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Tim Bilecki

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 a 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that minor is also the victim: an Air Force case, United States v. Conway, 40 M.J. 859, 862 (A.F.C.M.R.1994); and an unpublished NMCCA case, United States v. Harris, No. NMCCA 9901587, 2003 CCA LEXIS 269, *3 (N.M.Ct.Crim.App.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.

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