United States v. Barber

23 M.J. 751, 1987 CMR LEXIS 49
CourtU S Air Force Court of Military Review
DecidedJanuary 13, 1987
DocketACM 25590
StatusPublished
Cited by1 cases

This text of 23 M.J. 751 (United States v. Barber) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Barber, 23 M.J. 751, 1987 CMR LEXIS 49 (usafctmilrev 1987).

Opinion

DECISION

LEWIS, Judge:

In United States v. Bolser, 22 M.J. 564 (A.F.C.M.R.1986) and United States v. Dale, 23 M.J. 598 (A.F.C.M.R.1986), issue certified, 23 M.J. 243 (1986), we held that a court-martial lacks subject matter jurisdiction over sexual offenses committed off a military installation by a service member against one of his own dependents. In the case at hand we must determine the applicability of our prior decisions in a somewhat different factual context.

The appellant pleaded guilty and was convicted of four specifications of sodomy in violation of Article 125, U.C.M.J. 10 U.S.C. § 925. Two of the specifications involved divers acts of sodomy with each of two sons occurring during a time period from May 1983 to February 1984 in family quarters at Fairchild Air Force Base, Washington. The third specification concerned an act of sodomy with the younger son in September 1984 at Easley, South Carolina. At the time of this occurrence the appellant was visiting his family while on leave from an unaccompanied assignment overseas. The last specification concerned an act of sodomy with the older son 11 months later, in August 1985, in family quarters at Wright-Patterson Air Force Base, Ohio. At trial, the military judge found subject matter jurisdiction as to all specifications. The issue in dispute is whether subject matter jurisdiction existed as to the act of sodomy with the younger son is Easley, South Carolina. We hold that it did not.

In Bolser and Dale, we distinguished United States v. Solorio, 21 M.J. 251 (C.M. A.1986), cert. granted, — U.S.-, 106 S.Ct. 2914, 91 L.Ed.2d 543 (1986), wherein the Court of Military Appeals found subject matter jurisdiction as to sexual offenses committed away from a military installation by a service member against the dependent children of fellow members of his unit. See also United States v. Clarke, 23 M.J. 519 (A.F.C.M.R.1986) (court-martial has subject matter jurisdiction of off-base rape by a service member against another member’s spouse). In Solorio, the Court recognized that “sex offenses against young children — offenses like those alleged in the charges against Solorio — have a continuing effect on the victims and their families and ultimately on the morale of any military unit or organization to which the family member is assigned. This continuing effect tends to establish service-connection.” 21 M.J. at 256. As we subsequently observed in Bolser, the consequences are not identical when the offense occurs within a service member’s own family:

In the case now before us, however, the victim’s parent was the offender. Although we can assume that discovery and prosecution of the crimes diminished the appellant’s morale and duty performance, the appellant suffered these results, not as a victim of the crime, but as an accused who faced conviction and punishment. Although the offenses reflect upon the appellant’s character and discipline, these are matters which have a greater tendency to justify in personam jurisdiction. The offenses, themselves, however, did not have an impact on or threaten discipline among the members of the military organization nor did the offenses threaten or impair the organization’s effectiveness.

22 M.J. at 568.

Therefore, we have declined generally to find a per se service-connection with respect to sexual offenses involving children. [753]*753While we recognize that such offenses, when discovered, result in understandable reactions of concern and revulsion within the community, we have distinguished the differing impacts occurring based on the identity of the alleged victims. The threat to morale and discipline is clear when the victims are the dependents of innocent service members. When the victims are a suspect service member’s own dependents, the revulsion is no less pronounced, but the perception of a direct threat to the military community at large is lacking. Of course, commanders would be loathe to allow a member who has sexually abused his dependents to remain a member of the organization, or of the military service involved for that matter. Those members who commit serious criminal activities of any type are generally not afforded a lengthy tenure once their derelictions come to light. However, the commission of criminal acts by military members, standing alone, is not sufficient to vest criminal jurisdiction. Certain demarcation lines have been drawn and continue to be refined at this stage in our military judicial history.

There are, admittedly, some persuasive reasons apparent from the record for our extending subject matter jurisdiction to the appellant’s act of sodomy at Easley, South Carolina. As a practical matter, we must assume that, if the military cannot assume jurisdiction over this offense, the appellant will not be tried for it in any forum. In this regard we note that a representative of the appropriate state prosecutor's office in South Carolina submitted a letter to Air Force legal authorities in which she stated that her office was not inclined to pursue a prosecution. Prosecution was deferred to the Air Force. This letter was dispatched some 22 months following the commission of the South Carolina offense and cited the problems which would be encountered because of the victim’s absence from the state’s jurisdiction. Chief Judge Everett’s opinion in Solorio, 21 M.J. at 256-257, indicates that the probable lack of prosecution by another authority may legitimately be considered as a factor favoring the exercise of court-martial jurisdiction.

A closely related factor is the interest to be served in trying all pending and similar charges against an accused at one time and in one forum. United States v. Scott, 21 M.J. 345 (C.M.A.1986); United States v. Lockwood, 15 M.J. 1 (C.M.A.1983). Both the appellant and the Government were vitally interested in handling all charges at one time in this case. This interest was manifest from the terms of a pretrial agreement entered into by the parties. It was specifically agreed that no further charges respecting sexual acts by the appellant with his two sons during the period within the statute of limitations would be referred to any subsequent court-martial. In furtherance of this agreement, appellant made no jurisdictional attack against the Easley, South Carolina, offense at the time of trial. However, all the mutually held wishes of both parties, regardless of how strongly expressed, will not vest subject matter jurisdiction where it does not otherwise exist. The act of sodomy at Easley, South Carolina, occurred when the appellant was on leave in a civilian environment far removed from his military unit. This offense occurred seven months following the end of the period of earlier offenses at Fairchild Air Force Base and 11 months prior to the last offense of sodomy charged at Wright-Patterson Air Force Base. The close relationship in time and place to offenses committed on an installation, which was critical to the Court of Military Appeals’ resolutions in Scott and Lockwood, is lacking. Given these circumstances, the Air Force cannot point to a sufficient impact on military discipline and effectiveness to justify the exercise of jurisdiction over the offense. Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975).

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Bluebook (online)
23 M.J. 751, 1987 CMR LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-barber-usafctmilrev-1987.