CAAF grants review in Army case questioning the mens rea for sexual assault by bodily harm in the form of non-consensual sexual activity
Mens rea was the #8 Military Justice Story of 2017 because of a series of CAAF decisions involving the mental state required to violate the UCMJ. The topic remains at CAAF, with a decision earlier this year in United States v. Blanks, 77 M.J. 239 (C.A.A.F. Feb. 28, 2018) (CAAFlog case page) (re-affirming that negligent dereliction of duty is punishable under Article 92), and with a (second) grant of review in United States v. Tucker, No. 18-0254 (CAAFlog case page).
On Tuesday CAAF granted review in another case involving mens rea:
No. 18-0308/AR. U.S. v. Cedric L. McDonald. CCA 20160339. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL THAT A NEGLIGENT MENS REA WAS SUFFICIENT TO MAKE OTHERWISE LAWFUL CONDUCT CRIMINAL.
Briefs will be filed under Rule 25.
The Army CCA’s opinion is available here. The case seems to involve the mens rea required to commit sexual assault by causing bodily harm, where the bodily harm is a non-consensual sexual act, in violation of Article 120(b)(1)(B). The facts of the case, however, make it a poor vehicle for that issue. Private First Class McDonald was convicted of sexual assault and conspiracy to commit sexual assault based on an allegation that he concealed his identity in order to have sex with a woman who believed that she was having sex with another soldier. Considering such deliberate action, the CCA concluded:
Here, appellant’s misconduct of having sexual intercourse with DJ without her consent was at the very least reckless, but more likely purposeful. . . .
Based on the evidence contained in the record, it is clear appellant exploited the cover of darkness to conceal his identity from DJ as he switched places with PV2 Thomas and engaged in nonconsensual sexual intercourse with DJ. We thus conclude appellant’s misconduct was done knowingly if not, at the very least, reckless and that any lack of instruction on the scienter of recklessness was not plain error.
Slip op. at 5.
In other words, if the CCA’s recitation of the facts is even remotely accurate, it’s hard to see how McDonald’s conduct was otherwise lawful.