(b) Sexual Assault:
2019 (October Term)
United States v. Moore, 79 M.J. 483 (prior to 26 December 2013, the statute of limitation for sexual assault offenses was five years; for offenses occurring on or after 26 Dec 2013, the statute of limitations for sexual assault offenses has been eliminated).
(in this case, where two sexual assault specifications as originally drafted were properly tolled before the five year statute of limitations had run, amendments to those specifications made by the convening authority pursuant to the recommendation of the pretrial investigating officer to conform with the evidence did not make the previous tolling ineffective, even though the amendments were made more than five years after the conduct alleged in the amended specifications occurred; nothing in Article 43, UCMJ, suggests that a charge or specification that was timely when received by the officer exercising summary court-martial jurisdiction might become untimely if the convening authority makes changes to the charge or specification that are authorized by Article 34(c), UCMJ; on the contrary, Article 43, UCMJ, says nothing about amendments, even though amendments are very common; this silence leads to the conclusion that Congress chose not to create a different rule for when the statute of limitations is tolled in cases where the convening authority makes authorized amendments; likewise, when a convening authority makes changes to charges or specifications that are authorized by Article 34(c), UCMJ, nothing in the language of that article suggests that the convening authority is creating a new charge or specification as opposed to merely amending an existing charge or specification; and Article 34(c), UCMJ, does not indicate in any way that a properly amended charge or specification must go back to the officer exercising summary court-martial jurisdiction to toll the statute of limitations, or that the date of amendment marks the date when the original charge or specification was considered received by that officer; if Congress had intended either of those results, Congress easily could have indicated when changes create new charges and what effect creating new charges would have on the statute of limitations; the silence in Article 34(c), UCMJ, about these subjects leads to the conclusion that changes to charges and specifications that are authorized by Article 34(c), UCMJ, do not affect the application of the statute of limitations; furthermore, precedent in US v. Arbic [16 C.M.A. 292, 36 C.M.R. 448 (1966)] supports this position).
2018 (October Term)
United States v. McDonald, 78 M.J. 376 (the required mens rea for sexual assault by bodily harm is a general intent mens rea; Congress clearly intended such a general intent where (1) the plain text of the statute clearly implies a general intent offense, (2) the offense evolved from a general intent offense, (3) the presence of a negligence mens rea elsewhere in the statute suggests that Congress affirmatively chose to leave sexual assault by bodily harm as a general intent offense, and (4) construing the statute as a general intent offense does not criminalize innocent conduct).
(the statutory elements for sexual assault by bodily harm are straightforward: it is an offense to commit a sexual act without consent, although an honest and reasonable (nonnegligent) mistake of fact as to consent serves as an affirmative defense; such a statutory construction typically suggests a general intent offense).
(as a general intent offense, sexual assault by bodily harm has an implied mens rea that an accused intentionally committed the sexual act; no mens rea is required with regard to consent, however).
(with respect to the offense of sexual assault by bodily harm, the burden is on the actor to obtain consent, rather than the victim to manifest a lack of consent; in this case, where appellant engaged in sexual intercourse with the victim by taking his roommate’s place in penetrating the victim from behind, appellant’s actions could only be considered innocent if he had formed a reasonable belief that he had obtained consent; the government only needed to prove that he had not done so to eliminate the mistake of fact defense).
United States v. Forbes, 78 M.J. 279 (the elements of sexual assault by bodily harm are (1) that the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva or anus or mouth by the penis; and (ii) that he did so by causing bodily harm to that other person; bodily harm is defined as any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact; consent is defined as a freely given agreement to the conduct at issue by a competent person; to be freely given, consent must be informed).
(failure to disclose one’s HIV-positive status before engaging in sexual activity constitutes an offensive touching, including offensive touching constituting bodily harm for assault offenses; and informed consent can convert what might otherwise be an offensive touching into a non-offensive touching).
(in this case, appellant’s pleas to sexual assault by bodily harm through failing to inform his sexual partners he was HIV positive were provident; consistent with Article 120(b)(1)(B), UCMJ, appellant committed a sexual assault each time he had sexual intercourse with one of the victims without first informing her of his HIV status and thereby lawfully obtaining her consent to the intercourse; it was the failure to inform the victims of the HIV-positive status that vitiated meaningful consent and caused the touching to be offensive; true consent must be informed).2017 (October Term)
United States v. Condon, 77 M.J. 244 (in light of other definitions, to include part of the defense-proposed instruction for “incapable of consenting,” and defining “impaired,” as well as the definitions of “consent” from the Military Judges’ Benchbook, the phrase “incapable of consenting” did not require additional definition and further instruction on this point was not required; with these definitions, the military judge allowed the panel to understand the element “incapable of consenting;” accordingly, the military judge did not abuse his discretion in failing to give the entire defense-proposed incorrect instruction, or a sua sponte instruction, on a term readily understandable by the members).
United States v. Bailey, 77 M.J. 11 (sexual assault charged under Article 120(b)(3) requires in relevant part that the victim be incapable of consenting to the sexual act due to impairment by any intoxicant).
(with respect to sexual assault charged under Article 120(b)(3), a person can be awake and conscious and still be incapable of consenting).
(with respect to sexual assault charged under Article 120(b)(3), for a complainant to be incapable of consenting to a charged sexual act, it is not required that the complainant be completely unable to communicate).
(incapable of consenting is an element of sexual assault charged under Article 120(b)(3); consistent with the principle that words generally known and in universal use do not require additional definition, the phrase incapable of consenting requires no additional definition or instruction on this point; incapable is not a technical legal or scientific term; the plain meaning of incapable is one that is generally and correctly understood as being unable to do something; at trial in this case, the military judge gave an instruction on the definition of consent; accordingly, the plain meaning of incapable combined with the definition of consent allowed the panel to understand the element incapable of consenting; as such, the military judge was not required to give an instruction on the definition of incapable of consenting). 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 sexual assault were: (1) the accused committed a sexual act with another person; and (2) the sexual act was accomplished by placing the other person in fear; unlike assault consummated by a battery, lack of consent was not an element of sexual assault 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).