Thursday, February 28, 2008

One more thought about Wilson

I previously set out my reasons for believing that the pre-1996 Manual for Courts-Martial established carnal knowledge as a strict liability offense for which a reasonable and honest mistake of fact defense is not available but established sodomy with a child under the age of 16 as a general intent offense, for which such a defense would be available. If that starting point is accepted, then Congress's subsequent change to the law of carnal knowledge and inaction regarding Article 125 would leave that status quo ante in place for sodomy with a child under the age of 16.

In thinking about this issue tonight, it occurs to me that there might have been a very good reason why the President (or, more realistically, the Joint Services Committee) might have chosen to make carnal knowledge a strict liability offense while declining to do so for sodomy with a child under the age of 16. For carnal knowledge, if the paramour was older than 16, the accused would have committed no criminal offense. And if a reasonable and honest mistake of fact defense were available and the accused prevailed on that defense, then he would have committed no criminal offense. BUT in a sodomy scenario, engaging in sodomy with a child under 16 would have been criminal, but so would engaging in mutually consensual sodomy (heterosexual or same-sex) with an adult. So the consequence of a successful reasonable and honest mistake of fact defense wouldn't be an absence of criminal liability, but instead a somewhat reduced stigmatization of the offense and a reduction of the maximum authorized confinement from 20 years to 5 years. Five years would probably be considered a sufficient maximum punishment for an individual who engaged in an act of sodomy with a 15-year-old who the accused reasonably and honestly believed was at least 16.

Of course, post-Lawrence, mutually consensual adult sodomy MAY NOT be criminal. But surely that doesn't change the President's pre-Lawrence decision (assuming I'm right) to treat sodomy with a child under the age of 16 as a general intent offense to which a reasonable and honest mistake of fact defense would apply.
Posted by Dwight Sullivan at 11:17 PM

7 comments:

Jeff Stephens said...

My problem with this decision is that it could lead to logically inconsistent verdicts. For example, in the same sexual encounter with a 15 year old, an accused could be charged with indecent acts with a child for sexual foreplay, sodomy with a child for oral sex performed as part of that foreplay, and then carnal knowledge. If the accused had a reasonable and honest mistake of fact as to the 15 year old's age, then everything leading up to penetration is criminal, but the intercourse itself is not?

Fri Feb 29, 10:07:00 AM EST
Anonymous said...

That's precisely the issue I dealt with as an Art 32 officer several years ago. The 15 y/o victim looked (and represented herself) as 18 y/o, so the accused had a rock-solid mistake of fact defense to the carnal knowledge. His problem was that he had also committed sodomy with her in the barracks. I advised the CO to NJP him for an orders violation for having her in the barracks. My "argument" to the CO was the accused was not doing anything any other 19 y/o male would try to do with an 18 y/o hottie, and it "ain't fair" to hook him as a registered sex offender for his successful effort. Fortunately the CO took my advice.

Fri Feb 29, 10:34:00 AM EST
John O'Connor said...

CAAFlog:

Your explanation is plausible -- in the sense that one could have gone through that mental exercise and reached the result you suggest -- but I see little to sughgest that this was the ACTUAL thinking involved. If someone, such as the JSC, had gone through this extensive set of mental gymnastics, wouldn't we expect to see it reduced to writing somewhere to explain why the relevant intents were left different? It strikes me as considerably more likely that either the intent was intended to be the same back then (an intuitively more satisfactory result) or nobody really gave the issue much thought at all.

Fri Feb 29, 11:27:00 AM EST
Anonymous said...

J'OC,

Your're right. "Nobody really gave the issue much thought at all" is a realistic explanation of many issues in military justice.

The volume of cases leading to military precedent is fairly low - and fairly new - compared to 50 states and centuries of common law. Rule drafters simply can't compensate for that.

Thats one reason the service courts need to write well reasoned decisions.

Fri Feb 29, 11:54:00 AM EST
Justin said...

This isn't necessarily germane to the topic at hand, but this is a link -- http://www.lawprose.org/supreme_court.php -- to the Supreme Court Justices' discussions of what, in their opinions, makes for effective oral argument, brief writing, and advocacy.

Fri Feb 29, 05:02:00 PM EST
Dwight Sullivan said...

Jeffrey,

The non-sodomitical (to invent a word) foreplay would also have a reasonable and honest mistake of fact defense available. See
United States v. Zachary, 63 M.J. 438, 444 (C.A.A.F. 2006).

Sat Mar 01, 09:51:00 PM EST
Dwight Sullivan said...

As Chief Judge Effron points out in his dissent, the Manual specifically limits the availability of the mistake of fact defense in six places. See MCM pt. IV, para. 45.c.(2) (regulating defense of mistake of fact as to age in carnal knowledge cases); id. at para. 19.c.(1)(d) (regulating mistake defense in resisting apprehension cases); id. at para. 25.c.(4) (regulating mistake defense in countersign cases); id. at para. 43.c.(2)(b) (regulating mistake defense as to transferred premeditation in murder cases); id. at para. 49.c.(18) (regulating mistake defense in check cases involving insufficient funds); id. at para. 62.c.(4) (regulating mistake of fact defense in adultery cases).

Having gone to that much effort six times, it would seem a bit strange if the drafters just forgot to limit the mistake of fact defense as to sodomy. In fact, it seems much stranger to assume that they would unintentionally leave it out than that they failed to explain their conscious decision to leave it out. I offered one possible explanation of why they might have chosen not to limit the availability of a reasonable and honest mistake of fact defense for sodomy with a child under the age of 16.

But, in any event, the judicial task is NOT to figure out what the Joint Services Committee intended. Rather, the task is to construe the regulation that the President signed. In doing so, courts apply the canons of statutory construction. And one bedrock canon is that the where "Congress includes particular language in one section of a statute but omits it in another section . . . it is generally presumed that Congress acts intentionally and purposely in the disparate . . . exclusion." So when the regulation includes six limitations on the availability of a reasonable and honest mistake of fact defense but doesn't include such a limitation in the sodomy with a child under the age of 16 context, then the canon suggests that the courts should not read into the Manual what the Manual itself left out. If that reasoning were to be followed, then sodomy with a child under the age of 16 would be treated under the default rule, which would make a reasonable and honest mistake of fact defense available.

Sat Mar 01, 10:01:00 PM EST

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