                       UNITED STATES, Appellee

                                   v.

                    Alexander N. WILSON, Private
                        U.S. Army, Appellant

                            No. 06-0870

                       Crim. App. No. 20040227
       United States Court of Appeals for the Armed Forces

           Argued April 30, 2007, and October 17, 2007

                      Decided February 25, 2008

RYAN, J., delivered the opinion of the Court, in which ERDMANN
and STUCKY, JJ., joined. EFFRON, C.J., and BAKER, J., each
filed a separate dissenting opinion.

                                Counsel

For Appellant: Captain Ryan M. Suerth and Captain Frank Ulmer
(argued); Lieutenant Colonel Steven C. Henricks, Major Tyesha E.
Lowery, and Major Sean F. Mangan (on brief); Colonel Christopher
J. O’Brien, Colonel John T. Phelps II, Major Fansu Ku, and Major
Billy B. Ruhling II.

For Appellee: Major Tami L. Dillahunt and Captain Adam S. Kazin
(argued); Colonel John W. Miller II and Lieutenant Colonel
Michele B. Shields (on brief); Captain Elizabeth G. Marotta.

Amicus Curiae for Appellant: Captain Robert Blazewick, JAGC,
USN, Captain Robert Taishoff, JAGC, USN, Lieutenant Commander
Thomas P. Belsky, JAGC, USN, Lieutenant Kathleen Kadlec, JAGC,
USN, and Lieutenant Brian L. Mizer, JAGC, USN (on brief) -- for
the Navy-Marine Corps Appellate Defense Division.

Military Judge:   Debra Boudreau




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Wilson, No. 06-0870/AR



      Judge RYAN delivered the opinion of the Court.

      A special court-martial, composed of a military judge alone,

convicted Appellant, pursuant to his pleas, of failing to go to

an appointed place of duty, disobeying a commissioned officer,

carnal knowledge, and sodomy with a child under sixteen, in

violation of Articles 86, 90, 120, and 125, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 886, 890, 920, 925 (2000).

The sentence adjudged by the special court-martial and approved

by the convening authority included a bad-conduct discharge,

reduction to the lowest enlisted grade, and confinement for

eighty days.    The United States Army Court of Criminal Appeals

summarily affirmed the findings and sentence.   United States v.

Wilson, No. ARMY 20040227 (A. Ct. Crim. App. May 15, 2006)

(unpublished).

       On Appellant’s petition, we granted review of the following

issue:

       WHETHER THE ARMY COURT ERRED BY AFFIRMING THE FINDINGS
       AND SENTENCE WHERE THE MILITARY JUDGE, IN ACCEPTING
       APPELLANT’S GUILTY PLEA TO SODOMY WITH A CHILD UNDER
       16, INSTRUCTED APPELLANT THAT HIS HONEST AND
       REASONABLE MISTAKE OF FACT DID NOT CONSTITUTE A
       DEFENSE.1

After hearing argument, this Court specified the following issue

for a second round of briefing and argument and invited all




1
    64 M.J. 438 (C.A.A.F. 2007).
United States v. Wilson, No. 06-0870/AR



government and defense appellate divisions to file briefs as

amici curiae:

       IS THE DEFENSE OF MISTAKE OF FACT AS TO AGE AVAILABLE
       WITH RESPECT TO A CHARGE OF SODOMY WITH A CHILD UNDER
       THE AGE OF 16, ARTICLE 125, 10 U.S.C. § 825?2

       The military judge determined at trial that there was no

such defense.    The Army Court of Criminal Appeals agreed in a

summary disposition.    We agree.   There is no mistake of fact

defense available with regard to the child’s age in the Article

125, UCMJ, offense of sodomy with a child under the age of

sixteen.

                              Background

       The facts, as they pertain to the granted and specified

issues, need only be briefly recounted.    The providence inquiry

and stipulation of facts show that on or about September 13,

2003, through October 20, 2003, Appellant had sexual intercourse

and engaged in sodomy at least once a day with TS.    TS was, in

fact, fifteen years old during this time.    But TS told Appellant

at their first meeting on September 13, 2003, that she was

eighteen years old.    The record presents conflicting evidence as

to whether or when Appellant discovered TS’s actual age.

       The charged Article 125, UCMJ, offense alleged that

Appellant did “on divers occasions . . . commit sodomy with

[TS], a child under the age of 16 years.”    At trial, the

2
    65 M.J. 254 (C.A.A.F. 2007).

                                    3
United States v. Wilson, No. 06-0870/AR



military judge informed Appellant that, “it’s also no defense if

you were ignorant or misinformed as to [TS]’s true age.    It’s

the fact of her age not your knowledge or belief that affixes

criminal responsibility.”   Appellant asserts that the military

judge’s statement on this point was incorrect, and argues that

based on this incorrect statement of the law his plea should be

set aside.

                             Analysis

     Generally, the analysis as to whether a mistake of fact

defense is available turns on the question whether a mistake

with respect to the fact in question negates a required mental

state essential to the crime charged.   Wayne R. LeFave,

Substantive Criminal Law § 5.6 (2d ed. 2003).     The answer to

that question, in turn, is a matter of statutory construction,

and, when necessary, an “‘inference of the intent of Congress.’”

Staples v. United States, 511 U.S. 600, 605 (1994) (quoting

United States v. Balint, 258 U.S. 250, 253 (1922)).    The statute

may specifically list a mens rea for a fact, and the mens rea

may differ for different facts that constitute the crime.    See

Carter v. United States, 530 U.S. 255, 268-69 (2000); Liparota

v. United States, 471 U.S. 419, 423 n.5 (1985).

     Even where the statute, by its terms, does not provide a

mens rea with respect to a particular fact, courts may read in




                                 4
United States v. Wilson, No. 06-0870/AR



an intent in order to effectuate “the background rule of the

common law favoring mens rea.”   Staples, 511 U.S. at 619 n.17.

Under either of these two scenarios, Rule for Courts-Martial

(R.C.M.) 916(j)(1) allows a mistake of fact defense.

     Nor do we question that even where the statute does not

require mens rea with respect to a particular fact, whether

expressly or impliedly, the legislature or the executive may, as

a matter of policy, explicitly add a mistake of fact defense.

See Article 120, UCMJ; R.C.M. 916(j)(2) (providing a mistake of

fact as to age defense when the sexual conduct involves a person

at least twelve, but less than sixteen, years old).3   In other

words, even though the government need not prove any mens rea

with respect to a particular fact essential to the crime

charged, a mistake of fact defense may be created by the

appropriate policymaker.




3
  We note that Article 120, UCMJ, and the R.C.M. 916(j)
elucidation of the Article 120, UCMJ, mistake of fact defense,
as applicable at the time of Appellant’s case, have since been
amended. See National Defense Authorization Act (NDAA) for
Fiscal Year 2006, Pub. L. No. 109-163, § 552, 119 Stat. 3136,
3257-63 (West) (to be codified as amended at 10 U.S.C. § 920);
Exec. Order No. 13,447, 72 Fed. Reg. 56,179 (Oct. 2, 2007).
These changes do not affect our analysis in this case as both
the 2000 and 2006 version of Article 120, UCMJ, contain a
mistake of fact defense as to the age of a child when the
criminality of the conduct in question turns on the child being
older than twelve and younger than sixteen. See Article 120(d),
UCMJ, 10 U.S.C. §920 (2000); Article 120(o), UCMJ, 2006 NDAA
§552, 119 Stat. at 3258-59.

                                 5
United States v. Wilson, No. 06-0870/AR



     The charge and specification in this case setting forth the

violation of Article 125, UCMJ, required the Government to

allege and prove that Appellant:       (1) engaged in sodomy with TS,

and (2) that TS was under the age of sixteen.      See Manual for

Courts-Martial, United States pt. IV, para. 51.e. (2005 ed.)

(MCM) (listing facts that increase the maximum punishment);

R.C.M. 307(c)(3) (stating that such facts need to be alleged).

While the conduct charged under Article 125, UCMJ, in this case

remains criminal, an act of sodomy in private between consenting

adults may not be, absent some other fact.      See Lawrence v.

Texas, 539 U.S. 558, 578 (2003) (reasoning that the

constitutionally protected sodomy did “not involve minors”);

United States v. Marcum, 60 M.J. 198, 203-08 (C.A.A.F. 2004)

(noting Lawrence’s exceptions for cases involving minors, or

persons “‘who might be injured or coerced or who are situated in

relationships where consent might not easily be refused’” in

upholding Article 125, UCMJ, as applied in a case of sodomy

within the chain of command) (citation omitted).

     It is because the criminal nature of the conduct in this

case may depend upon the fact of age that we undertake the mens

rea analysis with respect to that fact, and not because we

otherwise hold that mens rea must exist for every fact that

results in increased punishment in every offense.      Thus, the

question is whether there is mens rea with respect to the fact


                                   6
United States v. Wilson, No. 06-0870/AR



that TS was under sixteen:   whether Appellant had to know that

she was under sixteen.   If not, the only remaining question is

whether this Court should nonetheless provide a mistake of fact

defense with respect to age, even where Appellant’s knowledge of

that fact is irrelevant, and even where the appropriate

policymakers have declined to do so.

                                I.

     Given the language of Article 125, UCMJ, and the MCM, the

manner in which almost every other criminal jurisdiction in the

United States deals with the issue of knowledge with respect to

age in sexual offenses involving children, and the studied

inaction with respect to such a defense to sodomy with a child

by Congress and the President, we decline to find or imply a

mistake of fact defense with respect to the age of the child

under Article 125, UCMJ.4

                                A.

     The mens rea with respect to a fact essential to a charged

offense is a “question of statutory construction.”   Staples, 511

U.S. at 604.   We begin with the text of the statute in question.

4
 Both parties cite this Court’s opinion in United States v.
Zachary, 63 M.J. 438 (C.A.A.F. 2006), to support the position
that a mistake of fact defense exists with respect to the age of
the child for the offense of sodomy with a child under sixteen.
In dicta, Zachary opined that such a defense would be available.
Id. at 442. However, Zachary was not a case involving an
Article 125, UCMJ, sodomy charge. With that issue now presented
squarely to this Court, we hold otherwise.


                                 7
United States v. Wilson, No. 06-0870/AR



Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992).

Article 125, UCMJ, states:

     (a) Any person subject to this chapter who engages in
     unnatural carnal copulation with another person of the
     same or opposite sex or with an animal is guilty of
     sodomy. Penetration, however slight, is sufficient to
     complete the offense.

     (b) Any person found guilty of sodomy shall be
     punished as a court-martial may direct.

The text of Article 125, UCMJ, simply does not specifically

address the age of the child for the aggravated offense of

sodomy with a child, let alone include an explicit intent or

knowledge requirement for that offense.

     But the description of the offense in Article 125, UCMJ,

does not end our textual analysis.   Pursuant to Article 36,

UCMJ, 10 U.S.C. § 836 (2000), and Article 56, UCMJ, 10 U.S.C. §

856 (2000), the President may set different maximum authorized

punishments for an offense based on specific facts.   See Loving

v. United States, 517 U.S. 748, 769-70 (1996) (recognizing that

Congress has delegated to the President the authority to address

modes of proof and punishment that a court-martial may direct);

United States v. Kelson, 3 M.J. 139, 140-41 (C.M.A. 1977)

(stating that the President’s authority under Article 36, UCMJ,

“is limited only by the requirement that the rules be consistent

with the Constitution or other laws”) (citations omitted).     In

the case of Article 125, UCMJ, the President added, inter alia,



                                8
United States v. Wilson, No. 06-0870/AR



a factor that may be pled and proven to increase the punishment

–- the age of the child.5    MCM pt. IV, para. 51.b., 51.e.

        As noted supra at pp. 6-7, we undertake a mens rea analysis

with respect to the fact of age in this case, because it is that

fact that likely makes the charged conduct criminal in this

case.    But the President’s addition of the fact of the age of

the child also does not contain an explicit mens rea.    See MCM

pt. IV, para. 51.b., 51.e. (requiring that the act was done with

a child who had attained the age of twelve, but was under the

age of sixteen).

                                  B.

        The want of an explicit mens rea with respect to the age of

the child does not end the inquiry.    Even in the absence of an

express intent in the text, we construe the crime charged in

light of “background rules of the common law.”    Staples, 511

U.S. at 605 (citing United States v. United States Gypsum Co.,

438 U.S. 422, 436-37 (1978)).    A bedrock precept and assumption

of the criminal law is that “an injury can amount to a crime

only when inflicted by intention.”     Morissette v. United States,

342 U.S. 246, 250 (1952).    In construing the UCMJ and the MCM,

therefore, the assumption is that there is no wish, as a general

rule, to punish otherwise lawful conduct absent a vicious will.

5
  In this case, Appellant was charged with, and pled guilty to,
the factor added by the President in the MCM and there is no
question that R.C.M. 307(c)(3) was complied with.

                                   9
United States v. Wilson, No. 06-0870/AR



See Staples, 511 U.S. at 606 (“Relying on the strength of the

traditional rule, we have stated that offenses that require no

mens rea generally are disfavored, and have suggested that some

indication of congressional intent, express or implied, is

required to dispense with mens rea as an element of a crime.”)

(citations omitted).

     Statutes such as Articles 120 and 125, UCMJ, criminalize

sexual conduct that, but for some factor such as the age of the

accused’s partner, may otherwise be lawful.    Therefore, it

initially appears as if this Court would be within its charter

to imply a mens rea with respect to age under either article and

to determine that Congress and the President intended not simply

that the child be under a certain age, but also that a defendant

knew or reasonably should have known that fact.    For if a mens

rea existed with respect to the fact of age, a mistake of fact

defense would inexorably follow.     See R.C.M. 916(j)(1).

                                C.

     But the Supreme Court has noted exceptions to the common

law assumption otherwise auguring in favor of mens rea.      Most

often, the Supreme Court has determined that when the offense is

deemed to be one directed at protecting the “public welfare” no

mens rea is required.   See United States v. Freed, 401 U.S. 601,

607 (1971); United States v. Dotterweich, 320 U.S. 277, 281

(1943); United States v. Behrman, 258 U.S. 280, 287 (1922);


                                10
United States v. Wilson, No. 06-0870/AR



United States v. Balint, 258 U.S. 250, 253 (1922).   In the

context of discussing why “public welfare offenses” do not

require a mens rea, the Supreme Court has noted another,

separate common law exception to the mens rea requirement -- the

age of the child in sexual offenses involving children.6   See

Morissette, 342 U.S. at 251 n.8 (“Exceptions [to a mens rea

requirement] came to include sex offenses, such as rape, in

which the victim’s actual age was determinative despite

defendant’s reasonable belief that the girl had reached age of

consent.”); United States v. X-Citement Video, Inc., 513 U.S.

64, 72 n.2 (1994) (reiterating distinction described in

Morissette); see also United States v. Wilcox, 487 F.3d 1163,

1174 (8th Cir. 2007) (recognizing the same and noting that

federal courts have uniformly rejected the argument that there

is a constitutional right to the defense that the defendant made

a reasonable mistake as to the child’s age); see also Catherine

L. Carpenter, On Statutory Rape, Strict Liability, and the

Public Welfare Offense Model, 53 Am. U. L. Rev. 313 (2003)

6
 In our view it is incorrect to characterize sex offenses
involving children as “public welfare” offenses per se. An
Article 125, UCMJ, sodomy offense is not a “public welfare”
offense. Such offenses typically serve a regulatory function,
have relatively minor penalties, and almost never involve
imprisonment. See Staples, 511 U.S. at 616-18; Balint, 258 U.S.
at 251-53. Article 125, UCMJ, is not regulatory in nature, and
the maximum authorized punishment includes twenty years
imprisonment. See Francis Bowes Sayre, Public Welfare Offenses,
33 Colum. L. Rev. 55, 72-74 (1933).


                               11
United States v. Wilson, No. 06-0870/AR



(cataloging and criticizing jurisdictions that allow an absence

of mens rea with respect to the child’s age, thus making a

mistake of fact defense unavailable); Sayre, supra note 6, at

72-74 (recognizing that a mistake of fact defense is not

available with respect to the age of the child in sex offenses

that are dependent on the child being below a specified age,

even though the offenses are not public welfare offenses).

     Of course, the Supreme Court, while opining in dicta that

the historic practice is that the age of the child falls outside

the normal mode of analysis and is akin to the public welfare

model, has never so held.   And it may well be, as some argue,

see, e.g., People v. Hernandez, 393 P.2d 673 (Cal. 1964);

Carpenter, supra, at 313, that the absence of a mens rea with

respect to age in child sex offenses is an anachronism, and that

sexual activities with children should be treated like any other

crime.   But the convention recognized by the Supreme Court is

mirrored by the actual treatment of mens rea with respect to the

age of the child in sexual offenses involving children in other

jurisdictions, and the different treatment of the same between

Articles 120 and 125, UCMJ.   Convinced that creation of such a

defense under Article 125, UCMJ, is a decision for policymakers,

and not this Court, we decline to read a mens rea with respect

to the age of the child into Article 125, UCMJ.




                                12
United States v. Wilson, No. 06-0870/AR



                                D.

     This view is supported by the practice in other

jurisdictions.   Absent the affirmative creation of either an

actual mens rea requirement with respect to the age of the child

or a mistake of fact defense even where proof of mens rea is not

otherwise required by the appropriate policy-making body, an

age-based mistake of fact defense has been found by only four

courts.   Hernandez, 393 P.2d at 673; Perez v. State, 803 P.2d

249 (N.M. 1990); State v. Elton, 680 P.2d 727 (Utah 1984); State

V. Guest, 583 P.2d 836 (Alaska 1978).   But Perez, Elton, and

Guest have been superseded by statute, leaving California as the

only jurisdiction currently operating under a judicially created

mistake of fact defense.   See Alaska Stat. § 11.41.445(b)

(2007); N.M. Stat. Ann. § 30-9-11 (West 2007); Utah Code Ann. §

76-2-304.5 (2007).

     Twenty-two states have no provision in their statutory

framework for a mistake of fact defense when the sexual activity

involves children:   there is neither a mens rea with respect to

age nor an explicit defense.   All but one of those states’

courts have declined to recognize a mistake of fact defense with

respect to the age of the child.7


7
  Miller v. State, 79 So. 314, 315 (Ala. Ct. App. 1918); see also
Ala. Code § 13A-6-62 (2007) (commentary); State v. Blake, 777
A.2d 709, 713 (Conn. App. Ct. 2001); Pritchard v. State, 2004
Del. LEXIS 61, at *4, 2004 WL 249419, at *1-*2 (Del. Feb. 4,

                                13
United States v. Wilson, No. 06-0870/AR



     In a very few states, a mens rea is explicitly required

with respect to the age of the child.   See, e.g., Ohio Rev. Code

Ann. § 2907.04(A) (West 2007) (prosecution must prove knowledge

or recklessness with respect to age of a child between the ages

of thirteen and sixteen).   Under these statutory schemes, the

government must prove not only the child’s age, but also that

the defendant knew or should have known the child’s age.

     In another twenty states, while the government need not

prove the defendant knew or reasonably should have known the age

of the child, a legislatively created mistake of fact defense

does exist, is explicitly outlined in a statute, and most often


2004); Haywood v. State, 642 S.E.2d 203, 204 (Ga. Ct. App.
2007); State v. Buch, 926 P.2d 599, 607 (Haw. 1996); State v.
Stiffler, 788 P.2d 220, 222 (Idaho 1990); State v. Tague, 310
N.W.2d 209, 212 (Iowa 1981); Walker v. State, 768 A.2d 631, 632
(Md. 2001); Commonwealth v. Montalvo, 735 N.E.2d 391, 393-94
(Mass. App. Ct. 2000); People v. Cash, 351 N.W.2d 822, 826
(Mich. 1984); Collins v. State, 691 So. 2d 918, 923 (Miss.
1997); State v. Navarrete, 376 N.W.2d 8, 11 (Neb. 1985); Jenkins
v. State, 877 P.2d 1063, 1067 (Nev. 1994); Goodrow v. Perrin,
403 A.2d 864, 867-68 (N.H. 1979); State v. Anthony, 516 S.E.2d
195, 199 (N.C. Ct. App. 1999); Reid v. State, 290 P.2d 775, 784
(Okla. Crim. App. 1955); State v. Yanez, 716 A.2d 759, 764 (R.I.
1998); Toomer v. State, 529 S.E.2d 719, 721 (S.C. 2000); State
v. Fulks, 160 N.W.2d 418, 420 (S.D. 1968), overruled on other
grounds by State v. Ree, 331 N.W.2d 557, 562 (S.D. 1983);
Johnson v. State, 967 S.W.2d 848, 849-50 (Tex. Crim. App. 1998);
State v. Searles, 621 A.2d 1281, 1283 (Vt. 1993); Rainey v.
Commonwealth, 193 S.E. 501, 502 (Va. 1937). California is the
only state that currently reads a mistake of fact defense into a
statute that does not include one. Hernandez, 393 P.2d at 673.
But the courts have still noted that sex crimes with children
are treated as strict liability crimes when the child is below a
certain age. See Cal. Penal Code §§ 261.5, 288 (West 2007);
People v. Olsen, 685 P.2d 52, 57 (Cal. 1984); see also United
States v. Gomez-Mendez, 486 F.3d 599, 603-04 (9th Cir. 2007).

                                14
United States v. Wilson, No. 06-0870/AR



is available only for sexual acts with children above a certain

age.8

        The latter model is mirrored both in a charged violation

for carnal knowledge and other sexual offenses under Article

120, UCMJ, and the federal civilian analog, 18 U.S.C. § 2243(d)

(2000).    Neither requires that the government prove the accused

knew the age of the child.    But both contain an explicit mistake

of fact defense, limited to children above a certain age only.

Article 120(o), UCMJ, 2006 NDAA § 552, 119 Stat. at 3258-59; 18

U.S.C. § 2243(d).

        The remaining seven states and the District of Columbia

have taken the prudential step of explicitly forbidding a

mistake of fact defense with regard to sex crimes involving




8
  Ariz. Rev. Stat. Ann. § 13-1407 (2007); Ark. Code Ann. § 5-14-
102 (2007); Colo. Rev. Stat. Ann. § 18-1-503.5 (West 2007); 720
Ill. Comp. Stat. Ann. 5/12-17 (West 2007); Me. Rev. Stat. Ann.
tit. 17-A §§ 253, 254 (2007); Minn. Stat. Ann. § 609.344 (West
2007); Mo. Ann. Stat. § 566.020 (West 2007); Mont. Code Ann. §
45-5-511 (2007); N.M. Stat. Ann. § 30-9-11 (West 2007); N.D.
Cent. Code § 12.1-20-01 (2007); Ohio Rev. Code Ann. § 2907.02
(West 2007); Or. Rev. Stat. Ann. § 163.325 (West 2007); 18 Pa.
Cons. Stat. Ann. § 3102 (West 2007); Tenn. Code Ann. § 39-11-502
(West 2007); Wash. Rev. Code Ann. § 9A.44.030 (West 2007); W.
Va. Code Ann. § 61-8B-12 (West 2007); Wyo. Stat. Ann. § 6-2-308
(2007). Three states make the mistake of fact defense available
in all cases involving minors. Alaska Stat. § 11.41.445(b)
(2007); Ind. Code Ann. § 35-42-4-3(c) (West 2007); Ky. Rev.
Stat. Ann. § 510.030 (West 2007).



                                  15
United States v. Wilson, No. 06-0870/AR



children, thereby foreclosing litigation of the sort raised in

the instant case.9

     In those jurisdictions that have departed from the

historical treatment of sexual offenses involving children and

permitted a mistake of fact defense with respect to the age of

the child, the changes have almost always been made by the

appropriate policymakers, not the judiciary.

                                 II.

     The parties argue that this Court should assume a mistake

of fact defense with respect to the age of the child under

Article 125, UCMJ, by reference to Article 120, UCMJ, R.C.M.

916, and the federal statute, 18 U.S.C. § 2243(d).    All of the

provisions are instructive, but not for the reasons articulated

by the parties.

                                 A.

     Like the sodomy charge in this case, carnal knowledge under

Article 120, UCMJ, and “sexual acts” under 18 U.S.C. § 2243

criminalize consensual sexual activity based on the age of the

child.    In 1996, Congress included an explicit mistake of fact

defense as to age in Article 120, UCMJ, mirroring a similar


9
  D.C.   Code 22-3011 (2007); Fla. Stat. Ann. § 794.021 (West
2007);   Kan. Stat. Ann. § 21-3202 (2007); La. Rev. Stat.
Ann. §   14:80C (2007); N.J. Stat. Ann. § 2C14-5.c. (West
2007);   N.Y. Penal Law § 15.20 (McKinney 2007); Utah Code
Ann. §   76-2-304.5 (2007); Wis. Stat. Ann. § 939.43 (West
2007).

                                 16
United States v. Wilson, No. 06-0870/AR



defense in 18 U.S.C. § 2243, but did not provide one in Article

125, UCMJ.   MCM, Analysis of Punitive Articles app. 23 at A23-

14.   And the same year the President included a mistake of fact

defense as to age in R.C.M. 916(j)(2) for Article 120, UCMJ, but

did not provide one for Article 125, UCMJ.    MCM, Analysis of the

Rules for Courts-Martial app. 21 at A21-64.    There is no reason

to assume that this inaction by Congress and the President, who

have had numerous opportunities to address the differences

between the various provisions, somehow requires this Court read

a mistake of fact defense into Article 125, UCMJ.10

      The parties argue that the similarity of the statutes,

Congress’s desire to conform military law to federal civilian

law, and the fact that the conduct charged under Article 125,

UCMJ, in this case would ostensibly fall within 18 U.S.C. § 2243

in the civilian world, require us to read the defense into

Article 125, UCMJ, to harmonize the statutory scheme and

effectuate legislative intent.11    These arguments have no support

in the structure of the statutory scheme or legislative or

executive intent as expressed in the respective histories of the

10
   To the extent that constitutional challenges may be available
based on any differences between the MCM, Articles 120 and 125,
UCMJ, and 18 U.S.C. § 2243, the parties chose not to challenge
the constitutionality of Article 125, UCMJ, in this case.
11
   Of course, the delineated mistake of fact defense in both
Article 120, UCMJ, and 18 U.S.C. § 2243, would have been
unnecessary had there been a mens rea with respect to age either
explicit or latent in the statute. See R.C.M. 916(j)(1);
LeFave, supra, at § 5.6(a).

                                   17
United States v. Wilson, No. 06-0870/AR



different statutes and the MCM.    Moreover, the parties fail to

explain why, if Congress wished to conform Article 125, UCMJ, to

civilian practice, they did not simply amend the statute to

include age or a defense to age, thereby superseding the

President’s inclusion of age as a factor in the MCM, or why the

President did not amend R.C.M. 916(j), or MCM pt. IV, para. 51.,

to include a mistake of fact defense as to age.12

                                  1.

     First, where Congress intended to create a mistake of fact

defense with respect to the age of a child in a sexual offense

when a defendant’s knowledge of that fact was otherwise

irrelevant to the offense charged, it did so explicitly.

Articles 120 and 125, UCMJ, and 18 U.S.C. § 2243, deal with

offenses of a similar nature, and each criminalizes behavior

that could otherwise be lawful, but for some factor such as age.

And, as conceded by the parties, none of the three statutes

require the government prove that the accused knew the age of

the child.   Taking all three statutes together, it becomes clear

12
  It is suggested that the appropriate policy-making bodies may
have been reluctant to amend Article 125, UCMJ, because the
policy regarding homosexuals in the military is politically
sensitive. United States v. Wilson, __ M.J. ___ (9) (C.A.A.F.
2008) (Effron, C.J., dissenting). Taking that hypothesis as
true, and setting aside the fact that this case involves
heterosexual sodomy, the combination of the parties’ agreement
that the rule should be changed for policy reasons, with the
assumed fact that it has been difficult for elected officials to
effectuate that change, still does not permit this Court to make
a public policy determination by judicial fiat.

                                  18
United States v. Wilson, No. 06-0870/AR



that even though the government need only prove the fact of age,

and not that an accused knew or reasonably should have known

that fact, Congress nonetheless provided a mistake of fact

defense with respect to some ages and some sexual activities in

some instances, and not for all ages and all sexual activities

in all instances.

     The Supreme Court has consistently held that “‘[Where]

Congress includes particular language in one section of a

statute but omits it in another section . . . it is generally

presumed that Congress acts intentionally and purposely in the

disparate . . . exclusion.’”   Russello v. United States, 464

U.S. 16, 23 (1983) (citation omitted); see also Keene Corp. v.

United States, 508 U.S. 200, 208 (1993) (finding that the use of

a phrase in one part of a statutory scheme “only underscores our

duty to refrain from reading a phrase into the statute when

Congress has left it out” of another section).   In light of this

rule of construction, we decline to read a mistake of fact

defense as to the age of the child into Article 125, UCMJ.

                                2.

     Nor does legislative intent as expressed through

legislative action support a mistake of fact defense here.    The

parties argue, from the respective histories of Articles 120 and

125, UCMJ, that Congress intended to harmonize the legislative

scheme, but overlooked Article 125, UCMJ.   After reviewing the


                                19
United States v. Wilson, No. 06-0870/AR



history of both statutes, we fail to see support for this

position.   We must assume Congress understood the background

principles, discussed supra, regarding mens rea, statutory

construction, and the different treatment of mens rea with

respect to the fact of age in the context of child sex offenses.

Put succinctly, “Congress does not write upon a clean slate.”

United States v. Texas, 507 U.S. 529, 534 (1993) (citation

omitted).   In this case, we find no evidence that Congress

intended to abrogate the principle reflected in the practice of

the majority of jurisdictions that the crime of sodomy with a

child does not contain a mens rea with respect to the age of the

child or permit a mistake of fact defense absent legislative

action.    See Morissette, 342 U.S. at 251 n.8.

     Congress first revisited the statutory scheme pertaining to

sexual offenses involving children in the National Defense

Authorization Act (NDAA) for Fiscal Year 1996.    Congress added

an affirmative defense of mistake of fact for an Article 120,

UCMJ, offense committed against a person over the age of twelve

and under the age of sixteen to “conform military law to federal

civilian law,” but did not include a defense for sodomy.    S.

Rep. No. 104-112, § 532, at 243 (1995); H.R. Rep. No. 104-131, §

545, at 218 (1995); see 1996 NDAA Pub. L. No. 104-106, § 1113,

110 Stat. 186, 462 (codified as amended at 10 U.S.C. § 925

(1996)).


                                 20
United States v. Wilson, No. 06-0870/AR



        In 2005, as required by Congress, the Department of Defense

General Counsel submitted a report detailing proposed changes

regarding sexual offenses under the UCMJ.     See H.R. Rep. No.

108-767, § 571, at 111 (2004) (Conf. Rep.).     This report

explicitly requested that the mistake of age defense be removed

from possible defenses to carnal knowledge under Article 120,

UCMJ.    The report also requested that Article 125, UCMJ, be

brought in line with federal civilian law by requiring the

prosecution to prove that the act of unnatural copulation was

done by force.    The report did not suggest the inclusion of a

mistake of age defense to sodomy.      Dept. of Defense, Proposed

Amendments to the Uniform Code of Military Justice with Initial

DOD Draft of Complementary Proposed Changes to the Manual for

Courts-Martial (submitted to Congress on April 7, 2005),

available at http://www.dod.mil/dodgc/php/docs/HASCMeeting42105.

pdf.

        The House of Representatives did not accept the Department

of Defense recommendations.    Instead, it maintained the mistake

of fact with respect to age defense for carnal knowledge, and

passed an amendment to Article 120, UCMJ, that created a series

of graded offenses.    H.R. Rep. No. 109-89, § 555, at 332 (2005)

(amendment accepted in H.R. Rep. No. 109-360, § 552, at 703

(2005) (Conf. Rep.)).    Neither house of Congress proposed




                                  21
United States v. Wilson, No. 06-0870/AR



amendments to Article 125, UCMJ, despite significant amendments

to related provisions.

     Most recently, in the 2006 NDAA, Congress completely

rewrote Article 120, UCMJ.    §552, 119 Stat. at 3257-63.   As

currently enacted, Article 120, UCMJ, covers not only the

offenses of rape and carnal knowledge, but also, inter alia,

aggravated sexual assault of a child, aggravated sexual abuse of

a child, aggravated sexual contact with a child, and indecent

liberties with a child.   Id.    Congress retained a mistake of

fact provision in the new version of the statute where the

criminality of the conduct in question depended on the child

being less than sixteen years old, but over the age of twelve.

Id. at 3258-59.   Despite this major revision to a statute

applicable to many sexual offenses involving minors, sodomy was

not included within it, and again, no changes were made to

Article 125, UCMJ.   We decline to redraft Article 125, UCMJ, to

include a defense that Congress might have added, but did not.

                                  3.

     Nor is executive action to the contrary.    The Manual for

Courts-Martial has undergone four major amendments since R.C.M.

916(j)(2) added a mistake of age defense for the offense of

carnal knowledge in 1996.    MCM (1998 ed.); MCM (2000 ed.); MCM

(2002 ed.); MCM (2005 ed.).     And in 2007, R.C.M. 916(j)(2)

itself was amended to comport with the new version of Article


                                  22
United States v. Wilson, No. 06-0870/AR



120, UCMJ.   Exec. Order No. 13,447, 72 Fed. Reg. 56,179.   Again,

no corresponding provision was included for sodomy.

      While legislative or executive inaction is not dispositive,

the fact that neither Congress nor the President have acted with

respect to Article 125, UCMJ, or the MCM, while specifically

adding, and then maintaining, a mistake of fact defense with

respect to the age of the child for Article 120, UCMJ, cuts

against the suggestion that either Congress or the President

intended to harmonize the legislative scheme.

                                B.

      Finally, we note that Article 120, UCMJ, and R.C.M.

916(j)(2), provide a mistake of fact defense only for those acts

committed against a child who has “attained the age of twelve

years.”   Almost every legislature that has adopted a mistake of

fact defense, has taken a similar tack, making the defense

available only for children over a certain age.    See supra note

8.   There are obvious public policy reasons for, and sound

judgments behind, this approach.     But whether, and at what

point, the line should be drawn for a mistake of fact defense

with respect to age for the crime of sodomy with a child are

public policy decisions, not decisions for this Court.

                               III.

      Our conclusion that there is no mistake of fact defense as

to the child’s age for this Article 125, UCMJ, offense is


                                23
United States v. Wilson, No. 06-0870/AR



dispositive as to the originally granted issue.    “This Court

rejects a guilty plea only where the record shows a substantial

basis in law and fact for questioning a plea.    We review a

military judge’s decision to accept a guilty plea for an abuse

of discretion.”   United States v. Harrow, 65 M.J. 190, 205

(C.A.A.F. 2007) (citations omitted).     As Appellant’s guilty plea

is rooted in the military judge’s correct statement and

application of the law, Appellant’s guilty plea is provident.

                            Conclusion

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




                                24
United States v. Wilson, No. 06-0870/AR


     EFFRON, Chief Judge (dissenting):

     The majority concludes that an honest and reasonable

mistake as to the age of a sexual partner is not a defense to

the charge of sodomy with a person under the age of sixteen

years.   I respectfully disagree.   The availability of the

defense of mistake of fact as to age for such a sodomy charge is

consistent with the Manual for Courts-Martial and our Court’s

case law.

     The present appeal involves the providence inquiry for a

guilty plea.   The conclusion of the majority also would apply in

contested cases, as illustrated by the following example.     Two

young soldiers attend a party and meet members of the opposite

sex who identify themselves as college students.    In the course

of events, each couple develops a relationship that includes

consensual sexual contact.   Eventually, various details come to

the attention of the command, including facts indicating that

the relationships involve persons under the age of sixteen.

     Based on the nature of the sexual contact, one soldier is

charged with indecent acts with a child under the age of

sixteen, while the second soldier is charged with sodomy with a

child under the age of sixteen.     Manual for Courts-Martial,

United States pt. IV, paras. 51.f., 87.f. (2005 ed.) (MCM).      At

each trial, the soldier testifies that he did not know that the

other person was under the age of sixteen, describing the
United States v. Wilson, No. 06-0870/AR


circumstances of the initial meeting and other pertinent facts.

In the trial of the soldier charged with indecent acts with a

person under sixteen years, the military judge instructs the

court-martial that mistake of fact as to age is a defense, and

the members return a finding of not guilty on that charge.   In

the trial of the soldier charged with sodomy with a child, the

military judge declines to give the instruction and the members

return a finding of guilty.

     If the disparity in treatment of these offenses had been

prescribed expressly by Congress or the President, that would

settle the issue.   The disparity, however, is not required by

either the statutory or regulatory text that describes the

pertinent offenses.   Neither statute addresses the subject of

age, either as an element of the offense or as a defense.    See

Articles 125 and 134, Uniform Code of Military Justice (UCMJ),

10 U.S.C. §§ 925, 934 (2000).   The Manual provisions describing

the elements of each offense set forth the proscribed contact

with a person under the age of sixteen, but neither contains a

limitation on the defense of mistake of fact as to age.    See MCM

pt. IV, paras. 51.b., 87.b.

     The disparity would result not from the express treatment

of these offenses by Congress or the President, but from

judicial interpretations of the general mistake of fact defense

set forth by the President in Rule for Courts-Martial (R.C.M.)


                                 2
United States v. Wilson, No. 06-0870/AR


916(j)(1).   As a matter of judicial interpretation, the mistake

of fact defense in R.C.M. 916(j)(1) is available as to age when

the accused has been charged under Article 134, UCMJ, with

indecent acts with a person under the age of sixteen.    See

United States v. Zachary, 63 M.J. 438, 444 (C.A.A.F. 2006).

Under the majority opinion, however, the same defense would not

be available with respect to the charge of sodomy with a person

under the age of sixteen.



                   I.   THE MISTAKE OF FACT DEFENSE

     R.C.M. 916(j)(1) describes the circumstances in which a

person may defend against a charged offense on the basis of a

mistake of fact:

     Except as otherwise provided in this subsection,
     it is a defense to an offense that the accused
     held, as a result of ignorance or mistake, an
     incorrect belief of the true circumstances such
     that, if the circumstances were as the accused
     believed them, the accused would not be guilty of
     the offense. If the ignorance or mistake goes to
     an element requiring premeditation, specific
     intent, willfulness, or knowledge of a particular
     fact, the ignorance or mistake need only to have
     existed in the mind of the accused. If the
     ignorance or mistake goes to any other element
     requiring only general intent or knowledge, the
     ignorance or mistake must have existed in the
     mind of the accused and must have been reasonable
     under all the circumstances. However, if the
     accused’s knowledge or intent is immaterial as to
     an element, then ignorance or mistake is not a
     defense.




                                   3
United States v. Wilson, No. 06-0870/AR


     Under the rule, the military judge must decide whether the

claimed mistake goes to an element of the offense requiring

knowledge or intent.   If so, the defense applies.   If the

accused’s intent or knowledge is immaterial, then the defense

does not apply.

     In general, neither Congress nor the President has

restricted or otherwise regulated the application of the mistake

of fact doctrine with respect to specific offenses.    Congress

has addressed mistake of fact with respect to carnal knowledge,

providing a statutory mistake of fact defense as to age.      See

Article 120(d), UCMJ, 10 U.S.C. § 920(d) (2000).     Congress

recently added a number of other sexual offenses to Article 120,

UCMJ, and provided a statutory mistake of fact defense as to age

for certain offenses, including aggravated sexual assault,

aggravated sexual abuse, abusive sexual contact, and indecent

liberty.   Article 120(o)(2).   These amendments became effective

with respect to offenses occurring on or after October 1, 2007.

Exec. Order 13,447, 72 Fed. Reg. 56,179 (Oct. 2, 2007).    There

is no similar statutory provision with respect to sodomy.       See

Article 125, UCMJ.

     Prior to the enactment of Article 120(d), UCMJ, in 1996,

the President expressly addressed the mistake of fact defense

with respect to carnal knowledge.     See, e.g., MCM pt. IV, para.

45.c.(2) (1984 ed.).   The President, however, did not prescribe


                                  4
United States v. Wilson, No. 06-0870/AR


any guidance with respect to the application of the mistake of

fact defense to the offense of sodomy.    Id. at para. 51.

     In the current Manual, the President has provided specific

guidance as to the mistake defense with respect to a number of

offenses.   See, e.g., R.C.M. 916(j)(2); R.C.M. 920(e)(3)

(instructions on mistake of fact in carnal knowledge cases); MCM

pt. IV, para. 45.c.(2) (regulating defense of mistake of fact as

to age in carnal knowledge cases); id. at para. 19.c.(1)(d)

(regulating mistake defense in resisting apprehension cases);

id. at para. 25.c.(4) (regulating mistake defense in countersign

cases); id. at para. 43.c.(2)(b) (regulating mistake defense as

to transferred premeditation in murder cases); id. at para.

49.c.(18) (regulating mistake defense in check cases involving

insufficient funds); id. at para. 62.c.(4) (regulating mistake

of fact defense in adultery cases).   With respect to the new

statutory offenses under Article 120, paragraph 45.a.(o)(2) of

the Manual sets forth the mistake of fact defenses provided in

the statute.   Exec. Order 13,447, 72 Fed. Reg. 56,192.   The

present Manual, however, does not provide specific guidance on

the defense with respect to sodomy.   See MCM pt. IV, para. 51.

     In short, the offense of sodomy is like any other offense

under the UCMJ in which the mistake of fact defense has not been

regulated by Congress or the President.   A military judge must

decide at trial whether the defense is applicable, and an


                                 5
United States v. Wilson, No. 06-0870/AR


appellate court must decide whether the military judge ruled

correctly on the issue.



        II.   AVAILABILITY OF THE MISTAKE OF FACT DEFENSE
                AS TO AGE FOR THE OFFENSE OF SODOMY

                                A.

     To the extent that our Court has addressed the mistake of

fact defense as to age with respect to sodomy, we have done so

in dicta in cases in which the granted issue did not involve the

offense of sodomy.   See, e.g., United States v. Strode, 43 M.J.

29, 31 (C.A.A.F. 1995) (suggesting that the mistake of fact

defense as to age is not available in sodomy cases); Zachary, 63

M.J. at 442 (suggesting that the mistake of fact defense as to

age is available in sodomy cases).

     Although Zachary involved a different statute, it serves as

the most recent precedent regarding the application of the

mistake of fact defense in R.C.M. 916(j)(1) to an offense

involving a charge of sexual contact with a child when age is

not an element set forth in the statute, but in the Manual.    The

accused in Zachary was charged with indecent acts with a person

under the age of sixteen in violation of Article 134, UCMJ --

the general article -- a statute that does not expressly address

indecent acts, much less age.   As noted in Zachary, the

applicable Manual provision sets forth several elements



                                 6
United States v. Wilson, No. 06-0870/AR


describing the proscribed conduct and includes an element

requiring proof that the subject of the act was under the age of

sixteen.   63 M.J. at 441-42.   We concluded that age was an

element to which the mistake of fact defense would apply, and we

expressly rejected the contention that it was merely an

aggravating factor as to punishment.   Id. at 443-44.

     In the absence of any express restrictions or guidance from

Congress or the President regarding the availability of the

mistake of fact defense for sodomy, the responsibility for

determining whether the defense is available under R.C.M.

916(j)(1) rests with the judiciary.    Our decision in Zachary

offers persuasive guidance because the offense at issue in

Zachary -- indecent acts with a person under sixteen years -- is

similar in structure to the offense at issue in the present

appeal.    Compare MCM pt. IV, para. 87, with id. at para. 51.   As

in Zachary, age is an element of the offense of sodomy with a

child, not merely an aggravating factor as to punishment.

Zachary provides an appropriate judicial standard for

determining that an honest and reasonable mistake as to age

provides a defense to a charge of sodomy with a person under the

age of sixteen years.   We should adhere to that standard in the

present case.   In that regard, I agree with Judge Baker’s

statutory and regulatory analysis of Article 125, UCMJ, and MCM

pt. IV, para. 51.b.


                                  7
United States v. Wilson, No. 06-0870/AR


                                B.

      The legislative history of the 1996, 2005, and 2006

amendments to Article 120, UCMJ (rape and carnal knowledge), as

set forth in the majority opinion, does not require us to

abandon the Zachary standard.   The text of the article, both

before and after those amendments, expressly sets forth a

specific age of the sexual partner -- under sixteen years -- as

the basis for criminal liability.    By contrast, the text of

Article 125, UCMJ (sodomy), has never set forth the age of the

sexual partner as a legislative basis for criminal liability.

     The legislative history of the 1996 amendments, as set

forth in the majority opinion, makes no mention of Article 125

or sodomy.   The sole focus of the 1996 amendments was to conform

Article 120, dealing with rape and carnal knowledge, to the

treatment of age in similar federal civilian laws.   See S. Rep.

No. 104-112, § 532, at 243 (1995).   We cannot infer that

Congress had any focus on sodomy when it developed and passed

legislation amending the separate offense of carnal knowledge

under Article 120.

     With respect to the legislative history of the amendments

to Article 120 in 2005 and 2006, the majority opinion does not

identify any authoritative statement that would explain why

Congress did not address the subject of sodomy in the

legislation that amended other sexual offenses.   We are not


                                 8
United States v. Wilson, No. 06-0870/AR


simply confronted with congressional inaction, we are dealing

with congressional silence on the reasons for inaction.

     Congress has not enacted legislation to make age an element

of the offense of sodomy, nor has it made mistake of fact as to

age a statutory defense.   When we are dealing with an article of

the code in which age is not an element of the offense, such as

Article 125, we should exercise great caution in drawing

substantive inferences from congressional inaction.   The problem

with such speculation, particularly in the absence of

legislative history setting forth a reason for the inaction, is

that there are many reasons why Congress may not act on a

particular aspect of a legislative proposal.   If one were to

speculate with respect to Article 125, UCMJ, for example, such

speculation could include the possibility that congressional

inaction resulted from concern that amending the sodomy statute

would run the risk of reopening the highly contentious debate

that occurred in 1993 regarding sexual orientation in the

military.   See H.R. Rep. No. 103-200, at 287-90 (1993).    In the

circumstances of the present case, however, we need not rely on

speculation about this or any other reason for legislative

inaction.   The majority opinion does not establish that the

legislative record provides a sufficient foundation to permit

reliance on congressional inaction as a basis for deciding the

case before us.


                                 9
United States v. Wilson, No. 06-0870/AR

                                 C.

       In the course of its statutory analysis, the majority

opinion takes the position that “[w]hile the conduct charged

under Article 125, UCMJ, in this case remains criminal, an act

of sodomy in private between consenting adults may not be,

absent some other fact.”   United States v. Wilson, ___ M.J. ___

(7) (C.A.A.F. 2008) (citing Lawrence v. Texas, 539 U.S. 558, 578

(2003)).   In that context, the majority opinion offers an

interpretation of Article 125, a pre-Lawrence statute, based

upon the assumed outcome of future litigation regarding the

constitutionality of the statute as applied to certain private

sexual contact between consenting adults.   That is a question

that we expressly declined to answer in United States v. Marcum,

60 M.J. 198, 206-08 (C.A.A.F. 2004).

       The question before us involves the meaning of Article 125,

a statute unchanged since Congress enacted the UCMJ in 1950.

Congress may decide in the future to decriminalize consensual

private adult sodomy, or this Court may decide to hold the

statute unconstitutional as applied in certain circumstances.

The issue before us, however, is not the future scope of Article

125.   The issue before us is the present availability of a

mistake of fact defense under a statute, enacted more than

fifty-five years ago which, on its face, does not rely on age to

distinguish between criminal and non-criminal conduct.


                                 10
United States v. Wilson, No. 06-0870/AR

     In the present case, the Government and Appellant both

agree that the defense of mistake of fact as to age was

available.   Neither party has urged us to revisit Marcum, 60

M.J. 198, or otherwise reinterpret Article 125 or R.C.M.

916(j)(1).   In view of the availability of the defense under

R.C.M. 916(j)(1), as underscored by our treatment of a similar

offense in Zachary, 63 M.J. 438, we need not enter either the

constitutional thicket or the uncertainties of interpreting

congressional silence.




                                11
United States v. Wilson, 06-0870/AR


        BAKER, Judge (dissenting):

        I agree with the majority’s recognition of the traditional

rule that “[o]ffenses that require no mens rea generally are

disfavored . . . some indication of congressional intent,

express or implied, is required to dispense with mens rea as an

element of a crime.”    Staples v. United States, 511 U.S. 600,

606 (1994) (citation omitted).       I also agree with the majority’s

observation of the President’s exercise of the authority

delegated under Article 36, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 836 (2000), regarding Article 125, UCMJ, 10

U.S.C. § 925 (2000), in that “[t]he President’s addition of the

fact of the age of the child also does not contain an explicit

mens rea.”

        However, I respectfully dissent from the majority’s

application of these principles to the circumstances of this

case.    In my view, the majority focuses its attention on the

wrong questions.    The question presented is whether the

President, utilizing his authority under Article 36, UCMJ, has

made age an element of the offense of sodomy with a child under

sixteen, and if so, whether that element includes a mens rea

requirement.    What this case is not about is:    (1) whether

Congress has created a mistake of fact defense –- it has not;

(2) whether this Court can create a mistake of fact defense -–

it may not; or (3) the nature of the prevailing states
United States v. Wilson, 06-0870/AR


legislative practices toward strict liability.     Moreover, the

parties’ focus on United States v. Zachary, 63 M.J. 438

(C.A.A.F. 2006), does not address the President’s language as

provided in the Manual for Courts Martial, United States pt. IV,

para. 51.b. (2005 ed.) (MCM).

      There are two interpretive problems presented.    First, the

President, who is an appropriate policymaker to make such

choices, has listed age as an element of the crime of sodomy and

not merely as a sentence enhancer.     Id.   The elements of sodomy

set forth in the MCM are:

      b.    Elements.

      (1)    That the accused engaged in unnatural carnal
             copulation with a certain other person . . . .

      Id.    And as applicable:

      (2)    That the act was done with a child under the age of
             12[; or]

      (3)    That the act was done with a child who had attained
             the age of 12 but was under the age of 16[; or]

      (4)    That the act was done by force and without the consent
             of the other person.

Id.   Moreover, whether the paragraph subheading is dispositive

or not, age is tantamount to an element.     “[T]he relevant

inquiry is one not of form, but of effect -— does the finding

expose the defendant to greater punishment than that

authorized.”    Apprendi v. New Jersey, 530 U.S. 466, 494 (2000).

Indeed, the military judge advised the accused that age was an


                                   2
United States v. Wilson, 06-0870/AR


element of the offense.   Thus, this is not a situation where the

law is silent.   Rather, the MCM expressly includes age as an

element.   Therefore, the general rule in civilian practice is

not applicable in military practice where the President has in

fact “legislated” a further gloss onto the statutory language.

     Here the second problem arises.   Although it appears

certain that the drafters of the MCM provisions have listed age

as an element of the offense of sodomy, it is equally uncertain

what degree of mens rea this element was intended to bear.    This

ambiguity is reflected in the Government’s own concession that

the defense of mistake of fact applies.   It is also reflected in

the manner in which “the act” is set out in the elements.

     On the one hand, one can read the elements of the offense

so that the act in question is alone contained in the first

element –- “that the accused engaged in unnatural carnal

copulation.”   In this case, the other three elements are, in

effect, aggravating factual circumstances.   Indeed, this may

represent the better view.

     On the other hand, the second and third (as applicable)

elements can be read to state that “the act” is “unnatural

carnal copulation with a child under the age of [twelve or

sixteen].”   And, it would appear that the military practice is

to charge the offense of “sodomy with a child under [twelve or

sixteen]” and not merely “sodomy,” with an aggravating factor.


                                 3
United States v. Wilson, 06-0870/AR


Indeed, while disavowing the dicta in Zachary, the government

has argued in other cases that the mistake of fact defense

applies to sodomy with a child under sixteen.

     This ambiguity is important, because the question of intent

only applies to acts and not to facts, and if the only act in

question were “sodomy,” as opposed to “sodomy with a child under

16,” then additional elements (2) and (3) pertaining to age

would require no mens rea and therefore, no opportunity for a

mistake of fact defense would exist.

     This ambiguity is important as well given the majority’s

suggestion that this Court is not an appropriate policy-making

body to address the question presented.   We are not a policy-

making entity.   But in light of the ambiguity in the MCM’s

drafting, this Court should be interpreting the language using

the tools of statutory construction.   This is what judges do

where the law is unclear or subject to more than one possible

reading.

     Applying the same principles of statutory construction

identified by the majority, I would conclude that both readings

of the MCM are available –- one treating “sodomy with a child

under sixteen” as a general intent crime and one treating the

act of “sodomy” alone as a general intent crime, with age as an

additional factual element not requiring intent.   In the former

case, the mistake of fact defense would be available where the


                                 4
United States v. Wilson, 06-0870/AR


mistake was honest and reasonable.    Rule for Courts-Martial

(R.C.M.) 916(j)(1).

     An intent to extinguish mens rea “must be clearly indicated

in the statutory language or in the President’s implementation

of the UCMJ through the MCM.   Otherwise, an accused would not be

placed on fair notice of the threshold for criminal conduct.”

United States v. Thomas, 65 M.J. 132, 138 (C.A.A.F. 2007)

(Baker, J., dissenting).   As a result, this seems to be the sort

of case where any ambiguity should in fact inure to the benefit

of the accused.   Cleveland v. United States, 531 U.S. 12, 25

(2000) (“‘[A]mbiguity concerning the ambit of criminal statutes

should be resolved in favor of lenity’”) (citation omitted);

Hughey v. United States, 495 U.S. 411, 422 (1990)

(“[L]ongstanding principles of lenity . . . demand resolution of

ambiguities in criminal statutes in favor of the defendant”).

This seems especially appropriate where the ambiguity is easily

addressed through executive clarification and amendment.




                                 5
