In United States v. Jackson, No. 38244 (A.F.Ct.Crim.App. Mar. 19, 2014) (link to unpub. op.), the Air Force CCA affirms the admission of propensity evidence of the appellant’s commission of a prior sexual offense under Military Rule of Evidence 413. The case involved allegations that the appellant sexually assaulted two sleeping women (each of whom awoke to the assault). MRE 413 permits the admission of evidence of other sexual assaults in such a case, and the following evidence about an encounter with a third woman (for which the appellant was not charged) was admitted:
Ms. SG testified that she and her husband, who was active duty at the time, were married in March 2011. In June 2011, she and her husband were experiencing marital difficulties, so her husband moved in with the appellant. Ms. SG’s husband worked with the appellant in Security Forces, and she also worked for the squadron as a civilian armed security officer.
According to Ms. SG, on 15 June 2011, at approximately 0030, she received a call from the appellant who described to her a dream he had the night before. He said that in the dream he came over to her house, snuck in through her window, and climbed into bed with her. He then said, “You can imagine what happened after that,” implying that they engaged in sexual activity. Ms. SG did not take the appellant seriously and replied, “Yeah, whatever,” and quickly ended the conversation.
Later that night, after Ms. SG went to bed, she was awoken by what she thought was her husband crawling into bed with her. She thought it was her husband because he had contacted her earlier, indicating he was going to sleep at her house that night. While Ms. SG was lying on her stomach, the person wrapped his arms around her entire body as if trying to become intimate with her. When she rolled over, she realized it was not her husband, but in the darkness she did not know who it was. She grabbed the person’s throat and started choking him. She yelled, “What the hell are you doing in my house? Get the hell out of my house!” The person replied, “But you feel so good,” and “Just pretend that I’m your husband.” After hearing his voice, Ms. SG realized it was the appellant. She then more firmly told him to leave. The appellant left the bedroom and started to walk down the hallway. However, he returned to the room, leaned over the bed, and whispered to her that he had forgotten his shoes. He then finally left her house.
Ms. SG testified that during this event she was not certain if the appellant touched her breasts or genitals. As she was lying on her stomach, he did not touch anything on her front side; he only touched her back side. Ms. SG claimed she and the appellant had never engaged in any sexual relations, she was not interested in him romantically, and she had not invited the appellant to her home on 15 June 2011.
In addition to Ms. SG’s testimony, the Government submitted Facebook conversations between Ms. SG and the appellant where he discussed his desire to have sex with her.
Slip op. at 7-8.
The issue before the CCA was whether the military judge erred in admitting this evidence. The appellant asserted that “the alleged touching of Ms. SG does not constitute a sexual act or contact, as defined in Mil. R. Evid. 413. Further, the appellant claims there was insufficient evidence of an attempted sexual contact or act without Ms. SG’s consent.” Slip op. at 9.
But what makes this case really interesting is the two ways the military judge found the evidence admissible.
First, the judge concluded:
Based on his prior overtures, to include the sexual advances over Facebook and the phone call about the dream, the accused’s actions in entering the house uninvited, crawling into her bed and placing his arms around Ms. [SG] were a substantial step and a direct movement toward the commission of an offense of sexual assault. Specifically, there is sufficient evidence to support a finding by a preponderance of the evidence that at the time, the accused intended to fulfill the dream he had earlier related of having sex with a sleeping Ms. [SG] and is therefore guilty of Attempted Aggravated Sexual Assault.
Slip op. at 8 (quoting the trial ruling) (emphasis added). This conclusion is debatable, but the CCA found that “the Government presented sufficient evidence showing by a preponderance of the evidence that the appellant committed an attempted aggravated sexual assault on Ms. SG.” Slip op. at 9.
However, the military judge also concluded:
Alternatively, although there is no evidence the accused touched Ms. [SG’s] “genitalia, anus, groin, breast, inner thigh or buttocks of another person,” there is evidence that the accused touched her with intent to gratify his sexual desires, as evidenced by his response, “you feel so good,” when Ms. [SG] asked him to stop. Thus, the conduct would not have necessarily amounted to abusive sexual conduct at the time but under Article 120[, UCMJ,] as implemented on 28 June 2012, this conduct would amount to Abusive Sexual Contact. Thus, as of the date of trial, the accused’s conduct with Ms. [SG] amounts to sexual contact proscribed by the UCMJ and is an offense of sexual assault under [Mil. R. Evid.] 413.
Slip op. at 8 (quoting the trial ruling) (emphasis added). The significant issue here is the definition of “sexual contact,” with three possibilities: The definition in the text of M.R.E. 413 (in effect at the time of trial), the definition in Article 120(t)(2) (2006) (in effect at the time of the alleged contact with SG), and the definition in Article 120(g)(2) (2012) (in effect at the time of trial). The military judge used the definition of sexual contact from the version of Article 120 in effect at the time of trial, not the definition from the Rule (that is the same as the definition from the version of Article 120 at the time of the alleged contact).
M.R.E. 413 permits admission of other “offenses of sexual assault.” The rule defines this term as:
(d) For purposes of this rule, “offenses of sexual assault” means an offense punishable under the Uniform Code of Military Justice, or a crime under Federal law or the law of a State that involved—
(1) any sexual act or sexual contact, without consent, proscribed by the Uniform Code of Military Justice, Federal law, or the law of a State;
Further, the rule defines “sexual contact” as:
(f) For purposes of this rule, the term “sexual contact” means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
I’m not aware of a case directly on point, but in the context of M.R.E. 414 (addressing the same issue but in the context of child molestation), CAAF has said of similar language defining relevant terms:
This definition provides an exclusive list of offenses that qualify as offenses of child molestation.
United States v. Yammine, 69 M.J. 70, 75 (C.A.A.F. 2010) (quoting United States v. Schroder, 65 M.J. 49, 53 (C.A.A.F.2007)) (marks and signals omitted) (emphasis in original). So it’s not enough that the appellant’s encounter with SG may have been conduct proscribed by the UCMJ; it must also include sexual contact as defined by MRE 413 itself.
Because of this, I think the military judge clearly erred when he adopted the definition of sexual contact in the version of Article 120 enacted after the appellant’s encounter with SG. Only the definition of sexual contact in the rule itself (that mirrors the definition in effect at the time of the encounter) applies. Accordingly, for the purposes of MRE 413, the appellant did not commit a completed sexual contact.
Of course, this is mooted by the judge’s finding (also affirmed by the CCA) that the appellant committed an attempt sufficient to trigger the rule.