(e) Aggravated Sexual Contact:
2018 (October Term)
United States v. Gonzales, 78 M.J. 480 (as the two offenses are defined in the version of Article 120, UCMJ, in force from October 1, 2007, through June 27, 2012, aggravated sexual contact of a child is not a lesser included offense of rape of a child; the elements test is not satisfied because the offense of aggravated sexual contact with a child includes a specific intent that the offense of rape does not, namely, the specific intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person; the mens rea for rape is a general intent to commit the sexual act).
(in this case, although the military judge erred in finding appellant guilty of aggravated sexual contact with a child as a lesser included offense of rape of a child as those two offenses were defined in the version of Article 120, UCMJ, in force from October 1, 2007, through June 27, 2012, the error was not clear and obvious where other federal courts had reached conflicting conclusions at the time of trial and on appeal on the question of whether a person who commits a rape will necessarily act with the specific intent required for a sexual contact; in addition, at the time of trial, the 2008 edition of the MCM incorrectly identified aggravated sexual contact with a child as a lesser included offense of rape of a child; although the MCM’s listing of lesser included offenses is not controlling, an error in the MCM is a factor in determining whether an issue was subject to reasonable doubt; accordingly, because appellant failed to object to the military judge’s finding at trial and forfeited the issue and because the military judge’s error was not clear and obvious, the military judge’s finding could not be overturned on plain error review).
2009 (September Term)
United
States v. Neal, 68 M.J. 289 (aggravated
sexual contact in violation of Article 120(e), UCMJ, makes it an
offense to
engage in sexual contact by use of force; 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
aggravated sexual contact).
(consent and
mistake of fact as to consent are affirmative defenses for the sexual
conduct
in issue in a prosecution for aggravated sexual contact; an affirmative
defense
is any special defense which, although not denying that the accused
committed
the objective acts constituting the offense charged, denies, wholly, or
partially, criminal responsibility for those acts; the accused has the
burden
of proving the affirmative defense by a preponderance of the evidence;
after
the defense meets this burden, the prosecution shall have the burden of
proving
beyond a reasonable doubt that the affirmative defense did not exist).
(under Article 120(e), the
prosecution need
not prove the absence of consent in order to obtain a conviction; if
the
court-martial panel, like a civilian jury, is convinced beyond a
reasonable
doubt by competent evidence - such as the testimony of an eyewitness -
that the
accused engaged in sexual contact by applying the degree of force
described in
Article 120(e), then the panel may return a finding of guilty as to
aggravated
sexual contact; in short, under the structure of the statute, the
absence of
consent is not a fact necessary to prove the crime of aggravated sexual
contact
under Article 120(e)).
(under Article 120(e),
evidence that the
alleged victim consented to the charged sexual contact is relevant to
the factfinder’s
determination of whether the prosecution has proved the element of
force beyond
a reasonable doubt).
(in Article 120(r), Congress
stated that
consent is not “an issue ... in a prosecution under” designated
provisions of
Article 120, including Article 120(e); this statement that consent is
not “an
issue” is interpreted narrowly as emphasizing that consent is not an
element,
thereby underscoring and reinforcing the legislation’s deletion of the
prior
requirement that the prosecution prove beyond a reasonable doubt that
the
accused acted “without consent” from the alleged victim; under the
narrow
interpretation, the provision would not preclude treating evidence of
consent
as a subsidiary fact pertinent to the prosecution’s burden to prove the
element
of force beyond a reasonable doubt).
(although the aggravated
sexual contact
statute describes the degree of force in terms of the relative actions
of the
accused and the alleged victim, the prosecution is not required to
prove
whether the alleged victim was, in fact, willing or not willing; if the
evidence demonstrates that the degree of force applied by an accused
constitutes action to compel another person, the statute does not
require further
proof that the alleged victim, in fact, did not consent; Congress, in
defining
force from the perspective of the action taken by the alleged
perpetrator, did
not reinsert “without consent” as an “implicit element” in Article 120).
(the
possibility
that evidence
pertinent to the affirmative defense of consent could raise a
reasonable doubt
about the element of force in a particular case does not render the
aggravated
sexual contact statute unconstitutional; as such, in this case, the
military
judge erred in treating lack of consent as an element of the offense
and in
concluding that Congress established an unconstitutional element-based
affirmative defense in Article 120).
(if evidence of consent is
introduced in
aggravated sexual contact prosecution, the military judge must instruct
the
members to consider all of the evidence, including the evidence of
consent,
when determining whether the government has proven guilt beyond a
reasonable
doubt; in doing so, the military judge must be mindful of both the
content and
sequential structure of the instructions).
(under the aggravated sexual
contact statute,
the element of force establishes the crime of aggravated sexual contact
without
including “lack of consent” as an additional element; under the
statutory
framework set up by Congress, the prosecution may obtain a conviction
upon a
showing that the accused applied a certain amount of force and need not
provide
any evidence regarding the victim’s state of mind; if evidence of
consent is
introduced, it may raise a reasonable doubt about the government’s
proof on the
element of force; as such, the evidence of consent would be relevant to
the
determination of whether the government has proven the required
elements beyond
a reasonable doubt; the statute does not prohibit the consideration of
consent
evidence for that purpose; the opportunity to consider evidence that
may raise
a reasonable doubt about an element does not shift the burden to the
defense to
disprove that element; to the extent that evidence of consent may raise
a
reasonable doubt as to the element of force, the military judge has the
authority to craft an appropriate instruction ensuring that the burden
of proof
remains with the government; consideration by a properly instructed
panel of
two different matters - whether evidence of consent raises a reasonable
doubt
about the element of force, as well as whether evidence of consent
establishes an
affirmative defense – does not render the statute unconstitutional).