Air Force major convicted of sexually harassing subordinates appeals to Supreme Court
By NANCY MONTGOMERY | STARS AND STRIPES Published: December 30, 2019
An Air Force pilot dismissed from the service for sexually harassing subordinates is asking the Supreme Court to overturn his convictions because his actions were merely “wishful thinking,” his lawyers said.
Maj. Paul Voorhees was convicted of sexually assaulting an enlisted airman in 2015 but had the ruling overturned on appeal. Five counts of conduct unbecoming an officer and a gentleman were upheld.
The counts involved three different women and included asking two to describe the underwear they were wearing, all three if they’d cheated on their partners and one if she wanted to go to his hotel room.
An “innocuous” back rub he gave one airman also did not constitute conduct unbecoming under the Uniform Code of Military Justice, according to documents from Voorhees’ lawyers asking justices to hear the case.
At issue is whether conduct unbecoming requires proving specific harmful intent or knowledge of wrongfulness, or conversely, whether the actions themselves were criminal, regardless of knowledge or intent.
For example, premeditated murder, burglary and larceny require specific intent. Rape, battery and drunk driving do not.
That backrub segued into sexual intercourse and ended in the sexual assault conviction, dismissal and a three-year prison sentence for the former C-130 pilot.
The sexual assault conviction was overturned the next year because Air Force appellate judges decided Voorhees could have reasonably believed the woman had consented.
Voorhees was released from jail and is now “basically living with his mother,” his lawyer, Donald Rehkopf Jr. said in a phone interview. “He’s got fairly substantial child-support payments.”
He hopes to have his convictions overturned in order to qualify for Veterans Affairs benefits. “He can’t get a flying job. He’s unemployable,” his lawyer said.
In June, the Court of Appeals for the Armed Forces agreed with Voorhees that prosecutors should not have referred to him as “a pig,” and a “narcissistic, chauvinistic, joke of an officer.”
But the misbehavior wasn’t consequential enough to overturn the conduct-unbecoming convictions, the court said.
It dismissed as meritless Voorhees’ claims that conduct unbecoming requires specific harmful intent, or knowledge of wrongfulness of the actions.
Criminal liability for conduct unbecoming “does not depend on whether conduct actually effects a harm upon a victim but rather on whether the officer possess the general intent to act indecorously, dishonestly or indecently,” the CAAF said in its opinion.
Rehkopf says the military court got it wrong, especially in light of two recent Supreme Court decisions.
The Supreme Court in 2015 overturned the conviction of a man who threatened to kill his estranged wife on Facebook but said it was artistic expression rather than a true threat.
In June, the court overturned the conviction of a foreign national for illegally possessing guns because the man argued he was unaware he was barred from possessing a firearm.
“An accused must at least know that his or her ‘conduct’ is ‘unbecoming’ before one can be convicted of violating this statute,” Rehkopf wrote in his petition.
The military court’s decision should be overturned because it made “expressing one’s thoughts, regardless of any intended offensiveness ... a crime,” Rehkopf wrote.
Of the thousands of cases appealed to the Supreme Court, fewer than 100 are typically heard annually, the U.S. federal courts website says.
Don Christensen, president of the advocacy group for military sexual assault survivors Protect Our Defenders and a former Air Force prosecutor, said it seemed unlikely that the Supreme Court would be interested in the case.
The military court’s analysis was solid, given the history and importance of the conduct unbecoming UCMJ article, as well as the military-specific nature of the charges, he said.
The Supreme Court “gives great deference to Congress’ determination of military necessity. I just don’t see this being an exception,” Christensen said.