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.

12 Responses to “Charging sexual activity as bodily harm necessarily implies that the activity was nonconsensual”

  1. Circularity Reigns says:

    Zach, I’m curious as to where you come down on the notice argument in the absence of the colloquy present in this case. Is there a scenario in which the touching could be consensual (or at least a failure of proof as to lack of consent) and yet still be “offensive” in some other way that doesn’t turn on consensual/nonconsensual? Another way to ask the question: In cases charged on a bodily harm theory, where the specified bodily harm is the act, what does the Venn diagram of “offensive” relative to “nonconsensual” look like? Same exact circle? The definition of bodily harm seems to suggest that “offensive” is a larger field that “nonconsensual,” but I’m not sure that’s right. Just an inartfully drafted definition? Help me out here.

  2. Circularity Reigns says:

    Or maybe the title and first sentence of your post are the answer to my first question.

  3. Zachary D Spilman says:

    In enacting the current version of Article 120, Congress clearly intended to define nonconsensual sexual activity as bodily harm. I think that’s uncontroversial.

    Conversely, consensual (or, put differently, not nonconsensual) sexual activity is – for lots of reasons – not bodily harm.

  4. Circularity Reigns says:

    I agree. But they could’ve just said that in the definition instead of saying that bodily harm/offensive touchings *include* nonconsensual sexual contacts and acts. This wording appears to raise the question of what other touchings besides nonconsensual touchings constitute bodily harm in Article 120 land. I agree with you that the answer is: none. I suppose that this syntactical problem is an artifact of the fact that this statutory definition of bodily harm was lifted from the context of ordinary assaults, tagged with a participial phrase showing its application to Article 120, and plopped into the statutory text. 

  5. Zachary D Spilman says:

    This wording appears to raise the question of what other touchings besides nonconsensual touchings constitute bodily harm in Article 120 land. I agree with you that the answer is: none.

    That’s not at all what I wrote, nor is it what the statute says.

    Article 120(b)/(d) prohibits sexual activity upon another person by “causing bodily harm to that other person.” 

    Article 120(g)(3) defines bodily harm as “any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact.” (emphasis added).

    The definition of bodily harm is clearly not limited to nonconsensual touchings. Cf. United States v. Schloff, 74 M.J. 312 (C.A.A.F. Jul 16, 2015) (CAAFlog case page) (sexual contact, as defined by Article 120(g)(2) (2012), includes both body-to-body contact and object-to-body contact).

    Furthermore, the plain language of the statute pretty clearly shows Congressional intent to prohibit sexual activity brought about by an offensive touching that doesn’t rise to the level of unlawful force. See Article 120(a)(2).

  6. Circularity Reigns says:

    I think we generally agree and are talking past each other at this point. Chalk it up to my failure to make my point clearly.

  7. Zeke says:

    It’s interesting to compare this case to Riggins, 75 MJ 78, (CAAFlog case page), where CAAF found lack of consent was not an element if the sexual assault is charged under the theory of either placing in fear or abuse of position.  (Art. 120(b)(1)(a) and Art. 120(d)).  I imagine that many times a case that would support charging a sexual assault by bodily harm would also support charging under the theory of placing in fear.  But, because of Riggins, charging under a theory like placing in fear or abuse of position that does not require the government to address the issue of consent has a significant drawback – the government gives up the possibility of a conviction on significant lesser included offenses if its proof is insufficient to carry an Art. 120 conviction.   Any offense which would require the government to prove lack of consent would not be available as a LIO.  In Riggins, the Court found that assault consummated by a battery under Art. 128 was not available as a LIO for the Art. 120 offenses because they were charged under the placing in fear and abuse of position theories.  Guin suggests there might have been a different outcome in Riggins had the government in that case charged bodily harm rather than the “easier to prove” offenses of placing in fear or abuse of position.  

  8. Circularity Reigns says:

    Been thinking about this some more. In pertinent part, the statute reads:
    “Definitions. In this section . . . [t]he term ‘bodily harm’ means any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact.” (emphasis added).
    This phrasing—specifically the word “including”–makes it sound as though “any nonconsensual sexual acts and nonconsensual sexual contacts” is just one circle subsumed within a larger circle (“any offensive touching”) that includes other things besides nonconsensual sexual acts and nonconsensual sexual contacts.  That’s a fine way to phrase a general definition of bodily harm; there are of course Article 128 touchings that are not sexual but are still nonconsensual, still offensive, and still bodily harm. However, it’s not a good way to phrase a definition of bodily harm “in this section,” this section being 10 U.S.C. § 920.
    As indicated in my last post, I think this is a minor syntactical issue of little moment, and I think I understand the origin. But I still think it’s sloppy draftsmanship.
    [As an aside, I don’t think Schloff is responsive to the point I am raising: Schloff is about the definition of sexual contact, which we now know includes object-to-body contact. It’s not about the phrasing of the definition of bodily harm, specifically the import of the word “including.”]   

  9. Circularity Reigns says:

    Evidently my emphasis wasn’t added. Emphasis was on the phrase “in this section” and the words “any” and “including.”

  10. RY says:

    Here’s where I think the problem is (I didn’t read the appellant’s argument yet to see if they argued it the way I think they should have):  bodily harm being equated with nonconsensual swallows the delineated theories in the statutory construct that provide true notice.
    Look at sexual assault and you see there are several delineated theories of nonconsensual acts – threatening or placing another in fear, causing bodily harm, fraudulent representation, misrepresenting who one is, an asleep or unsconscious victim, incapacitated victim due to alcohol/drugs/etc, incapacitated victim due to mental infirmity.  Put bodily harm aside for a minute.  All the rest are nonconsensual acts with difference defenses (or acts whose apparent consent is negated under law by specified conditions).  Defending against a victim being incapacitated due to alcohol is different than not having actually consented because of being placed in fear.
    The problem then is that the definition of consent covers all of these specified theories, each with its own draft specification and specific elements.  If we say that bodily harm means nonconsent and that’s good enough, it means the government could allege bodily harm and argue an asleep/unconscious victim.  Why then did Congress specifically list that as a separate basis for offense?  Words have meaning, Congress acts with purpose, etc…  It would be nonconsensual act to engage in sexual contact with an asleep/unconscious person, which should be alleged under that theory but falls within the statutory definition of consent.  This allows the prosecution to charge bodily harm and be able to argue any or all of the theories without having to specify which one despite Congress breaking them out.  That’s really how it is connected to Fosler…each delineated theory has a different defense and proof aspect, albeit all as separate means of proving nonconsent.  Simply substituting non-consent for bodily harm is quite similar to asserting Art 134 without specificing which clause.

  11. Zachary D Spilman says:

    Two responses for you RY

    First, I don’t think your argument actually touches on the due process issue of notice. An accused charged with causing bodily harm by nonconsensual sexual activity is on notice of the elements of: (1) sexual activity and (2) lack of consent. The specification need not also include the word nonconsensual to provide that notice. Now, perhaps the factors that render the conduct nonconsensual are unclear under the facts of a particular case (was the alleged victim protesting, asleep, unaware, etc.), but that’s an issue of avoiding surprise at trial that’s resolved by a bill of particulars. As Judge Baker’s dissent in Fosler noted:

    If there are several means of committing the offense contained in the statute, the accused has a right to have the specification made more definite.

    70 M.J. at 245 (emphasis added). The issue in Fosler was identifying the offense (conduct to the prejudice of good order and discipline, conduct of a nature to bring discredit upon the armed fores, or a crime or offense not capital), not the means by which the offense was committed. The concern you raise, however, is the means by which nonconsensual sexual activity may have been committed. That’s not a due process notice issue.

    Second, there’s no requirement that Congress delineate mutually-exclusive offenses within a statute, and so the fact that committing a sexual act upon a sleeping person could be charged as a violation of Article 120(b)(2) (sleeping person) or as a violation of Article 120(b)(1)(B) (bodily harm by nonconsensual act) is a quirk, but doesn’t raise constitutional concerns.

  12. RY says:

    Understood.  Of course, Baker’s dissent did not win out – he was okay with a bill of particulars but the majority believed it needed to be in the specification.  WRT to your second point, it’s not about Congress saying they are mutually exclusive, but rather reading the language and rules of statutory construct.  If Congress breaks out mental incapacity from other incapacity, then they meant for them to be different.  Congress broke out specific ways of committing sex offenses.  If bodily harm is lack of consent and so are the others, then what’s the purpose of Art 120(b)(1)(B) if it subsumes the others or includes the others? What protection against double jeopardy under your argument?  If they are separate, then he could be retried under the other.  Requiring specificity is what protects against double jeopardy.  Fosler / Jones say it must be specific in specification; a bill of particulars does not provide the due process notice required in the charge to protect against double jeopardy.