CAAFlog » October 2018 Term » United States v. McDonald

CAAF decided the Army case of United States v. McDonald, __ M.J. __, No. 18-0308/AR (CAAFlog case page) (link to slip op.), on Wednesday, April 17, 2019. The court concludes that the mens rea (mental state) for the offense of sexual assault by causing bodily harm in violation of Article 120(b)(1)(B) (2012), where the bodily harm is a nonconsensual sexual act, is the general intent to commit the sexual act.

Chief Judge Stucky writes for a unanimous court.

CAAF granted review of a single issue:

Whether the military judge erred in instructing the panel that a negligent mens rea was sufficient to make otherwise lawful conduct criminal.

Mens rea was the #8 Military Justice Story of 2017 because of a series of CAAF decisions involving the mental state required to violate the UCMJ. McDonald (and a second case presenting substantially the same issue) involves Article 120(b)(1)(B) (2012), which prohibited sexual assault by causing bodily harm, and the definition of bodily harm included a nonconsensual sexual act or sexual contact. Congress repealed that offense in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new-but-similar Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.”

In neither offense, however, did Congress identify a specific mens rea. Put differently, Congress didn’t say whether – to be guilty of the offense – an accused must actually know that the other person didn’t consent (actual knowledge), or recklessly disregard evidence of lack or consent (recklessness), or just fail to discover that the other person didn’t consent (negligence). Congress also could have said (but didn’t say) that the accused’s knowledge of anything doesn’t matter at all (strict liability), or that the accused need only know that he was committing the physical acts constituting the offense (general intent).

CAAF granted review in McDonald back in September (noted here), and since then two CCAs have issued decisions addressing this issue. First, in United States v. Patrick, __ M.J. __ (N.M. Ct. Crim. App. Dec. 11, 2018) (link to slip op.), the NMCCA held that the applicable mens rea is found in the definition of sexual act which required (under the facts of that case) an intent to abuse, humiliate, harass, or degrade. A month later, in United States v. Peebles, __ M.J. __, No. 20170044 (A. Ct. Crim. App. Jan 10, 2019) (link to slip op.), the Army CCA rejected the NMCCA’s reasoning and held that “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.”

Now, with its decision in McDonald, CAAF resolves the question in a way more similar to the decision of the NMCCA than the ACCA. Chief Judge Stucky writes that “Congress clearly intended a general intent mens rea for Article 120(b)(1)(B).” Slip op. at 4. That means that:

As a general intent offense, sexual assault by bodily harm has an implied mens rea that an accused intentionally committed the sexual act. No mens rea is required with regard to consent, however.

Slip op. at 8 (citation omitted).

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Audio of today’s oral arguments at CAAF is available on CAAF’s website at the following links:

United States v. McDonald, No. 18-0308/AR (CAAFlog case page): Oral argument audio.

United States v. Gleason, No. 18-0305/AR (CAAFlog case page): Oral argument audio.

The audio is also available on our oral argument audio podcast.

CAAF will hear oral argument in the Army case of United States v. McDonald, No. 18-0308/AR (CAAFlog case page), on Tuesday, February 19, 2019, at 9:30 a.m. The court granted review of the following issue about the minimum mens rea (mental state) necessary to commit the offense of sexual assault by causing bodily harm where the bodily harm is a nonconsensual sexual act:

Whether the military judge erred in instructing the panel that a negligent mens rea was sufficient to make otherwise lawful conduct criminal.

Mens rea was the #8 Military Justice Story of 2017 because of a series of CAAF decisions involving the mental state required to violate the UCMJ. McDonald (and a second case presenting substantially the same issue) involves Article 120(b)(1)(B) (2012), which prohibited sexual assault by causing bodily harm, and the definition of bodily harm included a nonconsensual sexual act or sexual contact. Put differently, since nonconsensual sexual activity is generally considered to be the definition of sexual assault, the statute functionally prohibited sexual assault by causing sexual assault. Congress repealed that offense in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new-but-similar Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.”

In neither offense, however, did Congress identify a specific mens rea. Put differently, Congress didn’t say whether – to be guilty of the offense – an accused must actually know that the other person didn’t consent (actual knowledge), or recklessly disregard evidence of lack or consent (recklessness), or just fail to discover that the other person didn’t consent (negligence). Congress also could have said (but didn’t say) that the accused’s knowledge doesn’t matter at all (strict liability). Accordingly, the mens rea applicable to the offense is an open question.

CAAF granted review in McDonald back in September (noted here), and since then two CCAs have issued decisions addressing the issue. First, in United States v. Patrick, __ M.J. __ (N.M. Ct. Crim. App. Dec. 11, 2018) (link to slip op.), the NMCCA held that the applicable mens rea is found in the definition of sexual act which required (under the facts of that case) an intent to abuse, humiliate, harass, or degrade. A month later, in United States v. Peebles, __ M.J. __, No. 20170044 (A. Ct. Crim. App. Jan 10, 2019) (link to slip op.), the Army CCA rejected the NMCCA’s reasoning and held that “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.”

The facts of McDonald, however, present the possibility that CAAF won’t immediately resolve the split between the Army and Navy-Marine Corps CCA.

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Mens rea was the #8 Military Justice Story of 2017 because of a series of CAAF decisions involving the mental state required to violate the UCMJ. The topic remains at CAAF, with a decision earlier this year in United States v. Blanks, 77 M.J. 239 (C.A.A.F. Feb. 28, 2018) (CAAFlog case page) (re-affirming that negligent dereliction of duty is punishable under Article 92), and with a (second) grant of review in United States v. Tucker, No. 18-0254 (CAAFlog case page).

On Tuesday CAAF granted review in another case involving mens rea:

No. 18-0308/AR. U.S. v. Cedric L. McDonald. CCA 20160339. 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 hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL THAT A NEGLIGENT MENS REA WAS SUFFICIENT TO MAKE OTHERWISE LAWFUL CONDUCT CRIMINAL.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here. The case seems to involve the mens rea required to commit sexual assault by causing bodily harm, where the bodily harm is a non-consensual sexual act, in violation of Article 120(b)(1)(B). The facts of the case, however, make it a poor vehicle for that issue. Private First Class McDonald was convicted of sexual assault and conspiracy to commit sexual assault based on an allegation that he concealed his identity in order to have sex with a woman who believed that she was having sex with another soldier. Considering such deliberate action, the CCA concluded:

Here, appellant’s misconduct of having sexual intercourse with DJ without her consent was at the very least reckless, but more likely purposeful. . . .

Based on the evidence contained in the record, it is clear appellant exploited the cover of darkness to conceal his identity from DJ as he switched places with PV2 Thomas and engaged in nonconsensual sexual intercourse with DJ. We thus conclude appellant’s misconduct was done knowingly if not, at the very least, reckless and that any lack of instruction on the scienter of recklessness was not plain error.

Slip op. at 5.

In other words, if the CCA’s recitation of the facts is even remotely accurate, it’s hard to see how McDonald’s conduct was otherwise lawful.