Crime of Indecent Acts or Liberties With a Child

United States v. Sutton , 68 M.J. 455 (C.A.A.F. 2010) the accused, while home alone with his two step-daughters, asked his 10-year-old to lift her shirt and show him her chest, offering her $20 to do so. For this misconduct, the accused was charged under Article 134. At trial, the parties and military judge clashed over the nature of the offense. The government originally argued was an indecent liberties charge, but later changed its position, arguing that the charge alleged a solicitation offense. The accused was ultimately convicted of soliciting a minor to commit indecent acts or liberties with a minor. On appeal, the AFCCA affirmed without examining whether the charge properly alleged a solicitation offense.

The CAAF had to decide if an accused can be charged with soliciting a minor to engage in indecent liberties with a minor when the victim and person solicited are one and the same. The court held that the crime of indecent acts or liberties with a child contemplates two actors: the person engaged in indecent conduct and the victim. One cannot solicit a minor to be both the offender and the victim. Charging this particular misconduct as a solicitation fails to state an offense. The government used two cases to support its theory that an accused can solicit a minor to participate in indecent liberties where that minor is also the victim: an Air Force case, United States v. Conway, 40 M.J. 859, 862 (A.F.C.M.R.1994); and an unpublished NMCCA case, United States v. Harris, No. NMCCA 9901587, 2003 CCA LEXIS 269, *3 (N.M.Ct.Crim.App. Nov. 26, 2003). While the facts of these cases match those of the case before CAAF, neither addressed the issue at hand: whether it was possible for victims to commit offenses against themselves. In examining this case, CAAF considered the elements of both solicitation and indecent liberties with a child, and ruled in the negative.

If you are being charged with a sex crime then you should contact a military defense attorney from our law firm today.