UCMJ Art. 127 Extortion

In United States v. Brown, 67 M.J. 147 (C.A.A.F. 2009), the accused (an Army Sergeant), his wife, and the victim (an Army Private First Class) were involved in a consensual sexual relationship and the accused was in possession of a videotape depicting some of their sexual acts.

When the victim wanted to end the relationship, the accused threatened to disclose the tape's contents unless she stayed with him. After she hung up the phone, he called back and threatened to give the tape to her command. He then informed her that he would provide the tape as long as she had sex with him on the following Monday, and monthly thereafter while they remained in Korea. When she refused, he again threatened to release the tape to her command and then called her continuously over the next several days.

The victim ultimately informed the events to her chain of command. In relevant part, the accused was found guilty of extortion under Art. 127. The specification alleged that "with intent unlawfully to obtain an advantage, to wit: sexual relations, [the accused] communicate[d] to [PFC RA] a threat to expose to other members of the military their past sexual relationship and to use his rank, position, and connections to discredit her and ruin her military career."

The issue before the Court was was the facts charged in the specification legally sufficient to constitute extortion under Article 127, UCMJ? The CAAF found that the specification in the case was legally sufficient. The specification first describes the "advantage" that the accused attempted to receive: sexual relations with the victim. The MCM provides guidance in pleading and proving the advantage: "[T]he advantage . . . sought should be described in the specification." Additionally, "[a]n intent to make a person do an act against that person's will is not, by itself, sufficient to constitute extortion."

This specification did more than just allege that the accused sought to have the victim engage in an act against her will. It stated that he intended to "obtain an advantage" by seeking to have her engage in sexual relations with him. The specification also described the threat the accused communicated in an attempt to obtain the stated advantage: the threat to disclose their past sexual relationship in a manner that would harm the victim's military career. The specification was sufficient to state the offense of extortion.

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