CAAF will hear oral argument in the Army case of United States v. McDonald, No. 18-0308/AR (CAAFlog case page), on Tuesday, February 19, 2019, at 9:30 a.m. The court granted review of the following issue about the minimum mens rea (mental state) necessary to commit the offense of sexual assault by causing bodily harm where the bodily harm is a nonconsensual sexual act:

Whether the military judge erred in instructing the panel that a negligent mens rea was sufficient to make otherwise lawful conduct criminal.

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. McDonald (and a second case presenting substantially the same issue) involves Article 120(b)(1)(B) (2012), which prohibited sexual assault by causing bodily harm, and the definition of bodily harm included a nonconsensual sexual act or sexual contact. Put differently, 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 Congress repealed that offense in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new-but-similar Article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 at all (strict liability). Accordingly, the mens rea applicable to the offense is an open question.

CAAF granted review in McDonald back in September (noted here), and since then two CCAs have issued decisions addressing the issue. First, in United States v. Patrick, __ M.J. __ (N.M. Ct. Crim. App. Dec. 11, 2018) (link to slip op.), the NMCCA held that the applicable mens rea is found in the definition of sexual act which required (under the facts of that case) an intent to abuse, humiliate, harass, or degrade. A month later, in United States v. Peebles, __ M.J. __, No. 20170044 (A. Ct. Crim. App. Jan 10, 2019) (link to slip op.), the Army CCA rejected the NMCCA’s reasoning and held that “recklessness is the mens rea applicable to the element of non-consent in Article 120(b)(l)(B), where the bodily harm is alleged to be the sexual act itself.”

The facts of McDonald, however, present the possibility that CAAF won’t immediately resolve the split between the Army and Navy-Marine Corps CCA.

Private First Class (E-3) McDonald was convicted of conspiracy to commit sexual assault and sexual assault, and sentenced to confinement for three years, reduction to E-1, total forfeitures, and a dishonorable discharge. The factual basis for his convictions was a sexual encounter involving McDonald’s barracks roommate (Private Thomas) and a civilian woman (identified by the initials DJ). DJ engaged in consensual sexual intercourse with Thomas, but she alleged that McDonald also had sex with her (without her knowledge) during the encounter. McDonald admitted (in a pretrial statement that was introduced into evidence) to having sex with the woman but not to doing so without her knowledge.

McDonald was charged with both sexual assault by deceiving the woman as to his identity (a violation of Article 120(b)(1)(D) and sexual assault by causing bodily harm in the form of a nonconsensual act (a violation of Article 120(b)(1)(B)). The members acquitted him of the former and convicted him of the latter (and also of an associated conspiracy). The military judge instructed the members that the prosecution had to prove that the sexual act was done without consent, but he did not instruct them that the prosecution had to prove that McDonald knew or should have known that woman did not consent. He did, however, instruct the members on the special defense of mistake of fact as to consent, explaining that:

“Mistake of fact” as to consent means the accused held, as a result of ignorance or a mistake, an incorrect belief that the other person consented to the sexual conduct as alleged. The ignorance or mistake must have existed in the mind of the accused, and must have been reasonable under all the circumstances. To be reasonable, the ignorance or mistake must have been based on information, or lack of it, that would indicate to a reasonable person, that the other person consented. Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. “Negligence” is the absence of due care. “Due care” is what a reasonably careful person would due [sic] under the same or similar circumstances. . . . The burden is on the  prosecution to establish the guilt of the accused. If you are satisfied, beyond a reasonable doubt, that the accused was not under a mistaken belief that the other person consented to the alleged sexual conduct, then the defense of mistake does not exist. Even if you conclude that the accused was under the mistaken belief that the other person consented to the sexual conduct, as alleged, if you are convinced beyond a reasonable doubt that at the time of the charged offense the accused’s mistake was unreasonable, the defense does not exist.

App. Br. at 6 (quoting record). McDonald’s argument asserts that the mistake of fact instruction applied a negligence mens rea to an offense where the minimum applical mens rea is recklessness. The Army CCA rejected that argument out of hand, concluding that McDonald’s conduct was at least reckless:

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.

United States v. McDonald, No. 20160339, slip op. at 5 (A. Ct. Crim. App. May 16, 2018) (link to slip op.).

Assuming, however, that CAAF digs deeper, McDonald’s brief asserts that CAAF’s precedent and due process demand that the offense of sexual assault by causing bodily harm in the form of a nonconsensual sexual act include a mens rea greater than general intent:

This statutory scheme has created an offense which includes any non-consensual sexual activity, but which does not explicitly identify the requisite mens rea of the accused. Rather, the definitions of bodily harm and consent focus exclusively on the complaining witnesses’ state of mind—in short, whether or not that person wanted the sexual activity to occur. At trial, the appellant did not dispute that sexual activity with DJ occurred. DJ testified she did not consent to a second individual’s sexual acts. (JA 090).

As charged, the government seemingly established proof of this offense without ever addressing the accused’s state of mind at the time of the sexual activity. Yet, this Court has held that such objective standards are inappropriate in the criminal law context. See Haverty, 76 M.J. at 207. Indeed, this court’s analysis from Haverty is appropriate here: “[i]f an objective observer would conclude that the servicemember’s conduct constituted a [non-consensual sexual act]—as evidenced by [DJ’s testimony that she honestly believed she did not consent]— then the servicemember could be convicted of [sexual assault]”…then such a  general intent threshold would not separate innocent from criminal conduct. See id. at 207.

The definition of consent admonishes the fact-finder to establish only whether the complaining witness gave consent, without considering whether the accused was aware that she did not give consent. This impermissibly shifts the requirement of proving the accused’s guilty mind away from the government

App. Br. at 13-14 (modifications in original).

General intent, by the way, means “that an accused commit an act with knowledge of certain facts. . . . [and] involves the intent to perform an act even though the actor does not desire the consequences that result.” United States v. Haverty, 76 M.J. 199, 204 (C.A.A.F. 2017) (marks and citations omitted). Put differently, general intent is synonymous with voluntariness (i.e., the accused voluntarily did the thing). In contrast, specific intent is synonymous with deliberateness (i.e., the accused did the thing for a reason), while negligence and recklessness are in-between (i.e., the accused did the thing without discovering or while disregarding a fact).

The Army Government Appellate Division responds with an analogy to the Article 128 offenses of simple assault or assault consummated by a battery that are interpreted to require only general intent:

Because the element of bodily harm in Article 128, UCMJ, requires general intent, it necessarily follows that Congress intended to require general intent for the element of bodily harm for sexual assault as well.

Gov’t Div. Br. at 16. Yet it also repeatedly argues that an accused’s knowledge does matter. For instance, the Government Division’s brief asserts:

Put another way, while appellant must know “the facts that make his conduct illegal,” United States v. Staples, 511 U.S. 600, 619 (1994), “[t]his does not mean that an accused must know that his actions constitute criminal conduct.” Caldwell, 75 M.J. at 280 n. 4. Here, it is enough that appellant intended the act of penetration and had knowledge of all of the circumstances that indicated that DJ did not consent.

Gov’t Div. Br. at 17 (emphasis added). It also asserts:

A servicemember who engages in the “highly specific, volitional” act of penetrating the vulva of his victim with his penis, while aware of the facts that objectively make his act of penetration nonconsensual, has undoubtedly committed a crime. See Apilado, 34 M.J. at 779 (Johnson, J., concurring) (citation omitted) (“The law should be interpreted in such a way that it imposes a duty upon men to act reasonably before attempting to engage in sex, and to punish them when they violate that duty. This duty requires that men open their eyes and use their mind when viewing all the circumstances affecting the element that deals with force and lack of consent in the case of rape.”).

Gov’t Div. Br. at 19 (emphasis added). The Government’s brief doesn’t explain the difference between having knowledge of all of the circumstances that indicate lack of consent but not having knowledge of actual lack of consent, nor does it explain how the military judge’s mistake of fact instruction (that required only that McDonald negligently fail to discover the absence of consent) required the prosecution to prove that McDonald actually knew anything in order to be guilty. Furthermore, the Government Division’s reliance on Apilado is puzzling, considering that Apilado involved the pre-2007 version of the statute (in which force and lack of consent were elements), the appellant in Apilado was convicted of attempted rape (which – like all attempts – requires the specific intent to commit the underlying offense), and the victim in Apilado was unconscious during all of the sexual acts.

The Government Division also relies on the bank robbery case of Carter v. United States, 530 U.S. 255, 269 (2000), for the premise that:

In many cases, the “presumption in favor of scienter” requires only “proof of general intent — that is, that the defendant possessed knowledge with respect to the actus reus of the crime….”

Gov’t Div. Br. at 12 (quoting Carter, 530 U.S. at 268).

McDonald’s reply brief responds:

The Supreme Court went on to explain that “The presumption in favor of scienter requires a court to read into a statute only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’” Id. at 269 (quoting United States v. X-Citement Video, 513 U.S. 64, 72 (1994)). The Court then explained that general intent is a sufficient mens rea to separate innocent from wrongful conduct under 18 U.S.C. § 2113(a)—which required taking property by force and violence from the custody of a bank—because taking by force is not ordinarily innocent. The Court explained that once it is shown that an accused acted with knowledge that he committed a taking by force, “the concerns underlying the presumption in favor of scienter are fully  satisfied, for a forceful taking—even by a defendant who takes under a good-faith claim of right—falls outside the realm of the ‘otherwise innocent.’” Id. at 269-70. This is why general intent is a sufficient mens rea to separate innocent from wrongful conduct with respect to the offense of rape. Although sexual intercourse is ordinarily innocent conduct, sexual intercourse by means of “unlawful force,” or by any of the other mechanisms listed in Article 120(a), is not.

Thus, Carter does not stand for the proposition that there is a presumption of general intent. Rather, Carter reiterates that courts must read into a statute a sufficient mens rea to separate wrongful conduct from otherwise innocent conduct.” See id. at 269. While taking property from a bank by force is not ordinarily innocent conduct, sexual intercourse is. See generally Lawrence v. Texas, 539 U.S. 558 (2003). Where no force related to the sexual act is alleged, negligence is not a sufficient mens rea to separate innocent conduct from wrongful conduct. See Elonis v. United States, 135 S. Ct. 2001, 2012-13 (2015).

Reply Br. at 9-10 (emphasis added).

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

One Response to “Argument Preview: What’s the minimum mens rea to be guilty of sexual assault by causing sexual assault, in United States v. McDonald”

  1. Dew_Process says:

    Thanks Zach, great analysis