UNITED STATES v. ROCHA (2024)

During a health and comfort inspection of his Air Force dormitory room, Appellee was discovered to be in possession of an anatomically correct sex doll depicting a prepubescent girl. Upon questioning by Air Force Office of Special Investigations (AFOSI) agents, Appellee acknowledged that the doll was “representative of a real life human being” and admitted to penetrating the child sex doll with his penis on three separate occasions. A panel of members sitting as a general court-martial convicted Appellee of one specification of indecent conduct in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2018). The United States Air Force Court of Criminal Appeals (CCA) set aside and dismissed Appellee's Article 134 charge, holding that Appellee did not have fair notice that his conduct was criminally sanctionable. The Judge Advocate General of the Air Force (TJAG) subsequently certified one issue for this Court to review:

Whether the presidentially-enumerated Article 134, UCMJ, offense of indecent conduct provided Appellee with constitutionally-required fair notice that committing sexual acts with a child sex doll was subject to criminal sanction.

United States v. Rocha, 83 M.J. 275 (C.A.A.F. 2023) (certificate for review). We answer the certified issue in the affirmative, reverse the judgment of the CCA, and return the case to TJAG for remand to the CCA for further proceedings consistent with this opinion.

I. Background

While living in an on-base dormitory, Appellee purchased via the internet a childlike sex doll from a company in China. The doll was made of silicone, stood approximately four feet tall, and had characteristics of a prepubescent girl, including anatomically correct oral, anal, and vaginal orifices and small breasts. The doll also came equipped with a speaker which would emit “moaning” sounds when activated. After receiving the doll, Appellee named it “Adele” and proceeded to clothe it, talk to it, watch TV with it, and brush its hair.

Approximately three weeks after receiving the doll, Appellee's chain of command conducted a health and comfort inspection of his dormitory room and discovered the doll in Appellee's bed. During questioning by AFOSI agents, Appellee first suggested that he only engaged in nonsexual activities with the doll. However, upon further questioning, Appellee admitted to committing sex acts with the doll on three separate occasions—to include the first night he received it—by penetrating it vaginally and anally with his penis. Appellee was subsequently charged with indecent conduct for engaging in “sexual acts with a sex doll with the physical characteristics of a female child.”

At trial, Appellee filed a motion to dismiss and argued that the indecent conduct specification of Article 134 did not state an offense because the conduct it alleged as criminal—engaging in sexual acts with a sex doll with the physical characteristics of a female child—“constitutes private consensual sexual activity,” was not accompanied by any aggravating factors, and was therefore constitutionally protected pursuant to Lawrence v. Texas, 539 U.S. 558 (2003). The military judge denied the defense motion, determining that the indecent conduct specification stated an offense because it alleged the essential elements of the offense and provided protection against double jeopardy. He further articulated that whether an aggravating circumstance exists is a factual determination that must be made by the trier of fact.

The military judge gave an instruction to the panel members sitting as a general court-martial that in order to determine that the alleged conduct was indecent, the panel must find beyond a reasonable doubt the following aggravating circumstance: “[That] the accused engaged in sexual acts with a sex doll, with the physical characteristics of a female child, to simulate sexual acts with a minor.” The panel subsequently convicted Appellee of one specification of indecent conduct in violation of Article 134. 1 The military judge sentenced Appellee to a bad-conduct discharge, ninety days of confinement, forfeiture of all pay and allowances, and reduction to E-1. The convening authority took no action on the findings and approved the sentence.

II. The CCA Appeal

On appeal to the CCA, Appellee raised eight assignments of error, including that he did not have constitutionally required fair notice that private sexual acts with a childlike sex doll was subject to criminal sanction. 2 The CCA agreed with Appellee and stated that his actions did not include any of the “hallmarks of criminally indecent conduct” prevalent in the case law—namely, “(1) [the involvement of] minors or others who do not consent or may not easily either refuse or manifest lack of consent; (2) prostitution, contraband, or other precursor or concurrent criminal conduct; and (3) [sexual conduct] in public, or in an open and notorious manner.” Rocha, 2022 CCA LEXIS 725, at *15-16, 2022 WL 17730741, at *6 (footnotes omitted). Further, the CCA stated that it had failed to identify “anything in the [Manual for Courts-Martial, United States (MCM)], federal law, military case law, military custom and usage, military regulations, or even state law that criminalized the type of conduct for which [Appellee] was convicted.” Id. at *16, 2022 WL 17730741, at *7. Because the CCA found there was no fair notice, the lower court did not address the remaining assignments of error, set aside the findings and sentence, and dismissed the charge and specification with prejudice.

III. Standard of Review

Despite Appellee's argument to the contrary, this Court must use a plain error standard of review when reviewing the applicable rulings of the military judge in this case. Appellee argues that this Court should engage in de novo review because of the constitutional claim he made at the trial level and because the certified issue changed the scope of the question from notice to a question of statutory interpretation. Appellee's arguments are unpersuasive.

First, the certified issue pertains to whether Appellee had “fair notice” that his sexual conduct with the doll was criminal. Second, trial defense counsel failed to raise the issue of fair notice at trial, thus forfeiting the issue on appeal. United States v. Warner, 73 M.J. 1, 3 (C.A.A.F. 2013) (reviewing defects in charges—such as claims of lack of fair notice—for plain error “[w]hen not objected to at trial”). And third, we note that Appellee conceded in his brief to the CCA that the correct standard of review is plain error where “defects in the charges, including fair notice,” were not objected to at trial, and the case law he cites before this Court to support his contention that the certified issue is one of statutory interpretation, thereby requiring de novo review, is not on point.

Under plain error review, Appellee has the burden of demonstrating that: “(1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of [Appellee].” United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012). However, in those instances where a clear or obvious error rises to the level of a constitutional violation, the burden shifts to the government to “show that the error was harmless beyond a reasonable doubt.” United States v. Tovarchavez, 78 M.J. 458, 462-63 (C.A.A.F. 2019).

IV. Applicable Law

The Fifth Amendment prohibits the deprivation of “life, liberty, or property” without due process. U.S. Const. amend. V. The Supreme Court has stated that due process requires a statute to provide “a person of ordinary intelligence” fair notice of prohibited conduct. United States v. Williams, 553 U.S. 285, 304 (2008). The “touchstone” of fair notice “is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant's conduct was criminal.” United States v. Lanier, 520 U.S. 259, 267 (1997).

The statute under which Appellee was charged is Article 134, known as the “General Article.” Article 134, among other things, criminalizes service discrediting conduct by servicemembers. United States v. Merritt, 72 M.J. 483, 487 (C.A.A.F. 2013). “[A]s a matter of due process, a service member must have ‘fair notice that his conduct [is] punishable’ before he can be charged under Article 134 with a service discrediting offense. This Court has found such notice in the MCM․” United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003) (second alteration in original) (internal quotation marks omitted) (quoting United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998)).

In the MCM, the President has enumerated a non-exhaustive list of offenses with which a servicemember can be charged under Article 134. One of these presidentially enumerated offenses under Article 134 is indecent conduct. MCM pt. IV, para. 104.b. (2019 ed.). The President listed the elements of this offense as follows:

(1) That the accused engaged in certain conduct;

(2) That the conduct was indecent;

(3) That under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces; (ii) was of a nature to bring discredit upon the armed forces; or (iii) [both].

Id.

The President further defined “[i]ndecent” as: “[T]hat 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.” MCM pt. IV, para. 104.c.(1). The President also specified that “[i]ndecent conduct includes offenses previously proscribed by ‘indecent acts with another’ except that the presence of another person is no longer required.” MCM pt. IV, para. 104.c.(2) (emphasis added).

V. Discussion

In order to address the certified issue, this Court must first answer the general question of whether the presidentially enumerated offenses in Part IV of the MCM can alone provide fair notice to servicemembers that certain conduct is criminal. If so, we then must address the specific question of whether the presidentially enumerated offense of indecent conduct under Article 134 provided Appellee with fair notice that committing sexual acts with a childlike sex doll was subject to criminal sanction.

A. Presidentially Enumerated Elements and Fair Notice

Appellee argues that presidentially enumerated elements in Part IV of the MCM cannot alone provide fair notice to servicemembers because they are not part of the statutory language of the UCMJ and thus are not “law.” Appellee supports this claim by correctly asserting two important points. First, the President's enumerations and explanations are not binding on this Court. See United States v. Miller, 67 M.J. 87, 89 (C.A.A.F. 2008) (“Although MCM explanations of offenses are not binding on this Court, they are generally treated as persuasive authority.”). Second, the President does not have the power to create an offense under the UCMJ. See United States v. McCormick, 12 C.M.A. 26, 28, 30 C.M.R. 26, 28 (1960) (“The President's power as Commander-in-Chief does not embody legislative authority to provide crimes and offenses.”).

Appellee's first point, however, fails to adequately account for the special importance within the military justice system of the President's enumerations. This Court has stated that “[p]residential narrowing of the ‘general’ article through examples of how it may be violated is part of why Article 134, UCMJ” is not considered unconstitutionally void for vagueness. United States v. Jones, 68 M.J. 465, 472 (C.A.A.F. 2010) (citing Parker v. Levy, 417 U.S. 733, 753-56 (1974)). And importantly, it is this narrowing of the breadth of Article 134 through these presidential enumerations that provides servicemembers with fair notice of what conduct is subject to criminal sanction under the statute. This point is supported by Parker. There, the Supreme Court “noted that interpretations by this Court, military authorities, as well as the examples in the [MCM] ․ have limited the broad reach of the literal language of Article 134,” thus providing fair notice to servicemembers. Vaughan, 58 M.J. at 31 (citing Parker, 417 U.S. at 753-54).

In terms of Appellee's second point, the President is not creating new offenses with his enumeration of examples of Article 134 offenses. There is a distinction between the ability to create offenses—thus adding new articles to the UCMJ—and the ability to enumerate elements that narrow the construction of an existing criminal statute. See Wilson, 76 M.J. at 6 (the President's power “does not extend to Part IV of the MCM”). The former is not within the President's power while the latter is, through his constitutional authority as commander-in-chief. U.S. Const. art. II, § 2, cl. 1; see United States v. Davis, 47 M.J. 484, 486 (C.A.A.F. 1998) (deferring to the presidentially enumerated language of Article 128, UCMJ, 10 U.S.C. § 928 (1994), “[b]ecause there is no contradiction with the Code, and in deference to the President's authority and the hierarchy of rights”).

B. Indecent Conduct Under Article 134

Having determined that presidentially enumerated elements standing alone can provide fair notice to servicemembers, we now turn to whether the elements of indecent conduct under Article 134 provide fair notice that committing sexual acts with a childlike sex doll is subject to criminal sanction.

The President has indicated that Article 134 criminalizes “conduct [that is] indecent” and defines “[i]ndecent” as “that 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.” MCM pt. IV, para. 104.c.(1). To be sure, this language is somewhat archaic, but that does not mean that it is impermissibly arcane. As the Supreme Court stated in Lanier, the “touchstone” of our analysis must simply be to determine “whether the statute ․ made it reasonably clear at the relevant time that the [accused's] conduct was criminal.” Lanier, 520 U.S. at 267 (emphasis added). In other words, absolute precision is not the standard. Rather, statutes must strike the fine balance of being “sufficiently definite to give notice of the required conduct to one who would avoid its penalties” with the requisite broadness to adequately “deal with untold and unforeseen variations in factual situations.” Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340 (1952).

It is true that in light of our changing society, the boundary between what sexual conduct is “indecent” and what sexual conduct is not “indecent” may be so amorphous as to leave a servicemember of ordinary intelligence without sufficient notice of whether a specific act he or she wishes to engage in is subject to criminal sanction under the UCMJ. That, however, is not the case here. Simply stated, the elements and accompanying definition of “indecent” provide servicemembers with fair notice that the specific act of penetrating with one's penis the anal and vaginal orifices of a lifelike sex doll with the physical characteristics of a prepubescent child is, indeed, prohibited under Article 134.

The conclusion that Appellee had fair notice that his conduct was criminally actionable is further supported by the fact that closely similar conduct is proscribed by statute. For example, under Article 134, knowingly possessing an “obscene visual depiction of a minor engaging in sexually explicit conduct” constitutes a child pornography offense. MCM pt. IV, para. 95.c.(4). Therefore, it would require no significant leap of logic for a servicemember of ordinary intelligence to conclude that knowingly possessing a visual depiction of a minor in the form of a lifelike child sex doll with vaginal and anal orifices, and then engaging in sexually explicit conduct with that child sex doll, would similarly be criminally actionable. This is particularly so because the President has clarified in the MCM that the possession of obscene images may be criminally actionable even when they “may not actually involve minors, but either resemble or are staged to appear so.” Id. pt. IV, para. 95.c.(1) (emphasis added).

Moreover, although not dispositive, the facts in this case paint a convincing portrait that Appellee actually knew he was dealing with an item that closely resembled a minor and that his conduct would be considered “indecent” by a person of ordinary intelligence. 3 For example, Appellee acknowledged that the doll was “representative of a real-life human being” and that it was “obvious” that the sex doll he had purchased looked like a child. Further, Appellee had the doll shipped to an off-base address because “it's obvious it's not good to have something like that on a military base.” Although “the fact that a servicemember may be ashamed of certain conduct is not sufficient by itself to equate to due process notice that the conduct was subject to criminal sanction,” Merritt, 72 M.J. at 487, Appellee's own statements provide additional context for the conclusion that he knew that engaging in sexual acts with a childlike sex doll was illegal and that other servicemembers of ordinary intelligence also would perceive his behavior as criminally sanctionable.

Based upon this analysis, we conclude that the presidentially enumerated language of indecent conduct under Article 134 was sufficient by itself to provide fair notice that Appellee's conduct was criminally sanctionable. It therefore is irrelevant that the Government cannot point to state or federal laws that existed at the time of the incident which criminalized possession or sex with a child sex doll. Accordingly, we hold that the presidentially enumerated elements and definitions of Article 134 provide fair notice to servicemembers of ordinary intelligence that engaging in sexual acts with a lifelike child sex doll falls squarely within the President's definition of indecent conduct. 4

VI. Judgment

The decision of the United States Air Force Court of Criminal Appeals is reversed. The case is returned to the Judge Advocate General of the Air Force for remand to the United States Air Force Court of Criminal Appeals with instructions to: (1) determine whether Appellee had a constitutionally protected liberty interest under Lawrence v. Texas, 539 U.S. 558 (2003), to privately engage in sexual activity with a childlike sex doll; and (2) address any other issues previously raised by Appellee before the United States Air Force Court of Criminal Appeals that were mooted by the lower court's prior decision to overturn the conviction.

FOOTNOTES

1.   The members acquitted Appellee of an unrelated specification of receiving child pornography in violation of Article 134.

2.   As he did at the trial court level, Appellee argued at the CCA that “private masturbation with a doll is constitutionally protected conduct” under Lawrence, 539 U.S. 558, and United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). United States v. Rocha, No. ACM 40134, 2022 CCA LEXIS 725, at *2, 2022 WL 17730741, at *1 (A.F. Ct. Crim. App. Dec. 16, 2022) (unpublished). Since the CCA's opinion considered the issue of fair notice to be dispositive, it did not reach this issue. Id. at *17 n.19, 2022 WL 17730741, at *7 n.19.

3.   Indeed, one of the noncommissioned officers who first discovered the doll in Appellee's bed testified that he found it so lifelike that, when he first saw it, he “gasped a little bit [and] stepped back.” He further stated that “at the time [I saw the doll] my granddaughter was 3 years old and it looked just like her to me or very similar.”

4.   Appellee devotes a substantial portion of his brief to asserting that his behavior is constitutionally protected under Lawrence, 539 U.S. 558, and its companion case in this Court, Marcum, 60 M.J. 198. However, this argument conflates the issue of whether Appellee had fair notice that his conduct met the listed elements of the enumerated offense of indecent conduct with the entirely separate issue of whether Appellee's conduct was constitutionally protected. Moreover, it is not the role of this Court to decide this matter prior to the CCA employing its factfinding authority. See Article 67, UCMJ, 10 U.S.C. § 867 (2018); Article 66, UCMJ, 10 U.S.C. § 866 (2018). Therefore, we remand the case to the CCA with instructions to determine, in the first instance, whether Appellee's behavior is constitutionally protected.

Chief Judge OHLSON delivered the opinion of the Court.

Chief Judge OHLSON delivered the opinion of the Court, in which Judge SPARKS and Judge MAGGS joined. Judge HARDY filed a separate dissenting opinion. Judge JOHNSON filed a separate dissenting opinion, in which Judge HARDY joined in part.