(m) Wrongful Sexual
Contact:
2010 (September Term)
United
States v. Bonner, 70 M.J. 1 (assault
consummated by a battery, under Article
128, UCMJ, is an LIO of wrongful sexual contact, Article 120(m), UCMJ).
(the offense of wrongful
sexual contact occurs
when any person, without legal justification or lawful authorization,
engages
in sexual contact with another person without that other person’s
permission;
in the MCM, the President has defined the elements for wrongful sexual
contact
as follows: (a) that the accused had sexual contact with another
person; (b)
that the accused did so without that other person’s permission; and (c)
that
the accused had no legal justification or lawful authorization for that
sexual
contact).
(with respect to the meaning
of the three
elements of wrongful sexual contact, the UCMJ defines sexual contact,
in relevant
part, as intentionally causing another person to touch the genitalia of
any
person, with an intent to abuse, humiliate, or degrade any person or to
arouse
or gratify the sexual desire of any person; second, the statute
requires the
contact to be without permission, and third, the final element requires
that
the sexual contact was wrongful, in that no legally cognizable reason
existed
that would excuse or justify the contact).
(assault consummated by a
battery is an LIO of
wrongful sexual contact where both offenses require wrongful contact;
furthermore, in this case, because appellant was charged with wrongful
sexual
contact by tapping the victim on the head with his exposed penis, he
knew that
he had to defend against having caused the victim to make contact with
his
genitalia without the victim’s permission and with the intent of
abusing,
humiliating, or degrading the victim; such contact would, at a minimum,
be
offensive given the ordinary understanding of what it means for contact
to be
offensive; in fact, in this case, one could transplant the essential
facts from
the wrongful sexual contact specification, without alteration, into a
legally
sufficient specification for assault consummated by a battery under
Article
128, UCMJ).