Air Force Court of Criminal Appeals--D. White

United States v. Deontre White.

An MJ convicted the appellant of two abusive sexual contacts and two communications of indecent langauge, for which he was sentenced to four months, RiR, a BCD, and a reprimand. One of his issues asked whether the indecent language conviction was factually and legally sufficient.

No, says a majority of the panel. In reading the facts I was reminded of a few lines from "Pink Floyd, The Wall."

Teacher: What have we here, laddie? Mysterious scribblings? A secret code? No! Poems, no less! Poems, everybody!
[classmates laughs] 
Teacher: The laddie reckons himself a poet!

The language and context are quite suggestive.

Appellant then asked SSgt CR if she liked poetry and if she would like to hear a poem he had written. SSgt CR said, “sure,” and Appellant began reading. As Appellant read the poem, SSgt CR perceived that it “was very sexually explicit,” so she stopped Appellant and told him, “I’m sorry. I did not realize the contents of this poem.” SSgt CR testified that she thought the poem was about “a sexual encounter that he had with a woman,” but she did not have any impression regarding whether the encounter was portrayed as consensual or not. At Appellant’s court-martial, SSgt CR only recalled two brief excerpts from the poem. The first was, “just stick the tip in,” and the second was, “[m]y hands down her pants touching her c*******.” 

It would appear the Appellant liked to read his poems at work.

 TSgt SD did not recall if Appellant asked her to listen to the poem or if her husband, SSgt SD, who worked in the same area, told her to come listen to Appellant read it. TSgt SD testified that she and SSgt SD were there for the reading, as well as her supervisor TSgt M and her co-worker SSgt EG. Before he began reading, Appellant told the group that the poem “could be read from either a female’s perspective or a male’s perspective.” Once Appellant said the word “c*******,” TSgt SD walked away because she felt uncomfortable and “didn’t want to be around that.” TSgt SD did not say how long she listened to the poem, but she described the portion she heard as “quick.”
. . . 
SSgt EG testified that it was SSgt SD who asked her (SSgt EG) to come hear the poem. SSgt EG said the reading was “[n]ot very long . . . . a minute maybe” and that “[w]hen [Appellant] got to the part that [she] felt was inappropriate, [she] said, ‘uh, that’s inappropriate,’ and he stopped.” She testified she walked away from Appellant at the same time TSgt SD did, leaving Appellant standing with SSgt SD who was “uncomfortably laughing.” According to SSgt SD, Appellant’s reading “maybe lasted 30 seconds,” and SSgt SD said he was the one who told Appellant to stop reading after somebody said, “[Y]ou can’t say that at work or in the work environment.”
. . . 
TSgt SD testified that, from what she remembered, “the poem was about either a male or a female having sexual intercourse with someone who is saying no, but they’re continuing to pursue this person sexually.” TSgt SD said she interpreted the poem to be about rape or sexual assault. SSgt SD, however, thought the poem was about a man and a woman “dancing with each other and essentially like the female didn’t want to dance or do whatever they were doing anymore” and the female “wanted the guy to stop.” SSgt EG just remembered there being “some talk about sex acts in the poem . . . . talking about sex; like actually having sex.”
. . . 
In terms of the exact words Appellant used, TSgt SD remembered Appellant saying “b*****” and “c*******.” She did not remember what the male in the poem was doing with the woman’s breast, but she thought there “was contact.” TSgt SD initially testified that she could not remember what the male was doing with the woman’s clitoris, leading trial counsel to ask her, “Do you remember him saying he was rubbing her c***?” TSgt SD answered, “Now that you say that, I think that’s what he said.” For his part, SSgt SD said he remembered the poem saying the male was touching the female’s “vagina.” TSgt EG did not remember any particular words from the poem at all.

The issue was whether the words and reading was contrary to GoD, for example,

When SSgt EG was asked how the reading affected good order and discipline in the unit, she answered, “It’s hard to say.” She explained that while inappropriate, the reading “didn’t bother [her],” but “[i]f you’re making people that you work with uncomfortable and maybe someone doesn’t have tough skin, that could break[ ]down like trust and stuff like that and being able to work and get the mission done.” 

The court describes the third element of the offense, that it

“refers only to acts directly prejudicial to good order and discipline and not to acts which are prejudicial only in a remote or indirect sense.” 2016 MCM, pt. IV, ¶ 60.c.(2)(a). As explained in the Manual for Courts-Martial, “Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this article does not include these distant effects. It is confined to cases in which the prejudice is reasonably direct and palpable.” Id. The requirement to prove this third element “filters out from punishment language that is colloquial vocabulary and may be routinely used by service members.” United States v. Negron, 60 M.J. 136, 144 (C.A.A.F. 2004).

The court went on to say 

We conclude the findings of guilty for the two indecent-language specifications are neither legally nor factually sufficient. We first note the dearth of evidence in the record establishing what Appellant actually said when he read his poem.

Viewing the evidence in the light most favorable to the Prosecution, it appears Appellant described sexual conduct in a somewhat detailed, if not explicit, fashion. Drawing every possible inference in the Government’s favor, Appellant’s poem could be understood to describe nonconsensual sexual contact. What there is no evidence of, however, is the overall tone or theme or even the point of the poem. That is, there is nothing in the record that indicates whether the conduct described in the poem was presented in a way designed to sexually excite a listener, to describe the behavior in a negative light, or to serve as a metaphorical condemnation of sexual misconduct. The words themselves fall far short of being “grossly offensive to modesty, decency, or propriety” or that they “shock[ ] the moral sense, because of [their] vulgar, filthy, or disgusting nature,” especially insofar as the few words the witnesses recalled are medically correct anatomical terms. The only arguably coarse term that appears in the record is the slang word “c***” as shorthand for “c*******,” but that word was only uttered by trial counsel in a leading question, not by any of the witnesses.

[And second] [b]eyond the failure of the evidence to establish that Appellant’s language was indecent, the record is also inadequate to support a conclusion that Appellant’s conduct amounted to “direct and palpable” prejudice to good order and discipline. To the contrary, Appellant’s conduct seemingly had virtually no impact on good order and discipline.

C.J. Johnson dissents in part and in the result.

I acknowledge the Government was not able to introduce the exact text of the sexually explicit poem Appellant read to several noncommissioned officers (NCOs) in their workplaces in August 2018, and that the four witnesses who testified about Appellant’s indecent language had imperfect memories of the incidents. However, I find the witnesses’ testimony to be generally credible and, importantly, not significantly inconsistent. Taken together, the testimony of Staff Sergeant (SSgt) CR, Technical Sergeant (TSgt) SD, SSgt EG, and SSgt SD demonstrates Appellant’s poem described the perspective of someone pursuing unwanted sexual activity with an unwilling female, including references to touching her b****** and genitalia, and including specific phrases to the effect of “rubbing her c***” and “just stick the tip in.”

C.J. Johnson's final words are,

The majority asserts they are not willing to “broadly paint any discussion of sexual conduct among adults as indecent language under a theory that someone, somewhere might be aroused by it.” Neither am I. However, the definition of indecency does not require the language to be actually or potentially sexually ​arousing. I also agree that many things that are inappropriate to say in the workplace are not “indecent.” However, language that is grossly offensive to propriety because of its vulgar nature and violates the standards of the military community is, by definition, indecent.

Cheers, Phil Cave