Having recently written about consent and mistake of fact as to consent as defenses to adult sexual offenses under the UCMJ, I was very interested in the NMCCA’s decision in United States v. Howard, No. 201300346 (N-M. Ct. Crim. App. Nov. 26, 2014) (per curiam) (link to slip op.). The CCA considered a sexual assault conviction where the military judge instructed the members on the defense of consent but not on the affirmative defense of mistake of fact as to consent. The NMCCA heard oral argument in the case (audio available here), with the following issue:

A military judge must instruct on an affirmative defense if the record contains some evidence of the defense that the members could choose to credit. Here, relying on the victim’s testimony about her actions before, during, and after the sexual act with the appellant, the military judge found some evidence raising the affirmative defense of consent under Article 120(r), Uniform Code of Military Justice, 10 U.S.C. § 920(r) (Supp. 2007). Yet the military judge found that same evidence insufficient to raise the affirmative defense of mistake of fact as to consent under Article 120(r), UCMJ. Was this error?

But in its decision the CCA doesn’t actually answer this question, instead concluding that any error was harmless.

The facts of the case involve a sexual encounter between the appellant and the civilian girlfriend (“KK”) of a longtime friend of the appellant. KK had little memory of the encounter (apparently due to alcohol consumption), but she became upset afterward, told her boyfriend that the appellant had assaulted her, and then underwent a sexual assault examination. The appellant was interrogated the following morning and, “despite repeated questioning, the appellant adamantly denied any sexual contact with KK.” Slip op. at 4. However, the appellant’s DNA was found “in seminal fluid found on vaginal swabs taken from KK.” Slip op. at 4.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members, of aggravated sexual assault and adultery, in violation of Articles 120 (2006) and 134. He was sentenced to total forfeitures, reduction to E-1, and a dishonorable discharge.

The appellant did not testify in his own defense. Nevertheless, the Defense requested that the military judge instruct the members on both the defense of consent and the affirmative defense of mistake of fact as to consent. The military judge gave the consent instruction, but not the mistake instruction, based on the following facts:

KK’s testimony that she asked [her boyfriend] after leaving the appellant’s house whether she had been flirting; the lack of any evidence of physical force or resistance; KK’s failure to say anything during the assault; and KK’s action in reaching to remove her tampon.

Slip op. at 6 N.5. The CCA notes that it’s not entirely clear why the judge gave the consent instruction but not the mistake instruction:

It appears the military judge considered the same facts cited by the defense for both instructions, although he did not explain why those facts provided “some evidence” of consent but not mistake of fact as to consent.

Slip op. at 6. A footnote adds that “most of the discussion on instructions occurred during a [R.C.M. 802] discussion.” Slip op. at 6 n.4. This has long been considered a bad practice. See United States v. Sadler, 29 M.J. 370, 373 n.3 (C.M.A. 1990) (“Discussion of instructions should be conducted on the record, rather than in a conference under RCM 802.”).

But in this case the CCA concludes that “assuming arguendo that the military judge erred, we find that the appellant suffered no prejudice.” Slip op. at 6. The court’s analysis turns on the fact that any mistake of fact must have been objectively reasonable:

Mistake of fact as to consent requires that the appellant held an honest but mistaken belief that KK consented to the sexual act and that such belief was reasonable. RULE FOR COURTS-MARTIAL 916(j)(3), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). Thus there is both a subjective and objective component. United States v. Goodman, 70 M.J. 396, 399 (C.A.A.F. 2011) (citation omitted). Therefore, even if the appellant honestly believed that KK consented, that belief must be objectively reasonable or the defense fails. Based on our review of the record, we conclude beyond a reasonable doubt that the panel would have rejected as objectively unreasonable any mistaken belief that KK consented.

Slip op. at 6. The court states a number of facts that it relies upon to reach this conclusion, including that “despite the lack of any inviting comment or similar action on KK’s part, the appellant pulled her bikini bottom down and penetrated her from behind.” Slip op. at 6.

Of note, CAAF unanimously reached an analogous conclusion in its decision last term in United States v. Davis, 73 M.J. 268 (C.A.A.F. May 23, 2014) (CAAFlog case page), where the court found harmless error in the judge’s failure to instruct on the affirmative defense of defense of property based on its own conclusions about the unreasonableness of the appellant’s actions.

7 Responses to “The NMCCA finds a judge’s failure to give a mistake of fact as to consent instruction to be harmless beyond a reasonable doubt”

  1. RY says:

    These CCA decisions always make me a bit queasy because the appellant asked for a jury not judge to decide the facts and yet the net result is for judges to make a decision on a critical defense (critical because in my experience, a good portion of sex assault acquittals are based on MOF).  I get the reason for this and I’ve seen cases where I completely agree the instructional error is harmless, but it sure seems like substitution of a judicial view on a pure factual question that should have gone to the fact-finder. 

  2. Masters in Idiocy says:

    They got this one wrong. KK’s questions showed that she wondered how she acted. If she doesn’t fully know how she was acting, how could they find as objectively unreasonable that consent was in question? What did this guy in were his initial declarations that he had zero sexual contact. 

  3. Phil Cave says:


  4. Defense Hack says:

    Interesting illustration on how CCAs can so easily get to harmless error. I’ve seen state appeals courts reverse and remand on less than this.

  5. k fischer says:

    I thought the issue regarding hearsay sounded like a winner where the complaining witness said she did not know whether penetration occurred.  The statement to the forensic SANE was clearly made for LE purposes where she moved from a facility that could have solely provided her medical care, but not a forensic examination.  I’m not a very bright man, but I know what Crawford v. Washington is.

  6. anon says:

    k fischer:  I think Mr. Cave can address this better than myself, however, because the witness testified I don’t believe hearsay as a constitutional question has application.  That said, MRE is different story. . .  

  7. k fjscher says:

    Yeah……..I guess the witness was confronted.  And, I guess I don’t know what Crawford is.  Thanks anon….Mr. Cave had me fooled.