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.
Washington’s brief attacks the SHARP representative’s testimony in three ways. First, he claims that it was not probative of any fact in issue:
The mandate to “stop and walk away” was if anything, a “best-practice” and provided no greater factual understanding of the objective intrapersonal dynamic between two people. The SHARP program’s recommendation of a best-practice—removed from the complex and emotionally charged interplay when two people engage in intimate acts—was irrelevant and had no place in any criminal trial. (JA 140).
App. Br. at 17. Second, he argues that it was unfairly prejudicial because it suggested that any utterance of the word stop – regardless of context – meant that all sexual activity must cease or else the encounter was a crime:
By introducing this testimony—in a case where the fact-pattern included a victim who used the word “stop”—it is all too likely that this testimony would import a negligence per se standard anytime the putative victim says the words “stop” or “no.” After all, in an organization where disobedience can be criminal,4 it is all too plausible the members would impermissibly consider any junior-Soldier who failed to strictly abide by Army training as negligent.
App. Br. at 17-18. Finally, he suggests that the testimony amounts to unlawful command influence:
As a SHARP representative, SFC Rivera was the command’s representative, and his testimony unambiguously reminded the members that every echelon of command—from the Secretary of the Army to the convening authority—believed that what PVT Washington did violated SHARP standards. And the prosecution left no doubt that the SHARP representative was speaking for the command, rather than himself, when it confirmed that the SHARP representative’s instruction was the “standard training package[,]” that he used the “standard training package for consent[,]” and that it was not something he had “to create on the fly….” (JA 152).
App. Br. at 27-28.
The Government Division defends the SHARP representative’s testimony:
Considering the state of the evidence, appellant’s theory, and the mistake of fact as to consent instruction given, it was proper for the military judge to admit testimony that appellant received training specific to consent a mere week before his sexual misconduct. This limited evidence directly correlated to the objective component of appellant’s education, training, and experience called upon by the instruction’s analysis. Moreover, SFC Rivera’s testimony was relevant, brief, and limited to the fact that appellant was an active participant in a group discussion on consent, its revocability, and what to do when someone says “no” mere days before his abuse of PFC AF.
Gov’t Div. Br. at 12. The Government Division also suggests that Washington invited the testimony by the SHARP representative, but that the prosecution didn’t exploit it:
Here, appellant chose to put before the panel his subjective and objective beliefs as to what PFC AF really meant when she said “stop.” (JA 75–114, 138). The government then introduced evidence that he was part of a classroom discussion on that very scenario days prior. Rather than attempt to exploit the fact in order to “SHARP shame” the accused or the panel members as appellant contends, the government neither expanded on the training, relied on the testimony in its closing argument, nor attempted to credit SHARP policy. (Appellant’s Br. 27–28); (JA 145–54, 160–67).
Gov’t Div. Br. at 17-18. The Government Division’s insistence that the prosecution did not actually use the testimony to make its case, however, seems to directly rebut its argument that the testimony was relevant.
Finally, in what has become a generic – almost Pavlovian – bit of advocacy among the appellate government divisions, the Government Division argues waiver:
In this case, the military judge informed the parties of the exact findings instructions she intended to provide the panel members and solicited any further requests. (JA 156–57). Despite being given ample opportunity to voice any concerns, defense counsel stated appellant’s lack of objection to the proposed instructions and explicitly requested neither additional nor tailored instructions. This is affirmative waiver.
Gov’t Div. Br. at 19 (emphasis added). The claim of waiver is really bold considering that Washington objected to the admission of the SHARP representative’s testimony and the rules of evidence explicitly provide that “a party need not renew an objection . . . to preserve a claim of error for appeal.” Mil. R. Evid. 103(b). But Washington’s reply brief emphasizes that the military judge’s instructions to the members are not relevant to show how the admission of the SHARP representative’s testimony was error, but how it was prejudicial:
Private Washington’s brief similarly noted that the military judge’s instructions preceding deliberation on findings also exacerbated this error by confusing members and “allow[ing] SHARP training to dictate reasonableness.” (JA 159) (Appellant’s Br. 29). Rather than respond on the merits, the government claims “[a]ppellant’s complaint” was waived “in toto.” (Gov’t Br. 18). Private Washington, however, raised this not as error itself, but as evidence of the prejudice in both the Mil. R. Evid. 403 context and to the overall result of his trial. Beyond waiver, the government brief makes no response, and waiver simply does not apply here.
Reply Br. at 11-12.