases See, sodomy. e.g., not the offense of involve 120(d), Article Prior to the enactment of Strode, United States expressly ad- in the President (C.A.A.F.1995) of with (suggesting the mistake fact defense that the mistake dressed See, e.g., knowledge. MCM respect to carnal in not age fact as to is available of defense 45.e.(2) (1984 ed.). IV, para. Presi- pt. cases); (sug- sodomy Zachary, 63 M.J. at 442 dent, however, any guid- prescribe not did as to of fact defense gesting that the mistake application with ance cases). sodomy in age is available the offense of mistake of fact defense to Zachary a different stat- Although involved sodomy. para. Id. at 51. ute, precedent it as the recent serves most Manual, President has In the current application of regarding the mistake specific provided guidance as to mistake 916(j)(l) to in an offense fact defense R.C.M. to number offenses. defense with a involving a of sexual contact 920(e)(3) See, e.g., 916(j)(2); R.C.M. in child is not an element set forth when (instructions in mistake of fact carnal statute, in IV, but Manual. The accused cases); knowledge pt. para. 45.- MCM c.(2) of fact as (regulating Zachary defense mistake in with indecent acts was cases); in id. at carnal in under the sixteen 19.c.(l)(d) (regulating para. mistake defense general violation of UCMJ —the cases); resisting para. id. at apprehension in expressly article —a statute that does 25.c.(4) in (regulating mistake defense coun- acts, less As age. indecent much address 43.c.(2)(b) cases); tersign para. (regu- id. at Zachary, pro- applicable noted in Manual lating pre- mistake defense to transferred describing vision forth elements sets several cases); para. in at meditation murder id. proscribed conduct and an ele- includes 49.c.(18) in (regulating defense check mistake subject requiring proof ment that the funds); id. at cases insufficient at act of sixteen. 63 M.J. was 62.c.(4) fact para. (regulating mistake of de- an ele- 441—42. We concluded that was eases). adultery in fense With ment the mistake of fact defense to which new offenses under rejected the apply, expressly and we 45.a.(o)(2) of paragraph the Manual sets merely aggravating that it an contention was provided forth the mistake of fact defenses 13,447, 72 punishment. the statute. Exec. Order Fed. factor Id. at 443-44. as to 56,192. Manual, however, Reg. present any express the absence restrictions provide specific guidance does not on the guidance from or the President sodomy. See MCM availability regarding the mistake of IV, para. pt. sodomy, the responsibility fact defense for short, like the offense of determining whether the defense is avail- other offense under the UCMJ which the 916(j)(l) able under R.C.M. rests with regulat- of fact defense has not been Zachary offers judiciary. Our decision by Congress military A ed or the President. persuasive guidance because offense judge must at trial decide whether de- Zachary per- acts issue in applicable, appellate fense is and an court —indecent years son in struc- under sixteen similar military judge must decide ruled whether —is present ture correctly on to the offense at issue the issue. IV, appeal. Compare para. II. AVAILABILITY OF THE MISTAKE para. Zachary, age with id. at As FACT DEFENSE AS TO AGE FOR OF an with a element of offense THE OF OFFENSE SODOMY child, merely aggravating an as to factor punishment. A. Zachary provides appropri- an judicial determining ate standard for that our To the extent ad- the mistake of fact defense as honest and reasonable mistake as dressed provides sodomy drawing a to a congres- substantive inferences from with a years. problem under of sixteen sional inaction. spec- The with such We should to that ulation, adhere standard particularly legisla- in the absence of present regard, I agree case. that history setting tive forth a reason for Judge statutory regulatory Baker’s anal- inaction, many are why that there reasons IV, ysis of Article and MCM Congress may particular on aspect not act para. 51.b. legislative of a If proposal. one were to

speculate to Article example, speculation for such could include B. possibility congressional that inaction re- history legislative The amending sulted from concern the sod- and 2006 amendments to Article UCMJ omy statute run the risk of reopening (rape knowledge), and carnal as set forth in highly debate contentious that occurred majority opinion, require does not us to in 1993 regarding sexual orientation in the Zachary abandon the standard. The text of military. H.R.Rep. 103-200, No. See at 287- article, both before and after those (1993), Cong. & U.S.Code Admin.News amendments, expressly specific sets forth a pp. 2073-77. the circum- partner of the sexual sixteen —under case, however, present stances of the we years liability. By the basis for criminal —as rely need not speculation about this or contrast, (sod- the text Article UCMJ any legislative other reason for inaction. omy), has never set forth the majority opinion The does not establish that partner legislative sexual as a basis for crimi- legislative provides record a sufficient liability. nal permit congression- foundation to reliance on legislative history of the 1996 amend- al deciding inaction as a basis the case ments, majority as set in the opinion, forth before us. makes sodomy. no mention of Article 125 or The sole focus of the amendments was dealing rape conform Article C. knowledge, carnal treatment of statutory In the analysis, course of its similar federal laws. S.Rep. civilian No. majority opinion position takes the 104-112, at 243 We cannot “[wjhile the conduct under Article Congress infer that had sodomy focus on criminal, in this ease remains passed when it developed legislation act private consenting between amending separate offense of carnal be, adults not absent some other fact.” under Article Wilson, (citing United States v. at 41 M.J. legislative history With Texas, Lawrence v. the amendments to Article 120 in 2005 and (2003)). 156 L.Ed.2d 508 In that majority opinion identify does not context, opinion majority offers an inter- any authoritative statement that would ex- pretation pre-Lawrence stat- plain why Congress not did address the sub- ute, upon based the assumed outcome of

ject legislation in the that amend- litigation regarding future the constitutionali- ed other sexual We are simply offenses. ty of applied private the statute as to certain inaction, congressional confronted with consenting sexual contact between adults. dealing are congressional silence on the question expressly That is a that we declined reasons for inaction. Marcum, to answer in States v. legislation enacted has not (C.A.A.F.2004). make an element the offense of sod- question us involves before the mean- omy, nor has it made mistake of fact as to ing unchanged of Article a statute since When we defense. are deal- the UCMJ in 1950. ing enacted Con- with an article of code which offense, gress may future not an such decide in the to decriminal- element of the as Article sodomy, great private ize consensual adult or this we should exercise caution is: whether uncon- this case is about hold What may decide to the statute de- of fact has created a mistake applied circum- as certain stitutional (2) not; however, can us, not this Court is has whether The issue before fense —it stances. not; issue of fact scope of 125. The a mistake defense —it the future Article create availability (3) a present prevailing of of states is the the nature the before us or statute, liability. en- practices of fact defense under toward strict legislative which, fifty-five ago years Moreover, than parties’ acted more on States the focus United face, rely age to distin- (C.A.A.F.2006), on does not on its Zachary, does v. 63 M.J. 438 con- guish criminal and non-criminal pro- between language as the President’s not address Martial, duct. in the Manual Courts vided (2005 ed.) IV, para. 51.b. States case, present the Government the {MCM). of Appellant agree that the defense both Nei- fact as to was available. mistake of pre- interpretive problems There are two Marcum, urged us party ther has to revisit First, President, ap- is an the who sented. reinterpret otherwise Article or M.J. choices, such policymaker to make propriate 916(j)(l). In of the avail- 125 or R.C.M. view age as an of the crime of listed element 916(j)(l), defense under R.C.M. ability of the en- merely not as a sentence sodomy and by our of a similar as treatment underscored of set Id. elements hancer. Zachary, 63 need not offense are: in the MCM forth the the thicket or enter either constitutional Elements. b. interpreting congressional of si- uncertainties (1) engaged lence. accused in unnatural That the copulation other

carnal with a certain person.... BAKER, Judge (dissenting): applicable: And as Id. majority’s recognition I of agree with the (2) “[ojffenses the act with a child That was done the rule that that re- traditional 12[; of quire generally or] rea are disfavored no mens intent, congressional ... indication of some (3) act was with a child who That the done express implied, dispense is required or age of 12 but had attained the was rea as an of a crime.” mens element 16[; the of or] under States, Staples v. United U.S. act force and That the was done (1994) (cita- L.Ed.2d 608 per- the of the other without consent omitted). agree majori- tion I also the son. ty’s the of of President’s exercise observation authority delegated the Article under Moreover, paragraph sub- whether the Id. (UCMJ), Military of Uniform Code Justice not, dispositive age is tanta- heading is or (2000), regarding U.S.C. inqui- mount to an element. relevant “[T]he (2000), “[t]he in that U.S.C. form, ry one not of but of effect —does the is of the of President’s addition the fact of greater pun- finding expose the defendant explicit also does not an child contain Apprendi that than authorized.” ishment rea.” mens Jersey, 530 New (2000). Indeed, L.Ed.2d However, respectfully I from dissent military judge advised the accused majority’s application principles of these Thus, this was an element offense. is view, my of this the circumstances ease. is a situation where the law silent. majority focuses its attention Rather, expressly includes as question presented is wrong questions. Therefore, rule general President, authority an element. utilizing his whether applicable military is practice civilian age an has made under “leg- has in fact practice where President with a child element of the offense sixteen, so, gloss statutory further if ele- onto whether that islated” under requirement. language. ment includes a mens rea problem light Al- But in policy-making entity.

Here the arises. second though appears it certain that the drafters of ambiguity drafting, the MCM’s provisions the MCM have listed using interpreting language be should sodomy, equal- element of the offense it statutory the tools construction. This degree ly uncertain what rea this mens judges what do where law is unclear ambigui- element was intended bear. This reading. subject possible to more than one ty is reflected in the Government’s own con- principles Applying the same of fact cession the defense mistake majority, I construction identified applies. It is reflected in the manner in also readings both would conclude that which “the act” is set out in the elements. “sodomy are treating available —one hand, On one the ele- the one can read general a child under sixteen” as ques- ments of the offense so that the act treating intent crime and one the act of tion is alone in the contained first element— crime, “sodomy” general alone as a intent engaged “that car- the accused unnatural as an factual additional element case, copulation.” nal In this the other three case, requiring intent. former effect, are, aggravating factual elements of fact would defense be available Indeed, may represent circumstances. this where mistake was honest and reason- the better view. (R.C.M.) able. Rule for Courts-Martial hand, On the other the second and third 916(3)0). (as applicable) can to elements be read state copulation extinguish An intent to mens rea “must be that “the act” is “unnatural carnal clearly with a child or language [twelve under indicated in the And, appear it would implementation sixteen].” in the President’s military practice is to the offense of Otherwise, through the MCM. an UCMJ “sodomy with a child under or six- [twelve placed would on fair accused not be notice merely “sodomy,” teen]” and not threshold for criminal conduct.” United Indeed, aggravating factor. while disavow- (C.A.A.F. Thomas, v. States ing Zachary, government dicta 2007) (Baker, J., result, dissenting). As a argued in other cases that the mistake of fact this to be sort of case where seems applies with a child under ambiguity should in fact inure to the benefit sixteen. States, of the accused. Cleveland v. United important, ambiguity

This is because the 148 L.Ed.2d only (2000) question applies of intent to acts and not ([A]mbiguity concerning the ambit facts, question and if act in were statutes should be resolved criminal “sodomy,” opposed “sodomy (citation omitted); lenity) Hughey favor (2) 16,” child under then additional elements States, (3) require pertaining no 1979, 109 ([Longstanding L.Ed.2d 408 therefore, opportunity mens rea and no for a principles lenity ... demand resolution of mistake of fact defense would exist. ambiguities in criminal statutes in favor of defendant). especially appro This seems ambiguity important given This as well ambiguity ad priate easily where the majority’s suggestion Court is body through executive clarification appropriate policy-making not an dressed question presented. are not address We amendment.

Case Details

Case Name: United States v. Wilson

Court Name: Court of Appeals for the Armed Forces

Date Published: Feb 25, 2008

Citation: 2008 WL 509069

Docket Number: 06-0870/AR

Court Abbreviation: C.A.A.F.