Argument Preview: Was Army sexual assault training admissible to disprove a mistake of fact as to consent, in United States v. Washington, No. 19-0252/AR
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.