Argument Preview: Determining whether the elements of assault consummated by a battery are a subset of the elements of abusive sexual contact by causing bodily harm, in United States v. Armstrong
CAAF will hear oral argument in the Army case of United States v. Armstrong, No. 17-0556/AR (CAAFlog case page), on Wednesday, March 21, 2018. The court granted review of a single issue:
Whether assault consummated by a battery is a lesser included offense of abusive sexual contact by causing bodily harm.
Captain (O-3) Armstrong was charged with abusive sexual contact by causing bodily harm in violation of Article 120(d) (incorporating Article 120(b)(1)(B)) (2012). A general court-martial composed of members convicted him of assault consummated by a battery as a lesser included offense (LIO), and sentence him to be dismissed. The Army CCA summarily affirmed the findings and sentence.
The factual basis for the charge was that the alleged victim (the civilian wife of another officer) reported that she fell asleep on a couch during a party and awoke to Armstrong touching her. The specification as charged alleged that Armstrong: “commit[ed] sexual contact upon Mrs. BG, to wit: touching through the clothing the genitalia of the said Mrs. BG, by causing bodily harm to the said Mrs. BG, to wit: wedging his hands in between her thighs.” Gov’t Div. Br. at 9 (quoting record) (marks in original).
In United States v. Jones, CAAF explained that “the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; an LIO meets this notice requirement if it is a subset of the greater offense alleged.” 68 M.J. 465, 468 (C.A.A.F. 2010) (marks and citation omitted). When the decision was issued we analogized it to an easy button for determining LIOs.
The question in this case is whether the elements of assault consummated by a battery are a subset of the elements of abusive sexual contact by causing bodily harm
The elements of abusive sexual contact by causing bodily harm are:
(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;
(ii) That the accused did so by causing bodily harm to that other person; and
(iii) That the accused did so with intent to arouse or gratify the sexual desire of any person.
Manual for Courts-Martial (2016 ed.), Part IV, ¶ 45.b.(8)(b). “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). The nonconsensual act/contact theory was not, however, charged in this case.
The offense of abusive sexual contact by causing bodily harm – and the related offense of sexual assault by causing bodily harm – were repealed by the Military Justice Act of 2016 effective on January 1, 2019 (or an earlier date if so ordered by the President). See 114 P.L. 328, § 5430, 130 Stat. 2000, 2016.
The elements of assault consummated by a battery are:
[i] That the accused did bodily harm to a certain person; and
[ii] That the bodily harm was done with unlawful force or violence.
Manual for Courts-Martial (2016 ed.), Part IV, ¶ 54.b.(2). The Manual also explains that any assault “must be done without legal justification or excuse and without the lawful consent of the person affected.” Id. at ¶ 54.c.(1)(a).
The obvious difference between abusive sexual contact (as charged in this case) and assault consummated by a battery is the element of lack of consent, and that’s the heart of Armstrong’s brief:
Because assault consummated by a battery includes the elements of unlawful force or violence and non-consent, it is not a lesser included offense of abusive sexual contact, as charged in this case, which does not contain either of those elements. The appellant was therefore improperly convicted of an offense with which he was not charged and of which he had inadequate notice.
App. Br. at 9-10. But the Army Government Appellate Division’s brief argues that the prosecution had to prove lack of consent to prove the charge:
Here, proof of the elements of abusive sexual contact by bodily harm necessarily required proof of the elements for assault consummated by a battery. To prove the offensive nature of the touching, the government was required to prove that Mrs. BG did not, in fact, consent to appellant wedging his hands between her thighs. Had she consented, the contact could not have been offensive. Because of this, the greater offense in this case, unlike the greater offenses in Riggins and Oliver, raised the issue of lack of consent instead of inability to consent due to fear.
Gov’t Div. Br. at 9. This view, however, seems to ignore the difference between a person who did not consent and a person who could not consent (because, for example, they were asleep). However, a fact-pattern involving a person who could not consent implicates different theories of abusive sexual contact (such as of a sleeping person). If CAAF adopts the Government Division’s view, that might limit the reach of the offense of abusive sexual contact by causing bodily harm to situations where the prosecution must prove non-consent as an element of the offense.
Armstrong’s brief then makes a two-part argument for reversal. First, the brief asserts that the error is jurisdictional:
The same rationale this Court applied in [United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page)], should apply to the error in this case. The charge the appellant was convicted of simply was not referred to the court-martial at which he was convicted. Assault consummated by a battery constituted a different offense than those referred by the convening authority. This renders the charge jurisdictionally infirm, and this Court should hold that it need not assess prejudice once such jurisdictional infirmity is established.
App. Br. at 11. Second, the brief asserts that:
Had he received adequate notice, the appellant could also have presented a defense on the theory that any touching that may have occurred was implicitly consented to in the seating arrangement of two persons adjacent on a couch. Similarly, the appellant chose not to testify in his own defense; if he had been put on notice to defend against a charge of assault consummated by a battery, he could have testified to explain why the touching that took place was not unlawful, or why it appeared to be done with implicit consent. In short, adequate notice would have allowed the appellant to present a defense on the elements unique to assault consummated by a battery, but the inadequate notice deprived him of this ability.
App. Br. at 12.
The Government Division’s response asserts that the defense would not have done anything different:
Appellant asserts that government presented a new theory of liability and that the new theory would have prompted appellant to present additional evidence—essentially, by choosing to have appellant testify. (Appellant’s Br. 12). Appellant does not state how the theory of liability changed, only that defense counsel’s approach would be different. (Appellant’s Br. 12). However, appellant is simply second-guessing the actions of his trial defense counsel under the guise of a changed theory of liability.
Gov’t Div. Br. at 12.
The real difficulty in this case seems to come from something that happened at trial, not from the law:
After the close of evidence, the following exchange took place relating to panel instructions.
[MJ:] Counsel, do you see any lesser included offenses that are in issue in this case?
CDC1: No, Your Honor.
TC: Yes, sir, the lesser included offense of Article 128, assault, as the Article 120 Charge.
MJ: Defense, what say you?
CDC1: Taking no position on it, judge.
MJ: Very well. I think I agree with the government on this one, that assault consummated by a battery would be a lesser included offense of The Specification of Charge I. If counsel for either side finds case law or some other contrary law on the subject, please provide it to me during this break.
App. Br. at 3-4 (emphasis added). This reminds me of the obstructionist objection in United States v. Payne, 73 M.J. 19 (C.A.A.F. Jan. 6, 2014) (CAAFlog case page), where by refusing to assist in getting the instructions right at trial, the civilian defense counsel forfeited the error (that CAAF found was plain and obvious, but harmless). The decision to take no position at trial on whether assault consummated by a battery is a lesser included offense of abusive sexual contact makes it hard for Armstrong to claim prejudice on appeal.