In United States v. Johanson the appellant was sentenced to “no punishment.” The case presents another with a issue of statutory interpretation, expansion, contraction, and proposed contortion of Article 120, UCMJ?
Chief Johanson was convicted, after a contested members trial of:
five specifications of maltreatment of persons subject to his orders, in violation of Article 93, Uniform Code of Military Justice (UCMJ); one specification of abusive sexual contact and one specification of indecent exposure, both in violation of Article 120, UCMJ; and three specifications of assault and battery, in violation of Article 128, UCMJ.
Before the Coast Guard Court of Criminal Appeals Chief Johanson raised the following issues.
I. Whether a servicemember can be convicted of abusive sexual contact under the theory of being substantially incapable of declining participation when the victim was fully capable of communicating a lack of consent, communicated a lack of consent, moved away, and was neither asleep, unconscious nor under the influence of any drugs or alcohol.
II. Whether the military judge erred to the substantial prejudice of Appellant by adding to the Military Judges’ Benchbook instruction and instructing the members that mental disorientation could amount to substantial incapacity under Article 120, UCMJ.
III. Whether Appellant’s due process rights were violated when the military judge judicially altered the burden-shifting language of Article 120 and instructed the members accordingly.
The court summarily rejected the third issue.
Appellant’s argument that the military judge judicially altered the statute, invading the domain of Congress, is a novel one that we are not inclined to accept. We discuss the first two issues and grant relief.
The court found the LIO of wrongful sexual contact, and of course there was no need for a Sales or other sentence assessment.