Does civilian punishment fit court-martial crimes?
September 2, 2007
MISAWA AIR BASE, Japan — When Brian Carroll moves back to the States, he’ll have to register as a sex offender.
Earlier this summer, the former senior airman pleaded guilty in a court-martial here to indecent assault. During a night in which he recalled drinking “as many as 17 drinks,” he crawled into bed with another airman’s sleeping wife and sexually fondled her.
The military judge in the case sentenced him to six months confinement. Though Carroll barely hung onto his military career, getting a reduction in rank to E-1, high-year tenure rules likely will force his ouster, a military prosecutor said after Carroll’s sentencing hearing in June.
Is Carroll a violent sexual offender from whom the public needs protection?
The law says he is. But some say military law in this regard is overbroad and tougher on servicemembers convicted in courts-martial than on people convicted in civilian courts.
The new federal Adam Walsh Child Protection and Safety Act, which became law July 27, 2006, calls for sex offenders to be categorized into a tier system based on severity of their crime.
Capt. Jason DeSon, the 35th Fighter Wing assistant staff judge advocate at Misawa, said that under the guidelines Carroll “conceivably” could be considered a Tier III offender — the most serious — upon returning to the States. As such, he would have to register for the rest of his life and update his whereabouts in person every three months.
Tier III includes sex offenses punishable by imprisonment for more than one year. Such offenses could include engaging in a sexual act through force or threat of force (aggravated sexual abuse), or with a person who is incapable of refusing or communicating unwillingness to engage (sexual abuse).
According to Defense Department regulations, which attempt to compare federal sex crimes to those under the military’s Uniform Code of Military Justice, Carroll’s crime of indecent assault is similar to both of these crimes. The offense is punishable by up to five years jail time.
“According to [the Adam Walsh act] and the DOD regulation, he would be a lifetime offender,” DeSon said of Carroll.
Definitions ‘overly broad’Would Carroll’s crime rise to the level of sexual abuse or aggravated sexual abuse if he was convicted under civilian law?
Probably not, says Donald Rehkopf Jr., a Rochester, N.Y., criminal defense attorney and former Air Force judge advocate general who has been practicing military law for 31 years.
In New York, for example, Carroll’s crime might have been prosecuted as sexual misconduct or unwanted touching, a misdemeanor, Rehkopf said.
“If he had to register, it would be the lowest level,” he said, which in New York is 20 years.
In Rehkopf’s opinion, “military members are getting screwed when it comes to the application of (Sex Offender Registration Act) laws from military convictions,” he said in a recent phone interview.
One reason for this, he said, is that military definitions for sexual crimes are “so overly broad as to constitute or what may constitute a particular crime such as indecent assault.”
The more general definitions can complicate matters when it comes to determining how to classify a sex offender convicted in a military court.
“Where you have a guy convicted in county criminal court, there’s a specific statute that links up with the [Sex Offender Registration Act],” Rehkopf said. “You know what it is right off the bat, if you’re convicted. You don’t have that parallel in the military.”
Maj. Matthew Grant, deputy staff judge advocate fo0r the 18th Wing at Kadena Air Base on Okinawa, agreed that military law tends to lump sex offenses into larger categories.
“In some states, I wouldn’t be surprised if there were several dozen types of sex crimes,” he said. “We have about 20 or so crimes that constitute sex crimes.”
‘Judgment call’Still unclear to military lawyers and civilian attorneys who represent servicemembers is how changes to Article 120 of the Uniform Code of Military Justice will affect the way states compare military sex crimes to federal or state offenses.
Among changes is a new stalking law and a new crime of “wrongful sexual contact,” according to an article posted online by David H. Conroy, an attorney in the Office of the Staff Judge Advocate, Military District of Washington. The latter would punish those who “intentionally touch” genitalia and other parts of the body directly or through clothing if the intent is “to abuse, humiliate, degrade, or to arouse sexual desire,” Conroy wrote.
Grant said the changes will bring UCMJ sex offenses into line with federal and state criminal codes.
Presently, tougher laws under the UCMJ could affect whether an offender has to register, he said. For example, an 18-year-old airman who had sex with a 15-year-old could be prosecuted under military law for carnal knowledge.
“If he was in high school, he might have dated a lot of sophomores and freshmen,” Grant said, which, depending on the state, could be legal.
“Whether we notify the state is not discretionary,” he said. “Whether the state makes that a reportable offense, that’s a different question.”
But because there’s not always a clear-cut comparison between a UCMJ sex offense and civilian law, “there’s a judgment call that has to be made,” Rehkopf said.
That call in many states is typically made by a state administrative board, which determines whether a convicted sex offender needs to register and at what risk level.
Those boards rely on information from the courts, or in the case of servicemembers, from the military.
“They look at a piece of paper,” Rehkopf said. “It’s called the report of results of trial. So and so was convicted on such and such a day … of the following acts.”
But the paper trail from the military to the states “is horrendous,” Rehkopf said, citing a recent New York court case involving former sailor Shawn Kennedy, where documentation from the Navy was found to be missing or incomplete.
Grant said he wasn’t sure how much information military confinement officials were required to provide to state authorities.
But, he added, “I’m hoping if they’re uncertain whether a military crime is a registerable crime under state law … that they’ll ask questions.”
Grant added, however, that he has little sympathy for military members convicted of sex offenses who face registration back in the States.
“If the guy goes to jury trial and is convicted of one of these 20-some offenses — it’s hard for me to say ‘too bad, so sad, I’m sorry you have to register,’ especially as the father of a 7-year-old,” he said. “I like to know, even with a minor sex offense history.”
The Adam Walsh law
The Adam Walsh Child Protection and Safety Act, signed into law in July 2006, is the latest federal attempt to protect the public from sexual predators. The law is named for a 6-year-old Florida boy who was kidnapped from a shopping mall and killed.
Currently, there are more than 550,000 registered sex offenders in the United States and at least 100,000 are missing from the system, largely due to inconsistencies among state laws and the application of federal standards, according to information cited by the Adam Walsh act.
The Adam Walsh law — also called the Sex Offender Registration and Notification Act (SORNA) — is intended to close such gaps.
States have until July 27, 2009, to implement requirements.
Proposed guidelines include:
A national sex offender registry to allow states to share information that includes the name, address, employment, vehicle identification information, fingerprints, a DNA sample, complete criminal history, a recent photo and other details about a sex offender. The public won’t have access to that information, but a public Web site will be available to notify people by ZIP code whether a sex offender lives within a mile of a specified address.
Sex offenders must register and keep registration current wherever they live, work or attend school.
The least serious offenders, placed in a Tier I category, are to appear in person to verify registration information once a year and remain on the registry for 15 years.
Tier II offenders must appear in person every six months and remain on the registry for 25 years.
Tier III offenders remain on the registry for life and are required to verify their information in person every three months.
Registration periods may be reduced if the offender’s record remains clean.
Failure to register or update information can be punishable by up to 10 years in prison.
Alcohol is common culprit in sex crimes
The indecent assault case of airman Brian Carroll demonstrated that in a military court-martial, alcohol consumption doesn’t evoke much sympathy in sex crimes.
Carroll, who likely will not be promoted and thus have to leave the military under the Air Force’s high-tenure rules, will have to register as a sex offender when he returns to the States.
Philip Cave, a former Navy lawyer in Virginia who defends military members around the world, said most of the sex offenses he comes across involve alcohol and young servicemembers. The individuals know each other, one or both are drinking, they end up back in somebody’s room.
“Is that person a predator, the kind of predator you want to have to register forever?” Cave said. “I guess the answer from the other side is if he keeps drinking, maybe. Who wants to be the person who makes the wrong choice?”
When told about Carroll’s case, Ken Wooden, a child safety expert who gave talks at U.S. military bases in Japan last week about the dangers of sexual predators, said he didn’t have a problem with the airman having to register as a lifetime offender.
“The dignity of a human being is precious,” he said.
The message — whether from Carroll’s case or any number of military sex crimes prosecuted recently in the Pacific — is to take heed of “what’s on the line,” said Capt. Jason DeSon, the assistant staff judge advocate at Misawa.
“This is serious stuff. If you’re thinking about doing it, look at the consequences.”