CORE CRIMINAL LAW SUBJECTS: Crimes: Article 120 - Rape, Sexual Assault, and Other Sexual Misconduct
(** post-2007 Amendment)

(e) Aggravated Sexual Contact:

2009 (September Term)

United States v. Neal, 68 M.J. 289 (aggravated sexual contact in violation of Article 120(e), UCMJ, makes it an offense to engage in sexual contact by use of force; 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 aggravated sexual contact). 

(by its terms, the offense of aggravated sexual contact incorporates statutory provisions governing the offense of rape under Article 120(a); the definitions in Article 120(t) govern the terms of Article 120(a) and the incorporated provisions of Article 120(e); under the statute, the elements of rape, along with the definitions of force and sexual contact, transform non-criminal sexual contact into a criminal offense - aggravated sexual contact by force; taken as a whole, these provisions require the government to prove the following in a prosecution for aggravated sexual contact by force:  (1) the accused engaged in sexual contact with another person by touching the genitalia, anus, groin, breast, inner thigh, or buttocks of the other person; (2) the accused engaged in such contact with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person; (3) the accused caused another person of any age to engage in such contact by using force against that other person; and (4) the use of force consisted of action to compel submission of another or to overcome or prevent another’s resistance, and the use of force involved application of physical strength sufficient that the other person could not avoid or escape the sexual conduct). 


(consent and mistake of fact as to consent are affirmative defenses for the sexual conduct in issue in a prosecution for aggravated sexual contact; an affirmative defense is any special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly, or partially, criminal responsibility for those acts; the accused has the burden of proving the affirmative defense by a preponderance of the evidence; after the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist). 


(under Article 120(e), the prosecution need not prove the absence of consent in order to obtain a conviction; if the court-martial panel, like a civilian jury, is convinced beyond a reasonable doubt by competent evidence - such as the testimony of an eyewitness - that the accused engaged in sexual contact by applying the degree of force described in Article 120(e), then the panel may return a finding of guilty as to aggravated sexual contact; in short, under the structure of the statute, the absence of consent is not a fact necessary to prove the crime of aggravated sexual contact under Article 120(e)). 


(under Article 120(e), evidence that the alleged victim consented to the charged sexual contact is relevant to the factfinder’s determination of whether the prosecution has proved the element of force beyond a reasonable doubt). 


(in Article 120(r), Congress stated that consent is not “an issue ... in a prosecution under” designated provisions of Article 120, including Article 120(e); this statement that consent is not “an issue” is interpreted narrowly as emphasizing that consent is not an element, thereby underscoring and reinforcing the legislation’s deletion of the prior requirement that the prosecution prove beyond a reasonable doubt that the accused acted “without consent” from the alleged victim; under the narrow interpretation, the provision would not preclude treating evidence of consent as a subsidiary fact pertinent to the prosecution’s burden to prove the element of force beyond a reasonable doubt). 


(although the aggravated sexual contact statute describes the degree of force in terms of the relative actions of the accused and the alleged victim, the prosecution is not required to prove whether the alleged victim was, in fact, willing or not willing; if the evidence demonstrates that the degree of force applied by an accused constitutes action to compel another person, the statute does not require further proof that the alleged victim, in fact, did not consent; Congress, in defining force from the perspective of the action taken by the alleged perpetrator, did not reinsert “without consent” as an “implicit element” in Article 120). 


(the possibility that evidence pertinent to the affirmative defense of consent could raise a reasonable doubt about the element of force in a particular case does not render the aggravated sexual contact statute unconstitutional; as such, in this case, the military judge erred in treating lack of consent as an element of the offense and in concluding that Congress established an unconstitutional element-based affirmative defense in Article 120). 


(if evidence of consent is introduced in aggravated sexual contact prosecution, the military judge must instruct the members to consider all of the evidence, including the evidence of consent, when determining whether the government has proven guilt beyond a reasonable doubt; in doing so, the military judge must be mindful of both the content and sequential structure of the instructions). 


(under the aggravated sexual contact statute, the element of force establishes the crime of aggravated sexual contact without including “lack of consent” as an additional element; under the statutory framework set up by Congress, the prosecution may obtain a conviction upon a showing that the accused applied a certain amount of force and need not provide any evidence regarding the victim’s state of mind; if evidence of consent is introduced, it may raise a reasonable doubt about the government’s proof on the element of force; as such, the evidence of consent would be relevant to the determination of whether the government has proven the required elements beyond a reasonable doubt; the statute does not prohibit the consideration of consent evidence for that purpose; the opportunity to consider evidence that may raise a reasonable doubt about an element does not shift the burden to the defense to disprove that element; to the extent that evidence of consent may raise a reasonable doubt as to the element of force, the military judge has the authority to craft an appropriate instruction ensuring that the burden of proof remains with the government; consideration by a properly instructed panel of two different matters - whether evidence of consent raises a reasonable doubt about the element of force, as well as whether evidence of consent establishes an affirmative defense – does not render the statute unconstitutional). 

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