Prosecuting Indecent Conduct in the Military: Honey, Should We Get a Legal Review First?

• Author: Major Steven Cullen
• Pages: 04

128 MILITARY LAW REVIEW [Vol. 179

PROSECUTING INDECENT CONDUCT IN THE MILITARY: HONEY, SHOULD WE GET A LEGAL REVIEW FIRST?

MAJOR STEVEN CULLEN1

[V]ague statutes suffer from at least two fatal constitutional defects. First, by failing to provide fair notice of precisely what acts are forbidden, a vague statute "violates the first essential of due process of law." Connally v. General Construction Co., 269 U.S. 385, 391. As the Court put the matter in Lanzetta v. New Jersey, 306 U.S. 451, 453: "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." "Words which are vague and fluid . . . may be as much of a trap for the innocent as the ancient laws of Caligula." United States v. Cerdiff, 344 U.S. 174, 176.2

1. Introduction

   Indecent acts with another3 and other military crimes involving indecency-indecent acts with a child under sixteen-years old,4 indecent exposure,5 indecent language,6 and sending obscene material in the mails7-present an uncertain standard of potentially criminal conduct. They present no clear standard of sexual conduct for Soldiers to adhere to, nor do they present a clear standard of proscribed conduct for military attorneys to prosecute. Further, military cases attempting to define indecency or explain the bounds of proscribed indecent conduct fail to establish either a comprehensible definition of the word indecent, or a consistent framework to apply facts to the elements of these military offenses. Persons subject to the Uniform Code of Military Justice (UCMJ) lack a clear differentiation between permissible adult, consensual, noncommercial, private, sexual conduct, and conduct proscribed by the military indecency offenses. Consequently, they make decisions regarding this kind of sexual conduct uncertain of whether they may later be charged and convicted in a military court of an indecency offense.

   For both civilians and the military, the scope of lawfully criminalized sexual conduct changed with the U.S. Supreme Court's landmark decision in Lawrence v. Texas.8 In Lawrence, the Court's decision finds what is apparently a fundamental liberty interest in the privacy of adult consensual, noncommercial, private sexual conduct. Lawrence calls into question the constitutionality of any criminal code that bans this manner of personal conduct.9 The Lawrence decision likely invalidates the military's criminalization of adult, consensual sodomy10 on constitutional grounds. Consequentially, indecent-acts convictions that rely on the

   illegality of sodomy to meet the elements of indecent acts with another, will also fail. The "separate society" theory articulated in Parker v. Levy11 should not limit Lawrence's impact on military cases. It is difficult to conceive of a special military need, or legitimate linkage between adult, consensual, noncommercial, private sexual conduct, and either good order and discipline12 or service credibility. Accordingly, after Lawrence, the military may not impose a different criminal standard for this private sexual conduct than that which applies to other citizens.

   Recent cases in the Court of Appeals for the Armed Forces (CAAF) have reduced the scope of conduct proscribed by the indecency offenses13 and suggest a subtle change in the military law of indecency. These cases demonstrate the CAAF's acceptance that contemporary military standards, and not those of overly strait-laced fact finders must measure the definition of indecency. These CAAF decisions, coupled with the implications of Lawrence v. Texas, suggest that the CAAF will exercise even greater scrutiny of indecency cases in the future, and that military prosecutors should exercise caution when charging a minor indecency offense as part of a larger case.

2. Indecency Is Incomprehensively Defined by the Military Courts

   1. Do the Array of Terms Used to Define "Indecency" Add Anything to Understanding What Conduct the Indecency Offenses Actually Proscribe?

      Perhaps the first problem in prosecuting indecent conduct is establishing a cogent definition of the word "indecent". Military courts attempting to provide clarity to the meaning of the word "indecent" have only a circular definition of indecency that includes few words of common understanding14 to assist them in their effort. Justice Stewart

      may have been correct in describing the task of precisely defining obscenity (a term closely related to indecency) as "trying to define the undefinable."15 Nevertheless, as the terms indecent and obscene specifically appear in the elements of indecency offenses, the justice system requires cogent definition of these terms.

      Military judges define indecent acts as "that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but which tends to excite lust and deprave the morals with respect to sexual relations."16 Similarly, indecent language is defined as "grossly offensive to modesty, decency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or disgusting nature, or its tendency to incite lustful thought. Language is indecent if it tends reasonably to corrupt morals or incite libidinous thoughts. . . [and] must violate community standards."17 Military courts have found the test to determine if language is criminally indecent "lies in whether the particular language is calculated to corrupt morals or excite libidinous thoughts."18 Various court decisions attempting to pin down the meaning of these definitions expose a circularity problem in the list of adjectives used to modify and illuminate the meaning of indecent. One military court, in apparent frustration, found that "[t]he term 'lascivious' is synonymous with 'lewd' or 'indecent' and inclusion of the latter adjectives in addition to the former adds nothing . . . ."19 The Supreme Court found simply that "[i]ndeed, 'lascivious' has been defined along with obscene and lewd, as signifying that form of immorality which has relation to sexual impurity."20 From these cases, it is clear that indecency is largely defined not by an explanation, but by a

      string of synonyms providing little guidance on what specific conduct is meant to be included within the definition.

      Military courts have also determined the word "obscene" to be synonymous with indecent.21 The Supreme Court's test for obscenity is "whether to the average person, applying contemporary community standards, the dominant theme . . . taken as a whole appeals to the prurient interest."22 The military refines the Court's definition of "obscene" explaining that the "applicable and relevant community standards . . . are those of the military community"23 and are to be judged "according to the average person in the military community as a whole, rather than the most prudish or tolerant."24

      Military courts are by no means alone in struggling to provide a cogent definition of the conduct or material actually described by the words "indecent" and "obscene." An Ohio municipal court identified that "[u]nder the statute defining lewdness, as including any indecent or obscene act, the words indecent and obscene add nothing to broaden the concept of lewdness, but are simply modifying adjectives."25 Struggling with this same concept, a Kentucky court found that "the word indecent includes anything which is lewd or lascivious, obscene or grossly vulgar, unbecoming, unseemly, or unfit to be seen or heard."26 The opinion generally expressed by courts appears to be that the words indecent, obscene, lewd, lascivious, and prurient, all describe the same thing with no meaningful difference between them.

      All of these definitions and tests rely on a series of adjectives that are hardly helpful in actually understanding what the principal terms indecent and obscene describe. None of these words-lewd, lascivious, prurient, etc.-provide any clarity to the bounds of the conduct meant to be criminalized by the words indecent and obscene. In defining these words, courts might just as well, and probably to better effect, resort to

      the adjective "dirty." This effort provides precious little guidance on what conduct is actually proscribed by the indecency offenses. One must seriously question what the average military person considers appealing to the "prurient interest," and even this must assume that the average military person has in mind any definition of the word prurient. A further serious question is whether courts-martial panel members, selected because of their, "education, training, experience, length of service, and judicial temperament";27 or military judges as fact finders, can ever fairly represent the standards of the average person in the military community.28

      The best to be gleaned from the numerous judicial efforts to define the words indecent and obscene is that they describe some form of sexual behavior of which courts do not approve. Justice Stewart's famous quote-"I know it when I see it"29-is probably the best, albeit entirely subjective, description of the gauge used to determine whether a given action is indecent or obscene. Unfortunately, great disparity undoubtedly exists between different individuals, including military prosecutors and judges in how they apply this gauge to the conduct of others. The remainder of Justice Stewart's famous quotation should also be instructive to fact finders who may be tempted to convict any scurrilous conduct charged as indecent, "and the [movie banned by the state as obscene] is not that."30

   2. How Have Courts Actually Illuminated the Difficult Definition of Indecency?

      Military courts, attempting to apply the difficult definition of indecency to charged misconduct must determine when sexually related conduct is sufficiently offensive to warrant the label indecent or obscene and, consequently, be worthy of a court-martial conviction. As a starting point...