CORE CRIMINAL LAW SUBJECTS: Crimes: Article 120b - Rape and Sexual Assault Generally (*** post-2012 Amendment)

2017 (October Term)

United States v. Robinson, 77 M.J. 294 (with respect to the sexual assault conviction in this case, the trial evidence was legally sufficient to establish that appellant knew or reasonably should have known that the victim was incapable of consenting due to her impairment by intoxication, where (1) at a party prior to the assault, it was apparent to the partygoers, to include appellant, that the victim was intoxicated, (2) when appellant later entered the victim’s barracks room, he saw a trashcan and a bottle of water next to her bed, and (3) appellant admitted to investigators that the victim was “pretty much asleep” when he arrived at her barracks room and that he later thought that she “was probably too intoxicated to consent” to have sex). 

United States v. Mangahas, 77 M.J. 220 (while under federal law the statute of limitations for rape is five years, 18 USC § 3282, in 2006, Congress amended the statute of limitations in the military, so that a person charged with rape, or rape of a child may be tried and punished at any time without limitation; in 2013, Congress again amended the statute to substitute rape or sexual assault, or rape or sexual assault of a child for rape, or rape of a child). 

2015 (September Term)

United States v. Pease, 75 M.J. 180 (in this case, for purposes of Article 120, UCMJ, the CCA properly defined a competent person as a person who possesses the physical and mental ability to consent). 

(in this case, for purposes of Article 120, UCMJ, the CCA properly defined an incompetent person as a person who lacks either the mental or physical ability to consent due to a cause enumerated in the statute). 

(in this case, for purposes of Article 120, UCMJ, the CCA defined a freely given agreement as occurring when a person first possesses the cognitive ability to appreciate the nature of the conduct in question, and then possesses the mental and physical ability to make and to communicate a decision regarding that conduct to the other person; while the statutory phrase “freely given agreement” reflects the voluntariness aspect of consent, the CCA’s definition of that phrase may be viewed as not accounting for those situations where a victim has the ability to appreciate the conduct, and the mental and physical ability to communicate the decision, but does not articulate non-consent out of fear or due to some other external compulsion counteracting voluntariness; nevertheless, any imprecision did not constitute reversible error here because the CCA’s definition of incapable of consenting adequately addressed the concept of voluntariness).

(in this case, for purposes of Article 120, UCMJ, the CCA defined incapable of consenting as lacking the cognitive ability to appreciate the sexual conduct in question or lacking the physical or mental ability to make and to communicate a decision about whether they agreed to the conduct; the CCA correctly defined “incapable” as meaning the victim lacked the ability to; with regard to its definition of consent, the CCA essentially adopted the meaning of that term as provided under Article 120, UCMJ - consent means a freely given agreement to the conduct at issue by a competent person; accordingly, the CCA’s inclusion of the phrase “whether they agreed to the conduct” adequately incorporated into the definition of “incapable of consenting” the voluntariness component of consent, and that the definition was correct with the exception of one apparent scrivener’s error; the CCA’s definition of “incapable of consenting” should have stated that a victim must have the ability “to make or to communicate a decision” rather than “to make and to communicate a decision;” however, this apparent scrivener’s error did not constitute reversible error because the CCA’s factual sufficiency analysis for the offenses actually applied the “to make or to communicate” standard; therefore, no reversible error resulted in the instant case; the CCA’s definition of “incapable of consenting” was properly based on the ordinary meaning of the phrase, the context in which it was used, and the broader statutory context).


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