CAAF decided the Army case of United States v. Gonzales, __ M.J. __, No. 18-0347/AR (CAAFlog case page) (link to slip op.), on Friday, June 7, 2019. Analyzing the version of Article 120 effective from 2007-2012, the court holds that the offense of aggravated sexual contact with a child is not a lesser included offense of rape of a child. Nevertheless, reviewing the appellant’s conviction of the lesser offense for plain error (because there was no objection at trial), CAAF finds that the error is not plain or obvious because the law was unsettled, and the court affirms the conviction.

Judge Maggs writes for a unanimous court.

Specialist (E-4) Gonzales was convicted by a general court-martial composed of a military judge alone of aggravated sexual contact with a child, aggravated sexual abuse of a child, indecent liberty with a child, and child endangerment, and sentenced to confinement for 22 years, reduction to E-1, total forfeitures, and a dishonorable discharge. CAAF’s review involves only the conviction of aggravated sexual contact with a child. Gonzales was actually charged with the offense of rape of a child, with a specification that alleged that he:

engage[d] in a sexual act, to wit: penetrating, with his penis, the vulva of Miss AP, a child who had not attained the age of 12 years.

Slip op. at 9 (marks omitted). The evidence at trial, however, did not prove the element of penetration, and the military judge acquitted Gonzales of rape but convicted him of aggravated sexual contact, ostensibly as a lesser included offense. The two offenses are different, in that rape of a child (in violation of Article 120(b) (2006)) requires a sexual act (potentially without any specific intent), while aggravated sexual contact requires only sexual contact but with specific intent. The defense did not object when the military judge announced the findings, and CAAF eventually granted review to determine:

Whether aggravated sexual contact of a child is a lesser included offense of rape of a child.

Applying both versions of the elements test outlined in United States v. Armstrong, 77 M.J. 465 (C.A.A.F. 2018) (CAAFlog case page), Judge Maggs explains that the statutory elements of aggravated sexual contact with a child are not necessarily included in the statutory elements of rape of a child, and that the charge sheet did not provide notice of the different elements of the sexual contact offense. Accordingly, the military judge erred in convicting Gonzales of aggravated sexual contact with a child. The error, however, was not plain or obvious because “it was subject to reasonable doubt both at the time of trial and on appeal,” slip op. at 10, and so – because Gonzales failed to object at trial – he gets no relief.

Reviewing the statutory elements of both offenses, Judge Maggs observes that:

The applicable version of Article 120, UCMJ, defines rape of a child as follows: “Any person subject to this chapter who—(1) engages in a sexual act with a child who has not attained the age of 12 years; . . . is guilty of rape of a child and shall be punished as a court-martial may direct.” 10 U.S.C. § 920(b) (2006 & Supp. IV). “Sexual act” means, in relevant part, “contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight.” Id. § 920(t)(1)(A). Article 120, UCMJ, does not expressly identify the mens rea for rape, but we have held that the mens rea for rape is a general intent to commit the sexual act. United States v. McDonald, __ M.J. __ (6) (C.A.A.F. 2019).

In contrast, at the time of the offense, Article 120, UCMJ, defined aggravated sexual contact with a child as follows: “Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (b) (rape of a child) had the sex-ual contact been a sexual act, is guilty of aggravated sexual contact with a child and shall be punished as a court-martial may direct.” 10 U.S.C. § 120(g) (2006 & Supp. IV). “Sexual contact” means, in relevant part, “the intentional touching . . . of the genitalia . . . of another person . . . with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.” Id. § 920(t)(2).

Slip op. at 5-6. The difference is the mens rea element, with rape of a child requiring only general intent but aggravated sexual contact with a child requiring a greater, specific intent. Because of that specific intent requirement, the sexual contact offense can not be a lesser included offense of rape unless rape necessarily includes a sexual intent. Judge Maggs notes that the Government Division argued that does necessarily include such a sexual intent, slip op. at 6, and that two CCAs have considered that question with different results:

The [Army CCA] concluded in United States v. Wagner, No. ARMY 20111064, 2013 CCA LEXIS 573, at *30, 2013 WL 3946239, at *10 (A. Ct. Crim. App. July 29, 2013), that wrongful sexual contact is a lesser included offense of aggravated sexual assault. . . . the court reasoned that . . . “it is beyond cavil that every penile-vaginal penetration includes a corresponding sexual intent.” Id.

In contrast, the United States Air Force Court of Criminal Appeals (AFCCA) concluded in United States v. Lyson, No. ACM 38067, 2013 CCA LEXIS 816, *37−38, 2013 WL 5436639, at *10−11 (A.F. Ct. Crim. App. Sept. 16, 2013), that the specific intent required for abusive sexual contact prevents that offense from being a lesser included offense of aggravated sexual assault.

Slip op. at 6-7 (paragraphing added). The federal courts are similarly split on the same question applied to a similar statute in the civil law:

In United States v. Demarrias, 876 F.2d 674, 676−77 (8th Cir. 1989), the United States Court of Appeals for the Eighth Circuit held that abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1) and (3) is a lesser included offense of aggravated sexual abuse and sexual abuse of a minor in violation of 18 U.S.C. § 2241(a) and § 2243(a). . . . In contrast, in United States v. Hourihan, 66 F.3d 458, 465 (2d Cir. 1995), the United States Court of Appeals for the Second Circuit held that abusive sexual contact is not a lesser included offense of aggravated sexual abuse because the latter does not require a specific intent “to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”

Slip op. at 7.

CAAF concludes that even though “in most instances, a person who commits conduct that would constitute rape of a child would act with a specific intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person,” slip op. at 7 (marks omitted), that is not enough to make the sexual contact offense a lesser included offense of rape, for two reasons. First, finding that it is a lesser included offense requires “rel[ance] more on generalities with respect to likely proof than on a limited textual comparison of statutory definitions.” Slip op. at 8. Second, the court can imagine at least one situation where a person can commit the physical acts constituting rape of a child without necessarily forming the specific intent required for the offense of aggravated sexual assault of a child:

Specifically, a voluntarily intoxicated person could commit the offense of rape of a child without necessarily committing the offense of aggravated sexual contact with a child. We have held that voluntary intoxication cannot prevent the formation of the general intent to commit rape. But voluntary intoxication might prevent a person from forming the specific intent required for a sexual contact offense under Article 120, UCMJ.

Slip op. at 9 (citations omitted). Accordingly, “we conclude that aggravated sexual contact with a child is not ‘an offense necessarily included in the offense’ of rape of a child under Article 79, UCMJ.” Slip op. at 9.

Judge Maggs then turns to the notice version of the elements test as stated in Armstrong: “whether the specification of the charged offense in this case was drafted in such a manner that it alleges facts that necessarily satisfy all the elements of the purported lesser offense.” Slip op. at 9 (citing Armstrong, 77 M.J. at 472). But because the specification did not provide notice of the mens rea necessary for the sexual contact offense, it fails that version of the elements test too.

Having concluded that aggravated sexual contact with a child is not a lesser included offense of rape of a child – based on both the statutory elements and the notice provided in this case – CAAF then turns to the remedy for the military judge’s error in convicting Gonzales of that lesser (but not lesser included) offense. Unfortunately for Gonzales, his defense counsel did not object when the military judge announced the findings. Because the defense could have objected at that time (and asked the military judge to reconsider the finding of guilty of a lesser offense), they forfeited the objection. Slip op. at 3. A forfeited objection is reviewed under the plain error standard, where reversal is not warranted unless the error is clear or obvious. Applying that standard to this case, CAAF finds that the error is not clear or obvious:

We think that the foregoing analysis has shown that the assigned issue in this case was subject to reasonable doubt both at the time of trial and on appeal.

As described above, the AFCCA and the ACCA had reached conflicting conclusions on the question whether a person who commits a rape will necessarily act with the specific intent required for a sexual contact. The United States Courts of Appeals have reached a similar disagreement over an analogous federal statute. In addition, at the time of trial, the 2008 edition of the MCM incorrectly identified aggravated sexual contact with a child as a lesser included offense of rape of a child. MCM pt. IV, para. 45.d.(1)(a) & 45.d.(2)(a) (2008 ed.). Although we have held that the MCM’s listing of lesser included offenses is not controlling, see Jones, 68 M.J. at 471, an error in the MCM is a factor in determining whether an issue is subject to reasonable doubt. These considerations prevent us from characterizing the military judge’s error as clear and obvious.

Slip op. at 10.

Because CAAF finds that the error was not clear or obvious, Gonzales gets no relief.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
• Oral argument audio (wma mp3)
CAAF opinion
Blog post: Opinion analysis

15 Responses to “Opinion Analysis: Aggravated sexual contact was not a lesser included offense of rape under a prior version of Article 120, but holding otherwise was not a clear or obvious error in United States v. Gonzales”

  1. Charlie Gittins says:

    So, it is not an LIO, so the accused was convicted of a crime that was not preferred and sworn to and not properly referred to trial?  This hurts my brain.

  2. Sea says:

    Charlie I agree with you.  While I suppose the court is trying to keep it minimal in scope by saying that it’s only because the law was unsettled, you are essentially punishing the accused for not having an attorney that objects every time a bit of unsettled law MAY be prejudicial to their client.  If it’s not a LIO then it’s not an LIO and he should get a new trial on that new charge.  It wouldn’t be double jeopardy because, as they just said, it’s not a LIO, but simply striking it through as “close enough” also hurts my brain.

  3. Isaac Kennen says:

    So . . . the Court held that it “was subject to reasonable doubt both at the time of trial and on appeal,” whether the accused was even charged with this offense. Slip op. at 10. And, supposedly, the government has the burden of proving the accused guilty of charged offense beyond a reasonable doubt. At least, that’s what I was taught as a child.But, somehow, paradoxically, in this case, the existence of doubt as to whether the government even charged this offense was the very reason the Court found the accused guilty of it.  Lovely.The Court can’t stomach a defense counsel that fails to object to every little exceeding esoteric error that might poke its head up during trial.
    But, an Army of lawyers who have had months to pore over every word and punctuation mark in their charging document, and still manage to muss it up, apparently can’t be given enough leeway by the Court. 
    This man stands convicted of an offense he was never charged with.There’s no pretty way to dress that up. 

  4. Bill Cassara says:

    Zeke: I am trying to wrap my head around this decision, and I can’t. I know the likelihood of cert is near zero, but it certainly worth a try. 

  5. stewie says:

    Two thoughts here:
    1. Bad facts make bad law, one wonders if this is the same decision if it doesn’t involve sexual assault of a child
    2. I think we’ve really made sex assault legislation/crimes too complicated so that we end up in legally true but common-sensically stupid discussions about whether if you rape someone but fail to prove it you don’t have the evidence to prove the same general type of offense but without sticking something inside an orifice. Again, absolutely fair legal point to make.

  6. Vulture says:

    Appeal was taken from a rehearing.  How much objecting is the Defense supposed to do?

  7. Tami a/k/a Princess Leia says:

    So much for that presumption about judges knowing the law.  I think Stewie is right–the way this reads, the outcome is justified because this involves sexual assault on a child.  But if this was sexual assault on an adult, or not a sexual assault case, it would probably be a different outcome.

  8. TC says:

    What is absurd is the concept that penetrative sex does not inherently include an intent to satisfy one’s sexual desire.  

  9. stewie says:

    probably, although it would make your job of getting rape convictions actually harder.

  10. Vulture18 says:

    An interesting thought piece TC.  Legions were born out of the idea that rape was a crime of power, not sex.  That was the 80’s/90’s.  Now it is either an absurdity, truer than ever, or an underlying cause.  Nobody’s ever come back to refute that, verify, or qualify.  But I think that it is poor remedy to the idea that only men can commit sexual crimes.  How are we to prepare a means to rectify the possibility that an injustice really has been done to some service members?  What would be our exit from waiver mania, charging delirium, and evidence amnesia?
     
    Is it absurd to suggest that the UCMJ has been a satisfaction of someones desires for power?
     
    Some things just can’t be accepted (kind of a paraphrase) when it comes to things like pornography, rape, and molestation of a younger than 12 year old.  But looking at Gleason and the crime involved in that charging and the result in the crime in this charging, CAAF has become too politically influenced.

  11. TC says:

    Not remotely. What possible other intent could exist for penetrative sex? The whole reason the intent element exists for lesser offenses is there are other reasons you might touch someone on the butt or the breast. Proving it would consist of nothing more than asking the members “why else would he have done this?”

  12. stewie says:

    Yes, it would. Only requiring general intent to do the act is certainly easier to prove than specific intent, especially when it involves a mistake of fact defense.
     
     

  13. Vulture-2 says:

    TC says, “What possible other intent could exist for penetrative sex?”
     
    Dammit!!!  I knew I was getting underpaid for acting in adult films.

  14. Concerned Defender says:

    “Close enough” counts in horse-shoes, hand grenades, and now apparently the UCMJ.  
     
    “UCMJ – improved!  Now without pesky specificity!”
     
    This is transparently where the Courts wanted a certain result and crafted a poor decision to get there.
     
    I think a defense counsel must just lay a blanket objection, or turn the entire event into an objection marathon if the Courts are going to require it and grant no relief without an objection where there is plain error.  “Your honor I object to everything on the charge sheet, panel, forum, specificity, due process, delays, etc…” Just run down a prepared list and submit said list to the tribunal.  Nonstop objection marathon I guess is what the Courts expect.  
     
    And that makes it unfair to the accused because it would serve to annoy the Judge or panel and may even draw a sanction.  The Appellate Courts are supposed to get to the correct decision; not craft a terrible opinion to get to the wrong decision.

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