You are a military judge. According to a female Marine, one day she was working in an ammunition magazine with a United States Marine Corps Corporal when she began to “freak out” upon discovering that she had a bug on her shirt, and the Corporal told her to come over to him and he would help her get it off. The female Marine alleged,
I turned around, walked very quickly back to [the] Corporal….He was sitting on a few cans of ammunition logging in the docs still, and he said, bend down, I’ll get it. So I bent at the waist towards [the] Corporal…, he then grabbed my shirt and my skivvy blouse-or my skivvy shirt and my cammie blouse, pulled it down and said mmmm-mmmm-mmmm.
The Corporal has been court-martialed for indecent language under Article 134, Uniform Code of Military Justice (UCMJ), which states that an individual is guilty of “indecent language,” provided that
(1) That the accused orally or in writing communicated to another person certain language;
(2) That such language was indecent; and
(3) That under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
The Corporal claims “that the evidence is legally insufficient to support the charge of indecent language” because “the sound ‘mmmm-mmmm-mmmm’ is just that-a sound or an utterance, and does not constitute language as contemplated under the offense of indecent language.” He correctly claims that all your court’s prior opinions “discussing the offense of indecent language have only involved ‘words.’” How do you rule? In United States v. Green, 68 M.J. 266 (U.S. Armed Forces 2010), the judges of the United States Court of Appeals for the Armed Forces ruled that the evidence was legally sufficient, and I agree.
The facts in Green were as stated above, with Raheem Green being the Corporal who engaged in the above and other misconduct, leading to his court-martial for “failing to obey a lawful order, violation of a lawful general order, use of ecstasy, assault and battery, three specifications of indecent assault, and indecent language.” He was convicted of these charges, and the United States Navy-Marine Corps Court of Criminal Appeals affirmed his convictions, prompting his appeal to the United States Court of Appeals for the Armed Forces.
That court agreed with Green that all of its “prior decisions addressing the legal sufficiency of ‘indecent language’ charges [we]re limited to an examination of the ‘words’ used by the appellants.” The court found, however, that this was “easily explained by the fact that a situation where the alleged”language”is not a”word”is an issue of first impression before this court.”
The court then noted that the UCMJ did not define “language” and that “[i]n the absence of any evidence to the contrary, this court has held that ‘ordinary definitions suffice.’” Now, if the court had used certain ordinary definitions, it would have found that the evidence was legally insufficient. For instance, in Merriam-Webster Online, the first definition of “language” is “the words, their pronunciation, and the methods of combining them used and understood by a community.” Of course, the second through fourth definitions of language are:
-audible, articulate, meaningful sound as produced by the action of the vocal organs
-a systematic means of communicating ideas or feelings by the use of conventionalized signs, sounds, gestures, or marks having understood meanings; and
-the suggestion by objects, actions, or conditions of associated ideas or feelings.
Under these definitions, “mmmm-mmmm-mmmm” appears to be language, and the court applied a similar definition, using Black’s Law Dictionary to define “language” as “[a]ny organized means of conveying or communicating ideas, esp. by human speech, written characters, or sign language.” Under this definition, the court had no problem finding that there was legally sufficient evidence of Green’s guilt, concluding that language “need not be a word. [mmmm-mmmm-mmmm] was an audible sound that…was meaningful under the circumstances of this case.”
As noted above, I agree with the court’s ruling. The court certainly could have construed the word “language” more narrowly, but that what would have been the point? Surely, the conduct of Green, in the words of Article 134, “was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.” That being the case, because Green’s sounds could rationally be construed as “language,” it appears as if the court made the right decision.
That said, what would have happened if Green did not make any sound but instead made an obscene hand gesture? Under the definition used by the court, that hand gesture would clearly constitute “language” to the same extent as sign language. But if we look back to Article 134, it requires “[t]hat the accused orally or in writing communicated to another person certain language.” I’m not sure that a hand gesture would qualify as an oral or written communication. I’m thus not sure what the court would do in such a situation even though it would seem that the gesturer should be no less culpable.