CAAF Summary Disposition (and missed opportunity): Motteler

"No. 20-0339/AR. U.S. v. Michael R. Motteler, Jr. CCA 20180512. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*
 
*  It is directed that the promulgating order be corrected by changing the finding to Specification 3 of the Charge from "Guilty" to "Not Guilty.""

CAAF granted to fix this typo, but not to address a rather interesting issue of statutory interpretation. Does the "intent" mens rea in the below offense apply only to the act element of exposure, or also to the act element of "indecent manner":

 “Any person subject to [the UCMJ] who intentionally exposes, in an indecent manner, the genitalia . . . is guilty of indecent exposure . . . .” UCMJ art. 120c(c).

"Indecent manner" is defined as "conduct that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.” UCMJ art. 120c(d)(6). This might have been construed to contain an implicit mens rea--after all, these loaded terms may carry some notion of intentionality--but the lower court instead effectively held that this was a strict liability element. The definition of indecent manner seems hopelessly vague, with an unclear mens rea. This could have been an opportunity for CAAF to clarify it. Maybe counsel did not raise this issue?

Brenner Fissell

EIC