Consent, Causation, and Crime-Victim Standing: ACCA Draws a Line in United States v. Ayuso

A partner in an affair asked to speak as a victim at sentencing. The military judge said yes. The United States Army Court of Criminal Appeals (ACCA) said no, and then affirmed the sentence anyway.

The Decision

On 24 July 2026, ACCA issued its summary disposition in United States v. Ayuso, ARMY 20240332 (Army Ct. Crim. App. 24 July 2026) (unpub.). Judge Schlack wrote for the court. Senior Judge Cooper and Judge Williams concurred. The court held that the military judge (MJ) abused her discretion when she allowed a consenting participant in an extramarital affair to deliver an unsworn victim impact statement, and it then held the error harmless.

Two propositions sit inside that holding. First, “victim” status under UCMJ art. 6b, 10 U.S.C. § 806b, is a legal status a proponent must establish on the record, not a label counsel may assert. Second, winning the legal point and winning the case remain separate projects.

What Happened at Trial

Master Sergeant Ayuso served as a company first sergeant at Joint Base Lewis-McChord. For roughly five months he carried on a consensual sexual relationship with a staff sergeant (SSG) in the same company, a platoon sergeant he knew to be married. Most encounters occurred at his residence. One occurred in his office after duty hours.

The court-martial convicted him of extramarital sexual conduct under UCMJ art. 134, 10 U.S.C. § 934, soliciting the distribution of a controlled substance under UCMJ art. 82, 10 U.S.C. § 882, and assault with an unloaded firearm under UCMJ art. 128, 10 U.S.C. § 928. Critically, the court acquitted him of maltreating the SSG. The adjudged sentence consisted of a reprimand and reduction to E-5. His exposure ran to a dishonorable discharge, fifteen years of confinement, total forfeitures, a reprimand, and reduction to E-1.

After findings, the SSG asked through her Special Victims’ Counsel (SVC) to give an unsworn victim impact statement. Defense counsel objected. Counsel pointed to the maltreatment acquittal and argued that the surviving Article 134 conviction rested on consensual conduct in which the SSG had participated voluntarily. The SVC responded that, given the facts, he believed her to be a victim entitled to speak. The MJ demanded no proffer, identified no harm, entered no findings of fact, and overruled the objection.

The SSG then described feeling “stuck,” having “spiraled downward,” questioning her integrity as a noncommissioned officer, and concluding that she should leave military service. She also referenced harm to her husband, career, family, and friends.

The Rule: “Direct” Means Direct

ACCA reviews a decision to admit a victim impact statement over defense objection for abuse of discretion. United States v. Edwards, 82 M.J. 239, 242-43 (C.A.A.F. 2022). A military judge abuses that discretion when the findings of fact do not support the ruling, when the judge applies incorrect legal principles, or when the application of correct principles to the facts is clearly unreasonable. United States v. Green-Watson, 85 M.J. 340, 345 (C.A.A.F. 2025) (quoting United States v. Wilson, 84 M.J. 383, 390 (C.A.A.F. 2024)).

Article 6b(a)(4)(B) affords crime victims the right to be reasonably heard at presentencing. Rule 1001(c), Rules for Courts-Martial (R.C.M.), Manual for Courts-Martial (M.C.M.), United States (2024 ed.), implements that right and supplies the gatekeeping definition. Only a person who suffered “direct physical, emotional, or pecuniary harm as a result of the commission of an offense” of which the accused stands convicted may speak. UCMJ art. 6b(b), 10 U.S.C. § 806b(b); R.C.M. 1001(c)(2)(A).

The whole case turns on one adjective. ACCA read the rule by its plain language and common usage, as United States v. Fetrow, 76 M.J. 181, 186 (C.A.A.F. 2017), instructs. Its own published decision in United States v. Goins, 85 M.J. 643, 649 (Army Ct. Crim. App. 2025), pet. denied, 2025 CAAF LEXIS 1023 (C.A.A.F. 16 Dec. 2025), supplies the test: harm qualifies as direct when it stands logically and causally related to the offense of conviction, with no intervening cause. Harm that arrives through some other source fails the standard.

Two Independent Abuses of Discretion

ACCA found error twice, and either finding alone would have carried the point.

First, the empty record. The MJ decided a threshold legal question on the bare assertion of counsel. She requested no proffer and placed no findings on the record. A ruling reached in a factual vacuum earns minimal deference. See United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000). ACCA called the ruling arbitrary and unsupported by the record. A judge who never examines the claimed harm cannot evaluate its nexus to the criminal act.

Second, the unexamined causal chain. Assuming the MJ did read the statement before ruling, she still failed to address the intervening causes the record put in front of her. ACCA identified three: the SSG’s voluntary participation in the offense, her later regret over an informed choice, and the fallout that followed her disclosure, including an administrative separation. The court attributed her described emotional harm to her own conduct rather than to the accused’s, and it attributed the professional consequences to discovery rather than to commission. Goins, 85 M.J. at 649.

A Deliberately Narrow Holding

ACCA emphasized the limits of what it decided. The court declined to hold that a consenting participant in extramarital sexual conduct can never qualify as a crime victim under Article 6b. It held only that this record failed to establish the direct harm the rule requires. The court also declined to decide whether the SSG suffered emotional harm at all, observing that it was not well positioned to make that judgment.

Counsel who read Ayuso as a categorical bar will overread it. The decision is unpublished and carries no precedential weight. Goins remains the engine, and Goins is published.

Error, But No Relief

Error alone buys nothing. UCMJ art. 59(a), 10 U.S.C. § 859(a), demands material prejudice to a substantial right. ACCA asked whether the statement substantially influenced the adjudged sentence, weighing the relative strength of the parties’ cases along with the materiality and quality of the challenged matter. United States v. Barker, 77 M.J. 377, 384 (C.A.A.F. 2018).

Three facts drove the harmlessness conclusion. The MJ confined the SSG’s victim status to the extramarital conduct specification, which the court considered minor next to the firearm assault. The government introduced no sentencing evidence. And the adjudged sentence, a reprimand and a single-grade reduction, sat far below the authorized maximum. The court affirmed the findings and sentence and denied the petition for a new trial.

Practice Points

• Object, and object with specificity. Defense counsel in Ayuso preserved the issue by tying the objection to the acquittal and to the consensual nature of the surviving offense. That framing gave ACCA the record it needed.
• Demand a proffer. An SVC’s conclusion that a client qualifies as a victim is advocacy, not evidence. Ask the military judge to require a proffer of the claimed harm and its causal link before ruling.
• Ask for findings on the record. A threshold ruling without findings invites reversal, and it also gives appellate counsel something to work with. Trial counsel and SVCs should want those findings as much as the defense does.
• Map the intervening causes. Voluntary participation, later regret, the consequences of disclosure, and collateral administrative action all sit outside the causal chain that Article 6b contemplates. Identify them on the record before the statement is read.
• Mark the exhibit early. The unsworn statement in Ayuso reached the court only shortly before the SVC read it aloud. Counsel who see the document late lose the chance to prepare rebuttal, and the record should reflect that.
• Remember the prejudice hurdle. A clean Article 6b win at the CCA still produces nothing if the sentence looks lenient. Preserve the sentencing record that shows what the statement actually did.

Open Questions

Ayuso leaves useful ground unbroken. Can a spouse who did not participate claim victim status for the same offense? Where does an accused’s superior rank and position, here a first sergeant to a platoon sergeant, fit into a consent analysis that ACCA treated as binary? And how does the harmlessness inquiry work under offense-by-offense sentencing, where the reviewing court can trace the challenged matter to a specific segment of the sentence rather than to an undifferentiated whole?

Cave & Freeburg, LLP

Victim impact litigation now shapes military sentencing in every service. We have written before on the mechanics of victim statements at court-martial, on Article 6b victim writ petitions, and on the related problem of acquitted conduct at sentencing, which Ayuso quietly implicates through the maltreatment acquittal.

Cave & Freeburg, LLP has practiced military law exclusively since 1991, before the Courts of Criminal Appeals, the United States Court of Appeals for the Armed Forces (CAAF), and the Supreme Court. For questions about sentencing, victim rights litigation, or appeals under the UCMJ, contact the firm.