2009 (September Term)
United States v. Jones, 68 M.J. 465 (the offense of indecent acts is not an LIO of the offense of rape because the elements of rape do not include all (or indeed any) of the elements of indecent acts, notwithstanding that the accused may have been on notice of the possibility that he might be convicted of such an LIO where (1) the offense of indecent acts was held to be an LIO of rape by the CAAF in US v. Schoolfield, 40 MJ 132, and (2) the MCM listed the offense of indecent acts as an LIO of rape; to the extent that Schoolfield and US v. Hudson, 59 MJ 357, hold otherwise, they are no longer good law).
2008 (September Term)
United States v. McCracken, 67 M.J. 467 (open and notorious indecent acts under Article 134, UCMJ, was neither expressly nor inherently a lesser included offense of the charged offense of rape under Article 120, UCMJ, where the members were not instructed on the theory that appellant’s conduct was open and notorious).
United States v. Bright, 66 M.J. 359 (under Article 120(a), UCMJ, any person who commits an act of sexual intercourse, by force and without consent, is guilty of rape; the essential elements of rape are (1) that the accused committed an act of sexual intercourse, and (2) that the act of sexual intercourse was done by force and without consent).
(force and lack of consent are separate elements of rape but there may be circumstances in which the two elements are so closely intertwined that both elements may be proved by the same evidence; force can be actual or constructive; in determining whether force and lack of consent occurred, the court-martial must consider the totality of the circumstances presented in the case).
(proof that an alleged victim of rape physically resisted the accused is not needed to support a finding of lack of consent as an element of rape; a lack of consent can be manifested by the victim in a number of ways other than physical resistance; for example, the victim’s repeated verbal rejections may be enough to establish that the members could reasonably have found or inferred beyond a reasonable doubt the element of lack of consent).
(consent to sexual intercourse may not be inferred if resistance would have been futile, where resistance is overcome by threats of death or great bodily harm, or where the victim is unable to resist because of the lack of mental or physical faculties).
(in this case, the evidence
insufficient to support the conviction of appellant, a drill sergeant,
raping a female trainee on three occasions, where the record was devoid
evidence showing that the trainee manifested a lack of consent or took
measures to resist sexual intercourse with appellant or that her
have been futile or was overcome by threats of death or great bodily
United States v. Terry, 64 M.J. 295 (it has long been the law with respect to the offense of rape that where intimidation or threats of death or physical injury make resistance futile, it is said that constructive force has been applied; further, constructive force may consist of expressed or implied threats of bodily harm).
United States v. Washington, 63 M.J. 418 (an Article 120(b), UCMJ, violation for carnal knowledge requires: (1) that the accused commit an act of sexual intercourse; (2) with a person who is not the accused’s spouse; and (3) who is under sixteen years old; penetration, however slight, is sufficient to complete the offense).
(there was sufficient evidence of penetration to support appellant’s conviction of carnal knowledge of his daughter where the mother testified that she found appellant naked in bed spooning her daughter with a partial erection, where daughter testified about acts of vaginal penetration prior to the date in question, and where reasonable trier of fact could infer that the word “also” in trial counsel’s question to the daughter asking whether appellant had “also” put his private part inside her before that date was inclusive and meant that acts of penetration occurred not only before that date, but also on that date).
United States v. Leak, 61 M.J. 234 (in military law, rape is an act of sexual intercourse, by force and without consent; although listed within the same element, force and lack of consent are distinct, although related, elements of the offense).
(the lack of consent required for rape is more than mere lack of acquiescence; if a victim in possession of his or her mental faculties fails to make lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that the victim did consent; such measures of resistance can be verbal, physical, or a combination of the two; in other words, in context, a verbal “no” can manifest the necessary lack of consent for the offense of rape; in such a context, physical resistance is not required; a finding of lack of consent does not require proof that the witness physically resisted her attacker; moreover, proof of resistance in any form is not a necessary element of the offense of rape; it may, however, be probative on the issue of consent; further, verbal or physical measures of resistance are not required if resistance would have been futile, where resistance is overcome by threats of death or great bodily harm, or where the victim is unable to resist because of lack of mental or physical faculties; in such a circumstance, there is no consent).
(the force required for rape can be accomplished in one of two manners: actual force or constructive force; actual force is physical force used to overcome a victim’s lack of consent; actual force requires more than the incidental force involved in penetration; constructive force may consist of expressed or implied threats of bodily harm; constructive force may be shown by proof of a coercive atmosphere that includes threats to injure others or statements that resistance would be futile).
(as a matter of law, depending on the circumstances, a victim need not physically resist to manifest lack of consent and once lack of consent has been reasonably manifested, one need not continually manifest that lack of consent through resistance).
United States v. Banker, 60 MJ 216 (this Court has never recognized the ability of a child under the age of 16 to legally consent to sexual intercourse or sodomy).
United States v. Hibbard, 58 M.J. 71 (rape is a general intent offense requiring proof that an accused deliberately or purposefully committed an act of sexual intercourse by force and without the victim’s consent; an honest and reasonable mistake of fact as to the victim’s lack of consent is an affirmative defense to a charge of rape).
United States v. Simpson, 58 MJ 368 (the offenses of rape and forcible sodomy both require proof that the act was committed by force and without consent; although force and lack of consent are separate elements, our case law recognizes that there may be circumstances in which the two elements are so closely intertwined that both elements may be proved by the same evidence).
(consent induced by fear, fright, or coercion is equivalent to
force; such constructive force may consist of expressed or implied
bodily harm; constructive force may be shown by proof of a coercive
that includes, for example, threats to injure others or statements that
resistance would be futile).
(in the context of the special relationship between noncommissioned officers and trainees, we have observed that the NCO cannot create by his own actions an environment of isolation and fear and then seek excusal from the crime of rape by claiming the absence of force especially where, as here, passive acquiescence is prompted by the unique situation of dominance and control presented by appellant’s superior rank and position).
(rank disparity alone is not sufficient to constitute constructive force; the evidence in this case, however, presents far more than mere rank disparity between appellant and his victims: (1) appellant’s physically imposing size; (2) his reputation for being tough and mean; (3) his position as a noncommissioned officer; (4) his actual and apparent authority over each of the victims in matters other than sexual contact; (5) the location and timing of the assaults, including his use of his official office and other areas within the barracks in which the trainees were required to live; (6) his refusal to accept verbal and physical indications that his victims were not willing participants; and (7) the relatively diminutive size and youth of his victims, and their lack of military experience; additionally, appellant used his authority over the victims to issue orders that placed them in the isolated locations where the charged rapes occurred).
United States v. Schuler, 50 MJ 254 (National Defense Authorization Act for Fiscal Year 1996, § 1113, Pub.L.No. 104-106, 110 Stat. 186, 462 (1996), amended Article 120, UCMJ, effective February 10, 1996, to permit an accused to raise the defense of reasonable mistake of fact to a charge of carnal knowledge; the accused has the burden of proof by a preponderance of the evidence).(amendments to Article 120, which permit accused to raise defense of reasonable mistake of fact to charge of carnal knowledge, retained elements of offense and did not substitute a right for the crime; thus, under general federal savings statute, 1 USC § 109, common law doctrine of abatement is not applicable and appellant is not entitled to judicial relief from his provident guilty plea).