2007
United States v. Terry, 64 M.J. 295 (it has long been the law with respect to the offense of rape that where intimidation or threats of death or physical injury make resistance futile, it is said that constructive force has been applied; further, constructive force may consist of expressed or implied threats of bodily harm).
2006
(there was
sufficient evidence of penetration
to support appellant’s conviction of carnal knowledge of his daughter
where the
mother testified that she found appellant naked in bed spooning her
daughter
with a partial erection, where daughter testified about acts of vaginal
penetration prior to the date in question, and where reasonable trier
of fact
could infer that the word “also” in trial counsel’s question to the
daughter
asking whether appellant had “also” put his private part inside her
before that
date was inclusive and meant that acts of penetration occurred not only
before
that date, but also on that date).
2005
United
States v. Leak, 61
M.J. 234 (in military law, rape is an act of sexual intercourse, by
force and
without consent; although listed within the same element, force and
lack of
consent are distinct, although related, elements of the offense).
(the lack of consent required
for rape is
more than mere lack of acquiescence; if a victim in possession of his
or her
mental faculties fails to make lack of consent reasonably manifest by
taking
such measures of resistance as are called for by the circumstances, the
inference may be drawn that the victim did consent; such measures of
resistance
can be verbal, physical, or a combination of the two; in other words,
in
context, a verbal “no” can manifest the necessary lack of consent for
the
offense of rape; in such a context, physical resistance is not
required; a
finding of lack of consent does not require proof that the witness
physically
resisted her attacker; moreover, proof of resistance in any form is not
a
necessary element of the offense of rape; it may, however, be probative
on the
issue of consent; further, verbal or physical measures of resistance
are not
required if resistance would have been futile, where resistance is
overcome by
threats of death or great bodily harm, or where the victim is unable to
resist
because of lack of mental or physical faculties; in such a
circumstance, there
is no consent).
(the force required for rape
can be
accomplished in one of two manners: actual force or constructive
force;
actual force is physical force used to overcome a victim’s lack of
consent;
actual force requires more than the incidental force involved in
penetration;
constructive force may consist of expressed or implied threats of
bodily harm;
constructive force may be shown by proof of a coercive atmosphere that
includes
threats to injure others or statements that resistance would be futile).
(as a matter of law, depending
on the
circumstances, a victim need not physically resist to manifest lack of
consent
and once lack of consent has been reasonably manifested, one need not
continually manifest that lack of consent through resistance).
2004
United
States v. Banker, 60 MJ 216 (this Court has never
recognized
the ability of a child under the age of 16 to legally consent to sexual
intercourse or sodomy).
2003
United
States v. Hibbard, 58 M.J. 71 (rape is a
general intent offense requiring proof that an accused deliberately or
purposefully committed an act of sexual intercourse by force and
without the
victim’s consent; an honest and reasonable mistake of fact as to the
victim’s
lack of consent is an affirmative defense to a charge of rape).
United
States v. Simpson, 58 MJ 368 (the offenses of rape
and
forcible sodomy both require proof that the act was committed by force
and
without consent; although force and lack of consent are separate
elements, our
case law recognizes that there may be circumstances in which the two
elements
are so closely intertwined that both elements may be proved by the same
evidence).
(consent induced by fear, fright, or coercion is equivalent to
physical
force; such constructive force may consist of expressed or implied
threats of
bodily harm; constructive force may be shown by proof of a coercive
atmosphere
that includes, for example, threats to injure others or statements that
resistance would be futile).
(in the context of the special relationship between noncommissioned
officers
and trainees, we have observed that the NCO cannot create by his own
actions an
environment of isolation and fear and then seek excusal from the crime
of rape
by claiming the absence of force especially where, as here, passive
acquiescence is prompted by the unique situation of dominance and
control
presented by appellant’s superior rank and position).
(rank disparity alone is not sufficient to constitute constructive
force;
the evidence in this case, however, presents far more than mere rank
disparity
between appellant and his victims: (1) appellant’s physically imposing
size;
(2) his reputation for being tough and mean; (3) his position as a
noncommissioned officer; (4) his actual and apparent authority over
each of the
victims in matters other than sexual contact; (5) the location and
timing of
the assaults, including his use of his official office and other areas
within
the barracks in which the trainees were required to live; (6) his
refusal to
accept verbal and physical indications that his victims were not
willing
participants; and (7) the relatively diminutive size and youth of his
victims,
and their lack of military experience; additionally, appellant used his
authority over the victims to issue orders that placed them in the
isolated
locations where the charged rapes occurred).
2000
United
States v. Schuler, 50 MJ 254 (National Defense
Authorization Act
for Fiscal Year 1996, § 1113, Pub.L.No. 104-106, 110 Stat. 186, 462
(1996),
amended Article 120, UCMJ, effective February 10, 1996, to permit an
accused to
raise the defense of reasonable mistake of fact to a charge of carnal
knowledge; the accused has the burden of proof by a preponderance of
the
evidence).