Opinion Analysis: Assault consummated by a battery is not a lesser included offense of sexual assault or abusive sexual contact by placing in fear, in United States v. Riggins, No. 15-0334/MC
CAAF decided the Marine Corps case of United States v. Riggins, 75 M.J. 78, No. 15-0334/MC (CAAFlog case page) (link to slip op.), on January 7, 2016. The court finds that assault consummated by a battery (in violation of Article 128) is not a lesser included offense of either sexual assault or abusive sexual contact by placing in fear through the use or abuse of military position, rank, or authority (in violation of Article 120(b)(1)(a) (2012) and Article 120(d) (2012)).
Judge Ohlson writes for a unanimous court.
CAAF granted review of a single issue:
Whether the lower court erred in deciding a question of law which has not been, but should be, settled by this court when it held that assault consummated by battery was a lesser included offense to abusive sexual contact and sexual assault.
The case involves the appellant’s sexual encounter with a subordinate. The appellant was tried by a general court-martial composed of a military judge alone. He pleaded guilty to fraternization, making a false official statement, and adultery. He pleaded not guilty to other offenses that included four specifications of sexual assault and eight specifications of abusive sexual contact. The sexual offenses alleged that the appellant placed the alleged victim in fear that he would affect her military career through the use or abuse of military position, rank, or authority.
During the trial, and over defense objection, the military judge determined that assault consummated by a battery is a lesser included offense of these sexual offenses, and then he convicted the appellant of five specifications of assault consummated by a battery as lesser included offenses of two of the sexual assault specifications and three of the abusive sexual contact specifications. The appellant was acquitted of the other sexual charges, and was sentenced to confinement for three years and a bad-conduct discharge.
The military judge made special findings when he convicted the appellant of the lesser offenses, explaining that:
he found the appellant “did not expressly place [her] in fear of him taking action that would affect her career,” the context and circumstances surrounding the incident were such that [she] was, in fact, fearful of what could happen to her and her military career if she resisted the appellant’s sexual advances. This fear, combined with her oral protests allow this court to also find that “it was not reasonable for the appellant to have believed that [she] was consenting.”
United States v. Riggins, No. 201400046, slip op. at 10 (N-M. Ct. Crim. App. Nov. 26, 2014) (quoting record) (marks omitted). The appellant challenged the military judge’s determination that assault consummated by a battery is a lesser included offense at the NMCCA, but the CCA concluded that:
One cannot prove sexual assault by threatening or placing that other person in fear without necessarily proving assault consummated by a battery, because one cannot prove a legal inability to consent without necessarily proving a lack of consent. Accordingly, we find assault consummated by a battery to be an LIO of sexual assault under Article 120(b)(1), UCMJ (2012 ed.).
United States v. Riggins, No. 201400046, slip op. at 8 (N-M. Ct. Crim. App. Nov. 26, 2014).
Judge Ohlson’s decision for the unanimous CAAF finds flaw in the NMCCA’s decision by highlighting the difference between a legal inability to consent and the element of lack of consent, but the decision repeatedly emphasizes that it is limited to the circumstances presented in this case.