UCMJ indecent exposure and the preemption doctrine

United States v. Marschalek, No. ACM S32776 (A.F. Ct. Crim. App. Jan. 16, 2026).

1. Charges and Sentence

Special Court-Martial, RAF Lakenheath, United Kingdom.

Sentence.

• Bad-conduct discharge

• Confinement for two months

• Reduction to E-1

Charges:

• Charge I: Indecent exposure, violations of Article 120c, UCMJ, 10 U.S.C. § 920c (three specifications; two later withdrawn)

• Charge II: Indecent conduct in violation of Article 134, UCMJ, 10 U.S.C. § 934 (two specifications; one withdrawn)

Pretrial Agreement: Appellant agreed to plead not guilty to Charge I (remaining specifications) and guilty to the amended specification of Charge II (indecent conduct). The government agreed to withdraw and dismiss Charge I specifications with prejudice.

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2. Issue Presented

The central legal question framed by the court was:

Whether the government was precluded under the preemption doctrine from prosecuting Appellant for indecent conduct under Article 134, UCMJ, because that conduct was fully covered by Article 120c, UCMJ, which specifically criminalizes indecent exposure.

Put differently: Did Article 120c “preempt” the Article 134 charge?

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3. Analysis of the Opinion

a. Preemption Doctrine: Legal Framework

The court reiterated that preemption prohibits prosecuting conduct under general Article 134 when Congress has “occupied the field” with a detailed, specific offense (e.g., indecent exposure under Article 120c). The doctrine turns on two questions:

1. Congressional intent to limit prosecution of specific misconduct to a specialized article; and

2. Whether the charged Article 134 offense consists of a residuum of elements of the specific statutory offense.

The court confirmed controlling precedent that a guilty plea neither waives nor forfeits a preemption challenge because it implicates subject matter jurisdiction.

b. Application to Marschalek

Congressional Intent:

• Article 134, UCMJ, covers general misconduct “of a nature to bring discredit upon the armed forces.”

• Article 120c is the enumerated article covering indecent exposure, which Congress intended to specifically criminalize with an explicit mens rea (intentional conduct).

• Historically, indecent exposure was once prosecuted under Article 134 but was deliberately moved into specific punitive articles (Article 120 → Article 120c). This legislative evolution demonstrates an intent to occupy the field of indecent exposure with Article 120c.

Residuum of Elements:

• Both offenses included similar elements regarding the underlying conduct.

• The critical difference was mens rea: Article 120c expressly requires intent, whereas Article 134 does not require intent.

• The court declined to consider the terminal element of Article 134 (“nature to bring discredit”) in the residuum analysis, consistent with governing precedent.

Conclusion:
The court held that charging Appellant with indecent conduct under Article 134 for what was essentially indecent exposure (already covered by Article 120c) violated the preemption doctrine. As a result, the Article 134 specification was legally infirm and subject to dismissal.

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4. Primary Law Used

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Conclusion and Cave & Freeburg Insight

In United States v. Marschalek, the Court of Criminal Appeals applied the established preemption doctrine to set aside an Article 134 conviction that impermissibly duplicated a specific punitive article (Article 120c) by eliminating an essential element (mens rea) of the substantive offense. This decision illustrates the careful statutory analysis required when a servicemember’s plea agreement involves overlapping offenses.

At Cave & Freeburg, our team regularly litigates complex pretrial and appellate issues, including preemption, jurisdictional challenges, and proper application of the UCMJ. We possess deep experience navigating multifaceted statutory interpretation disputes in courts-martial and appellate proceedings, ensuring that charges and convictions rest on legally sound foundations.

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This article was prepared with the assistance of artificial intelligence tools and reflects the independent professional judgment of Cave & Freeburg, LLP. Attorneys of the firm reviewed and edited this content for legal accuracy prior to publication. This material is provided for informational purposes only and does not constitute legal advice.