CAAF will hear oral argument in the Marine Corps case of United States v. Riggins, No. 15-0334/MC (CAAFlog case page), on Tuesday, October 27, 2015. The case questions whether the offense of assault consummated by a battery in violation of Article 128 is a lesser included offense of the offenses of sexual assault in violation of Article 120(b) (2012) and abusive sexual contact in violation of Article 120(d) (2012), with the following granted issue:

Whether the lower court erred in deciding a question of law which has not been, but should be, settled by this court when it held that assault consummated by battery was a lesser included offense to abusive sexual contact and sexual assault.

The appellant’s convictions relate to a sexual encounter with a subordinate. The appellant was tried by a general court-martial composed of a military judge alone. He pleaded guilty to fraternization, making a false official statement, and adultery. He pleaded not guilty to other offenses that included four specifications of sexual assault and eight specifications of abusive sexual contact. Over defense objection, the military judge determined that assault consummated by a battery is a lesser included offense of these sexual offenses, and he convicted the appellant of five specifications of assault consummated by a battery as lesser included offenses of two of the sexual assault specifications and three of the abusive sexual contact specifications. The appellant was acquitted of the other sexual charges, and was sentenced to confinement for three years and a bad-conduct discharge.

Article 120(b)(1)(a) (2012) criminalizes committing a sexual act upon another person by threatening or placing that other person in fear. Article 120(d) (2012) criminalizes committing or causing sexual contact upon or by another person under circumstances criminalized by Article 120(b). Sexual act and sexual contact are legal terms of art defined in Article 120(g)(1) and (2). The prosecution is not required to affirmatively prove lack of consent in order to prove either the offense of  sexual assault or the offense of abusive sexual contact, however Article 120(g)(8)(B) states that “a person cannot consent while under threat or in fear.”

Article 128 criminalizes any attempt or offer, with unlawful force or violence, to do bodily harm to another person, whether or not the attempt or offer is consummated. “The bodily harm must be done without the lawful consent of the person affected.” United State v. Johnson, 54 M.J. 67, 69 (C.A.A.F. 2000) (quoting Manual for Courts-Martial (1995 ed.)) (marks omitted).

In Riggins, the charged offenses of sexual assault and abusive sexual contact alleged that the appellant committed a sexual act and sexual contact upon his victim “by placing [her] in fear that, through the use or abuse of military position, rank, or authority, he would affect her military career.” Gov’t Br. at 12-13. The military judge made special findings when he convicted the appellant, explaining that:

he found the appellant “did not expressly place [her] in fear of him taking action that would affect her career,” the context and circumstances surrounding the incident were such that [she] was, in fact, fearful of what could happen to her and her military career if she resisted the appellant’s sexual advances. This fear, combined with her oral protests allow this court to also find that “it was not reasonable for the appellant to have believed that [she] was consenting.”

United States v. Riggins, No. 201400046, slip op. at 10 (N-M. Ct. Crim. App. Nov. 26, 2014) (quoting record) (marks omitted). The appellant challenged the military judge’s determination that assault consummated by a battery is a lesser included offense at the NMCCA, but the CCA concluded that:

In the context of assault consummated by a battery, the Government must prove “that no legally cognizable reason [such as consent] existed that would excuse or justify the contact.” Bonner, 70 M.J. at 3. While the language is different, the effect is the same. One cannot prove sexual assault by threatening or placing that other person in fear without necessarily proving assault consummated by a battery, because one cannot prove a legal inability to consent without necessarily proving a lack of consent. Accordingly, we find assault consummated by a battery to be an LIO of sexual assault under Article 120(b)(1), UCMJ (2012 ed.).

Id., slip op. at 8 (marks in original). The CCA applied the same analysis for the offense of abusive sexual contact. The CCA also found that the appellant was on notice of this possible lesser included offense because:

Looking to the statutory language, the UCMJ clearly states that a person cannot consent while under threat or fear. Art. 120(g)(8)(B), UCMJ. Simply reading the statute he was charged with violating would have informed the appellant that fear (and, by implication, a lack of consent) would play a major role in the Government’s case.

Id., slip op. at 9.

The appellant’s brief asserts that the issue of consent is not raised by the offenses of sexual assault in violation of Article 120(b) or abusive sexual contact in violation of Article 120(d):

[S]exual assault and abusive sexual contact by placing in fear, as charged here, do not contain an element relating to consent or permission for any sexual contact.

App. Br. at 7 (emphasis added). I think this is clearly wrong. Both offenses require the prosecution to prove that an accused threatened or placed the other person in fear, and a  person who is threatened or in fear cannot consent as a matter of law. See Article 120(g)(8)(B). Accordingly, while the prosecution need not affirmatively prove the absence of consent, it must prove facts that have the legal effect of proving that an encounter was non-consensual if it is to win a conviction for either Article 120 offense.

The military judge’s special findings are a wild card in this case. By finding that the appellant did not expressly place his victim in fear, however also finding that it was not reasonable for the appellant to have believed that his victim was consenting (presumably a rejection of a mistake of fact defense offered by the appellant at trial), the military judge appears to have reached an inconsistent verdict.

However, that is no basis for relief for the appellant:

The possibility that, under the evidence, the military judge might also have found appellant guilty of the greater offense, rape, does not preclude a finding of guilty of the lesser offense, indecent assault, for

inconsistent verdicts–even verdicts that acquit on a predicate offense while convicting on the compound offense–should not necessarily be interpreted as a windfall to the Government at the defendant’s expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense.

United States v. Powell, 469 U.S. 57, 65, 105 S.Ct. 471, 476, 83 L.Ed.2d 461 (1984); see also United States v. Lyon, 15 USCMA 307, 313, 35 C.M.R. 279, 285 (1965) (“court-martial may merely have given the accused ‘a break'”).

United States v. Watson, 31 M.J. 49, 53 (C.M.A. 1990). It certainly seems likely that the military judge gave this appellant a break, finding that he committed non-consensual sexual acts and contacts but convicting him of non-sexual offenses (likely sparing him from the onerous requirement of sex offender registration).

Notably, if the appellant’s Article 128 convictions are reversed, then the appellant would be convicted of only two orders violations, making a false official statement, and adultery and indecent language in violation of Article 134. Those offenses may not support the adjudged sentence of three years and a bad-conduct discharge, leading to a sentence rehearing. Then, at such a rehearing (or at a separate court-martial), the Government could bring proper Article 128 charges, possibly resulting in additional punishment for the appellant.

Case Links:
NMCCA oral argument audio
NMCCA opinion
• Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

8 Responses to “Argument Preview: United States v. Riggins, No. 15-0334/MC”

  1. Zeke says:

    This case is interesting when considered in the Gutierrez context – i.e., when making charging decisions in a case where an HIV-positive person has sex without disclosing their condition.  I don’t think I could express the application by analogy any better than by merely modifying Zach’s well-put paragraph above:

    Both [Article 120 and 128] require the prosecution to prove that an accused [committed an act without consent], and a person who is [not meaningfully informed] cannot consent as a matter of law.  See [Gutierrez, applying the Supreme Court of Canada’s holding in Cuerrier.]  Accordingly, while the prosecution need not affirmatively prove the absence of consent, it must prove facts that have the legal effect of proving that an encounter was non-consensual if it is to win a conviction for either Article 120 [or Article 128] offense.

     

  2. Zachary D Spilman says:

    I wholly disagree with the portion of United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page), where CAAF applied Canadian law to invent the ambiguous term true consent.

  3. Zeke says:

    Zach, it’s not Canadian law anymore.  Now, it’s also the law of the federal government’s military jurisdiction.

  4. Tami a/k/a Princess Leia says:

    I think that, as charged in this case, assault consummated by a battery is not an LIO because ACBB requires an offensive touching, which requires a bodily harm.  The sexual assault in this case was charged as placing her in fear of losing her career, not by causing bodily harm.  Threatening her with the loss of her career is not sufficient for an “assault” under Article 128.

  5. Zachary D Spilman says:

    A non-consensual sexual act or contact is not bodily harm, Tami?

  6. Tami a/k/a Princess Leia says:

    @Zach,
     
    The way the Government charged this case, Riggins wasn’t charged with bodily harm.  Be was charged with threatening, or placing her in fear of, an economic loss.  Had the government charged him with bodily barm, even in the alternative, then I would completely agree that ACBB is an LIO.  But the judge found him not guilty of sexual assault as charged.  By finding him guilty of causing bodily harm, the judge completely changed the theory of criminal liability.  Therefore, we have lack of notice.  Read through Article 128, it doesn’t say anything about placing someone in fear of economic loss as being sufficient to commit assault.
     
    There is a “battery” in this case, but there is no “assault consummated by” a battery, so in this case, as it was charged, ACBB cannot be an LIO of sexual assault.

  7. Zachary D Spilman says:

    I’m not following you Tami.

    The appellant was charged with committing sexual acts and sexual contacts by placing the other person in fear.

    It seems to me that the sexual acts and sexual contacts are the bodily harm (as they involve actual touching), and the placing in fear is what renders the harm non-consensual (because a person in fear cannot consent to sexual acts or contacts).

    So (considering just the charges) we have a non-consensual offensive touching (bodily harm) of another. That is the classic definition of a battery.

  8. Tami says:

    The definition of “assault” is an attempt or offer with unlawful force or violence to do bodily harm to another.  This was an “offer” type of assault.  “Offer” requires (1) unlawful demonstration of violence that (2) creates reasonable apprehension of receiving immediate bodily harm.
     
    The way the Government charged it, the Government didn’t say anything about “bodily harm” in the charges.  The only theory advanced by the Government was a threat that put her in fear of hurting her military career.  This is an economic loss that doesn’t count as a demonstration of “violence” that creates fear of “immediate bodily harm” for “assault” covered by Article 128.  Therefore, “assault” consummated by a battery is not an LIO of sexual assault in this case.
     
    That the evidence may have shown at trial that she feared bodily harm in addition to fear of hurting her military career is irrelevant, as it is a completely separate theory of how to sexually assault someone.  The Government should have (and could have) charged sexual assault by causing bodily harm as an alternative, but for whatever reason chose not to.  The judge found him not guilty as charged.  Since there was no theory about threatening with violence or putting her in fear of bodily harm in the charge sheet, Riggins should not have been found guilty of ACCB.