(b) Sexual Assault:
2017 (October Term)
United States v. Condon, 77 M.J. 244 (in light of other definitions, to include part of the defense-proposed instruction for “incapable of consenting,” and defining “impaired,” as well as the definitions of “consent” from the Military Judges’ Benchbook, the phrase “incapable of consenting” did not require additional definition and further instruction on this point was not required; with these definitions, the military judge allowed the panel to understand the element “incapable of consenting;” accordingly, the military judge did not abuse his discretion in failing to give the entire defense-proposed incorrect instruction, or a sua sponte instruction, on a term readily understandable by the members).
United States v. Bailey, 77 M.J. 11 (sexual assault charged under Article 120(b)(3) requires in relevant part that the victim be incapable of consenting to the sexual act due to impairment by any intoxicant).
(with respect to sexual assault charged under Article 120(b)(3), a person can be awake and conscious and still be incapable of consenting).
(with respect to sexual assault charged under Article 120(b)(3), for a complainant to be incapable of consenting to a charged sexual act, it is not required that the complainant be completely unable to communicate).(incapable of consenting is an element of sexual assault charged under Article 120(b)(3); consistent with the principle that words generally known and in universal use do not require additional definition, the phrase incapable of consenting requires no additional definition or instruction on this point; incapable is not a technical legal or scientific term; the plain meaning of incapable is one that is generally and correctly understood as being unable to do something; at trial in this case, the military judge gave an instruction on the definition of consent; accordingly, the plain meaning of incapable combined with the definition of consent allowed the panel to understand the element incapable of consenting; as such, the military judge was not required to give an instruction on the definition of incapable of consenting). 2015 (September Term)
United States v. Riggins, 75 M.J. 78 (under the particular circumstances of this case, where appellant was charged with two specifications of sexual assault and three specifications of abusive sexual contact under Article 120, UCMJ, by placing the alleged victim in fear that, through the use or abuse of military position, rank, or authority, he would affect her military career, and where the military judge convicted appellant of assault consummated by a battery under Article 128, UCMJ, as a lesser included offense of the sexual assault and abusive sexual contact offenses and found that although the alleged victim was not placed in fear of appellant affecting her military career, as charged, she instead was pressured in an unrelenting manner by a servicemember of superior rank into having sex, assault consummated by a battery was not a lesser included offense of the charged offenses; first, the Article 120, UCMJ, offenses with which appellant was originally charged did not require the government to prove a lack of consent, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; second, the original specifications did not include an element requiring that the bodily harm be done with unlawful force or violence, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; and third, appellant did not receive fair notice of what offense and under what legal theory he was tried and ultimately convicted; as such, appellant’s conviction for assault consummated by a battery violated his constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged).
(as charged in this case, the elements of sexual assault were: (1) the accused committed a sexual act with another person; and (2) the sexual act was accomplished by placing the other person in fear; unlike assault consummated by a battery, lack of consent was not an element of sexual assault as charged here; although a lack of verbal or physical resistance or submission resulting from placing another person in fear does not constitute consent, the fact that the government was required to prove a set of facts that resulted in the alleged victim’s legal inability to consent was not the equivalent of the government bearing the affirmative responsibility to prove that the alleged victim did not, in fact, consent).
(the Article 120, UCMJ, definition of “consent” indicates as a matter of law that placing the victim in fear prevents consent; therefore, evidence regarding whether the alleged victim knowingly, willingly, and lawfully consented could certainly be relevant to the factfinder’s determination of whether the government proved the placed-in-fear element beyond a reasonable doubt; however, the introduction of such evidence is not required under the provisions of theUCMJ).
(by charging appellant with Article 120, UCMJ, offenses of sexual assault and abusive sexual contact and by solely alleging that appellant had placed the alleged victim in fear of her military career, the government had effectively removed from the equation at trial any issue of consent; accordingly, appellant was not on notice that he needed to, or even could, defend against the charges by contesting the issue of lack of consent; this lack of notice was exacerbated in the instant case by the fact that the military judge developed and applied what was, in essence, a new legal theory — one that was never charged or argued by the government — in the middle of his own deliberations in this case; this legal theory, which posited that the alleged victim was not placed in fear of her military career but instead gave in to a higher-ranking servicemember’s unrelenting pressure to have sex, ran counter to what the government had alleged in its charging documents; thus, appellant was deprived of his right to know what offense and under what legal theory he was going to be tried and convicted).
(the “placing in fear” element of the sexual assault and abusive sexual contact offenses is different from the “unlawful force or violence” element of the assault consummated by a battery offense; specifically, the “placing in fear” element requires “a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action; thus, under the original charges in the instant case, it was sufficient for the government to merely prove that the alleged victim was fearful that appellant would negatively affect her military career; however, “unlawful force or violence” under Article 128, UCMJ, requires the government to prove an application of physical force; this distinction between physical contact (for assault consummated by a battery) and a mental state of fear concerning the potential effect on the victim’s military career (for sexual assault and abusive sexual contact) further demonstrates that assault consummated by a battery contains an element that is not included in the sexual assault and abusive sexual contact offenses charged here).
(it may be possible for the government to charge an accused with sexual assault and/or abusive sexual contact in such a manner that assault consummated by a battery may be a lesser included offense if the specification placed the accused on notice of fear of bodily harm and raised the issue of consent).