CAAF will hear oral argument in the Air Force case of United States v. Rich, No. 19-0425/AF (CAAFlog case page), on Monday, March 16, 2020, after the argument in Prasad. Two granted issues question whether the defense of mistake of fact as to consent applies to a charge of sexual assault by inducing a belief by any artifice, pretense, or concealment that the accused is another person, in violation of Article 120(b)(1)(D) (2012) (relocated to Article 120(b)(1)(C) (2019))):

I. Did the Court of Criminal Appeals err when it found that mistake of fact as to consent is not a special defense “in issue” for the offense of sexual assault by inducing a belief by concealment that Appellant was someone else?

II. If mistake of fact was not a special defense “in issue,” did the military judge abuse his discretion by denying the defense request for an instruction on mistake of fact?

The elements of sexual assault by inducing a belief by any artifice, pretense, or concealment that the accused is another person are: (1) that the accused committed a sexual act upon another person; and (2) that the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused is another person. Senior Airman (E-4) Rich was charged with the offense after a sexual encounter with a female airman who was spending the night in Rich’s home with her boyfriend (also an airman). The woman testified that she awoke to a person removing her clothes and initiating sexual intercourse, and that she thought the person was her boyfriend. She called out her boyfriend’s name twice during the encounter but the person did not respond. It was not until the person kissed her that she realized it was Rich and not her boyfriend. She cried out, and Rich responded by stating that he was drunk and thought she was someone else (his fiancé).

A general court-martial composed of members convicted Rich of sexual assault by inducing a belief by concealment (acquitting him of by artifice or pretense). The members sentenced him to confinement for 60 days, reduction to E-2, a reprimand, and the mandatory minimum dishonorable discharge. The Air Force CCA issued two opinions in the case, both published. First, a three-judge panel issued this opinion (78 M.J. 591), reversing the conviction after concluding that the military judge erred in failing to instruct the members on the defense of mistake of fact. The Air Force Appellate Government Division then sought reconsideration, and the CCA sitting en banc granted reconsideration, vacated the panel’s decision, and split evenly (4-4) over whether the failure to give the instruction was error, in a second published decision available here (79 M.J. 572). As a result, the CCA en banc affirmed the conviction.

Writing for the Air Force court in its second review, Senior Judge Johnson explained that Rich’s concealment was based on “silence when Appellant knows that [the] victim is acting under a misapprehension as to Appellant’s identity may constitute concealment.” 709 M.J. at 587 (quoting instructions) (marks omitted). Therefore, any mistake of fact on Rich’s part – a mistaken belief that the woman consented to the act or a mistaken belief that the woman was his fiancé – “would have disproved an element of the charged offense.” Id. Accordingly, a separate mistake of fact instruction was not required because “by proving the elements of the charged offense, the Government necessarily disproved the existence of either asserted mistake of fact.” Id. Writing for the dissenters, however, Judge Lewis observed that “mistake of fact is a technical legal term with differing meanings based on the offense charged and its elements,” and that the military judge should have resolved the doubt over whether or not to give the instruction in favor of giving it. Id. at 592.

The CCA’s analysis included discussion about whether or not the defense preserved this issue. Before opening statements, Rich’s defense counsel indicated that the defense would request a mistake of fact instruction, and the potential instruction was discussed with the military judge via email after both sides rested. However, it seems that the defense did not explicitly request a mistake of fact instruction. Furthermore, the defense counsel did not object to the instructions that the military judge ultimately gave (which did not include a mistake of fact instruction). Considering that, the CCA concluded that the defense forfeited the error, and it applied the plain error standard.

CAAF’s recent waiver jurisprudence – particularly last month’s opinion in United States v. Davis, 79 M.J. 329 (C.A.A.F. Feb. 12, 2020) (CAAFlog case page) – suggests that the court might take a harsher approach, and may very well find that the defense waived this issue (leaving nothing for CAAF to resolve) by merely failing to object to the instructions actually given. However, the briefs don’t address waiver. Rather, Rich argues that the error was preserved, and the Government Division argues that it was forfeited.

Rich’s basic argument is that a mistake of fact instruction was required because his “knowledge, or lack thereof, that [the woman] was acting under a misapprehension as to his identity was the sole factor that determined whether his silence was criminal.” App. Br. at 17-18. The Government Division responds that the instructions on the elements adequately covered that factor because “in proving Appellant intentionally, unlawfully induced the sexual act through concealment, the government had to prove Appellant did not have a mistake of fact.” Gov’t Div. Br. at 20.

Beyond that argument, the question of prejudice looms large because if the elements of the offense necessarily disproved any mistake of fact defense, then it seems likely that Rich would have been convicted even if the military judge had given a mistake of fact instruction. To that end the Government Division argues:

Appellant may wish the military judge would have injected technical legal labels into the instructions potentially to describe Appellant’s state of mind. But there should be no doubt that even without such labels, the court members convicted Appellant because they concluded he intentionally and deliberately induced a sexual act with A1C CS by concealing from her that he was not her boyfriend as she believed. While she laid on Appellant’s bed, trying to sleep, and twice said her boyfriend’s name, Appellant’s silence spoke volumes. Appellant concealed his identity. Upon his discovery, Appellant immediately tried to concoct an implausible story that not even trial defense counsel embraced as their defense strategy.

Gov’t Div. Br. at 42. Rich responds:

The members were told that if A1C CS actually consented then she was not induced into the sexual conduct by artifice, pretense or concealment. (JA at 180). The military judge also gave an instruction, over defense objection, that told the members that “[s]ilence when the accused knows that victim is acting under a misapprehension as to the accused’s identity may constitute concealment.” (JA at 180.) But the members were not instructed on the inverse, that if SrA Rich was under the belief that A1C CS knew his identity, then his silence does not constitute concealment.

Reply Br. at 8-9.

Case Links:
AFCCA opinion (78 M.J. 591)
AFCCA opinion on reconsideration (en banc) (79 M.J. 572)
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

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