2010 (September Term)
United States v. Alston, 69 M.J. 214 (even though the MCM does not list aggravated sexual assault as a lesser included offense with respect to rape by force, the military judge properly instructed the members that aggravated sexual assault was a lesser included offense of rape by force in the context of the charge at issue).
(in this case, the elements of aggravated sexual assault were necessarily included in the charge at issue, rape by force, that alleged that appellant caused the victim to engage in a sexual act, to wit: penetration of her vagina with his fingers by using power or strength or restraint applied to her person sufficient that she could not avoid or escape the sexual conduct; the first element of aggravated sexual assault - causing another person to engage in a sexual act - is the same for both offenses; the second element of aggravated sexual assault - causing bodily harm - is defined in Article 120(t)(8), UCMJ, to include an offensive touching, however slight, and that element is a subset of the force element in the offense of rape under Article 120(a), UCMJ, as defined in Article 120(t)(5)(C), UCMJ [*but note that the definitions of force in Article 120(t)(5)(A), UCMJ, and Article 120(t)(5)(B), UCMJ, which do not require an offensive touching, are not at issue in the present case]).
(each circumstance set forth in the definition of force in Article 120(t)(5)(C), UCMJ, describes an act of force applied by one person against another person involving sufficient power to compel submission or overcome or prevent resistance; applying the common and ordinary understanding of the words in the statute, each act of force described in Article 120(t)(5)(C), UCMJ, at a minimum, includes an offensive touching that satisfies the bodily harm definition in Article 120(t)(8)).
United States v. Neal, 68 M.J. 289 (the 2006 amendment to Article 120 removed lack of consent as an element of rape and its related offenses; in contrast to prior law, which required the government to prove lack of consent as an element of the offense, the new statute expressly states that consent is “not an issue” in a prosecution for specified offenses under Article 120, including the offense of rape).