Audio of today’s oral arguments at CAAF is available at the following links:
Argument Preview: Determining whether the elements of assault consummated by a battery are a subset of the elements of abusive sexual contact by causing bodily harm, in United States v. Armstrong
CAAF will hear oral argument in the Army case of United States v. Armstrong, No. 17-0556/AR (CAAFlog case page), on Wednesday, March 21, 2018. The court granted review of a single issue:
Whether assault consummated by a battery is a lesser included offense of abusive sexual contact by causing bodily harm.
Captain (O-3) Armstrong was charged with abusive sexual contact by causing bodily harm in violation of Article 120(d) (incorporating Article 120(b)(1)(B)) (2012). A general court-martial composed of members convicted him of assault consummated by a battery as a lesser included offense (LIO), and sentence him to be dismissed. The Army CCA summarily affirmed the findings and sentence.
The factual basis for the charge was that the alleged victim (the civilian wife of another officer) reported that she fell asleep on a couch during a party and awoke to Armstrong touching her. The specification as charged alleged that Armstrong: “commit[ed] sexual contact upon Mrs. BG, to wit: touching through the clothing the genitalia of the said Mrs. BG, by causing bodily harm to the said Mrs. BG, to wit: wedging his hands in between her thighs.” Gov’t Div. Br. at 9 (quoting record) (marks in original).
In United States v. Jones, CAAF explained that “the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; an LIO meets this notice requirement if it is a subset of the greater offense alleged.” 68 M.J. 465, 468 (C.A.A.F. 2010) (marks and citation omitted). When the decision was issued we analogized it to an easy button for determining LIOs.
The question in this case is whether the elements of assault consummated by a battery are a subset of the elements of abusive sexual contact by causing bodily harm