Shawn M. Smith Specialist U. S. Army Convicted Sex Offender Rape Of A 7-Year-Old Child

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Name: Shawn M. Smith

Case: United States v. Smith No. 98-0775

Date Of Appeal: March 2, 1999

Plea: Guilty

Charges: Indecent acts with a 7-year-old child,

Military Branch: U.S. Marine Corp

Listed In National Sex Offenders Registry? NO

Pursuant to his pleas, appellant was convicted of committing indecent acts upon his 7-year-old stepdaughter, H, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. Contrary to his pleas, appellant was convicted by a panel of officer and enlisted members of raping and attempting sodomy with H, in violation of Articles 120 and 80, UCMJ, 10 USC §§ 920 and 880, respectively. He was sentenced to a dishonorable discharge, 10 years’ confinement, and reduction to the lowest enlisted grade. The convening authority approved the sentence, and the Court of Criminal Appeals affirmed the findings and sentence in a memorandum opinion on May 13, 1998.

When H first alleged that appellant had been sexually abusing her, he denied it completely. However, when confronted by the Criminal Investigation Command (CID) with overwhelming medical evidence supporting H’s claims, appellant broke down and admitted to one incident of touching H between her legs while he masturbated. He denied that he did anything improper to H beyond that one incident.

After further interrogation, appellant admitted to a second incident in which he penetrated H’s vagina with his little finger. He then denied any improper acts beyond those two. After still more questioning, appellant admitted to a third incident in which he penetrated H’s vagina with his little finger and rubbed her clitoris with his thumb while he masturbated, and then placed "the tip of [his] penis against her vagina" and ejaculated onto her vagina. He continued vigorously to deny that he raped his stepdaughter or committed oral or anal sodomy upon her, as she had alleged. Appellant’s sworn statement was admitted into evidence at his court-martial.

Appellant was interviewed again by CID at a psychiatric hospital 2 days later. At this interview, while still maintaining that only those three incidents occurred, he added detail to the acts which they encompassed. For instance, he also admitted to penetrating digitally H’s anus during the second incident.

H testified at the court-martial that appellant put his "private" into both her front and back "privates." She also testified that she felt her stepfather’s "pee," meaning his ejaculate, on her "front private." H demonstrated an awareness and comprehension of the difference between "on" and "in." In addition, pictures that she had drawn when she disclosed the abuse, including one of appellant’s penis, were published to the members.

Furthermore, the Government presented testimony from the two doctors who examined H the day she made her allegations. They explained photographs from H’s examination showing a completely obliterated hymenal tissue, a vaginal opening roughly twice the size of a normal 7-year-old’s, and a textbook case of "chronic sexual abuse." Dr. Lockrow, the gynecologist who examined H, stated that the medical evidence was inconsistent with only two instances of digital penetration.

Also during the providence inquiry, appellant gave 1 exact and 2 rough dates for the 3 incidents which he admitted – late June, mid-July, and August 18, 1995. However, defense counsel did not make any exceptions or substitutions as to the dates in Charge III, leaving it to allege that the indecent acts occurred "from on or about June 1995 to on or about August 1995." The trial counsel chose to go forward on the charge with the exceptions and substitutions submitted by defense counsel.

Editor Note: In this case the defense has tried to split hairs based on their contention that the child was penetrated with fingers, not a penis. This is a move at getting a lesser sentence. Either way, this does not change the fact this child was sexually assaulted by Shawn M. Smith.