The Navy Appeals Court Makes an Interesting Observation of Sexual Contact Under Article 120, UCMJ

 

In United States v. Loeffler, NMCCA20150217 (May 31, 2016), a split Navy-Marine Corps Court of Criminal Appeals (NMCCA) finds factual insufficiency in Sgt Loeffler’s conviction for aggravated sexual contact. 

Like Most Military Sexual Assault Cases, This Case is Fact-Driven

After a night of drinking at an off-base party in Okinawa, Japan, an intoxicated Sgt Loeffler and his wife returned home.  His wife, apparently worried that there would be an alteration between the two, went to a spare bedroom and locked the door.  Sgt Loeffler allegedly forced himself into the room and attacked his wife.  The fact pattern is wrought with surprising facts, such as the whole incident being audio recorded by the wife.  Sgt Loeffler ended up being charged at general court-martial with attempted rape, aggravated sexual contact, and assault consummated by a battery.  The specific aggravated sexual contact for which he was found guilty was Sgt Loeffler’s touching his wife’s legs with unlawful force when ripping off her panties during the alleged attack.

Aggravated sexual contact in violation of Article 120, UCMJ is a specific intent crime.

The majority of the court found that the evidence failed to establish the specific intent element for aggravated sexual contact.  Aggravated sexual contact in violation of Article 120, UCMJ is a specific intent crime:

 

To convict the appellant of aggravated sexual contact, the Government was required to prove the appellant committed a “sexual contact” by using unlawful force. Article 120(g)(2), UCMJ, provides the following definition of sexual contact:

 

The term ‘sexual contact’ means—(A) touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person; or (B) any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.

 

Importantly, each subsection in the definition requires both an act (the actus reus) and a specific intent.

Applying subsection (B), which requires the specific intent to gratify sexual desires, the court held that the evidence failed to establish that the specific act of touching the leg while removing the underwear was done in order to gratify a sexual desire.  The court noted:

 

While we are satisfied that the appellant intended to arouse or gratify his sexual desires in a generalized sense, we are not convinced that he intended to arouse or gratify those desires through the specific touching of his wife’s outer thighs as required by the statute. Instead, the touching appears to us to be incidental to his efforts to remove her panties in order to commit some other contact that would have been arousing or gratifying. The record simply does not convince us otherwise.

No Specific Intent=Finding of Not Guilty.  That’s always been the law.

This case stands for the proposition that the specific contact alleged must have been done with the specific intent of gratifying the sexual desires of any person to meet Article 120’s definition of “sexual contact”; the contact must be more than part of a general scheme where the end result would be sexual gratification.  This case may be important in litigating RCM 917 motions for a finding of not-guilty and tailoring jury instructions.  Further, it may serve as a strong objection to prosecution arguments on the evidence in sexual contact cases.

 

Ironically, the lone dissent found the instructional error for aggravated sexual contact, which was rendered moot by the majority in finding the accused guilty of the lesser included of assault consummated by a battery, justified setting aside the findings and sentence and ordering a retrial.  I am not sure whether the accused benefited from alleging factual insufficiency when the instructional claim was plain and obvious error.

A Rehearing Almost Always Benefits the Accused.

In most instances, a rehearing benefits the accused.  First, he may only be retried on the offenses for which he was found guilty and, second, the sentence is capped at the original sentence – basically, you can’t be punished for exercising appellate rights.  Moreover, as time passes, witnesses become less interested, especially when told they have to go through a trial again, and military commanders currently in command are not vested in cases that did not occur on their watch.

 

 

Patrick Korody specializes in defending military members accused of violations of the UCMJ.  He was certified by the Judge Advocate General of the Navy as a Military Justice Litigation Specialist and spent ten years prosecuting and defending military sexual assault cases.  He offers a free consultation. His Jacksonville, FL office can be contacted at 904-383-7261.