Duck soup: recent developments in substantive criminal law
Introduction
Take two turkeys, one goose, four cabbages,
but no duck, and mix them together. After
one taste, you’ll duck soup for the rest of your
life. (2)
The past year presented a full menu of significant developments in military substantive criminal law. Some of these were full-course dinners, others only quick snacks, while a few may bring back memories of school cafeteria “mystery meat.” (3) From legislation amending the Uniform Code of Military Justice (UCMJ) in a manner not seen in almost two decades, to a dramatic pronouncement from the Supreme Court, to substantial holdings from the Court of Appeals of the Armed Forces (CAAF), the year has seen developments in widely divergent areas of substantive criminal law. The diversity of these activities, combined with the breadth of substantive criminal law itself, makes it difficult to categorize them into clear trends. (4) Instead, this article separately analyzes each of the significant developments in legislation and case law. In doing so, it points out potential issues and provides guidance to military justice practitioners.
First, the article addresses three legislative amendments to the UCMJ: the enactment of a new article punishing offenses against an unborn child; (5) the extension of the statute of limitations for child abuse crimes; (6) and the modification of the crime of drunken driving. (7) Next, the article examines a landmark case in which the Court overturned its own precedent and struck down a state statute criminalizing acts of homosexual sodomy on constitutional grounds. (8) The article also considers a Supreme Court case addressing the defeat of a conspiracy by government agents and its effect on the addition of co-conspirators. (9) Finally, the article analyzes the CAAF’s rulings from the past year in several areas of substantive criminal law, including general disorders and neglects, (10) sex crimes, (11) offenses against the administration of justice, (12) disobedience, (13) child pornography, (14) and the mistake of fact defense, (15) as well as the related matters of modification (16) and multiplicity. (17)
Legislative Changes to the UCMJ
Article 119a, UCMJ
During the past year, Congress passed two laws amending the UCMJ. Most recently, the Unborn Victims of Violence Act of 2004 (Laci and Connor’s Law) was signed into law by President Bush on 1 April 2004. (18) The Act created a new punitive UCMJ article–the first enumerated offense added by Congress in almost two decades–which will have a significant impact on certain prosecutions under the military justice system.
Article 119a creates additional liability for specified offenses that cause death or injury to an unborn child. (19) The underlying crimes covered by Article 119a are murder (Article 118); voluntary manslaughter (Article 119(a)); involuntary “misdemeanor manslaughter” (Article 119(b)(2)); (20) robbery (Article 122); maiming (Article 124); arson (Article 126); and assault (Article 128). (21) When an accused commits any of these offenses against an unborn child’s mother and thereby causes death or injury to the unborn child, he may be punished and convicted separately for both offenses. (22) The maximum punishment for violating Article 119a appears to be the same as if the resultant injury or death was inflicted on the unborn child’s mother; however, the death penalty is specifically excluded as an authorized punishment. (23)
Article 119a contains three specific exemptions for death or injury caused by a consensual abortion, by medical treatment, or by the mother. (24) Aside from these limitations, the scope of liability under Article 119a appears to be extraordinarily broad. (25) By its own terms, Article 119a requires no proof of any mental state of the accused, not even a negligent failure to know the unborn child’s mother is pregnant. (26) Apparently, the mens rea for the underlying offense is the only mental state required for liability. (27) Furthermore, the class of potential victims–unborn children–is broadly defined. (28)
Finally, the text of Article 119a is ambiguous in one respect. Although the article requires no intent to kill or injure, it specifically addresses an accused who intentionally kills or attempts to kill an unborn child. (29) Unfortunately, Article 119a does not clearly state how such an accused should be charged. (30) Absent future legislation clarifying this issue, it will likely remain unresolved until the CAAF conclusively decides what Congress intended. (31)
Article 43, UCMJ
In November 2003, Congress passed the National Defense Authorization Act for Fiscal Year 2004, which amended two existing UCMJ articles. (32) In Article 43, the Act extended the statute of limitations period for “child abuse offenses,” defined as physical or sexual abuse of a person under age sixteen, in violation of any of several specified articles of the UCMJ. (33) For these offenses, the limitations period was previously five years; it now runs until the child victim’s twenty-fifth birthday. (34) As amended, the article raises some important issues.