The Army CCA holds that the minimum mens rea for sexual assault by causing bodily harm – where the sexual act is the bodily harm – is recklessness
With a published opinion issued in United States v. Peebles, __ M.J. __, No. 20170044 (A. Ct. Crim. App. Jan 10, 2019) (link to slip op.), a three-judge panel of the Army CCA holds:
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.
Slip op. at 10. Writing for the panel, Judge Salussolia elaborates:
Recognizing the application of the general principle that “wrongdoing must be conscious to be criminal” and that we cannot discern the level of mens rea Congress intended to apply to Article 120(b)(l)(B), UCMJ, we find the mens rea of “recklessness” is the minimum mental state necessary to separate wrongful conduct from otherwise innocent conduct. See Gifford, 75 M.J. at 144. Recklessness requires an accused “knew that there was a substantial and unjustifiable risk that the social harm the law was designed to prevent would occur and ignored this risk when engaging in the prohibited conduct.” Haverty, 76 M.J. at 204-05 (citing Black’s Law Dictionary 1462 (10th ed. 2014)). Put differently, in the context of Article 120(b)(l)(B), UCMJ, an accused acts recklessly with respect to a victim’s nonconsent when he consciously disregards a substantial and unjustifiable risk that the victim does not consent to his engaging in the sexual act. See Model Penal Code § 2.02. Thus, to convict the appellant of sexual assault caused by bodily harm, the government had to prove the following: (1) that appellant committed a sexual act upon alleged victim; (2) that the alleged victim did not consent to the sexual act; and (3) that appellant committed the sexual act with a reckless disregard as to the alleged victim’s non-consent.
Slip op. at 13.
The decision comes in advance of CAAF’s resolution of the same question in the Army case of United States v. McDonald, No. 18-0308/AR (grant of review discussed here). CAAF has not (yet) scheduled oral argument in McDonald.
The decision also supersedes a prior – though unpublished – decision by the Army CCA, in which the court held:
We reject appellant’s assertion that “lack of consent” is a material element of the crime of sexual assault or abusive sexual contact requiring a separate mens rea. Consistent with our superior court, we believe it is more precise to treat the “nonconsensual” requirement as a potential subsidiary fact with respect to the element of bodily harm rather than a distinct element of the offense. See United States v. Neal, 68 M.J. 289, 301-02 (C.A.A.F. 2010) (interpreting the 2006 version of Article 120 to allow “treating evidence of consent as a subsidiary fact potentially relevant to a broader issue in the case, such as the element of force.”).
United States v. Rivera, No. ARMY 20160393, 2017 CCA LEXIS 740, at *7 n.3 (A. Ct. Crim. App. Nov. 28, 2017) (link to slip op.), rev. denied, 77 M.J. 313 (C.A.A.F. 2018)