Sexual Assault Crimes in the Military – Revisions to the U.C.M.J. in 2007

2020 Benchbook’s Preface to Article 120 Instructions

The National Defense Authorization Act for Fiscal Year 2006 enacted sweeping changes to the Uniform Code of Military Justice regarding sexual misconduct occurring on and after 1 October 2007. The National Defense Authorization Act for Fiscal Year 2012 made further changes and added new articles to the Uniform Code of Military Justice regarding sexual misconduct occurring on and after 28 June 2012. The National Defense Authorization Act for Fiscal Year 2016 enacted the most sweeping changes to the Uniform Code of Military Justice in over 60 years. These most recent changes went into effect on 1 January 2019. Therefore, for cases involving alleged sexual misconduct, trial judges must first determine which Article 120 statutory scheme is involved: (1) pre-1 October 2007, (2) 1 October 2007 to 27 June 2012, (3) 28 June 2012 to 31 December 2018, and/or (4) on and after 1 January 2019. For offenses alleged to have occurred on and after 1 January 2019, use Chapter 3A of this Benchbook.

Uniform Code of Military Justice and Sexual Assault

The Uniform Code of Military Justice and the Manual on Courts Martial set out the laws that govern not only offenses unique to the military, but conventional offenses such as assault, battery and sexual offenses. In 2007, the section of the Code entitled “Rape” was amended and renamed “Rape, Sexual Assault and Other Sexual Offenses” and some offenses that had appeared elsewhere were consolidated in the new U.C.M.J. Article 120. It was effective October 1, 2007. Thus, in defending a client charged with any form of sexual offense, defense counsel needs to be aware of whether the charges arise under the old or the new Code.

Court-Martial Attorneys

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In Article 120, there are fourteen categories of sexual crime; many of the definitions and elements apply equally to adult and child victims. The key difference when the victim is a child is that certain sexual conduct with children is an offense based solely on the child’s age and without the necessity of showing specific intent or use of force.

Application of the new or “old” law

Generally, the statute of limitation is five years except in death penalty cases. Rape is technically a death penalty crime in the military, but the impact of Supreme Court decisions on the death penalty insofar as rape and child rape provisions of the U.C.M.J. is beyond the scope of this review. Moreover, the statute may be tolled if the accused was outside of the jurisdiction of military tribunals for some period of time. Thus, the “old” law is still relevant to prosecutions occurring today and potentially for some time in the future. The practitioner should be aware of the prior law and case holdings, but they are beyond the scope of this summary here.

Criticism of the 2007 Sex Assault Revisions

Critics have called the 2007 revisions in the Code at worst unconstitutional and at best confusing. 2009 Report of the Defense Task Force on Sexual Assault in the Military Services, “Practitioners consistently advised Task Force members that the new Article 120 is . . . cumbersome and confusing.” http://www.sapr.mil/media/pdf/research/DTFSAMS-Rept_Dec09.pdf.

Because of the intricacies of the revisions and the interplay between the “old” rape code and the new Article 120, counsel must study the issues and governing law very closely when undertaking the defense of a military sexual assault crime. Citations here are to the Manual for Courts Martial (MCM)

The “Old” Rape Law under the U.C.M.J.

The prior law may still be relevant to prosecutions for sexual crimes in the military. The case law defining certain concepts or elements may also be instructive even under the new Article 120. The practitioner is advised to carefully review the circumstances to determine whether any prior law may be of importance.

Sexual Assault Crimes

3–45–1. RAPE (ARTICLE 120)

NOTE 1: Applicability of this instruction. Use this instruction for offenses occurring before 1 October 2007.

MAXIMUM PUNISHMENT:

(1) Rape: Death or other lawful punishment.
(2) Carnal knowledge with a child 12 or older and under 16: DD, TF, 20 years, E-1.
(3) Carnal knowledge with a child under 12: DD, TF, life without eligibility for parole, E-1.

NOTE 1.1: Death sentence. The military judge should always ascertain on the record whether a rape charge was referred as capital when Section V of the charge sheet does not address the matter. The plurality opinion in Coker v. Georgia, 433 U.S. 584 (1977), held that the death penalty for the rape of an adult woman is unconstitutional, at least where the woman is not otherwise harmed. RCM 1004(c)(6) indicates that the death penalty for rape is authorized when the offense was committed in time of war and in territory in which the United States or its ally was an occupying power or in which the United States armed forces were engaged in active hostilities. RCM 1004(c)(9) indicates that the death penalty for rape is authorized where the victim is under the age of 12 or the accused maimed or attempted to kill the victim.

MODEL SPECIFICATION:

In that __________ (personal jurisdiction data), did, (at/on board–location), on or about __________, rape __________, (a person who had not attained the age of (12) (16) years).

Military Law Sexual Resources:

Types of Courts Martial in the Military Justice System

Advice Concerning Requirements to Register as a Military Sex Offender

Rape in the Military – Article 120 UCMJ

Military Justice System – Overview

MRE 412: Military Rape Shield Law

Investigation of Military Offenses

Court Martial Jurisdiction

ELEMENTS OF RAPE:

(1) That (state the time and place alleged), the accused committed an act of

sexual intercourse with (state the name of the alleged victim); and

(2) That the act of sexual intercourse was done by force and without the consent of (state the name of the alleged victim).

DEFINITIONS AND OTHER INSTRUCTIONS:

Sexual intercourse” is any penetration, however slight, of the female sex organ by the penis. An ejaculation is not required.

NOTE 2: Lack of penetration in issue. If lack of penetration is in issue, the military judge should further define what is meant by the female sex organ. The instruction below may be helpful. See also US v. Williams, 25 MJ 854 (AFCMR 1988) pet. denied, 27 MJ 166 (CAAF 1988) and US v. Tu, 30 MJ 587 (ACMR 1990):

The “female sex organ” includes not only the vagina. which is the canal that connects the uterus to the external opening of the genital canal, but also the external genital organs including the labia majora and the labia minora. “Labia” is the Latin and medically correct term for “lips.”

NOTE 3: Using this instruction. NOTEs 4 through 11 and the instructions that follow address common scenarios involving potential force and consent issues. The military judge must identify those issues raised by the evidence and select the appropriate instruction. Although the Code permits the prosecution of a female for this offense, the gender choices in these instructions assume a female victim, as that is the most common case. Many of the instructions following a note contain identical language found in instructions following other NOTEs. This repetitiveness is necessary to ensure all issues addressed by the note are instructed upon and in the correct order. Below is a guide to the instructions. Where multiple issues of constructive force or ability to consent are raised (sleeping child-victim, for example), the military judge may have to combine the instructions. In such cases, the military judge should give the common portions of the instructions only once; the order of the instructions must be preserved.

a. Actual, physical force (and none of the issues listed below are raised): NOTE 4.

b. Constructive force by intimidation and threats: NOTE 5. c. Constructive force – abuse of military power: NOTE 6.

d. Constructive force (parental or analogous compulsion) and consent of a child of tender years NOT in issue: NOTE 7.

e. Victim incapable of giving consent (children of tender years) and parental or analogous compulsion NOT in issue: NOTE 8.

f. BOTH constructive force (parental or analogous compulsion) AND consent of a child of tender years in issue: NOTE 9.

g. Victim incapable of giving consent due to mental infirmity: NOTE 10.

h. Victim incapable of giving consent due to sleep, unconsciousness, or intoxication: NOTE 11.

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NOTE 4: Actual, physical force. Where the force involved is actual, physical force and constructive force and special situations involving lack of consent are not raised, give the following instructions:

Both force and lack of consent are necessary to the offense. “Force” is physical violence or power applied by the accused to the victim. An act of sexual intercourse occurs “by force” when the accused uses physical violence or power to compel the victim to submit against her will.

If the alleged victim consents to the act of sexual intercourse, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a person, who is in possession of her mental and physical faculties, fails to make her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she consented. Consent, however may not be inferred if resistance would have been futile under the totality of the circumstances, or where resistance is overcome by a reasonable fear of death or great bodily harm, or where she is unable to resist because of the lack of mental or physical faculties. You must consider all the surrounding circumstances in deciding whether (state the name of the alleged victim) consented.

If (state the name of the alleged victim) submitted to the act of sexual intercourse (because resistance would have been futile under the totality of the circumstances) (because of a reasonable fear of death or great bodily harm) (because she was unable to resist due to mental or physical inability) (__________), sexual intercourse was done without consent.

NOTE 5: Constructive force by intimidation or threats. Where the evidence raises the issue of constructive force by threat or intimidation, give the following instructions:

Both force and lack of consent are necessary to the offense. In the law of rape, various types of conduct are sufficient to constitute force. The most obvious type is actual physical force, that is, the application of physical violence or power, which is used to overcome or prevent active resistance. Actual physical force, however, is not the only way force can be established. Where intimidation or threats of death or physical injury

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make resistance futile, it is said that “constructive force” has been applied, thus satisfying the requirement of force. Hence, when the accused’s (actions and words) (conduct), coupled with the surrounding circumstances, create a reasonable belief in the victim’s mind that death or physical injury would be inflicted on her and that (further) resistance would be futile, the act of sexual intercourse has been accomplished by force.

If the alleged victim consents to the act of sexual intercourse, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a person, who is in possession of her mental and physical faculties, fails to make her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she consented. Consent, however, may not be inferred if resistance would have been futile under the totality of the circumstances or where resistance is overcome by a reasonable fear of death or great bodily harm, or where she is unable to resist because of the lack of mental or physical faculties. You must consider all the surrounding circumstances in deciding whether (state the name of the alleged victim) consented.

If (state the name of the alleged victim) submitted to the act of sexual intercourse (because resistance would have been futile under the totality of the circumstances) (because of a reasonable fear of death or great bodily harm) (because she was unable to resist due to mental or physical inability) (__________), sexual intercourse was done without consent.

NOTE 6: Constructive force–abuse of military power. When there is some evidence the accused employed constructive force based upon his military position, rank, or authority, give the following instructions:

Both force and lack of consent are necessary to the offense. In the law of rape, various types of conduct are sufficient to constitute force. The most obvious type is actual physical force, that is, the application of physical violence or power, which is used to overcome or prevent active resistance. Actual physical force, however, is not the only way force can be established. Where intimidation or threats of death or physical injury make resistance futile, it is said that “constructive force” has been applied, thus satisfying the requirement of force. Hence, when the accused’s (actions and words) (conduct), coupled with the surrounding circumstances, create a reasonable belief in the victim’s mind that death or physical injury would be inflicted on her and that (further) resistance would be futile, the act of sexual intercourse has been accomplished by force.

If the alleged victim consents to the act of sexual intercourse, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a person, who is in possession of her mental and physical faculties, fails to make her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she consented. Consent, however, may not be inferred if resistance would have been futile under the totality of the circumstances, or where resistance is overcome by a reasonable fear of death or great bodily harm, or where she is unable to resist because of the lack of mental or physical faculties. You must consider all the surrounding circumstances in deciding whether (state the name of the alleged victim) consented.

If (state the name of the alleged victim) submitted to the act of sexual intercourse (because resistance would have been futile under the totality of the circumstances) (because of a reasonable fear of death or great bodily harm) (because she was unable to resist due to mental or physical inability) (__________), sexual intercourse was done without consent.

There is evidence which, if believed, indicates that the accused (used) (abused) his (military) (__________) (position) (and) (or) (rank) (and) (or) (authority) (__________) in order to (coerce) (and) (or) (force) (state the name of the alleged victim) to have sexual intercourse. Specifically, I draw your attention to (summarize the evidence concerning the accused ‘s possible use or abuse of his position, rank, or authority). You may consider this evidence in deciding whether (state the name of the alleged victim) had a reasonable belief that death or great bodily harm would be inflicted on her and that (further) resistance would be futile. This evidence is also part of the surrounding circumstances you may consider in deciding whether (state the name of the alleged victim) consented to the act of sexual intercourse.

NOTE 7: Constructive force–parental, or analogous compulsion. When the evidence raises the issue of constructive force based upon a child’s acquiescence because of duress or a coercive atmosphere created by a parent or one acting in loco parentis, give the following instructions. If parental, or analogous compulsion AND consent issues involving a child of tender years are also involved, give the instructions following NOTE 9 instead of the instructions below:

Both force and lack of consent are necessary to the offense. In the law of rape, various types of conduct are sufficient to constitute force. The most obvious type is actual physical force, that is, the application of physical violence or power, which is used to overcome or prevent active resistance. Actual physical force, however, is not the only way force can be established. Where intimidation or threats of death or physical injury make resistance futile, it is said that “constructive force” has been applied, thus satisfying the requirement of force. Hence, when the accused’s (actions and words) (conduct), coupled with the surrounding circumstances, create a reasonable belief in the victim’s mind that death or physical injury would be inflicted on her and that (further) resistance would be futile, the act of sexual intercourse has been accomplished by force.

If the alleged victim consents to the act of sexual intercourse, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a person, who is in possession of her mental and physical faculties, fails to make her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she consented. Consent, however, may not be inferred if resistance would have been futile under the totality of the circumstances, or where resistance is overcome by a reasonable fear of death or great bodily harm, or where she is unable to resist because of the lack of mental or physical faculties. You must consider all the surrounding circumstances in deciding whether (state the name of the alleged victim) consented.

If (state the name of the alleged victim) submitted to the act of sexual intercourse (because resistance would have been futile under the totality of the circumstances) (because of a reasonable fear of death or great bodily harm) (because she was unable to resist due to mental or physical inability) (__________), sexual intercourse was done without consent.

Sexual activity between a (parent) (stepparent) (__________) and a minor child is not comparable to sexual activity between two adults. The youth and vulnerability of children, when coupled with a (parent’s) (step parent’s) (__________) position of authority, may create a situation in which explicit threats and displays of force are not necessary to overcome the child’s resistance. On the other hand, not all children invariably accede to (parental) (__________) will. In deciding whether the victim (did not resist) (or) (ceased resistance) because of constructive force in the form of (parental) (__________) (duress) (compulsion) (__________), you must consider all of the facts and circumstances, including but not limited to (the age of the child when the alleged abuse started) (the child’s ability to fully comprehend the nature of the acts involved) (the child’s knowledge of the accused’s parental power) (any implicit or explicit threats of punishment or physical harm if the child does not obey the accused’s commands) (state any other evidence surrounding the parent-child, or similar, relationship from which constructive force could reasonably be inferred). If (state the name of the alleged victim) (did not resist) (or) (ceased resistance) due to the (compulsion) (or) (duress) of (parental) (__________) command, constructive force has been established and the act of sexual intercourse was done by force and without consent.

NOTE 8: Victims incapable of giving consent–children of tender years. If parental, or analogous, compulsion is not in issue, but the victim is of tender years and may not have, as a matter of fact, the requisite mental maturity to consent, give the following instructions:

Both force and lack of consent are necessary to the offense. In the law of rape, various types of conduct are sufficient to constitute force. The most obvious type is actual physical force, that is, the application of physical violence or power, which is used to overcome or prevent active resistance. Actual physical force, however, is not the only way force can be established. Where intimidation or threats of death or physical injury make resistance futile, it is said that “constructive force” has been applied, thus satisfying the requirement of force. Hence, when the accused’s (actions and words) (conduct), coupled with the surrounding circumstances, create a reasonable belief in a child’s mind that death or physical injury would be inflicted on her and that (further) resistance would be futile, an act of sexual intercourse has been accomplished by force.

When a victim is incapable of consenting because she lacks the mental capacity to understand the nature of the act, no greater force is required than that necessary to achieve penetration.

If the alleged victim consents to the act of sexual intercourse, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a person, who is in possession of her mental and physical faculties, fails to make her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she consented. Consent, however, may not be inferred if resistance would have been futile under the totality of the circumstances, or where resistance is overcome by a reasonable fear of death or great bodily harm, or where she is unable to resist because of the lack of mental or physical faculties. You must consider all the surrounding circumstances in deciding whether (state the name of the alleged victim) consented.

If (state the name of the alleged victim) submitted to the act of sexual intercourse (because resistance would have been futile under the totality of the circumstances) (because of a reasonable fear of death or great bodily harm) (because she was unable to resist due to mental or physical inability) (__________), sexual intercourse was done without consent. If (state the name of the alleged victim) was incapable, due to her (tender age) (and) (lack of) mental development, of giving consent, then the act was done by force and without consent. A child (of tender years) is not capable of consenting to an act of sexual intercourse until she understands the act, its motive, and its possible consequences. In deciding whether (state the name of the alleged victim) had, at the time of the sexual intercourse, the requisite knowledge and mental (development) (capacity) (ability) to consent you should consider all the evidence in the case, including but not limited to: (state any lay or expert testimony relevant to the child’s development) (state any other information about the alleged victim, such as the level and extent of education, and prior sex education and experiences, if any).

If (state the name of the alleged victim) was incapable of giving consent, and if the accused knew or had reasonable cause to know that (state the name of the alleged victim) was incapable of giving consent, the act of sexual intercourse was done by force and without consent.

NOTE 9: Constructive force (parental, or analogous compulsion) AND consent issues involving children of tender years. When the evidence raises the issue of constructive force based upon a child’s acquiescence because of duress or a coercive atmosphere created by a parent or one acting in loco parentis, AND also the issue of consent by children of tender years, give the following instructions:

Both force and lack of consent are necessary to the offense. In the law of rape, various types of conduct are sufficient to constitute force. The most obvious type is actual physical force, that is, the application of physical violence or power, which is used to overcome or prevent active resistance. Actual physical force, however, is not the only way force can be established. Where intimidation or threats of death or physical injury make resistance futile, it is said that “constructive force” has been applied, thus satisfying the requirement of force. Hence, when the accused’s (actions and words) (conduct), coupled with the surrounding circumstances, create a reasonable belief in the victim’s mind that death or physical injury would be inflicted on her and that (further) resistance would be futile, the act of sexual intercourse has been accomplished by force.

Sexual activity between a (parent) (stepparent) (__________) and a minor child is not comparable to sexual activity between two adults. The youth and vulnerability of children, when coupled with a (parent’s) (stepparent’s) (__________) position of authority, may create a situation in which explicit threats and displays of force are not necessary to overcome the child’s resistance. On the other hand, not all children invariably accede to (parental) (__________) will. In deciding whether the victim (did not resist) (or) (ceased resistance) because of constructive force in the form of (parental)(__________) (duress) (compulsion) (__________), you must consider all of the facts and circumstances, including but not limited to (the age of the child when the alleged abuse started) (the child’s ability to fully comprehend the nature of the acts involved) (the child’s knowledge of the accused’s parental power) (any implicit or explicit threats of punishment or physical harm if the child does not obey the accused’s commands) (state any other evidence surrounding the parent-child, or similar relationship, from which constructive force could reasonably be inferred). If (state the name of the alleged victim) (did not resist) (or) (ceased resistance) due to the (compulsion) (or) (duress) of (parental) (__________) command, constructive force has been established and the act of sexual intercourse was done by force and without consent.

When a victim is incapable of consenting because she lacks the mental capacity to understand the nature of the act, no greater force is required than that necessary to achieve penetration.

If the alleged victim consents to the act of sexual intercourse, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a person, who is in possession of her mental and physical faculties, fails to make her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she consented. Consent, however, may not be inferred if resistance would have been futile under the totality of the circumstances, or where resistance is overcome by a reasonable fear of death or great bodily harm, or where she is unable to resist because of the lack of mental or physical faculties. You must consider all the surrounding circumstances in deciding whether (state the name of the alleged victim) consented.

If (state the name of the alleged victim) submitted to the act of sexual intercourse (because resistance would have been futile under the totality of the circumstances) (because of a reasonable fear of death or great bodily harm) (because she was unable to resist due to mental or physical inability) (__________), sexual intercourse was done without consent.

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If (state the name of the alleged victim) was incapable, due to her (tender age) (and) (lack of) mental development, of giving consent, then the act was done by force and without consent. A child (of tender years) is not capable of consenting to an act of sexual intercourse until she understands the act, its motive, and its possible consequences. In deciding whether (state the name of the alleged victim) had, at the time of the sexual intercourse, the requisite knowledge and mental (development) (capacity) (ability) to consent you should consider all the evidence in the case, including but not limited to: (state any lay or expert testimony relevant to the child’s development) (state any other information about the alleged victim, such as the level and extent of education, and prior sex education and experiences, if any).

If (state the name of the alleged victim) was incapable of giving consent, and if the accused knew or had reasonable cause to know that (state the name of the alleged victim) was incapable of giving consent, the act of sexual intercourse was done by force and without consent.

NOTE 10: Victims incapable of giving consent–due to mental infirmity. Where there is some evidence that the victim may be incapable of giving consent because of a mental handicap or disease, give the following instructions:

Both force and lack of consent are necessary to the offense. In the law of rape, various types of conduct are sufficient to constitute force. The most obvious type is actual physical force, that is, the application of physical violence or power, which is used to overcome or prevent active resistance. Actual physical force, however, is not the only way force can be established. Where intimidation or threats of death or physical injury make resistance futile, it is said that “constructive force” has been applied, thus the requirement of force is satisfied. Hence, when the accused’s (actions and words) (conduct), coupled with the surrounding circumstances, create a reasonable belief in the victim’s mind that death or physical injury would be inflicted on her and that (further) resistance would be futile, the act of sexual intercourse has been accomplished by force.

When a victim is incapable of consenting because she lacks the mental capacity to consent, no greater force is required than that necessary to achieve penetration.

If the alleged victim consents to the act of sexual intercourse, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a person, who is in possession of her mental and physical faculties, fails to make her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she consented. Consent, however, may not be inferred if resistance would have been futile under the totality of the circumstances, or where resistance is overcome by a reasonable fear of death or great bodily harm, or where she is unable to resist because of the lack of mental or physical faculties. You must consider all the surrounding circumstances in deciding whether (state the name of the alleged victim) consented.

If (state the name of the alleged victim) submitted to the act of sexual intercourse (because resistance would have been futile under the totality of the circumstances) (because of a reasonable fear of death or great bodily harm) (because she was unable to resist due to mental or physical inability) (__________), sexual intercourse was done without consent.

If (state the name of the alleged victim) was incapable, due to mental infirmity, of giving consent, then the act was done by force and without her consent. A person is capable of consenting to an act of sexual intercourse unless her mental infirmity is so severe that she is incapable of understanding the act, its motive, and its possible consequences. In deciding whether (state the name of the alleged victim) had, at the time of the sexual intercourse, the requisite mental capacity to consent you should consider all the evidence in the case, including but not limited to: (state any expert testimony relevant to the alleged victim’s mental infirmity) (state any other information about the alleged victim, such as the level and extent of education; ability, or inability, to hold a job or manage finances; and prior sex education and experiences, if any). You may also consider her demeanor in court and her general intelligence as indicated by her answers to questions propounded to her in court.

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If (state the name of the alleged victim) was incapable of giving consent, and if the accused knew or had reasonable cause to know that (state the name of the alleged victim) was incapable of giving consent, the act of sexual intercourse was done by force and without consent.

NOTE 11: Victims incapable of giving consent–due to sleep, unconsciousness, or intoxication. Where there is some evidence that the victim may have been asleep, unconscious, or intoxicated and, therefore, incapable of giving consent at the time of the intercourse, give the following instructions:

Both force and lack of consent are necessary to the offense. “Force” is physical violence or power applied by the accused to the victim. An act of sexual intercourse occurs “by force” when the accused uses physical violence or power to compel the victim to submit against her will.

When a victim is incapable of consenting, because she is asleep, unconscious, or intoxicated to the extent that she lacks the mental capacity to consent, no greater force is required than that necessary to achieve penetration.

If the alleged victim consents to the act of sexual intercourse, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a person, who is in possession of her mental and physical faculties, fails to make her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she consented. Consent, however, may not be inferred if resistance would have been futile under the totality of the circumstances, or where resistance is overcome by a reasonable fear of death or great bodily harm, or where she is unable to resist because of the lack of mental or physical faculties. You must consider all the surrounding circumstances in deciding whether (state the name of the alleged victim) consented.

If (state the name of the alleged victim) submitted to the act of sexual intercourse (because resistance would have been futile under the totality of the circumstances) (because of a reasonable fear of death or great bodily harm) (because she was unable

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to resist due to mental or physical inability) (__________), sexual intercourse was done without consent.

If (state the name of the alleged victim) was incapable, due to lack of mental or physical faculties, of giving consent, then the act was done by force and without consent. A person is capable of consenting to an act of sexual intercourse unless she is incapable of understanding the act, its motive, and its possible consequences. In deciding whether (state the name of the alleged victim) had consented to the sexual intercourse you should consider all the evidence in the case, including but not limited to: ((the degree of the alleged victim’s) (intoxication, if any,) (and) (or) (consciousness or unconsciousness) (and) (or) (mental alertness)); ((the ability or inability of the alleged victim) (to walk) (and) (or) (to communicate coherently)); ((whether the alleged victim may have consented to the act of sexual intercourse prior) (to lapsing into unconsciousness) (and) (or) (falling asleep)); (and) (or) (state any other evidence tending to show the alleged victim may have been acquiescing to the intercourse rather than actually being asleep, unconscious, or otherwise unable to consent).

If (state the name of the alleged victim) was incapable of giving consent, and if the accused knew or had reasonable cause to know that (state the name of the alleged victim) was incapable of giving consent because she was (asleep) (unconscious) (intoxicated), the act of sexual intercourse was done by force and without consent.

NOTE 12: Mistake of fact to consent–completed rapes. An honest and reasonable mistake of fact as to the victim’s consent is a defense to rape. US v. Carr, 18 MJ 297 (CMA 1984), US v. Taylor, 26 MJ 127 (CMA 1988), and US v. Peel, 29 MJ 235 (CMA 1989), cert denied, 493 U.S. 1025 (1990). If mistake of fact is in issue, give the following instructions. If mistake of fact as to consent is raised in relation to attempts and other offenses requiring the specific intent to commit rape, use the instructions following NOTE 14 instead of the instructions below.

The evidence has raised the issue of mistake on the part of the accused concerning whether (state the name of the alleged victim) consented to sexual intercourse in relation to the offense of rape.

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If the accused had an honest and mistaken belief that (state the name of the alleged victim) consented to the act of sexual intercourse, he is not guilty of rape if the accused’s belief was reasonable.

To be reasonable the belief must have been based on information, or lack of it, which would indicate to a reasonable person that (state the name of the alleged victim) was consenting to the sexual intercourse. In deciding whether the accused was under the mistaken belief that (state the name of the alleged victim) consented, you should consider the probability or improbability of the evidence presented on the matter.

You should also consider the accused’s (age) (education) (experience) (prior contact with (state the name of the alleged victim)) (the nature of any conversations between the accused and (state the name of the alleged victim)) (__________) along with the other evidence on this issue (including but not limited to (here the military judge may summarize other evidence that may bear on the accused ‘s mistake of fact)).

The burden is on the prosecution to establish the accused’s guilt. If you are convinced beyond a reasonable doubt that, at the time of the charged rape, the accused was not under the mistaken belief that (state the name of the alleged victim) consented to the sexual intercourse, the defense of mistake does not exist. Even if you conclude that the accused was under the honest and mistaken belief that (state the name of the alleged victim) consented to the sexual intercourse, if you are convinced beyond a reasonable doubt that, at the time of the charged offense, the accused’s mistake was unreasonable, the defense of mistake does not exist.

NOTE 13: Voluntary intoxication and mistake of fact as to consent. If there is evidence the accused may have been under the influence of an intoxicant and the evidence raises mistake of fact as to consent to a completed rape, give the following instruction:

There is evidence in this case that indicates that at the time of the alleged rape, the accused may have been under the influence of (alcohol) (drugs).

The accused’s voluntary intoxication may not be considered in deciding whether the accused reasonably believed that (state the name of the alleged victim) consented to sexual intercourse. A reasonable belief is one that an ordinary, prudent, sober adult would have under the circumstances of this case. Voluntary intoxication does not permit what would be an unreasonable belief in the mind of a sober person to be considered reasonable because the person is intoxicated.

NOTE 14: Mistake of fact to consent–attempts and other offenses requiring intent to commit rape. To be a defense, mistake of fact as to consent in attempted rape, or offenses where rape is the intended offense (assault, burglary, conspiracy etc.), need only be honest. US v. Langley, 33 MJ 278 (CMA 1991). When mistake of fact to consent is in issue with respect to these offenses, give the following instruction:

The evidence has raised the issue of mistake on the part of the accused concerning whether (state the name of the alleged victim) ((consented) (would consent)) to sexual intercourse in relation to the offense of (state the alleged offense).

I advised you earlier that to find the accused guilty of the offense of (attempted rape) (assault with intent to commit rape) (burglary with intent to commit rape) (conspiracy to commit rape) (__________), you must find beyond a reasonable doubt that the accused had the specific intent to commit rape, that is, sexual intercourse by force and without consent.

If the accused at the time of the offense was under the honest and mistaken belief that (state the name of the alleged victim) ((would consent) (consented)) to sexual intercourse, then he cannot be found guilty of the offense of (attempted rape) (assault with intent to commit rape) (burglary with intent to commit rape) (conspiracy to commit rape) (__________).

The mistake, no matter how unreasonable it might have been, is a defense. In deciding whether the accused was under the mistaken belief that (state the name of the alleged victim) ((would consent) (consented)), you should consider the probability or improbability of the evidence presented on the matter. You should also consider the accused’s (age) (education) (experience) (prior contact with (state the name of the alleged victim)) (the nature of any conversations between the accused and (state the name of the alleged victim)) (__________) along with the other evidence on this issue (including, but not limited to (here the military judge may summarize other evidence that may bear on the accused ‘s mistake of fact)).

The burden is on the prosecution to establish the guilt of the accused. If you are convinced beyond a reasonable doubt that at the time of the alleged offense the accused was not under the mistaken belief that (state the name of the alleged victim) ((would consent) (consented)) to sexual intercourse, then the defense of mistake does not exist.

NOTE 15: Compound offenses and mistake of fact. If the accused is charged with an offense that requires the intent to commit rape and the evidence raises the possibility that the accused was under the mistaken belief the victim would or did consent, the military judge should determine whether a lesser included offense has been raised.

NOTE 16: Consent obtained by fraud. Consent obtained by fraud in the inducement (e.g., a promise to pay money, misrepresentation as to marital status, or to “respect” the partner in the morning) is valid consent. Consent obtained by fraud in factum (e.g., a misrepresentation as to the nature of the act performed) is not valid consent and is not a defense to rape. US v. Booker, 25 MJ 114 (CMA 1987).

NOTE 17: MRE 412 (“Rape shield”). Notwithstanding the general proscriptions in MRE 412 concerning the admissibility of a sexual assault victim’s past sexual behavior, such evidence may be admissible if it is probative of a victim’s motive to fabricate or to show that the accused was mistaken about the victim’s consent. US v. Williams, 37 MJ 352 (CMA 1993) (extra-marital affair as to victim’s motive to lie) and US v. Kelley, 33 MJ 878 (ACMR 1991) (victim’s public and aggressive sexual behavior to show accused’s mistaken belief as to consent.)

NOTE 18: Following US v. Jones, 68 MJ 465 (CAAF 2010) carnal knowledge is not a lesser included offense of rape.

NOTE 19: Mistake of fact as to victim’s age. The Military Justice Act of 1996 established a mistake of fact defense to carnal knowledge. The defense applies when the victim is at least 12 years of age, and some evidence is introduced which shows the accused may have honestly and reasonably believed the victim was 16. Note that this defense is unusual in that the burden is on the defense to establish, by a preponderance of the evidence, that the belief was honest and reasonable. When the defense is raised by the evidence, the following instruction is suggested. If the parties have stipulated that the alleged victim was at least 12, the portion in parentheses in the second paragraph need not be given.

The evidence has raised the issue of mistake on the part of the accused concerning the offense(s) of carnal knowledge, as alleged in (The) Specification(s) (__________) of (The) (Additional) Charge (__________). Specifically, the mistake concerns the accused’s belief as to the age of (state the name of the alleged victim) when the alleged act(s) of sexual intercourse occurred.

For mistake of fact to be a defense, the burden is on the defense to convince you by a preponderance of evidence that the mistake exists. A preponderance of the evidence merely means that it is more likely than not that a fact exists. In this case, if you are convinced that, at the time of the alleged act(s), it is more likely than not that (the person with whom (he) (she) had sexual intercourse was at least 12 years old; and) the accused honestly and reasonably believed that the person with whom (he) (she) had sexual intercourse was at least 16 years old, then this mistake on the part of the accused is a complete defense to the offense of carnal knowledge.

To be reasonable, the accused’s belief must have been based on information, or lack of it, which would indicate to a reasonable person that (state the name of the alleged victim) was at least 16 years old at the time of the alleged offense(s).

In deciding whether the accused was under the mistaken belief that (state the name of the alleged victim) was at least 16 years old, you should consider the probability or improbability of the evidence presented on the matter. You should consider all the evidence presented on this issue, (including but not limited to the accused’s (age) (education) (experience) (prior contact or prior conversations with (state the name of the alleged victim)) (prior contact or prior conversations with (state the name of the alleged victim)’s family member(s))) (the location where the accused met (state the name of the alleged victim)) (__________), as well as (state the name of the alleged victim)’s (appearance) (level of maturity) (demeanor) (actions) (statements made to the accused concerning (state the name of the alleged victim)’s age) (__________) (here the military judge may specify other significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides).

NOTE 20: Voluntary intoxication and mistake of fact. If there is evidence of the accused’s voluntary intoxication, the following instruction is appropriate:

There is evidence in this case that indicates that, at the time of the alleged carnal knowledge offense(s), the accused may have been under the influence of (alcohol) (drugs). The accused’s voluntary intoxication may not be considered in deciding whether the accused honestly and reasonably believed that (state the name of the alleged victim) was at least 16 years old. A reasonable belief is one that an ordinary prudent sober adult would have under the circumstances of this case. Voluntary intoxication does not permit what would be an unreasonable belief in the mind of a sober person to be considered reasonable because the person is intoxicated.

NOTE 21: Concluding instructions on mistake of fact. Give the following concluding instructions in each case in which mistake of fact is raised. If the parties have stipulated that the child is at least 12, the portion in parentheses need not be given.

If you are not convinced by a preponderance of the evidence (that (state the name of the alleged victim) was at least 12 years old, or) that the accused’s belief that (state the name of the alleged victim) was at least 16 years old was honest and reasonable, then this defense of mistake does not exist.

Even if the defense fails to convince you that this defense of mistake exists, the burden remains on the prosecution to prove the accused’s guilt beyond a reasonable doubt, to include each and every element of the offense of carnal knowledge.

e. REFERENCES:

(1) Force: Black’s Law Dictionary (6th ed. 1990) (West Law, 1993).

(2) Constructive force–Coker v. Georgia, 433 U.S. 584 (1977); US v. Hicks, 24 MJ 3 (CMA 1987), cert. denied, 484 U.S. 827 (1987); US v. Bradley, 28 MJ 197 (CMA 1989); US v. Palmer, 33 MJ 7 (CMA 1991).

(3) Constructive force–abuse of military authority: US v. Hicks, supra; US v. Bradley, supra; US v. Clark, 35 MJ 432 (CMA 1992), cert. denied, 507 U.S. 1052 (1993).

(4) Constructive force–parental compulsion and children of tender years: US v. Palmer, supra; US v. Rhea, 33 MJ 413 (CMA 1991); US v. Torres, 27 MJ 867 (AFCMR 1989),opinion set aside, 29 MJ 299 (CMA 1989), unpublished opinion clarifying prior opinion (AFCMR November 15, 1989), pet. denied, 30 MJ 226 (CMA 1990), original opinion cited with approval in Palmer, supra, 33 MJ at 10; US v. Dejonge, 16 MJ 974 (AFCMR 1983), pet. denied, 18 MJ 92 (CMA 1986); North Carolina v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).

(5) Victim incapable of giving consent–mental infirmity: US v. Henderson, 15 CMR 268 (CMA 1954); US v. Lyons, 33 MJ 543 (ACMR 1991), aff’d, 36 MJ 183 (CMA 1992); 75 C.J.S. Rape section 14(b) n. 10.

(6) Victim incapable of giving consent–sleep, intoxication, or unconsciousness: Part IV, Para 45c(1)(b), MCM; US v. Mathi, 34 MJ 33 (CMA 1992); US v. Robertson, 33 CMR 828 (AFBR 1963), rev’d on other grounds, 34 CMR 108 (CMA 1963).

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