ACCA answers the age-old question of whether surreptitiously videotaping naked female cadets is a criminal offense (yes)

United States v. Conliffe, __ M.J. ___, No. ARMY 20040721 (Oct. 31, 2007), deals with an immoral West Point cadet.

Cadet Conliffe entered a conditional plea of guilty to three specifications of housebreaking, five specifications of conduct unbecoming an officer and gentleman, and one specification of violating Article 134. His offenses arose from his acts of surreptitious videotaping "female cadets in their barracks rooms or in the shower area of a female locker room" and "surreptitious videotaping . . . a woman performing oral sex upon him." [Interestingly, in this post-Lawrence/Marcum world, Cadet Conliffe wasn't charged with violating Article 125.]

One element of housebreaking is that "the unlawful entry was made with the intent to commit a criminal offense." Manual for Courts-Martial, United States, Part IV, ¶ 56b (2005 ed.). Part IV of the Manual excepts "purely military offense[s]" from the definition of "criminal offense." Id. at ¶ 56c(3).

In Conliffe, the housebreaking specs alleged that Cadet Conliffe's unlawful entries were made to "surreptitiously record the image[s] of [the various victims in the various locations] by hiding a digital video camera in the room" and that "such acts constitut[ed] conduct unbecoming an officer and gentleman." The central question in Conliffe was whether the inclusion of that terminal element rendered the surreptitious videotaping a "purely military offense" to which Article 130 doesn't apply. No, rules ACCA. The conduct unbecoming language "is surplusage in this case. The crime was adequately described without the additional language; further labeling the crime as conduct unbecoming an officer does not dictate a different legal result." Conliffe, No. ARMY 20040721, slip op. at 6. I see little risk that any other court will disagree with that conclusion.

(And, no, the conditional plea had nothing to do with the issue that ACCA actually decided; it had to do with a search and seizure issue.)