(m) Wrongful Sexual
2010 (September Term)
United States v. Bonner, 70 M.J. 1 (assault consummated by a battery, under Article 128, UCMJ, is an LIO of wrongful sexual contact, Article 120(m), UCMJ).
(the offense of wrongful sexual contact occurs when any person, without legal justification or lawful authorization, engages in sexual contact with another person without that other personís permission; in the MCM, the President has defined the elements for wrongful sexual contact as follows: (a) that the accused had sexual contact with another person; (b) that the accused did so without that other personís permission; and (c) that the accused had no legal justification or lawful authorization for that sexual contact).
(with respect to the meaning of the three elements of wrongful sexual contact, the UCMJ defines sexual contact, in relevant part, as intentionally causing another person to touch the genitalia of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person; second, the statute requires the contact to be without permission, and third, the final element requires that the sexual contact was wrongful, in that no legally cognizable reason existed that would excuse or justify the contact).
(assault consummated by a battery is an LIO of wrongful sexual contact where both offenses require wrongful contact; furthermore, in this case, because appellant was charged with wrongful sexual contact by tapping the victim on the head with his exposed penis, he knew that he had to defend against having caused the victim to make contact with his genitalia without the victimís permission and with the intent of abusing, humiliating, or degrading the victim; such contact would, at a minimum, be offensive given the ordinary understanding of what it means for contact to be offensive; in fact, in this case, one could transplant the essential facts from the wrongful sexual contact specification, without alteration, into a legally sufficient specification for assault consummated by a battery under Article 128, UCMJ).