CORE CRIMINAL LAW SUBJECTS: Crimes: Article 134 -- Assault, Indecent
(Pre-2007 Amendment -- Offenses charged under the law in effect before 1 Oct 2007)

2012 (September Term)

United States v. Gaskins, 72 M.J. 225 (after comparing the elements of the indecent assault in violation of Article 134, UCMJ, and assault consummated by a battery in violation of Article 128, UCMJ, it is evident that each element of assault consummated by battery would necessarily be met by proving the first two elements of indecent assault and thus assault consummated by a battery is an LIO of indecent assault). 

2008 (Septermber Term)

United States v. Chatfield, 67 M.J. 432 (the elements of indecent assault under Article 134, UCMJ, are that:  (1) the accused assaulted a person; (2) the act was done to gratify sexual desires; and (3) the conduct was prejudicial to good order or of a nature to bring discredit to the armed forces). 


(the evidence produced by the government at trial was legally sufficient to prove appellant digitally penetrated the victim with the intent to gratify his sexual desires, where appellant admitted that he rubbed his victim down below and might have penetrated her, where the victim woke on a bed to find appellant behind her and her underwear pulled down around her knees, where the victim felt like she had been penetrated, and where another witness saw appellant grabbing the victim’s breast, saw movement under the covers around the victim’s waist, and saw appellant turn away and button his pants after the victim awoke). 


United States v. DiPaola, 67 M.J. 98 (while an indecent assault offense includes a specific intent element as to whether the touching was committed to satisfy the lust or sexual desires of the accused, the lack of consent element of the offense is a general intent element; accordingly, a mistake-of-fact defense on this element would require both a subjective belief of consent and a belief that was reasonable under all circumstances).  


(evidence that the victim consented to and willingly participated in some of the sexual acts listed in the specification was some evidence that appellant honestly and reasonably believed the victim consented to some of his actions, requiring a mistake-of-fact instruction on the indecent assault specification; appellant and the victim had a prior consensual sexual relationship, the victim consented to the removal of her shirt and the kissing of her breasts after saying “no” to intercourse, creating a mixed message as to which acts were permissible and which were off-limits; where the record revealed a mixed message evidentiary situation in conjunction with defense counsel’s mixed message theme in his opening and closing statements and his request for a mistake-of-fact instruction, it contained some evidence of a mistake of fact that the panel could attach credit to if it so desired, and the military judge erred in failing to give a mistake-of-fact instruction on the specification). 


(in the context of this case, the absence of a mistake-of-fact instruction on the indecent assault specification was not harmless beyond a reasonable doubt because that instruction resulted in a finding of not guilty when given with respect to an indecent exposure specification involving the same victim in the same setting; had the military judge given a mistake-of-fact instruction informing the panel to consider the prior relationship and the circumstances leading up to the indecent assault incident, it is not clear beyond a reasonable doubt that a rational jury would have found appellant guilty absent the error; the missing instruction essentially undercut a defense theory and could very well have contributed to the finding of guilty). 

2008 (Transition)

United States v. Mitchell, 66 M.J. 176 (the intent element of indecent assault may be satisfied, in the case of an accomplice, by proof that the accomplice shared in the perpetrator’s criminal purpose and intended to facilitate the intent of the perpetrator with respect to the commission of the offense; when an accused pleads guilty to aiding and abetting an indecent assault, the accused must admit to sharing in the perpetrator’s criminal intent to gratify the lust or sexual desires of the perpetrator; the accused’s admissions must objectively support a military judge’s finding that:  (1) the accused possessed the specific intent to facilitate the commission of the indecent assault; (2) the accused had a guilty knowledge; (3) the indecent assault was being committed by someone; and (4) the accused assisted or participated in the commission of the indecent assault). 


(in this case, appellant’s pleas of guilty to committing an indecent assault, by aiding and abetting a fellow Marine to have sexual intercourse with the victim was provident, despite appellant’s objection that the plea inquiry did not demonstrate that he acted with the specific intent to gratify his own lust or sexual desire; appellant admitted that he acted with the specific intent to gratify the perpetrator’s lust or sexual desires; in addition, appellant admitted that he intended to facilitate the perpetrator’s commission of the indecent assault, knew that the perpetrator had indecently assaulted the victim, and encouraged the perpetrator’s commission of the indecent assault; the military judge was not required to elicit facts from appellant demonstrating that he intended to gratify his own lust or sexual desires). 



United States v. Ayers, 54 MJ 85 (evidence was legally insufficient to show that alleged victim of indecent assaults did not consent where:  (1) she knew the appellant was being flirtatious; (2) she invited herself to a movie in the day room, sneaked out of her barracks room, and voluntarily followed appellant into a conference room; (3) she admitted that she was interested in and infatuated with appellant; (4) she admitted she was a willing participant; (5) she once waited for appellant to return when he left briefly; (6) she cooperated with appellant’s instructions as he began to massage her; (7) she stated that she did not consider the acts an assault or rape; (8) she called appellant and talked to him several times over the following few days; (9) she voluntarily met with him again; (10) she did not report the incident until summoned to the commander’s office; and (11) her testimony, in sum, was that there was no unwanted sexual touching).

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