That’s functionally the conclusion reached by a three-judge panel of the Navy-Marine Corps CCA in United States v. Guin, No. 201500062 (N-M. Ct. Crim. App. Feb. 11, 2016) (link to slip op.).
The appellant was charged with sexual assault and abusive sexual contact, in violation of Article 120(b) and (d) (2012), by committing a sexual act and causing sexual contact with the alleged victim “by causing bodily harm to her.” Slip op. at 4. The bodily harm at issue was the sexual activity itself, as the specifications alleged:
Abusive sexual contact: “Specification 1: Art.120(d): In that [the appellant], did, at or near Juffair, Kingdom of Bahrain, on or about 13 June 2013, cause sexual contact by [MASN LA], to wit: touching his penis with her hand, by causing bodily harm to her, to wit: touching his penis with her hand.”
Sexual assault: “Specification 2: Art. 120(b)(1)(B): In that [the appellant], did, at or near Juffair, Kingdom of Bahrain, on or about 13 June 2013, commit a sexual act upon [MASN LA], to wit: penetrating the vulva of [MASN LA], with his penis by causing bodily harm to her, to wit: penetrating the vulva of [MASN LA], with his penis.”
Slip op. at 4. This is a permissible method of charging these offenses because:
The term ‘bodily harm’ means any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact.
Article 120(g)(3) (2012). Nevertheless, the appellant moved to dismiss the specifications at trial, asserting that they fail to state offenses. Specifically, the appellant claimed that “by pleading the sexual activity as the basis of the alleged bodily harm, the Government fatally omitted the victim’s lack of consent as a separate element.” Slip op. at 4.
The military judge denied the motion, and rightly so I think, as:
The military is a notice pleading jurisdiction. A charge and specification will be found sufficient if they, first, contain the elements of the offense charged and fairly inform a defendant of the charge against which he must defend, and, second, enable him to plead an acquittal or conviction in bar of future prosecutions for the same offense. The rules governing court-martial procedure encompass the notice requirement: “A specification is sufficient if it alleges every element of the charged offense expressly or by necessary implication.” R.C.M. 307(c)(3).
United States v. Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011) (marks and citations omitted).
On appeal, however, the appellant asserted that Fosler requires reversal:
Citing United States v. Fosler, the appellant argues that because he raised the issue at trial, we are now required to construe narrowly each specification’s plain language to determine whether they state offenses. 70 M.J. 225, 230 (C.A.A.F. 2011) (holding when pleadings are challenged at trial, the court will “read the wording more narrowly and will only adopt interpretations that hew closely to the plain text.”). The appellant maintains that since penetration or placing a hand on someone’s genitals is not a crime unless those acts occur without the victim’s consent, the Government was required to specifically alleged lack of consent. Failing to do so, the appellant argues the specifications’ plain language fails to notify the appellant why his conduct was criminal.
Slip op. at 4. The NMCCA rejects this argument with three significant holdings.
Writing for a three-judge panel, Judge Palmer first explains that:
The definition of bodily harm provides clear notice that the touching must be offensive and includes nonconsensual sexual acts or contact.
Slip op. 5. Next:
Congress defined the elements of abusive sexual contact and sexual assault, supra, it did not include therein elements specifically requiring the Government to plead an alleged victim’s lack of consent.
Slip op. at 6. And finally:
Further, the record indicates the military judge and the appellant both understood the significance of consent in this case. In a colloquy with counsel, prior to the presentation of evidence, the military judge acknowledged his correct understanding, that because the Government plead the sexual activity itself as the basis of the alleged bodily harm, the Government was therefore also required to prove the victim did not consent to those acts.
Slip op. at 6 (trial was by military judge alone).
Regardless of whether Judge Palmer is right about the definition of bodily harm providing clear notice and the significance of Congress omitting lack of consent as a specific statutory element, the appellant’s actual notice certainly forecloses any possibility of relief. CAAF has made it clear that the issue is “whether the record sufficiently demonstrates that an accused was on notice as to [the elements] he needed to defend against.” United States v. Goings, 72 M.J. 202, 208 (C.A.A.F. 2013) (CAAFlog case page). See also United States v. Tunstall, 72 M.J. 191 (CAAFlog case page) (conviction affirmed because defense presented evidence to rebut missing element); United States v. Gaskins, 72 M.J. 225 (CAAFlog case page) (conviction reversed because there was no mention or evidence of the missing element is the record). It’s even possible for an accused to be notice of an offense different from the one identified on the Charge Sheet. See United States v. Rauscher, 71 M.J. 225 (C.A.A.F. 2012) (CAAFlog case page). In Guin there is no doubt that the appellant understood that the Government was required to prove that the sexual activity was nonconsensual. He is also protected against double jeopardy. That’s all that is required.
Notably, unlike the Fosler / Ballan / Humphries line of cases – where Article 134 specifications were defective because they failed to allege one of three possible terminal elements – here there is no possibility that the appellant was on notice of the wrong element. As CAAF noted in Fosler, “because an accused must be notified which of the three clauses he must defend against, to survive an R.C.M. 907 motion to dismiss, the terminal element must be set forth in the charge and specification.” 70 M.J. at 233 (emphasis added). The appellant here merely had to have notice that the Government’s burden included proving that the sexual activity was nonconsensual.
Nevertheless, I believe that Judge Palmer’s first point – that the definition of bodily harm provides clear notice in a case like this – is pretty bulletproof. The specification alleged bodily harm, a legal term of art for which the definition includes nonconsensual sexual activity. Because the specifications alleged that the sexual activity was the bodily harm, the nonconsensual nature of the activity required for a conviction is necessarily implied.