Opinion Analysis: The defenses were not raised (and it’s time to distinguish a special defense from an affirmative defense) in United States v. Feliciano, No. 17-0035/AR
CAAF decided the Army case of United States v. Feliciano, __ M.J. __, No. 17-0035/AR (CAAFlog case page) (link to slip op.), on Wednesday, May 17, 2017. Concluding that the defenses of voluntary abandonment and mistake of fact as to consent were not raised by the evidence, CAAF finds no error in the omission of an instruction on the former, and no error in the specific wording of the instruction given on the latter. A footnote also distinguishes a special defense from an affirmative defense. CAAF affirms the decision of the Army CCA and the findings and sentence.
Judge Stucky writes for a unanimous court.
Private (E-2) Feliciano was convicted of two specifications of attempted aggravated sexual assault in violation of Articles 80 and 120(c) (2006). Both specifications arose out of a sexual encounter in Feliciano’s barracks room with a female soldier who had been drinking. A third soldier witnessed the encounter, heard the female soldier repeatedly say no, and intervened by telling Feliciano: “That if he continued along that they would definitely get him for rape, and that will be 25 to life and that people would probably also rape him in jail.” Slip op. at 2 (marks omitted). Upon hearing this Feliciano ceased contact with the alleged victim.
CAAF granted review of two issues:
I. Whether the military judge erred when he failed to instruct the panel on the defense of voluntary abandonment, and if so, whether the error was harmless beyond a reasonable doubt.
II. Whether the military judge erred when he instructed the panel that appellant’s mistake of fact as to consent must be both honest and reasonable, and if so, whether the error was harmless beyond a reasonable doubt.
In today’s opinion, Judge Stucky explains that neither voluntary abandonment nor mistake of fact as to consent were raised by the evidence, and so there was no error in the failure to give the first instruction or in the wording of the second. These conclusions are unsurprising considering the facts. But the opinion also includes a lengthy footnote that distinguishes the uniquely-military special defense from a more-common affirmative defense. Unfortunately, while the distinction in the footnote is clear, the opinion itself seems to blur the line.