CAAF decided the Army case of United States v. McDonald, 78 M.J. 376, 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 Congress repealed that offense in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new-but-similar Article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).

CAAF’s unanimous decision is based on four considerations.

The first consideration is that “the plain text of the statute clearly implies a general intent offense.” Slip op. at 4. Finding that the statutory elements are straightforward, Chief Judge Stucky explains that:

it is an offense to commit a sexual act without consent, although an honest and reasonable (nonnegligent) mistake of fact as to consent serves as an affirmative defense. Such a construction typically suggests a general intent offense.

Slip op. at 5.

The second consideration is that Article 120(b)(1)(B) evolved from the pre-2006 version of Article 120 that was a general intent offense. As such:

Because the antecedent offense was a general intent offense, we can infer by Congress’s silence on the mens rea for sexual assault by bodily harm that it impliedly stated a general intent mens rea for that offense.

Slip op. at 6.

The third consideration is the wording of the statute, and specifically the fact that the statutory definition of consent requires that it be “determined objectively” but also “from the alleged victim’s perspecitve – consent is his or her freely given agreement.” Slip op. at 7 (emphasis in original) (citations omitted). In contrast, “no reference is made to the accused’s perception of consent.” Slip op. at 7. Other offenses in Article 120(b), however, do require certain knowledge by an accused:

In Article 120(b)(2) and 120(b)(3), 10 U.S.C. § 920(b)(2), (3) (2012), Congress provided an explicit mens rea that the accused “knows or reasonably should know” certain facts: that the victim is unaware of the sexual act or incapable of consenting to it.

By contrast, under Article 120(b)(1)(B), it is an offense simply to commit a sexual act without consent. The fact that Congress articulated a specific mens rea with respect to the victim’s state of mind elsewhere in the statute further demonstrates that the required mens rea in this case is only the general intent to do the wrongful act itself.

Slip op. at 7 (paragraphing added).

The final consideration is whether mere general intent is sufficient to separate wrongful coduct from innocent conduct (because sexual activity is ordinarily innocent conduct). CAAF wholly rejects that concern, with Chief Judge Stucky writing that mere general intent:

does not criminalize otherwise innocent conduct because only consensual sexual intercourse is innocent. The burden is on the actor to obtain consent, rather than the victim to manifest a lack of consent. Appellant’s actions could only be considered innocent if he had formed a reasonable belief that he had obtained consent. The Government only needed to prove that he had not done so to eliminate the mistake of fact defense. The military judge’s instructions properly reflected that.

Slip op. at 8 (emphasis in original).

The Court’s conclusion that “the burden is on the actor to obtain consent,” slip op. at 8, is easily the key holding of the decision, though it finds the least support in the statute. The definition of consent enacted by Congress explained that consent is “a freely given agreement to the conduct at issue,” and that “an expression of lack of consent through words or conduct means there is no consent.” Article 120(g)(8)(A). The statute also included the admonition that “lack of consent may be inferred based on the circumstances of the offense.” Article 120(g)(8)(C). Accordingly, whether or not an encounter involves words or deeds suggestive of a lack of consent (like one participant saying no or resisting), the statute has the potential to criminalize a sexual encounter that does not include clear evidence of consent. CAAF’s decision, however, seems to stretch that language by imposing an extra-statutory duty to obtain unambiguous consent prior to acting. Put differently, the burden in nonconsent case now seems to have shifted to the accused to show that he or she did enough to satisfy the duty to obtain consent.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF Opinion
Blog post: Opinion analysis

Disclosure: I represent multiple appellants in my civilian capacity who have asserted a mens rea error similar to the issue in this case.

17 Responses to “Opinion Analysis: Sexual assault involving nonconsensual sexual activity is a general intent crime because “the burden is on the actor to obtain consent, rather than the victim to manifest lack of consent,” in United States v. McDonald”

  1. slyjackalope says:

    I don’t think CAAF went so far as to shift the burden to the accused to prove consent.  The Government still has to prove a lack of consent and CAAF explicitly stated that even if it does, an honest and reasonable (as far other general intent crimes) mistake of fact defense still works.  It seems clear in this case that the defense put on what would be a strong consent / mistake of fact defense case and the panel didn’t believe the defense.
    Rather, this decision confirms what we’ve always known about sexual assault cases.  If the Government fails to prove a lack of consent, the defense wins.  If the Government proves lack of consent but the defense proves mistake of fact, the defense wins.  Otherwise, the Government wins.  Proof of consent or mistake of fact is always going to be fact-specific and CAAF isn’t now requiring the defense produce a sex contract at trial.

  2. AFDCAO says:

    slyjackalope: While I agree with you that the post’s heading is misleading – this opinion doesn’t shift any burdens, I do disagree when you say, “[i]f the defense proves mistake of fact, the defense wins.”  In mistake of fact cases, if the issue of mistake of fact as to consent is raised by “some evidence,” the government must prove BRD that there was not a mistake of fact. 

  3. Sir Visdis Crediting says:

    So when the government has its star witness on the stand, the prosecutor could ask, “Did you resist or say no?” and the witness can say, “All I know is that I didn’t encourage it or say ‘yes’,” and that would be enough to convict? If so, that sounds like an affirmative consent standard.

  4. AFDCAO says:

    SVC – But that is not what the opinion says.  It simply preserves the status quo.  The MJ in that case gave the instruction right out of the benchbook and CAAF said the benchbook instruction is correct – there is no burden shifting here.

  5. SeñorTC says:

    Sir Visdis,
    Well, in the sense that there needs to be some evidence of consent to justify sexual contacts and acts….yes?  Obviously context matters here, but as a general matter, grabbing the breast of someone (or inserting a penis into them) who hasn’t given any indication of consent–seems like that’s going to be a crime (and probably should be?). 
    And that’s not exactly a new development.

  6. Justin Henderson says:

    I’m disappointed by this opinion, for a couple of reasons.
    1.  The wording of the granted issue led me to believe that the court recognized the gap between Congress’s elements in 10 U.S.C. § 920(b)(1)(B) and the Benchbook’s instructions.
    Congress could not have “implied” any particular mens rea attaches to the consent element under that statute because . . . there is no consent element in that portion of the statute.  In these cases, where the bodily harm is the sex act itself, the consent element exists in a charged specification purely as the Benchbook prescribes and as the granted issue frames it: to make otherwise lawful conduct unlawful.
    (On this point, the citation to Judge Crawford’s dissent in Binegar is telling.  There, she analyzed the distinction between intent as applied to the actus reus vice the elemental circumstances of the offense using the example of old, old Article 120, which required the act be “done by force and without consent.”)
    2.  The core of Elonis’s holding is the demand that, under 18 U.S.C. § 875(c), “wrongdoing must be conscious to be criminal,” and that the instructions at that trial permitted conviction on bare negligence, with establishing any conscious wrongdoing.
    I can’t see any daylight here, when it comes to separating wrongful conduct from lawful.  Consent, rare among criminal elements, suggests a contractual understanding.  As framed in the Benchbook instruction, the accused’s conduct is assessed in part by whether the accused’s belief in his partner’s consent (her mutual understanding) is reasonable
    Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with the conventional requirement for criminal conduct—awareness of some wrongdoing.  Having liability turn on whether a “reasonable person” regards the communication as a threat—regardless of what the defendant thinks—reduces culpability on the all-important element of the crime to negligence, and we have long been reluctant to infer that a negligence standard was intended in criminal statutes.
    Elonis, 135 S. Ct. at 2011 (citations and quotation marks omitted). 
    For what it’s worth, I disagree with Chief Judge Stucky’s formulation that Haverty’s demand for recklessness imposes “a higher mens rea than the historical general intent.”  (Slip op. at 6.)  Instead, McDonald imposes a lower standard, ratifying the notion that an accused is liable for sexual assault for negligently failing to understand his partner’s true state-of-mind.  In other words, he may be convicted for unconsciously doing wrong. 

  7. Justin Henderson says:

    . . . *without establishing.
    I was told there was an edit feature.  And block quotes.

  8. Zachary D Spilman says:

    That’s a great comment, Justin Henderson. Thank you for it.

    One response. You wrote:

    The core of Elonis’s holding is the demand that, under 18 U.S.C. § 875(c), “wrongdoing must be conscious to be criminal,” and that the instructions at that trial permitted conviction on bare negligence, with[out] establishing any conscious wrongdoing. I can’t see any daylight here, when it comes to separating wrongful conduct from lawful, [under Article 120(b)(1)(B)]. Consent, rare among criminal elements, suggests a contractual understanding.  As framed in the Benchbook instruction, the accused’s conduct is assessed in part by whether the accused’s belief in his partner’s consent (her mutual understanding) is reasonable. . .

    I think you’re conflating the element of non-consent with the affirmative (or special) defense of mistake of fact as to consent.

    In a case where an accused has an honest and reasonable mistake of fact belief as to consent, the belief is necessarily mistaken. Put differently, the other person did not consent and the prosecution has proven all of the elements of the offense. Nevertheless, the accused is not guilty. As R.C.M. 916(a) explains:

    “defenses” includes any special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly or partially, criminal responsibility for those acts.

    Because there is no issue of mistake unless the prosecution has already proven all the elements of the crime, the affirmative defense of mistake of fact as to consent cannot possibly be what separates wrongful conduct from innocent conduct.

    If you have a military Lexis account you should be able to access (free of charge) my 2014 analysis on consent and mistake of fact as to consent at 2014 Emerging Issues 7277.

  9. Justin Henderson says:

    Totally fair point, Zach.  I was probably too loose in my commentary, and shouldn’t blur affirmative and elemental defenses.
    But as you alluded to in your post: I think the injection of “consent” as an element, where it does not statutorily exist, obligates the government to establish that the accused [recklessly?] overcame the manifestation of non-consent.
    Here, the Government owes the trier of fact nothing other than a sexual partner’s trial testimony, “I did not consent.”  And McDonald establishes that the G satisfies its burden on what I loosely call that “contractual” issue through that evidence alone.
    Where Congress is silent–before affirmative defenses–I assumed CAAF would demand more.

  10. Zachary D Spilman says:

    While I suspect we agree about almost everything on this issue, Justin Henderson, we disagree about the statutory elements.

    For sexual assault by causing bodily harm, where the bodily harm is a nonconsensual sexual act, the prosecution must prove nonconsent as a statutory element of the offense (and the existence of consent is a defense because it disproves an element, while mistake of fact as to consent is an affirmative defense because it avoids criminal liability without disproving an element).

    Furthermore, as I wrote in that EIA back in 2014:

    Most of the offenses under the current Article 120 do not require the prosecution prove lack of consent as an element. However, consent remains a viable defense in many instances because it is a fact that disproves a different element.

    For example, one way to prove the offense of rape in violation of Article 120(a) is for the prosecution to prove that an accused committed a sexual act upon another person by using unlawful force. By asserting that the other person consented to the sexual act, an accused denies commission of the objective act of using force.

    The real concern I have with CAAF’s resolution of McDonald is that the court seems to say that an accused is guilty if he or she fails to dutifully ascertain the existence of true consent, while the statute says that it is the prosecution that must prove that the sexual activity was nonconsensual. The practical difference between those two things is very real (especially in a court-martial in 2019).

  11. Justin Henderson says:

    Yep, we share the exact same concern.  And the court is saying that accused’s like McDonald can be convicted if they [negligently? recklessly? generally?] fail to ascertain their partner’s true mind.
    But I don’t think “nonconsensual sexual act” under the definition of “bodily harm” under (old, or new-new, or whatever) 920(g)(3) is necessarily an element.  Here’s why: the G doesn’t have to prove lack of consent in all cases under 120(b)(1)(B).  For example, the same “sexual act” at issue in McDonald could be charged as a sexual assault by bodily not because it was “nonconsensual,” but because it was achieved “by causing bodily harm, to wit: pinning the victim’s arms down with his hands.”
    This is where I would have held the Government to more: by charging “without consent,” the G almost necessarily invokes this bizarre burden-shift you deftly warn of.

  12. stewie says:

    Man, if only there was time, like say 2006, when almost all of this stuff was clearly settled and everyone for the most part knew where all the lines were.

  13. SeñorTC says:

    Also, holy jeebus–this is an example of CAAFlog comments at their finest.

  14. stewie says:

    SenorTC, you are a poopyhead.
    There, I just brought down the average.

  15. SgtDad says:

    SeñorTC: Roger that.

  16. Dew_Process says:

    Let me add this ARTICLE by Bryan Garner to the mix here.

  17. Vulture says:

    Interesting commentary SeñorTC and SgtDad. Looking back,  I don’t see a whole lot of input from you.