Sex Offenses Category Archives — Page 4 of 9 — Court-Martial Trial Practice Blog Published by International Military Lawyer

A chilling thought for all Air Force sexual assault trials?

December 23, 2016 | The Law Office of Philip D. Cave

“We thus readily conclude that ex parte communications between a military judge and an SVC are generally proscribed.”

Yes, inexplicably, it was necessary for the Air Force Court of Criminal Appeals (AFCCA) to decide such an issue, as part of deciding what impact, if any, SVC’s ex parte communications had in a trial–a chilling thought.

In United States v. Turner, (an Air Force case) the SVC decided to have a little confab with the military judge before trial, allegedly about administrative matters–until you read the facts.

Supreme Court grants of interest to military justice practitioners

October 29, 2016 | The Law Office of Philip D. Cave

Packingham v. North Carolina is the case of Lester Packingham, a North Carolina man who became a registered sex offender after he was convicted, at the age of 21, of taking indecent liberties with a minor. Six years after Packingham’s conviction, North Carolina enacted a law that made it a felony for registered sex offenders to access a variety of websites, from Facebook to The New York Times and YouTube. Packingham was convicted of violating this law after a police officer saw a Facebook post in which Packingham celebrated, and gave thanks to God for, the dismissal of a traffic ticket. The justices today agreed to review Packingham’s contention that the law violates the First Amendment.

Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

In Esquivel-Quintana v. Lynch, into an area of law called by Prof. Berman, as “crimmigration” – the intersection of immigration and criminal law. The petitioner in the case, Juan Esquivel-Quintana, was a lawful permanent resident of the United States in 2009, when he was charged with violating a California law that makes it a crime to have sexual relations with someone under the age of 18 when the age difference between the two people involved is more than three years; he had had consensual sex with his 16-year-old girlfriend when he was 20 and 21 years old. The federal government then sought to remove Esquivel-Quintana from the United States on the ground that his conviction constituted the “aggravated felony” of “sexual abuse of a minor.” The lower courts agreed with the federal government, but now the Supreme Court will decide.

Federal Register items of interest for SAPR issues

September 27, 2016 | The Law Office of Philip D. Cave

32 CFR Part 105 Sexual Assault Prevention and Response (SAPR) Program Procedures; Final Rule, of 27 September 2016, 81 FR 66424.

This rule contains amendments to an interim final rule published in the Federal Register on April 11, 2013, which provided guidance and procedures for the SAPR Program. This included establishing the processes and procedures for the Sexual Assault Forensic Examination (SAFE) Kit; establishing the multidisciplinary Case Management Group (CMG), providing guidance on how to handle sexual assault; and establishing minimum program standards, training requirements, and requirements for the DoD Annual Report on Sexual Assault in the Military. This rule adds amendments from the National Defense Authorization Act (NDAA) for Fiscal Year 2016, which contains a provision that preempts state laws that require disclosure of personally identifiable information (PII) of the adult sexual assault victim or alleged perpetrator to local or state law enforcement. This interim final rule implements this provision with respect to care sought at DoD Installations.

81 FR 66185, of 27 September 2016.

Check the warrant

September 18, 2016 | The Law Office of Philip D. Cave

Check the warrant, or in the military the search authorization.

The recent decision of the Army Court of Criminal Appeals in a government appeal tells you why it’s important to check the warrant.

In United States v. Gurzynski, the court had before it a government appeal of a military judge’s decision to suppress evidence of a computer media search.

New NMCCA cases worth the read

August 12, 2016 | The Law Office of Philip D. Cave

The NMCCA has issued two significant opinions this week, one of which is worth the read while the United States prosecution of Bowe Bergdahl continues.

United States v. Solis, __ M.J. ___ (N-M Ct. Crim. App. 2016). The case presents discussion of continuing issues relating to the nature of the proof and member (jury) instructions in military sexual assault cases. These types of cases, especially where alcohol is involved present complex challenges to the military defense counsel.

Article 120(b)(3)(A) of the UCMJ is unconstitutional because the language “incapable of consenting to the sexual act because she was impaired by . . . alcohol” is unconstitutionally vague.

Don’t do it, but according to ACCA it may not be a crime

July 6, 2016 | The Law Office of Philip D. Cave

Is it an indecent exposure offense under UCMJ art. 120, to show someone a digital picture of your own genitals?

In a published opinion in United States v. Williams, __ M.J. __, No. 20140401 (A. Ct. Crim. App. Mar. 30, 3016), the Army Court of Criminal Appeals split 2-1 in deciding the case. The court holds that the offense of indecent exposure in violation of Article 120(n) (2006) and 120c(c) (2012) does not include showing a person a photograph or digital image of one’s genitalia.

That’s the BLUF.

Military Law Review-WTR

July 1, 2016 | The Law Office of Philip D. Cave

There are a couple of interesting items in Vol. 224, MIL. L. REV.

MILITARY JUSTICE INCOMPETENCE OVER COMPETENCY DETERMINATIONS, by Major David C. Lai. This is relevant to me because I have an appellate case where there are issues with the client’s current competency and there were at trial.

ALWAYS ON DUTY: CAN I ORDER YOU TO REPORT CRIMES OR INTERVENE? By Major Matthew E. Dyson. This is highly relevant in regard to the ongoing sexual assault issues and considerations of by-stander behavior.

Sexual assault and law of war-worth the read

May 29, 2016 | The Law Office of Philip D. Cave

Something here for the downrange SJA/BJA.

You’ll remember this:

Joseph Goldstein, U.S. Soldiers Told to Ignore Sexual Abuse of Boys by Afghan Allies, N.Y. Times (Sept. 20, 2015),http://nyti.ms/1KrOuSM.

Borderline personality disorder

May 27, 2016 | The Law Office of Philip D. Cave

Compulsive lying, or mythomania, can be common in people with Borderline Personality Disorder.

ClearviewTreatment, Borderline Personality Treatment.

Diagnosed, suspected?

All too common, and potentially applicable to military investigators

May 9, 2016 | The Law Office of Philip D. Cave

The Guardian reports, Detective criticised for ‘getting too close’ in alleged rape case, 9 May 2016.

A senior judge has criticised a police detective and the Crown Prosecution Service for their handling of an accusation of gang rape after the case against four young men collapsed just as their trial was due to begin.

Judge Jamie Tabor QC said DC Ben Lewis of Gloucestershire police had got too close to the complainant and did not understand his job properly.