Yesterday CAAF granted review in this Army case:
No. 18-0347/AR. Michael J. Gonzales. CCA 20130849. 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 granted on the following issue:
WHETHER AGGRAVATED SEXUAL CONTACT OF A CHILD IS A LESSER INCLUDED OFFENSE OF RAPE OF A CHILD.
Briefs will be filed under Rule 25.
The only opinion available on the Army CCA’s website is this one from 2017, in which the CCA set aside the findings and authorized a rehearing because of a Hills error. That opinion addressed convictions for acts alleged to have occurred in 2010 and 2011. At that time Article 120(b) defined the offense of rape of a child as:
(b) Rape of a Child.-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; or
(2) engages in a sexual act under the circumstances described in subsection (a) with a child who has attained the age of 12 years;
is guilty of rape of a child and shall be punished as a court-martial may direct.
Additionally, Article 120(g) defined the offense of aggravated sexual contact with a child as:
(g) Aggravated Sexual Contact With a Child.-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 sexual contact been a sexual act, is guilty of aggravated sexual contact with a child and shall be punished as a court-martial may direct.
Sexual act and sexual contact were defined in Article 120(t) as:
(1) Sexual act.-The term “sexual act” means-
(A) contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or
(B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
(2) Sexual contact.-The term “sexual contact” means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.