There are two components to the granted issue in United States v. Wilkins, No. 11-0486/NA, 71 M.J. 410 (C.A.A.F. Nov. 16, 2012) (CAAFlog case page) (link to slip op.), which questioned whether the Appellant’s right to due process of law was violated when he was convicted for abusive sexual contact, in violation of Article 120(h) (2007), as a lesser-included offense of aggravated sexual assault, Article 120(c) (2007). The first is whether, under the facts of this case, abusive sexual contact is a lesser-included offense of aggravated sexual assault.  The second is whether, under the fact of this case, it matters.

In its first opinion of the term, authored by Judge Stucky, CAAF answers both questions in the negative.

First, the court finds that “[a]busive sexual contact is an LIO of aggravated sexual assault in some instances. For example, if an accused is charged with aggravated sexual assault by penetrating the genital opening of another, then any penetration of the genital opening would also require a touching of the genital opening.” Wilkins, slip op. at 6-7. “However, in this case, Appellant was charged with aggravated sexual assault by digitally penetrating the anus of a male victim. A sexual act is statutorily limited to genital openings, and the anus is not such an opening. . . . There is plain and obvious error in this case because Appellant was charged with a legal impossibility.” Slip op. at 7. Of note, the statutory language in issue was significantly expanded at the end of 2011.

But, as I predicted in my argument preview, the failure of the Defense to object at trial, the fact that the defense theory was that this was a consensual encounter, and the fact that the Defense theory likely would have been exactly the same if the Government had properly charged the Appellant with a violation of Article 120(h), instead of improperly charging him with a violation of Article 120(c), are serious bars to relief for the Appellant. CAAF finds:

the defense’s strategy demonstrated that Appellant understood he was defending against all of the elements of abusive sexual contact. The defense’s strategy was to (1) question whether the victim was substantially incapacitated, and (2) raise the issue of mistake of fact as to consent by Appellant. To this end, defense counsel’s cross-examination of MA3 L focused on Appellant and MA3 L’s previous friendship and the events leading up to the sexual contact. This strategy would not have changed had the specification properly alleged “contact” instead of “act.”

Defense counsel did not challenge any of the elements of abusive sexual contact beyond MA3 L’s incapacitation or Appellant’s alleged mistake of fact. Instead, throughout the trial and during closing arguments, defense counsel readily conceded that Appellant penetrated or made contact with MA3 L’s anus. The manner in which the case was argued undercuts any argument that Appellant was not on notice of what he had to defend against or that his defense preparations were hampered. Therefore, Appellant has not demonstrated prejudice to a substantial right.

United States v. Wilkins, No. 11-0486/NA, Slip op. at 10-11 (C.A.A.F. 2012). It’s impossible to predict exactly what would have happened at trial had the Defense objected to the military judge’s instruction on the LIO – for instance, would the case have resulted in a jeopardy-triggering acquittal, or would the charge have been dismissed as failing to state an offense, presumably permitting another trial? But there wasn’t an objection, a conviction followed, and CAAF has now affirmed.

Case Links:
NMCCA opinion (Wilkins I)
NMCCA opinion (Wilkins II)
Blog post: The amazing (new) Article 120
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
Oral argument audio
Blog post: Argument recap
CAAF opinion
Blog post: CAAF decides Wilkins
Blog post: Opinion analysis

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