Article 120(b)(1)(B) (2012) prohibited sexual assault by causing bodily harm, and the definition of bodily harm included a nonconsensual sexual act or sexual contact. Since nonconsensual sexual activity is generally considered to be the definition of sexual assault, the statute functionally prohibited sexual assault by causing sexual assault.

Congress repealed that offense in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), replacing it with a new Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.”

In neither offense, however, did Congress identify a specific mens rea. Put differently, Congress didn’t say whether – to be guilty of the offense – an accused must actually know that the other person didn’t consent (actual knowledge), or recklessly disregard evidence of lack or consent (recklessness), or just fail to discover that the other person didn’t consent (negligence). Congress also could have said (but didn’t say) that the accused’s knowledge doesn’t matter (strict liability). Accordingly, the mens rea applicable to the offense is an open question. And mens rea is a pretty hot topic these days (it was the #8 Military Justice Story of 2017).

CAAF already granted review to decide the issue, in the Army case of United States v. McDonald, No. 18-0308/AR (grant of review discussed here). The Army CCA also just issued a published decision on the issue, holding that the minimum mens rea applicable to the offense is recklessness, in United States v. Peebles, __ M.J. __, No. 20170044 (A. Ct. Crim. App. Jan 10, 2019) (discussed here).

But last week CAAF granted review in another case involving the same issue:

No. 19-0051/AR. U.S. v. Korey B. Kangich. CCA 20170170. 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 APPLYING A NEGLIGENT MENS REA TO MAKE OTHERWISE LAWFUL CONDUCT CRIMINAL.

Briefs will be filed under Rule 25.

The CCA summarily affirmed without a written decision. Specialist (E-4) Kangich was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of sexual assault by causing bodily harm, in violation of Article 120(b)(1)(B), where the bodily harm was two nonconsensual sexual acts. He was sentenced to confinement for 24 months, reduction to E-1, and a dishonorable discharge.

13 Responses to “CAAF grants review in second case about the mens rea for sexual assault by causing sexual assault”

  1. Nathan Freeburg says:

    Rivera was innocent.  Hopefully the MacDonald or Kangich decisions will end up with some standard other than requiring the Accused to be a mind-reader (specifically, knowing that she will change her mind later).

  2. Fisch says:

    Nathan,
    Re: US v. Rivera
    So, will Rivera get a second chance of review if the MacDonald and Kangich decision supports that an error was made?  Also, friends don’t let friends try Courts-martial Judge Alone.

  3. Zachary D Spilman says:

    So, will Rivera get a second chance of review

    Not likely. Ask SSG Barnes about that…

     

  4. Barry McCockiner says:

    Nate, how do you know Rivera was innocent?
    McCockiner, out.

  5. Fisch says:

    So, Barnes petitioned for and got a second look after Hills, right?  

  6. Zachary D Spilman says:

    Not to my knowledge. But the conviction became final after CAAF denied review, two CCAs have rejected retroactive application of Hills, and CAAF has repeatedly denied review (last noted here).

  7. Matt Jones says:

    This is probably going to sounds overly prudish or PC, but I have to admit that I find the Barry McCockiner username exceptionally inappropriate. This is particularly true given the nature of most of the cases where he or she comments.  It adds zero to the legal or policy conversation, and creates a very unprofessional and hostile tone.
     
    I have not raised this issue for a long time, because I am equally concerned about even the appearance of shutting down voices. I don’t like the idea of the editors here having to police the comments looking for inappropriate usernames.  Like Air Force pilots drawing penises in the sky, I assumed that it had to be a one-off thing and that good taste and common sense would prevail. I had hoped that generally ignoring it would eventually result in it fading away. However, it’s continued and I cannot think that their inclusion can possibly elevate the conversation here.
     
    Whoever is using the name, I’m respectfully asking that you stop.  There are cleverer ways to be funny and edgy and I am sure you can find them.
     
    To Zachary and the other editors, thank you for the great job you do year after year with this site.

  8. Richard Hertz says:

    Kudos, Matt.  Been thinking the same thing for a while now.

  9. slyjackalope says:

    Definitely agree with Matt.

  10. Former SJA says:

    Glad you raised the issue, Matt.  It’s not prude or PC, and I 100% agree.  Barry–any value you add to conversations here is substantially diminished by your tasteless username.  Those contributing to and reviewing CAAFlog discussions shouldn’t have to look the other way from your (presumed) juvenile attempt to be funny.

  11. Caspar Milquetoast says:

    What about “stewie”?  Should we be outraged by that moniker, too?  After all, I’m sure it’s a reference to the homosexual toddler Family Guy character.  You know that show, right?  The one that recently said it would stop making fun of homosexuals?

  12. Fisch says:

    Heck, even I think it’s inappropriate, but then I thought that perhaps BM was a feminist troll based on the comments which sound like a woman trying to sound like an offensive man. 
     
    If BM is a man, then he isn’t very deep and is the reason feminists justify the need for that Gillette Commercial.

  13. Zachary D Spilman says:

    These comments are now closed.