CAAF will hear oral argument in the Army case of United States v. Washington, No. 19-0252/AR (CAAFlog case page), on Wednesday, January 15, 2020, at 9:30 a.m. The court granted review of a single issue involving testimony about the Army’s Sexual Harassment Assault Response and Prevention (SHARP) program.

Whether the military judge abused her discretion by permitting the unit’s SHARP representative to testify that “when a person says ‘no’ it means stop, walk away.”

Private (E-1) Washington was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of two specifications of abusive sexual contact in violation of Article 120 (2012). Both specifications arose from a single encounter and they were merged for sentencing. The panel sentenced Washington to confinement for 30 days and a bad-conduct discharge. The Army CCA summarily affirmed.

The case involves an encounter between Washington and a female junior enlisted soldier identified as PFC AF. One night, in PFC AF’s barracks room, in her bed, Washington and PFC AF had a sexual encounter that involved touching and kissing and that ended when a third soldier knocked on the door of the room. It was undisputed that part of the encounter was consensual, but the prosecution alleged that near the end of the encounter Washington disregarded requests by PFC AF that he stop touching her.

At trial, Washington’s defense counsel raised the issue of mistake of fact as to consent during its cross-examination of PFC AF. Mistake of fact as to consent is a well-recognized special defense (which is somewhat the same as an affirmative defense) to adult sexual offenses under the UCMJ because it does not not deny the objective acts constituting the offense, but instead denies criminal responsibility for those acts. Accordingly, in Washington, in addition to proving the elements of the offense (which appear to involve a bodily harm / nonconsensual sexual touching; none of the briefs identify the precise basis for the conviction), the prosecution also had to prove that Washington did not have an honest and reasonable belief that PFC AF consented to the touching.

To help it meet that burden, the prosecution presented the testimony of the SHARP representative – Sergeant First Class Rivera – who provided training about consent to Washington and his unit just one week before the alleged assault:

Sergeant First Class Rivera testified that appellant participated in a company-level training class on the issue of consent during the week preceding the assault. (JA 145–49). The direct, cross, and redirect examination of SFC Rivera occupies less than ten pages of the record. (JA 145–54). The training included a slide on the topic of withdrawn consent and guidance on what to do when a person says “no” during a sexual encounter. (JA 149). SFC Rivera testified about the slide, indicating that the takeaway was that when one party says “no,” it means the other should “stop, walk away.” (JA 149). Sergeant First Class Rivera was not asked for his opinion on the meaning of the words “no” or “stop,” whether the slide accurately reflected the state of the law, or to otherwise credit that slide or the SHARP program.

Gov’t Div. Br. at 7. Washington’s defense counsel objected to that testimony but the military judge overruled the objection, ruling that testimony about the training Washington received was relevant to the issue of Washington’s education (which is one of the factors to consider when determining if a mistake of fact existed) and that it was not unfairly prejudicial. Thereafter, the SHARP representative’s testimony was not a prominent part of the prosecution’s case, but the trial counsel did reference it in rebuttal closing argument as a basis to find no mistake of fact:

The defense . . . proffered a third possibility: that PFC AF did say stop but that PVT Washington mistakenly believed this was limited to precluding him from actually performing oral sex. (JA 178). In rebuttal, the prosecution admitted that PVT Washington may have honestly believed PFC AF consented to continued sexual contact but argued this belief was objectively unreasonable. (JA 182). In doing so, it suggested the members’ “number one” consideration should be that PVT Washington was “trained by his unit before the assault about the importance of consent, about the importance of listening to other people if they say ‘no’ or ‘stop’ or express discomfort in a sexual situation [and] he kept going.” (JA 182).

App. Br. at 12.

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CAAF will hear oral argument in two Army cases on Tuesday, January 14, 2020, beginning at 9:30 a.m. Both cases challenge the Army CCA’s reassessment of the sentence when the CCA also remanded to the convening authority with a rehearing authorized for convictions that were reversed.

First CAAF will hear argument in United States v. Wall, No. 19-0143/AR (CAAFlog case page), which presents two issues:

Granted issue: Whether after setting aside the sentence and ordering a remand, a service Court of Criminal Appeals is authorized to reassess the sentence and limit the lawful sentence the convening authority may approve.

Specified issue: Whether the granted issue is ripe for review at this time.

Then CAAF will hear oral argument in United States v. Gonzalez, No. 19-0297/AR (CAAFlog case page), which also presents two issues:

Granted issue: Whether the Army Court abused its discretion by reassessing the sentence after dismissing the most egregious specification, and offering the convening authority the option to approve an excessive sentence for the remaining specification in lieu of a rehearing.

Specified issue: Whether Appellant waived or forfeited his objection to the Army Court’s instructions to the convening authority.

The primary difference between the cases is their procedural posture. In Wall, the convening authority has not yet acted on the CCA’s decision, while in Gonzalez the convening authority has acted (and the CCA affirmed that action).

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Nearly eight years ago, in United States v. Hayes, 71 M.J. 112 (C.A.A.F. May 1, 2012) (CAAFlog case page), a unanimous CAAF reversed an Airman’s conviction for dereliction of duty in violation of Article 92 because the Airman:

willfully failed to refrain from drinking alcohol while under the age of 21, as it was his duty to do.

71 M.J. at 113. The alleged source of that duty? “The Nevada state law concerning consumption of alcohol by persons under the age of twenty-one.” Id. CAAF reversed the conviction because – while the prosecution argued to the military judge that obeying state laws was a custom of the service – no evidence was presented to the members during trial to show that Hayes “was bound by a military duty, stemming from a custom of the service and subject to sanction under Article 92(3), UCMJ, to obey Nevada’s alcohol law.” 71 M.J. at 114.

The prosecution in Hayes employed a dereliction theory because (it seemed) the Air Force didn’t have a general order prohibiting the underage consumption of alcohol. The Army, however, does have such an order: Army Regulation 600-85, paragraph 3-2c. That order states:

Underage drinking is prohibited. Army policy governing the minimum age for dispensing, purchasing consuming,and possessing alcoholic beverages is found in AR 215–1, chapter 10. Any underage Soldier using alcoholic beverageswill be referred to the ASAP for screening within 5 working days except when permitted by AR 215–1, paragraph10–1f.

But with a recent opinion in United States v. Helton, No. 20190094 (A. Ct. Crim. App. Dec. 18, 2019) (link to slip op.), a three-judge panel of the Army CCA holds that the order is not punitive.

Judge Rodriguez writes:

“[I]f a regulation does not contain language establishing that it is a punitive regulation, a violation of the regulation is not a criminal offense under Article 92(1) [UCMJ].” United States v. Shavrnoch, 49 M.J. 334, 336 (C.A.A.F. 1998). Paragraph 3-2c of AR 600-85 does not contain language stating it is punitive. Accordingly, appellant pleaded guilty to a charge “[i]nvolving a legal standard that does not constitute an offense under Article 92, UCMJ, undermining appellant’s conviction ‘as a matter of law.”‘ Id. at 339 (quoting United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996)) (citing Prater, 32 M.J. at 436).

Slip op. at 3 (modification in original). A footnote adds:

Other provisions in AR 600-85 specifically state that violations of that provision are punishable under the UCMJ. See, e.g., paras. 4-2q, 4-1 lh, 10-2a, and 10-4a.

Slip op. at 3 n.2.

A court of criminal appeals “may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved.” Article 66(d)(1) (2019) (emphasis added).

That requirement for a review of the factual sufficiency of a court-martial conviction is not only a unique power of the CCAs, but it is also a power that Congress recently reenacted, in the Military Justice Act of 2016 (moving the requirement from its former location, in Article 66(c)).

Reversals for factual insufficiency are, however, very rare. But last week, in United States v. Gilpin, No. 201900033 (N-M. Ct. Crim. App. Dec. 30, 2019) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA reversed a conviction of sexual assault of a person who was asleep and otherwise unaware, concluding that the evidence – consisting primarily of the alleged victim’s lack of memory after overconsuming alcohol  – was factually insufficient to sustain the conviction.

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This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on January 14, 2020.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 23, 2020, at Widener University Commonwealth Law School.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 5, 2020, at the George Washington University Law School.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

The prosecution of Navy Special Operations Chief Edward Gallagher began in September 2018, when Gallagher was charged with numerous offenses including premeditated murder, aggravated assault, assault with a dangerous weapon, wrongful use and possession of controlled substances, and various violations of Article 134. Gallagher was also placed into pretrial confinement based on accusations that he was intimidating witnesses.

The charges against Gallagher were serious, and the Navy acted like it was taking the case seriously. An experienced judge advocate – Navy Commander Chris Czaplak – was assigned to prosecute the case, and he was quoted by the New York Times in November, 2018, as taking a hard line approach:

In the hearing Thursday, a Navy prosecutor, Chris Czaplak, said the chief had done damage beyond murder.

“Does the public still believe we are the good guys, because Chief Gallagher decided to act like the monster the terrorists accuse us of being?” he said. “He handed ISIS propaganda manna from heaven. His actions are everything ISIS says we are.”

Those tables would turn dramatically before the case was over.

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In 2018, CAAF held that the statute of limitations for the offense of rape of an adult occurring between 1986 and 2006 was just five years. That decision, in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page) (the #3 Military Justice Story of 2018), was an unexpected change to what was previously well-settled law.

CAAF revisited the topic in 2019, applying its decision in Mangahas (which involved an ongoing prosecution of an allegation dating to 1997) to three cases with convictions that violated the newly-clarified statute of limitations. The cases were United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page); United States v. Collins, 78 M.J. 415 (C.A.A.F. Mar. 12, 2019) (sum. disp.) (CAAFlog case page); and United States v. Daniels, 79 M.J. 150 (C.A.A.F. Jul. 22, 2019) (sum. disp.) (noted here). CAAF heard oral argument and issued an authored opinion in only one of the cases (Briggs); it summarily applied that decision to the other two cases.

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The #3 Military Justice Story of 2019 is President Trump’s executive actions in military cases.

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Article 37 prohibits unlawfully influencing a court-martial and other actors within the military justice system. Enacted in 1950 and amended in 1968, the statute was unchanged for more than 50 years.

On December 20, 2019, President Trump signed the National Defense Authorization Act for Fiscal Year 2020. Section 531 of the legislation significantly rewrites Article 37. That action is the #4 Military Justice Story of 2019.

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Four years ago, in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page) (the #7 Military Justice Story of 2015), CAAF reversed an HIV-positive servicemember’s convictions of aggravated assault that were based on sexual activity without disclosure of HIV-positive status, because the court found that the chances of transmission of the virus were too remote to constitute a means likely to cause death or grievous bodily harm. But CAAF affirmed convictions of the lesser-included offense of assault consummated by a battery, reasoning that even though the participants had consented to the sexual acts, their consent was not “meaningful[ly] informed” because of their ignorance Gutierrez’s HIV-positive status. 74 M.J. at 68.

CAAF’s decision was puzzling in a number of ways, including the fact that consent was not in issue in Gutierrez’s trial (because a person cannot consent to an act likely to cause death or grievous bodily harm as a matter of law) and the fact that the requirement for meaningful informed consent was drawn from Canadian law, with then-Chief Judge Baker writing:

The offense of assault consummated by battery requires that the accused “did bodily harm.” MCM pt. IV, para. 54.b.(2). “‘Bodily harm’ means any offensive touching of another, however slight.” MCM pt. IV, para. 54.c.(1)(a). Here, Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent. See R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.) (“Without disclosure of HIV status there cannot be a true consent.”). He is therefore guilty of assault consummated by battery, and we affirm that offense as a lesser included offense of aggravated assault.

74 M.J. at 68. Yet while CAAF left open the possibility of a conviction of aggravated assault for having sex while HIV-positive (ruling only that the risk of transmission in Gutierrez’s case was too remote), its finding that the failure to disclose HIV-positive status forecloses any possibility of consent to the sexual activity created a different possibility: prosecution of such conduct as a sexual assault.

In 2019 that possibility became reality, as CAAF affirmed convictions of sexual assault by causing bodily harm (in the form of a non-consensual sexual act) that were based on the failure to disclose HIV-positive status to sexual partners, in United States v. Forbes, 78 M.J. 279 (C.A.A.F. Feb. 7, 2019) (CAAFlog case page).

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CAAF grants review in a tiny fraction of the cases in which it receives a petition for review. 11.9% of cases, to be precise, in fiscal year 2019 (52 grants in 438 petitions).

The #6 Military Justice Story of 2019 isn’t one of the grants. It’s one of the denials.

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In United States v. Voorhees, 79 M.J. 5 (C.A.A.F. Jun. 27, 2019) (CAAFlog case page), a unanimous CAAF held that the military prosecutor’s personal attacks on defense counsel, personal attacks on the accused, expressions of personal opinion, bolstering, and vouching, amounted to grievous error, but that the error was nevertheless harmless.

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As a general rule, law enforcement must obtain a search warrant – or, in the military, a search authorization – prior to conducting a search, and the warrant must be based on probable cause. If that doesn’t happen, the remedy is exclusion of any evidence discovered.

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The #9 Military Justice Story of 2019 is CAAF’s holding in United States v. Kohlbek, 78 M.J. 326 (C.A.A.F. Feb. 25, 2019) (CAAFlog case page).

The Military Rules of Evidence share a majority of provisions with the Federal Rules of Evidence, but the two sets of rules are not identical. In particular, the military rules contain provisions that are not in the federal rules. One of those is Mil. R. Evid. 707, which prohibits admission of any evidence related to a polygraph examination:

Rule 707. Polygraph examinations

(a) Prohibitions. Notwithstanding any other provision of law, the result of a polygraph examination, the polygraph examiner’s opinion, or any reference to an offer to take, failure to take, or taking of a polygraph examination is not admissible.

(b) Statements Made During a Polygraph Examination. This rule does not prohibit admission of an otherwise admissible statement made during a polygraph examination.

The rule survived scrutiny by the Supreme Court two decades ago, in United States v. Scheffer, 523 U.S. 303 (1998). CAAF had held that the rule was unconstitutional as applied to an accused who took the stand, denied committing the offense, was accused by the prosecution of lying, and wanted to use a favorable polygraph result to support his own credibility. The Supreme Court reversed CAAF’s decision, holding that the rule served a valid purpose and does not unconstitutionally limit an accused’s right to present a defense because the rule “did not preclude [Scheffer] from introducing any factual evidence,” rather it “merely [prohibited] introducing expert opinion testimony to bolster his own credibility.” 523 U.S. 317.

CAAF revisited the rule in Kohlbek, where the accused wanted to use the fact of a polygraph examination (and the circumstances surrounding its administration) as evidence to support his claim that his confession was false.

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It’s important to avoid reading too much into statistics. After all, “there are three kinds of lies: lies, damned lies, and statistics.” Proctor & Gamble Mfg. Co. v. Fisher, 449 U.S. 1115, 1118 (1981) (Rehnquist, J., dissenting from denial of certiorari).

But two sets of data released in 2019 are notable enough to be the #10 Military Justice Story of 2019: CAAF’s shrinking docket and a growing percentage of acquittals in courts-martial (especially acquittals for sex offenses).

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