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

(d) Abusive Sexual Contact:

2016 (October Term)

United States v. Sager, 76 M.J. 158 (Article 120(d), UCMJ, prohibits sexual contact with another person if they are asleep, unconscious, or otherwise unaware that the sexual contact is occurring; the language which states that a person may not make sexual contact with someone who is asleep, unconscious, or otherwise unaware, creates three separate theories under which one may be guilty of the offense; the words ‘asleep’ or ‘unconscious’ not are mere examples of how an individual may be ‘otherwise unaware’; the words ‘otherwise unaware’ mean unaware in a manner different from asleep and different from unconsciousness). 

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 abusive sexual contact were: (1) the accused engaged in sexual contact with another person; and (2) the sexual contact was accomplished by placing the other person in fear; unlike assault consummated by a battery, lack of consent was not an element of abusive sexual contact 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). 

2014 (September Term)

United States v. Schloff, 74 M.J. 312 (a specification alleging abusive sexual contact by pressing a stethoscope to the breasts of a noncommissioned officer in violation of Article 120, UCMJ, stated an offense because the act of pressing a stethoscope to the victim’s breasts (object-to-body contact) constituted sexual contact as defined by Article 120(g)(2), UCMJ).

(the definition of sexual contact under Article 120(g)(2), UCMJ, encompasses both object-to-body contact and body-to-body contact because the ordinary meaning of the word touching as used in the statute means that contact was made either by an object or by a body part). 

(Congress did not seek to exclude object-to-body contact in a professional setting when it determined the scope of abusive sexual contact as defined under Article 120, UCMJ). 


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