In a published opinion in United States v. Thomas, __ M.J. __, No. 201300357 (N-M. Ct. Crim. App. Nov. 28, 2014) (link to slip op.), the Navy-Marine Corps CCA reverses a forcible rape conviction on factual sufficiency grounds after concluding that “the Government treated ‘force’ and ‘unlawful force’ as if they were separate, unrelated concepts,” and explaining that:
Contrary to trial counsel’s argument, unlawful force is not a separate, distinct, and lesser type of force that can sustain a conviction for rape. Rather, the definitions set forth in Article 120 must be read together. There must be force, as defined by the statute, and that force must be unlawful. In other words, the Government must prove beyond a reasonable doubt that the accused used a weapon; used such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or inflicted physical harm sufficient to coerce or compel submission by the victim, and that those acts were “done without legal justification or excuse.” See 10 U.S.C. § 920(g)(5)–(6).
Slip op. at 4 (emphasis in original). Having defined the force necessary to support a conviction for forcible rape, the CCA’s “review of the record fails to discern any evidence that the appellant used force, as defined in the statute, to commit a sexual act.” Slip op. at 6.
The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of rape and two specifications of sexual assault, in violation of Article 120 (2012). All three convictions related to a single sexual encounter between the appellant and a fellow Marine, Private First Class (PFC) AA. The PFC had consumed alcohol at a party and returned to her barracks room to sleep. The appellant entered her room and had sexual intercourse with her. PFC AA had little memory of the event, but the appellant made numerous incriminating statements to PFC AA, to another Marine, and to agents with the Naval Criminal Investigative Service.
The current version of Article 120(a) defines rape in five ways:
(a) Rape. Any person subject to this chapter who commits a sexual act upon another person by—
(1) using unlawful force against that other person;
(2) using force causing or likely to cause death or grievous bodily harm to any person;
(3) threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;
(4) first rendering that other person unconscious; or
(5) administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct;
is guilty of rape and shall be punished as a court-martial may direct.
10 U.S.C. § 920(a). The statute also defines force:
The term “force” means—
(A) the use of a weapon;
(B) the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or
(C) inflicting physical harm sufficient to coerce or compel submission by the victim.
10 U.S.C. § 920(g)(5). Finally, the statute defines unlawful force:
The term “unlawful force” means an act of force done without legal justification or excuse.
10 U.S.C. § 920(g)(6).
The appellant did not use a weapon, and the CCA finds that “the record shows that [PFA AA] was intoxicated and asleep, but there is no indication that the appellant used ‘strength sufficient to overcome the said [PFC AA],’ as was alleged in the charge sheet.” Slip op. at 6. However, at the conclusion of the presentation of evidence, the trial counsel presented the following argument to the members:
The definitions being “force”. The use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person. That’s not what the government is submitting is the case here. The government submits that it is the next one. That it’s “unlawful force”: Force done without legal justification or excuse. Tell her in the morning it was me. He did not have justification nor does he have an excuse for why he went in and touched PFC [AA] in order to have sex with her.
Slip op. at 5 (emphasis in original). The military judge then provided instructions to the members that included the definition of “unlawful force,” but did not include the definition of “force.” Slip op. at 5.
The CCA finds the evidence to be factually insufficient to prove force:
Our review of the record fails to discern any evidence that the appellant used force, as defined in the statute, to commit a sexual act upon PFC AA. The record shows that she was intoxicated and asleep, but there is no indication that the appellant used “strength sufficient to overcome the said [PFC AA],” as was alleged in the charge sheet. The record did show, as pointed out by the Government in its’ brief, that the appellant was on top of PFC AA during the intercourse. Prosecution Exhibit 1; Government’s Brief of 18 Mar 2014 at 10. However simply being on top of the other person during a sexual act, without anything more, is not enough to prove beyond a reasonable doubt the “use of such physical strength or violence as is sufficient to overcome, restrain, or injure.” 10 U.S.C. § 920(g)(5). Accordingly, we conclude that the appellant’s rape conviction cannot withstand the test for factual sufficiency and will set aside that finding of guilty and dismiss that specification.
Slip op. at 6 (emphasis added).
The CCA’s opinion is particularly significant due to its lack of consideration of the doctrine of constructive force. Prior to the 2006 rewrite of Article 120, rape was defined as an act of sexual intercourse accomplished by force and without consent. Military law recognized various scenarios where the force necessary to commit rape could be constructive in nature:
The doctrine of constructive force is used in those situations when no force is needed to accomplish the rape beyond what is involved in the act of intercourse itself because the victim does not, or ceases to, resist because of a reasonable fear of death or grievous bodily harm. In order to apply the doctrine of constructive force, a court must find that “resistance would have been futile,” resistance was “overcome by threats of death or great bodily harm,” or “the female is unable to resist because of the lack of mental or physical faculties.” [Manual for Courts-Martial, 1984 Ed., Part IV] Para. 45c(1)(b).
United States v. Clark, 35 M.J. 432, 435-436 (C.M.A. 1992). It’s unclear if the military judge in Thomas gave the members an instruction about constructive force, as the CCA’s opinion doesn’t address the issue at all. But the CCA’s conclusion that “there must be force, as defined by the statute,” slip op. at 4, appears to preclude application of the doctrine of constructive force in a prosecution for rape under the current statute.
Notably, when it rewrote the military rape statute, Congress created separate offenses to cover situations where a person is unable to resist sexual activity because of the lack of mental or physical faculties. For instance, the statute in effect today identifies the separate offenses of sexual assault (Article 120(b)) and abusive sexual contact (Article 120(d)) for situations involving a person who is asleep, unconscious, or otherwise unaware that the sexual act is occurring, or is incapable of consenting due to mental disease or impairment by a substance. The existence of these separate statutes gives strong support to the CCA’s decision to ignore the doctrine of constructive force in this case, because Congress created an explicit statutory mechanism for prosecution in constructive force cases.
Yet the CCA’s analysis is not complete, because the appellant was also charged with three specification of sexual assault based on the same acts as the rape specification. These specifications alleged sexual assault by causing bodily harm (Article 120(b)(1)(B)), with a person who was asleep or otherwise unaware (Article 120(b)(2)), and with a person who was incapable of consenting due to impairment by an intoxicant (Article 120(b)(3)(A)). Of these three specifications, the appellant was acquitted of the first (bodily harm) and convicted of the others (unaware and incapable). Significantly, “the Government in this case did not concede that the various sexual assault offenses were pled in the alternative to deal with contingencies of proof.” Slip op. at 7 (emphasis added).
The Government’s insistence that the sexual assault specification were not charged in the alternative (that is, its insistence that the charged did not present alternative theories of criminal liability for a single course of conduct) is puzzling and appears nonsensical. The CCA notes:
Although the Government in this case did not concede that the various sexual assault offenses were pled in the alternative to deal with contingencies of proof, the record clearly supports that conclusion. Both remaining aggravated sexual assault specifications allege the same sexual act, on the same date, and at the same place. One alleges that the appellant committed the sexual act while PFC AA was asleep or otherwise unaware; the other alleges the same sexual act, but while PFC AA was incapable of consenting due to impairment by an intoxicant. While we find that it was entirely proper for the Government to charge the appellant in this fashion, it is not appropriate for him to stand convicted of two sexual assault offenses based upon a single criminal act. See Elespuru, 73 M.J. at 329-30; Campbell, 71 M.J. at 24.
Slip op. at 7. The CCA first addresses the relationship between the reversed rape conviction and the sexual assault by causing bodily harm charge of which the appellant was acquitted. Noting “potential double jeopardy issues,” the CCA dismisses the rape conviction outright and declines to affirm a conviction of the lesser included offense of sexual assault by causing bodily harm. That leaves the appellant convicted of the two sexual assault specification, and the CCA notes that the military judge merged these specifications for sentencing.
However, the CCA finds that the mere merger of these specifications for sentencing purposes was inadequate. Then it does something strange. First, it discusses the possibility of a conditional dismissal:
When consolidation is impracticable, such as when the guilty findings involve violations of different UCMJ articles, military judges should consider a conditional dismissal of one or more findings. Conditional dismissals “become effective when direct review becomes final in the manner described in Article 71(c), UCMJ” and therefore “protect the interests of the Government in the event that the remaining charge is dismissed during [appellate] review.” United States v. Britton, 47 M.J. 195, 203-05 (C.A.A.F. 1997) (Effron, J., concurring).
Slip op. at 8. And then, despite the fact that the specification involves different subsections of Article 120(b), the CCA consolidates them:
Specification 2 of Charge II and the sole specification under the Additional Charge are hereby consolidated into a single specification to read as follows:
In that Private First Class Germaine L. Thomas, U.S. Marine Corps, Marine Corps Combat Service Support School, Training Command, Camp Johnson, North Carolina, did, at or near Camp Johnson, North Carolina, on or about 27 July 2012, commit sexual acts upon Private First Class AA, U.S. Marine Corps, to wit: penetrating her vulva with his penis when the accused knew or reasonably should have known that Private First Class AA was asleep or otherwise unaware that the sexual act was occurring; and penetrating her vulva with his penis when the accused knew or reasonably should have known that Private First Class AA was incapable of consenting to the sexual act due to impairment by an intoxicant.
Slip op. at 11-12. This result is clearly a duplicitous specification, as it alleges both a violation of Article 120(b)(2) and a violation of Article 120(b)(3)(A). And the remedy for a duplicitous specification is severance. See R.C.M. 906(b)(5). Because of this, the CCA’s final action makes something of a mess of this case.
I think a charitable interpretation of the Government’s charging decision in this case is one similar to that at issue in United States v. Elespuru, 73 M.J. 326 (C.A.A.F. Jul. 15, 2014) (CAAFlog case page), where the Government asserted on appeal that multiple charges were necessary because “Appellant’s conduct involved attacks on his victim while she was incapacitated and while she was [not] incapacitated. The United States would not have been able to capture Appellant’s full criminal conduct in one specification.” Gov’t Br. at 2 (discussed here). In Elespuru, CAAF concluded that “the Government charged and tried the abusive sexual contact and wrongful sexual contact offenses in the alternative for exigencies of proof,” slip op. at 9, and it dismissed the lesser of the two offenses because “when a panel returns guilty findings for both specifications and it was agreed that these specifications were charged for exigencies of proof, it is incumbent either to consolidate or dismiss a specification,” slip op. at 10 (marks and citations omitted). The same factors appear at issue in Thomas.
I’ll be very interested to see if CAAF weighs in. Frankly, I think the JAG should certify this case to CAAF, with issues relating to the doctrine of constructive force and the appropriateness of the charging decision.