In an unpublished en banc opinion in United States v. Soto, No. 38422 (A.F. Ct. Crim. App. Sep. 16, 2014) (link to unpub. op.), the Air Force Court of Criminal Appeals reverses a conviction for forcible rape in violation of Article 120(a) (2006), finding that the Government failed to satisfy its burden to demonstrate that the appellant used physical force to cause the sexual intercourse.
The appellant was a military training instructor at Joint Base San Antonio-Lackland, Texas. A general order prohibited “developing or attempting to develop a personal, intimate, or sexual relationship with a trainee, including former basic trainees who remained in follow-on technical training school” and also prohibited “such relationships with a trainee’s immediate family member.” Slip op. at 2. The appellant engaged in numerous such relationships, leading to pleas of guilty before a general court-martial composed of a military judge alone to two specifications of violating a lawful general regulation, one specification of making a false official statement, and two specifications of adultery, in violation of Articles 92, 107 and 134.
However, the appellant was also charged with rape, aggravated sexual assault, and wrongful sexual contact involving his sexual encounters with one particular former trainee. He pleaded not guilty to these charges. The military judge acquitted the appellant of the aggravated sexual assault and wrongful sexual contact charges, but convicted him of the rape.
The rape charge involved a former trainee identified as Senior Airman (SrA) TS, who contacted the appellant after completing her basic training and flew from California to San Antonio in order to visit him. She planned to stay at the appellant’s apartment during the visit.
The incident that led to the rape specification took place soon after SrA TS arrived in San Antonio. She stated the appellant met her at the airport and as she entered his car, he promptly pushed her into her seat and kissed her. She stated she attempted to distract him by stating she wanted to go out to eat, but the appellant insisted they stop by his apartment to drop off her luggage. SrA TS stated she used the restroom in his apartment, and when she emerged from the restroom, the appellant hugged her, kissed her, took her to the bed, pulled down her shorts, and had sexual intercourse with her. SrA TS stated this was against her will; she pushed him and told him, “No, I’m not ready,” to no avail.
At trial and on appeal, the parties focused much of their attention on SrA TS’s actions following this charged rape. SrA TS continued to stay at the appellant’s apartment and slept in his bed for her five-day stay in San Antonio. When she returned to California, she continued to communicate with the appellant and sent him explicit pictures of herself. She also communicated with a friend from basic training that she was dating the appellant, that he was her boyfriend, and that the relationship was a “dream come true.” Although she considered herself in a relationship with the appellant, SrA TS also remained in an “on again, off again” relationship with her boyfriend in California during this time; however, the relationship was strained.
Over the next several months, SrA TS visited the appellant twice more, both times bringing family members to view houses for the family’s possible move to San Antonio. Some consensual sexual activity took place between SrA TS and the appellant during SrA TS’s visits to San Antonio, and she stayed with the appellant during each visit. During the last visit, SrA TS stated that she woke up after consuming alcohol to find herself unclothed in the appellant’s apartment smelling like she had sex. However, SrA TS could not state positively whether intercourse occurred, and she testified that she did not feel like she had sex. The appellant was acquitted of aggravated sexual assault and wrongful sexual contact resulting from this incident. Soon after this last visit, SrA TS and the appellant stopped communicating, and SrA TS married her boyfriend in California.
Slip op. at 3. The CCA considers these facts and the evidence presented at trial and concludes that the evidence is factually insufficient to support the rape conviction “on narrower grounds than the parties’ focus in their initial briefs, focusing solely on the evidence introduced about the charged rape itself.” Slip op. at 4. Writing for the court, Judge Weber avoids the appellant’s assertion “that SrA TS’s actions following the charged incident undermine her credibility and demonstrate her consent to sexual activity with the appellant,” focusing instead on the legal definition of force and the evidence presented on that element. Slip op. at 4.
Article 120(a) (2006) defined as rape “caus[ing] another person of any age to engage in a sexual act by— (1) using force against that other person.” Force was defined in Article 120(t)(5) as:
(5) Force. The term “force” means action to compel submission of another or to overcome or prevent another’s resistance by—
(A) the use or display of a dangerous weapon or object;
(B) the suggestion of possession of a dangerous weapon or object that is used in a manner to cause another to believe it is a dangerous weapon or object; or
(C) physical violence, strength, power, or restraint applied to another person, sufficient that the other person could not avoid or escape the sexual conduct.
Judge Weber explains that:
The appellant was convicted of causing SrA TS to engage in sexual intercourse “by using physical strength or power or restraint applied to her person sufficient that she could not avoid or escape the sexual contact.”
Slip op. at 4.
But “at trial, the Government elicited only cursory information about the intercourse that was charged as rape. The entire substance of SrA TS’s testimony consists of the following:
As soon as I came out [from the restroom] he started hugging me and try[ing] to guide me on his bed and trying to have sex with me.
. . . .
I’m just pretty scared and didn’t know what to do.
. . . .
I said, “No, I’m not ready.”
. . . .
I was afraid because like I couldn’t believe that I came to San Antonio and I [was having] sex with my [MTI]. And then another thing I was scared because I already [was having] a sexual relationship with [another] male. [It doesn’t] matter [if] it’s my fault or his fault, it’s still considered cheating on my boyfriend at that time.
. . . .
[When I came out of the restroom], he wrapped [his arms] around me.
. . . .
Then he tried kissing me; kissing my lips and my neck.
. . . .
We [were] moving. He kind of like turn[ed] me around towards the bed.
. . . .
Then he’s got my back on the bed and he stopped kissing and tried to take off my pants. Then we started having sex.
Slip op. at 5. Based on this testimony (and some summarized follow-up questions), the CCA is not convinced “beyond a reasonable doubt that the appellant took ‘action to compel submission of [SrA TS] or to overcome or prevent [her] resistance by [applying] strength, power, or restraint applied to [her], sufficient that [she] could not avoid or escape the sexual conduct.'” Slip op. at 6 (modifications in original).
Judge Weber addresses three parts of the Government’s case directly:
The Government elicited three primary pieces of evidence about the charged act itself to build its case: 1) SrA TS told the appellant “No, I’m not ready” at some point after the appellant began his advances; 2) SrA TS pushed the appellant while he was on top of her in an unsuccessful attempt to get the appellant off her; and 3) SrA TS was afraid during the encounter. The testimony on each point was extremely brief and left several questions unanswered. For example, the Government did not elicit sufficient context about when the “No, I’m not ready” statement occurred, what her tone of voice was, whether the appellant could have been expected to hear her, or whether the two said anything else before or during the intercourse. SrA TS testified that she pushed the appellant while he was on top of her, but trial counsel did not elicit sufficient evidence to indicate that the appellant used force to overcome the pushing. On the third point, SrA TS did testify that she was afraid during the encounter, but she never testified that she was afraid of the appellant; rather, she only testified that she was afraid she was having sex with her MTI and she would be seen as cheating on her boyfriend.
Slip op. at 6.
Judge Weber also specifically notes the potential for coercion by the appellant, who was SrA TS’s former military training instructor:
We do not discount SrA TS’s testimony, and we recognize she portrayed what could have been a sinister act by the appellant. The appellant was previously SrA TS’s military training instructor, and he placed SrA TS in a situation where they would be alone in an environment unfamiliar to her without her own means of transportation. It is certainly possible the appellant used some combination of his coercive power as SrA TS’s former MTI, his knowledge that she was dependent on him for shelter and transportation during the visit, his body weight, and his refusal to heed SrA TS’s cues that she was not ready to cause SrA TS to have sexual intercourse.
However, the Government charged the appellant with using force to complete a rape. Whatever mental pressure the appellant utilized on his former trainee, the Government retained the burden to demonstrate that the appellant used physical force to cause the intercourse. The Government did not satisfy its burden.
Slip op. at 7.
The analysis concludes with a reminder of the court’s duty to conduct an independent review focused on the law and the facts:
Whatever possibilities SrA TS’s testimony raises about the appellant’s actions, it is not this court’s role to speculate on what possibly occurred in the appellant’s bedroom or to fill in the gaps left by the Government’s presentation of its case. We also may not affirm the conviction simply because the record of trial portrays the appellant as an unsavory character. Rather, we are prohibited from affirming a conviction unless we find it both factually and legally sufficient. United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007); United States v. McAllister, 55 M.J. 270, 277 (C.A.A.F. 2001). We take this charge seriously, as our unique factfinding authority “provide[s] a source of structural integrity to ensure the protection of service members’ rights within a system of military discipline and justice where commanders themselves retain awesome and plenary responsibility.” United States v. Jenkins, 60 M.J. 27, 29 (C.A.A.F. 2004).
Slip op. at 7. Judge Weber explains that “under these facts, we simply are not personally convinced that the Government satisfied its heavy burden of proving force beyond a reasonable doubt. The Government’s evidence is too thin to satisfy us beyond a reasonable doubt that the appellant used force to cause the sexual conduct.” Id. The court also declines to affirm any lesser offense, “given the minimal facts presented in this record.” Slip op. at 8.
For all of the misconduct (including the guilty pleas) the appellant was sentenced to confinement for 48 months, total forfeitures, reduction to E-1, and a dishonorable discharge. But the court is “unable to determine to [its] satisfaction what the appellant’s sentence would have been without the rape conviction.” Slip op. at 9. So the CCA remands the case for a sentence rehearing.
The Government could take this case to CAAF, where that court can review a CCA’s action on factual sufficiency to determine if “the CCA clearly acted without regard to a legal standard or otherwise abused its discretion.” United States v. Nerad, 69 M.J. 138, 147 (C.A.A.F. 2010). And the Judge Advocate General of the Air Force hasn’t been shy about certifying cases to CAAF over the past year (see Part V of the 2013 End o’ Term Stats). But Judge Weber’s opinion is focused on the facts of the case and doesn’t involve the sort of “purely equitable factors” or “simpl[e] disagree[ment] that certain conduct— clearly proscribed by an unambiguous statute— should be criminal” that CAAF has found constitutes an abuse of discretion. Nerad, 60 M.J. at 147. So I think any such appeal faces very long odds.