2018 (October Term)
United States v. Briggs, 78 M.J. 289 (a 2006 amendment to Article 43, UCMJ, made by the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. No. 109-163, §§ 552−53, 119 Stat. 3136, 3264 (2006)), provided that the offense of rape may be tried and punished at any time without limitation).
2010 (September Term)
United
States v. Alston, 69 M.J. 214 (even though the
MCM does not list aggravated
sexual assault as a lesser included offense with respect to rape by
force, the
military judge properly instructed the members that aggravated sexual
assault
was a lesser included offense of rape by force in the context of the
charge at
issue).
(in this case, the elements of
aggravated
sexual assault were necessarily included in the charge at issue, rape
by force,
that alleged that appellant caused the victim to engage in a sexual
act, to
wit: penetration of her vagina with his fingers by using power or
strength or
restraint applied to her person sufficient that she could not avoid or
escape
the sexual conduct; the first element of aggravated sexual assault -
causing
another person to engage in a sexual act - is the same for both
offenses; the
second element of aggravated sexual assault - causing bodily harm - is
defined
in Article 120(t)(8), UCMJ, to include an offensive touching, however
slight,
and that element is a subset of the force element in the offense of
rape under
Article 120(a), UCMJ, as defined in Article 120(t)(5)(C), UCMJ [*but
note that
the definitions of force in Article 120(t)(5)(A), UCMJ, and Article
120(t)(5)(B), UCMJ, which do not require an offensive touching, are not
at
issue in the present case]).
(each circumstance set forth
in the definition
of force in Article 120(t)(5)(C), UCMJ, describes an act of force
applied by
one person against another person involving sufficient power to compel
submission or overcome or prevent resistance; applying the common and
ordinary
understanding of the words in the statute, each act of force described
in
Article 120(t)(5)(C), UCMJ, at a minimum, includes an offensive
touching that satisfies
the bodily harm definition in Article 120(t)(8)).
United
States v. Neal, 68 M.J. 289 (the 2006
amendment to Article 120 removed
lack of consent as an element of rape and its related offenses; 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 rape).