CAAF decided the Marine Corps case of United States v. Riggins, 75 M.J. 78, No. 15-0334/MC (CAAFlog case page) (link to slip op.), on January 7, 2016. The court finds that assault consummated by a battery (in violation of Article 128) is not a lesser included offense of either sexual assault or abusive sexual contact by placing in fear through the use or abuse of military position, rank, or authority (in violation of Article 120(b)(1)(a) (2012) and Article 120(d) (2012)).

Judge Ohlson writes for a unanimous court.

CAAF granted review of a single 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 case involves the appellant’s 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. The sexual offenses alleged that the appellant placed the alleged victim in fear that he would affect her military career through the use or abuse of military position, rank, or authority.

During the trial, and over defense objection, the military judge determined that assault consummated by a battery is a lesser included offense of these sexual offenses, and then 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.

The military judge made special findings when he convicted the appellant of the lesser offenses, 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:

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.).

United States v. Riggins, No. 201400046, slip op. at 8 (N-M. Ct. Crim. App. Nov. 26, 2014).

Judge Ohlson’s decision for the unanimous CAAF finds flaw in the NMCCA’s decision by highlighting the difference between a legal inability to consent and the element of lack of consent, but the decision repeatedly emphasizes that it is limited to the circumstances presented in this case.

The analysis begins with the elements test:

If all of the elements of offense X are also elements of offense Y, then X is [a lesser included offense] of Y. Offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements.

Slip op. at 7 (quoting United States v. Tunstall, 72 M.J. 191, 194 (C.A.A.F. 2013)). Next is a recitation of the elements of each offense at issue in this case:

The elements of assault consummated by a battery are:

(1) That the accused did bodily harm to a certain person; and

(2) That the bodily harm was done with unlawful force or violence.

Manual for Courts-Martial, United States pt. IV, para. 54.b.(2) (2012 ed.) (MCM); see also Bonner, 70 M.J. at 3.

. . .

The elements of sexual assault are:

(1) The accused committed a sexual act with another person; and

(2) The sexual act was accomplished by placing the other person in fear.

See Article 120(b)(1)(A), UCMJ.

The elements of abusive sexual contact are:

(1) The accused engaged in sexual contact with another person; and

(2) The sexual contact was accomplished by placing the other person in fear.

See Article 120(b)(1)(A), (d), UCMJ.

Slip op. at 7-8.

From this recitation, Judge Ohlson concludes that:

As can be seen, unlike assault consummated by a battery, lack of consent is not an element of either of the sexual assault or abusive sexual contact offenses as charged. Therefore, in the instant case, an Article 128, UCMJ, offense cannot be considered a lesser included offense of an Article 120, UCMJ, offense.

Slip op. at 8-9. Yet the crucial part of Judge Ohlson’s opinion is his explanation of the difference between the legal inability to consent and the absence of consent:

We note, of course, that for both of the Article 120, UCMJ, offenses charged in the instant case a “[l]ack of verbal or physical resistance or submission resulting from … placing another person in fear does not constitute consent.” Article 120(g)(8)(A), UCMJ. However, the fact that the Government was required to prove a set of facts that resulted in LCpl MS’s legal inability to consent was not the equivalent of the Government bearing the affirmative responsibility to prove that LCpl MS did not, in fact, consent.

We also note that by charging Appellant with Article 120, UCMJ, offenses and by solely alleging that Appellant had placed LCpl MS in fear of her military career, the Government had effectively removed from the equation at trial any issue of consent.

Slip op. at 9 (emphases in original). Judge Ohlson also explains that the charged offenses merely required a wrongful communication (the threat to negatively affect the alleged victim’s career) and not the application of unlawful physical force necessary for a conviction of assault consummated by a battery. See slip op. at 10. A footnote highlights the limited nature of this holding:

Our holding in this case does not foreclose the possibility that in other cases the Government may charge an accused with sexual assault and/or abusive sexual contact in such a manner that assault consummated by a battery may be a lesser included offense. A specification placing the accused on notice of fear of bodily harm and raising the issue of consent may well lead to a different result than the one here. However, we need not reach that issue in deciding the instant case.

Slip op. at 10-11, n.7 (emphasis added).

Judge Ohlson then turns to the question of prejudice, noting that a conviction of a crime that is not a lesser included offense of a charged offense is a violation of the constitutional rights to notice and to not be convicted of an uncharged crime. “For preserved constitutional errors, such as in the instant case, the Government bears the burden of establishing that the error is harmless beyond a reasonable doubt.” Slip op. at 11. The Government fails to meet that burden in this case because the conviction was based on “a specific rationale neither advanced by the Government nor defended by Appellant.” Slip op. at 11. Accordingly, CAAF reverses the findings of guilty of assault consummated by a battery and remands the case for reassessment of the sentence.

While Judge Ohlson limits CAAF’s decision to the particular circumstances of this case, the legal conclusion about assault consummated by a battery as a lesser included offense of sexual assault and abusive sexual contact will likely affect a significant number of other cases where a distinction can be drawn between a legal inability to consent and the absence of consent in fact. This includes situations where a person is incapable of consenting (due to intoxication or other factors) and also situations where a person lacks the competency to consent (our #9 Military Justice Story of 2015).

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

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