Congress amended Article 120, UCMJ, effective 1 October 2007. This new Article 120, codified at 10 U.S.C. § 920, is really a remarkable piece of legislation. It encompasses 36 offenses, it contains a legal impossibility, error can result no matter how the members are instructed, it compelled the government to certify a case to CAAF even though the government prevailed at the CCA, you could hurt yourself trying to explain it, it is apparently constitutional, and now it is remarkably flexible.
This week the N-MCCA released an unpublished opinion in United States v. Wilkins, No. 201000289 (N-M Ct. Crim. App., 29 Nov 2011) (hereinafter Wilkins II). This case was considered on remand from CAAF for reconsideration in light of McMurrin, Girouard, Bonner, and Alson, after the N-MCCA affirmed in United States v. Wilkins, No. 201000289 (N-M Ct. Crim. App., 24 March 2011) (hereinafter Wilkins I). In Wilkins I, the N-MCCA found (1) no prejudicial error in the burden-shifting scheme for an affirmative defense under Article 120 because the military judge did not instruct the members of any burden on the defense, and (2) no prejudicial error in instructing the members that abusive sexual contact under Article 120(h) is a LIO of aggravated sexual assault under Article 120(c). The second issue is the subject of the remand.
The facts are best described in Wilkins II:
In June 2009, the appellant, Master-at-Arms Third Class (MA3) L, and several other Sailors from their command took leave to visit a nearby resort area. Their first night at the resort, MA3 L consumed a significant amount of alcohol and had to be escorted to bed. This was at approximately 0500. Soon thereafter, he woke up to a “pressure” around his groin and anus. He looked down and saw the appellant fondling him. MA3 L made it known that the appellant’s actions were unwelcome and the appellant stopped. MA3 L reported the incident the next day.
The appellant was charged under Articles 120 and 125. One specification of the Article 120 charge alleged aggravated sexual assault (10 U.S.C. § 920(c)), that the appellant digitally penetrated MA3 L’s anus while MA3 L was substantially incapable of declining participation or communicating his unwillingness to engage in the sexual act. The other specification of the Article 120 charge alleged abusive sexual contact (10 U.S.C. § 920(h)), that the appellant touched MA3 L’s penis while MA3 L was substantially incapable of declining participating or communicating his unwillingness to engage in the sexual contact. The Article 125 charge consisted of a single specification alleging that the appellant committed anal sodomy by force and without MA3 L’s consent.
The appellant argued at trial that the two specifications under Article 120 were unreasonable multiplications of the same act. The military judge agreed and dismissed the specification alleging abusive sexual contact (alleging the touching of MA3 L’s penis), but kept in place the specification of aggravated sexual assault (alleging the penetration of MA3 L’s anus). Later in the proceedings, however, the military judge noticed that the remaining aggravated sexual assault specification was facially improper. The Government had alleged that the appellant “did engage in a sexual act, to wit: placing his fingers or another object in MA3 L’s anus.” Until that point, no one had noticed that the legislature’s definition of a “sexual act” (“the penetration, however slight, of the genital
opening of another by a hand or finger or by any object,” Article 120(t)(1)) precluded its application to a crime that does not involve a genital opening. The military judge entered a sua sponte finding of not guilty to aggravated sexual assault, but instructed the jury members that they may find the appellant guilty of the LIO of abusive sexual contact. Trial defense counsel did not object to the judge’s instruction.
The members found the appellant guilty of that specification, as well as to the sole specification under Article 125.
In Wilkins I the N-MCCA reasoned that it was “doubtless [that] the specification could have been drafted better, and a better pretrial screening effort . . . could have detected and corrected the error before arraignment, but we cannot conclude that this specification was so defective as to mislead the appellant.” The court also observed that there was no objection from the defense.
In Wilkins II, the N-MCCA applied a plain-error standard and reviews the elements of 120(c) and 120(h) to conclude that 120(h) is a LIO of 120(c), finding no error in the instructions given to the members, noting:
When we lay the elements of aggravated sexual assault alongside the elements of abusive sexual contact, we see only one elemental difference between the two crimes: aggravated sexual assault concerns itself with sexual acts whereas abusive sexual contact concerns itself with sexual contact. When we compare the definition of a sexual act with the definition of sexual contact, we see two differences: a sexual act necessarily involves genitalia, whereas sexual contact does not; and a sexual act requires penetration, whereas sexual contact requires mere touching.
The court concludes that “[b]y penetrating MA3 L’s anus, he must at least have touched MA3 L’s anus. The appellant therefore met the statutory definition of ‘sexual contact.'”
CAAF granted and summarily remanded on the following issue: “whether the appellant’s right to due process of law was violated when he was convicted for abusive sexual contact as a lesser included offense of aggravated sexual assault.” 70 M.J. 274. The CCA adopts that issue, and phrases its analysis in a due process light that focuses on the acts alleged in the specification and the notice provided to the appellant at trial. However, it omits any discussion of how a specification that alleges an act as a “sexual act,” that does not actually constitute a “sexual act,” can amount to an allegation of “sexual contact” when the alleged act is not one of the few acts of “sexual contact” subsumed within a “sexual act.”
Put differently, a “sexual act” requires penetration of the vulva or genital opening of another person. Article 120(t)(1). “Sexual contact” encompasses touching of the genitalia, anus, groin, etc., of another person. Article 120(t)(2). Some sexual contact is subsumed within a sexual act; an accusation of penetration of a genital opening (act) necessarily includes touching the genitalia (contact). However, in this case, the specification alleged “did engage in a sexual act, to wit: placing his fingers or another object in MA3 L’s anus.” This is sexual contact alleged as a sexual act where there is no overlap. Perhaps the language of the specification that stated “did engage in a sexual act” was surplussage, but the court does not address it specifically.
The court also finds that “the defense team knew all along that it was defending against digital or object penetration of the victim’s anus, not against penetration of a genital opening.” There’s also the matter of the absence of objection.
However, considering this is the new Article 120, anything’s possible. After all, the N-MCCA once wrote that:
Specification 1 [120(h)] requires proof of facts not required by Specification 2 [120(c)], and vice versa.
United States v. Fairley, No. 200900574, slip op. at 3 (N-M Ct. Crim. App, 30 June 2010) (Rev’d on other grounds).
Footnote: Some research turned up United States v. Clifton, 69 M.J. 719 (C. G. Ct. Crim. App., 2011) (review denied) in which the “Appellant was found guilty of a specification of abusive sexual contact under Article 120(h) by reference to Article (120)(c)(2).” From this alone, I can’t determine if the CGCCA reached the same LIO determination as the N-MCCA.