United States v. Johnson, No. 200900141, 2009 WL 2599398 (Aug. 25, 2009) discusses with the issue of indecent language. The accused was in a tumultuous relationship with his girlfriend, and upon their breakup, the accused sent her a text message with the following language: “I hope sumthin happens and ur [fxxxxxx] kidney stones shoot up through ur [fxxxxxx] head and blow ur brains out u [fxxxxxx] bitch I u rot in hell” (quoted from appellate opinion). The accused admitted to one specification of communicating indecent language under Art. 134. The accused plead guilty to sending the text message and stated that the language was indecent since he thought the words would make the alleged victim believe he intended to harm her. The stipulation of fact stated , “the language was indecent because it is grossly offensive to the military community sense of proper decorum between individuals and that it is degrading, humiliating, mean spirited and outside the reasonable society expectations for conversation between individuals” (internal quotations omitted). The military judge admitted the plea. The N-MCCA ruled that the accused’s plea was improvident. Indecent language is “that which is grossly offensive to modesty, decency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or disgusting nature, or its tendency to incite lustful thought” (emphasis added). In United States v. Negron, 60 M.J. 136, 144 (C.A.A.F. 2004), the CAAF held that “either definition of ‘indecent contained within the current paragraph of the Manual could form the basis for a charge of indecent language.” The MCM provisions provide “two different definitions to measure speech that may be a crime, dependent on the context in which it is spoken” The accused’s language did not meet either definition of “indecent.” He admitted that his text message was indecent since it would make her feel that he intended to harm her. The court found no case where fear of harm was a component of the definition of indecency. Besides, the court found no cases to support the definition of indecency provided in the stipulation of fact. Also, the court could not conclude that a “reasonable member of the military community would be shocked or grossly offended by this profane and derogatory exchange between a couple in the midst of an acrimonious break-up.” The court compared the accused’s language to Negron and United States v. Brinson, 49 M.J. 360 (C.A.A.F. 1998), two cases where the court determined the speech at issue insufficient to support convictions, and found the accused’s speech less offensive than that used in both cases. The court determined that the military judge erred when accepting the plea and set aside findings as to this charge and specification.
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