CAAF will hear oral argument in the Air Force case of United States v. Oliver, No. 16-0484/AF (CAAFlog case page), on Tuesday, February 7, 2017, after the argument in Ortiz. The court granted review of a single, re-drafted issue that involves the 2007-2012 version of Article 120:

Whether wrongful sexual contact was a lesser-included offense of abusive sexual contact.

Senior Airman Oliver was tried on numerous charges by a general court-martial composed of a military judge alone. One charge alleged that Oliver – who was at the time a Staff Sergeant assigned as a training instructor at Lackland Air Force Base – committed abusive sexual contact by placing a female trainee “in fear of an impact on her military career through the use and abuse of [Oliver’s] military rank, position, and authority.” App Br. at 10 (quoting charge sheet). The military judge acquitted Oliver of this offense and instead convicted him of wrongful sexual contact, which occurs when:

Any person subject to this chapter who, without legal justification or lawful authorization, engages in sexual contact with another person without that other person’s permission. . .

Article 120(m) (2006). The military judge notified both sides that he was going to consider this potential lesser included offense in his deliberations and Oliver’s defense counsel did not object.

The difference between the charged offense of abusive sexual contact by placing in fear and the convicted offense of wrongful sexual contact is the element of lack of consent. Sort of. Well, probably.

To convict for abusive sexual contact the prosecution must prove that the accused caused a person to engage in sexual contact by “threatening or placing that other person in fear.” Article 120(c)(1)(A) (2006). Such fear may occur, for example, “through the use or abuse of military position, rank, or authority, to affect or threaten to affect, either positively or negatively, the military career of some person.” Article 120(t)(7)(B)(ii)(III) (2006). This is a constructive form of force that precludes consent because:

Lack of verbal or physical resistance or submission resulting from the accused’s use of force, threat of force, or placing another person in fear does not constitute consent.

Article 120(t)(14) (2006) (emphasis added).

The offense of wrongful sexual contact enacted in 2006, in contrast, was something of a catch-all provision. The offense criminalizes “sexual contact with another person without that other person’s permission.” Article 120(m) (2006). Permission is generally viewed as synonymous with consent, but could mean something more explicit as consent may be implied from the circumstances:

The term “consent” means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person

Article 120(t)(14) (2006) (emphasis added).

Last term, in United States v. Riggins, 75 M.J. 78 (C.A.A.F. Jan. 7, 2016) (CAAFlog case page), a unanimous CAAF held 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. The crucial difference between these offenses, explained Judge Ohlson in his opinion for the court, is the difference between the legal inability to consent and the absence of consent. The same analysis likely applies in Oliver, where the charged offense of abusive sexual contact involves a legal inability to consent while the convicted offense of wrongful sexual contact involves the absence of consent.

The Air Force Appellate Government’s Division’s brief acknowledges this difference and makes a lukewarm concession that wrongful sexual contact is not a lesser included offense of abusive sexual contact:

Given the holding in Riggins and the particular facts of this case, it would be difficult to argue that wrongful sexual contact is a lesser included offense (LIO) of abusive sexual contact by placing another person in fear of an impact on her military career through the use and abuse of military rank, position, and authority.

Gov’t Div. Br. at 4. But despite this concession, the Division takes an aggressive approach:

As the elements test announced in United States v. Jones, 68 M.J. 465, 470 (C.A.A.F. 2010) is well-settled and was clearly identified, Appellant waived this issue for appeal.

Gov’t Div. Br. at 2 (emphasis added). Waiver is the intentional relinquishment of a known right. Waiver is distinct from forfeiture, which is the failure to preserve an error. A timely objection preserves an error. Whether an error is preserved (by objection), forfeited (by failure to object), or waived (by intentional and knowing relinquishment) affects the entitlement to relief from the error. An appellant is entitled to relief from a preserved, non-harmless error. An appellant is also entitled to relief from a forfeited error upon showing that the error was plain, obvious, and prejudicial (the plain error test). However, an appellant is not entitled to relief from a waived error.

The Division’s waiver argument isn’t based on any express acknowledgement by Oliver that wrongful sexual contact is not a lesser included offense but rather is based on Oliver’s mere failure to object:

Failure to object to the determination of what offenses qualify as LIOs at the time of trial, particularly when invited to by the military judge as is the case here, however, waives the issue for appeal.

Gov’t Div. Br. at 5 (emphases added). This approach at least blurs – and likely functionally obliterates – the distinction between waiver and forfeiture.

The Division also argues forfeiture and harmlessness (covering all bases):

Whether abusive sexual contact or wrongful sexual contact, Appellant knew what part of the body he was alleged to have wrongfully touched, and his theory from the beginning of the trial until the end was that Trainee LMS consented to engaging in sexual activity with Appellant.

Gov’t Div. Br. at 8. This is probably the best argument for why CAAF should affirm the conviction of wrongful sexual contact. CAAF has made it clear that in a case such as this 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).

There’s a strong argument that Oliver was on notice of the element of lack of permission (if it’s synonymous with lack of consent) based on the fact that his defense at trial raised the issue of consent.

A reply brief from Oliver does a poor job of addressing this argument:

In claiming that “[i]t is the defense’s trial strategy that matters,” the government cites United States v. Wilkins, 71 M.J. 410, 414 (C.A.A.F. 2012) (Gov’t Br. at 9), but in that case, the appellant was ultimately not denied due process when he was charged with conduct that “could never constitute the offense of aggravated sexual assault,” but the charged specification “expressly stated” the elements of the erroneous lesser included offense: abusive sexual contact. Id. at 414. The charging instrument here did no such thing. Further, the government does not even attempt to address whether it assumed the burden of proof beyond a reasonable doubt on the element of consent (Gov’t Br. at 8-11). In a prosecution for abusive sexual contact, the government does not have to prove the absence of consent in order to secure a conviction. See United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010). The government does not cite to, or attempt to explain how Neal’s logic fails to demonstrate the prejudice to SrA Oliver. Accordingly, the government’s harmlessness argument must fail.

Reply Br. at 4-5. This is a legal sufficiency argument in notice clothes. Whether the prosecution proved the element of lack of permission beyond a reasonable doubt is a separate question from whether Oliver was on notice that he could be convicted of an offense based merely on lack of permission.

The Air Force CCA considered the question of sufficiency, concluding:

The victim testified that Appellant touched her groin without her consent on multiple occasions and described when they occurred. Her testimony, both independently and when viewed in conjunction with the other evidence in the record, was sufficient to enable a reasonable factfinder to conclude beyond a reasonable doubt that Appellant committed the offense.

We have considered the evidence in the light most favorable to the prosecution. Having paid particular attention to the matters raised by Appellant, we find the evidence legally sufficient to support his conviction for wrongful sexual contact. Moreover, having made allowances for not having personally observed the witnesses, we are, ourselves, convinced of his guilt beyond a reasonable doubt.

United States v. Oliver, No. 38481, slip op. at 7 (A.F. Ct. Crim. App. Feb. 24, 2016) (link to slip op.). This, however, is not the issue before CAAF.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (A.F. App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

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