This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The next scheduled oral argument at CAAF is on November 18, 2014.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, November 6, 2014, at 10 a.m.:

United States v. Audet, No. 20120574

Issue: Whether the appellant was denied the opportunity to adequately defend against the charge of abusive sexual contact where the panel’s finding by exceptions and substitutions resulted in a material variance.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 24, 2014.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

10 Responses to “This Week in Military Justice – November 2, 2014”

  1. k fischer says:

    While not a military justice case, the Washington Supreme Court (WSC) has declared that the scheme created by the 1975 Washington rape statute, which took out “without consent” as an element unconstitutionally flips the burden of proof onto the accused by requiring an accused to prove the affirmative defense of consent. In State of Washington v. M.R., Jr., the WSC stated that the Government’s burden of proving “forcible compulsion,” cannot coexist with the affirmative defense of consent.  If an accused is required to prove consent, then the accused is also required to disprove forcible compulsion.
    This simple logic mirrors the same simple and rational logic that Judge Ryan employed in his dissent in US v. Neal.

  2. k fischer says:

    Here is a cached copy of the opinion, which is State v. W.R., Jr.

  3. An AF JAG says:

    If I’m not mistaken, and I’m often mistaken, doesn’t the benchbook have an instruction on consent.  I believe it has the MJ read the instruction regarding lack of consent as an element if the actus reus is the same act which causes the bodily harm.   Perhaps it would be wise to always draft a specification in this manner.   

  4. Neutron73 says:

    Uh oh.  Looks like “data entry error” is an affirmative defense for not being truthful to Congress, and by extension, I guess anyone can use it when wearing unauthorized awards or getting entitlements you don’t actually rate.
    I think I’m going to use that excuse for saying I live in a high BAH area while living in a low BAH area.  “I made a data entry mistake, so you can’t send me to AdSep or court-martial for defrauding the government and you can’t make me pay it back.”

  5. Christian Deichert says:

    @ An AF JAG: Funny you should mention that — we tried to amend a spec in front of COL Nance the other day to do just that based on the benchbook.  He held on the record that it was not necessary to do so — that the element is implied in the specification when the bodily harm is the same as the actus reus itself, and there is no need to deviate from the model spec.  
    He is the head of the benchbook committee, so I’m taking his word for it, unless and until an appellate court sayeth otherwise.

  6. Zachary D Spilman says:

    If a charge under the current Article 120(b) (sexual assault) or 120(d) (abusive sexual contact) involves bodily harm in the form of nonconsensual sexual act or contact (see Article 120(g)(3)), then the prosecution must prove lack of consent as an element of the offense.

    To that end, Benchbook instructions 3-45-14 and 3-45-16 both include the following:

    NOTE 2: Lack of consent as an element. When the same physical act is alleged as both the actus reus and the bodily harm for the charged sexual assault, include this as a final element:

    [(3)] That the accused did so without the consent of (state the name of the alleged victim).

    This is, of course, from the September 2014 version of the Benchbook.

  7. Advocaat says:

    Thank you for the link, @Neutron73; I would love to see SECDEF’s letter and its attachments, as well as any statements the former CMC submitted to explain the matter. 

  8. DCGoneGalt says:

    Neutron 73:  Data entry error?  That’s interesting, methinks that excuse doesn’t work for the worker bees.  Message – Accountability is for thee, not for me.  I can only imagine that if questioned under oath to clarify his earlier remarks about this matter that the General would respond with something along the lines of:  “What difference, at this point, does it make?”.  That is one of my favorite “chutzpah” quotes that I would love to see as the entire unsworn statement for an unrepentant Accused. 

  9. J.M. says:

    I didn’t know that ‘data errors’ were ok. I guess I should’ve kept the BSM that S1 accidently put on my ERB a couple years ago. I’m sure I wouldn’t be held to a higher standard for MSG board packet reviewing then Gem Amos is for Congressional approval.

  10. Christian Deichert says:

    ZS – roger, my SVP thought it prudent to include the extra element of without consent in the spec itself, the judge held it was not necessary to do so and not a defective spec as written, for the reasons I stated above.