Back in January, in United States v. Peebles, 78 M.J. 658 (A. Ct. Crim. App. Jan 10, 2019) (discussed here), the Army CCA held that the minimum mens rea for sexual assault by causing bodily harm (where the sexual act is the bodily harm) is recklessness.
The decision came nearly four months after CAAF granted review of that very issue – and three months before CAAF would reach the opposite decision – in United States v. McDonald, __ M.J. __, (C.A.A.F. Apr. 17, 2019) (CAAFlog case page). The decision also directly contradicted (and specifically rejected) the contrary decision of the Navy-Marine Corps CCA in United States v. Patrick, 78 M.J. 687 (N.M. Ct. Crim. App. Dec. 11, 2018) (link to slip op.).
Now, with the ink barely dry on CAAF’s decision in McDonald (and despite the possibilities of reconsideration by CAAF and review by SCOTUS) the Army CCA hastily retreats with this per curiam decision on reconsideration in Peebles, issued on April 24, 2019:
In light of our superior court’s decision in United States v. McDonald, __M.J.__, 2019 CAAF LEXIS 271 (C.A.A.F. 17 Apr. 2019), this court sua sponte reconsiders its 10 January 2019 decision in this case
For the reasoning set forth by our superior court in McDonald, the 10 January 2019 published opinion of this court, United States v. Peebles, 78 M.J. 658 (Army Ct. Crim. App. 2019), is hereby VACATED.
Pursuant to our reconsideration of the entire record, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, those findings of guilty and the sentence are AFFIRMED.