Opinion Analysis: Sexual assault involving nonconsensual sexual activity is a general intent crime because “the burden is on the actor to obtain consent, rather than the victim to manifest lack of consent,” in United States v. McDonald
CAAF decided the Army case of United States v. McDonald, __ M.J. __, No. 18-0308/AR (CAAFlog case page) (link to slip op.), on Wednesday, April 17, 2019. The court concludes that the mens rea (mental state) for the offense of sexual assault by causing bodily harm in violation of Article 120(b)(1)(B) (2012), where the bodily harm is a nonconsensual sexual act, is the general intent to commit the sexual act.
Chief Judge Stucky writes for a unanimous court.
CAAF granted review of a single issue:
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. Congress repealed that offense in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new-but-similar Article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 of anything doesn’t matter at all (strict liability), or that the accused need only know that he was committing the physical acts constituting the offense (general intent).
CAAF granted review in McDonald back in September (noted here), and since then two CCAs have issued decisions addressing this 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.”
Now, with its decision in McDonald, CAAF resolves the question in a way more similar to the decision of the NMCCA than the ACCA. Chief Judge Stucky writes that “Congress clearly intended a general intent mens rea for Article 120(b)(1)(B).” Slip op. at 4. That means that:
As a general intent offense, sexual assault by bodily harm has an implied mens rea that an accused intentionally committed the sexual act. No mens rea is required with regard to consent, however.
Slip op. at 8 (citation omitted).
CAAF’s unanimous decision is based on four considerations.
The first consideration is that “the plain text of the statute clearly implies a general intent offense.” Slip op. at 4. Finding that the statutory elements are straightforward, Chief Judge Stucky explains that:
it is an offense to commit a sexual act without consent, although an honest and reasonable (nonnegligent) mistake of fact as to consent serves as an affirmative defense. Such a construction typically suggests a general intent offense.
Slip op. at 5.
The second consideration is that Article 120(b)(1)(B) evolved from the pre-2006 version of Article 120 that was a general intent offense. As such:
Because the antecedent offense was a general intent offense, we can infer by Congress’s silence on the mens rea for sexual assault by bodily harm that it impliedly stated a general intent mens rea for that offense.
Slip op. at 6.
The third consideration is the wording of the statute, and specifically the fact that the statutory definition of consent requires that it be “determined objectively” but also “from the alleged victim’s perspecitve – consent is his or her freely given agreement.” Slip op. at 7 (emphasis in original) (citations omitted). In contrast, “no reference is made to the accused’s perception of consent.” Slip op. at 7. Other offenses in Article 120(b), however, do require certain knowledge by an accused:
In Article 120(b)(2) and 120(b)(3), 10 U.S.C. § 920(b)(2), (3) (2012), Congress provided an explicit mens rea that the accused “knows or reasonably should know” certain facts: that the victim is unaware of the sexual act or incapable of consenting to it.
By contrast, under Article 120(b)(1)(B), it is an offense simply to commit a sexual act without consent. The fact that Congress articulated a specific mens rea with respect to the victim’s state of mind elsewhere in the statute further demonstrates that the required mens rea in this case is only the general intent to do the wrongful act itself.
Slip op. at 7 (paragraphing added).
The final consideration is whether mere general intent is sufficient to separate wrongful coduct from innocent conduct (because sexual activity is ordinarily innocent conduct). CAAF wholly rejects that concern, with Chief Judge Stucky writing that mere general intent:
does not criminalize otherwise innocent conduct because only consensual sexual intercourse is innocent. The burden is on the actor to obtain consent, rather than the victim to manifest a lack of consent. Appellant’s actions could only be considered innocent if he had formed a reasonable belief that he had obtained consent. The Government only needed to prove that he had not done so to eliminate the mistake of fact defense. The military judge’s instructions properly reflected that.
Slip op. at 8 (emphasis in original).
The Court’s conclusion that “the burden is on the actor to obtain consent,” slip op. at 8, is easily the key holding of the decision, though it finds the least support in the statute. The definition of consent enacted by Congress explained that consent is “a freely given agreement to the conduct at issue,” and that “an expression of lack of consent through words or conduct means there is no consent.” Article 120(g)(8)(A). The statute also included the admonition that “lack of consent may be inferred based on the circumstances of the offense.” Article 120(g)(8)(C). Accordingly, whether or not an encounter involves words or deeds suggestive of a lack of consent (like one participant saying no or resisting), the statute has the potential to criminalize a sexual encounter that does not include clear evidence of consent. CAAF’s decision, however, seems to stretch that language by imposing an extra-statutory duty to obtain unambiguous consent prior to acting. Put differently, the burden in nonconsent case now seems to have shifted to the accused to show that he or she did enough to satisfy the duty to obtain consent.
• ACCA opinion
• Blog post: CAAF grants review
• Appellant’s brief
• Appelllee’s (Gov’t Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF Opinion
• Blog post: Opinion analysis
Disclosure: I represent multiple appellants in my civilian capacity who have asserted a mens rea error similar to the issue in this case.