If a service member communicates indecent language either orally or in writing to another person, then he is violating the provisions of Article 134. Indecent language is covered under paragraph 89 (Article 134) of the Manual for Court Martial.
The text of statute under Article 134 says that all neglects and disorders which are adverse to the discipline and good order in the armed forces, all conducts which can bring discredit to the armed forces and offenses and crimes not capital, can be punished by convening a general, summary or special court martial as the offense demands.
ELEMENTS OF ARTICLE 134 INDECENT LANGUAGE
- The accused has communicated with another individual in writing or orally.
- The language the accused used was indecent.
- In the circ*mstances, the behavior of the accused was adverse to the discipline and good order in the armed forces or the nature of the act brought discredit to the armed forces.
(If the case is appropriate, add this element after the first point.)
The language was communicated to a child under the age of 16 years.
EXPLANATION FOR THE ELEMENTS
'Indecent' language is defined as language which can offend a person's decency, modesty or propriety or is morally shocking because of its filthy, vulgar or disgusting nature or tendency to create lustful thoughts. Language is said to be 'indecent' if it can reasonably incite libidinous thoughts and corrupt morals. Such language should overstep community standards.
MAXIMUM PUNISHMENT FOR THE OFFENSE
Indecent or insulting language
- Communication with a child under 16 years of age.
The accused can be punished with a dishonorable discharge, forfeiture of allowances and pay and 2 years of confinement.
In other cases the accused can be punished with a bad conduct discharge, forfeiture of allowances and pay and 6 months of confinement.
EXAMPLE OF HOW A SERVICE MEMBER MAY BE CONVICTED FOR ARTICLE 134 INDECENT LANGUAGE
It is not necessary that a service member communicates indecent language in words. In U.S Vs Green (CAAF 2010), the accused had made the victim come to him on the pretext of removing a bug from the victim's shirt, but instead he grabbed hold of victim's shirt and pulled it down, making an utterance (mmmm-mmmm-mmmm) in the process. The accused argued that the evidence (the use of mmmm-mmmm-mmmm) was factually and legally insufficient to support a charge of indecent language. The accused nevertheless, convicted for the offense of using indecent language along with several others offenses and punished. The lower court (U.S Navy-Marine Corps Court of Criminal Appeals) upheld the sentence and said that it was not necessary that indecent language constitute actual words.
If the armed forces strictly apply the rule book against indecent language, not a day would go by without violations of the provision or service members prosecuted for using explicit words.
Sometimes the service members are only being boisterous and no one seems to mind. Indeed, many 'indecent' words are common expressions and they are not uttered to incite any libidinous thoughts. In most cases, the language is either treated as provoking speech (no provision for bad conduct discharge) or a simple disorder, unless the accused used the words to incite libidinous thoughts in the other person.
It is very hard to punish a person for language that may not be deemed sexual, obscene, racial or even when it might cause a disturbance or fight. Usually the 1SG, SGM, JAG and commander will sit down and go over the practicalities of the case, before the service member is charged.
In U.S Vs Moore (CMA 1994) the court ruled that obscenity was not covered in the right to speech, under the 1stamendment. What is 'obscene' is also 'indecent' and such language cannot be afforded protection under the constitution. The court noted that the personal relationship between the utterer and the victim could be used to determine whether the language used was indecent.
