Sex and consent-U.S. v. Mendoza

How the prosecution charges a sexual assault is important because consent has different legal meanings. United States v. Mendoza is an important new case that highlights the issue.

As military appellate defense lawyers and trial defense counsel we have been arguing the Mendoza issue for some time (as have others). So we were pleased to see that CAAF agrees with us in Mendoza.

Consent is a critical element in sexual assault cases under the UCMJ. The text distinguishes between two types of sexual assault:

• Sexual assault where the victim is capable of consenting but did not consent (Article 120(b)(2)(A)). The focus here is on the victim’s active and voluntary agreement to the sexual act.
• Sexual assault where the victim is incapable of consenting due to impairment (Article 120(b)(3)(A)). The focus here is on the victim’s capacity to consent and the accused’s knowledge of that incapacity.

The legal significance of consent lies in its determination of the accused’s guilt or innocence. The prosecution must prove beyond a reasonable doubt that the victim did not consent or was incapable of consenting, depending on the specific charge.

In this particular case, the distinction between these two types of sexual assault is central. The government’s approach of conflating the two theories of liability raises due process concerns, as it may have led to a conviction based on evidence that was not directly relevant to the specific charge.

This text discusses a legal sufficiency review in a sexual assault case under the UCMJ. The appellant challenges the conviction based on two arguments:

• Circumstantial Evidence: The appellant argues that the government’s reliance solely on circumstantial evidence to prove lack of consent is insufficient for a conviction.
• Due Process Violation: The appellant contends that the government conflated two separate theories of liability under Article 120, UCMJ, by arguing the victim’s incapacity due to intoxication without charging him under the specific provision addressing that circumstance.

The text highlights that this case deviates from the typical legal sufficiency analysis due to these unique arguments. It emphasizes the importance of distinguishing between the two types of sexual assault charges under Article 120, UCMJ, one based on lack of consent and the other on incapacity to consent.

The core issue is whether the government’s approach violated the appellant’s due process rights by potentially leading to a conviction based on evidence not directly relevant to the specific charge.

The Appellant’s argument requires examination of Article 120(b)(2)(A), UCMJ, to determine if the Government can prove sexual assault “without the consent” of the victim by establishing that the victim was incapable of consenting. The prosecution argued that the plain language of subsection (b)(2)(A) allows it to prove without consent by evidence of a lack of capacity to consent due to her level of intoxication.

CAAF rejects the prosecution argument. Basically,

The language and structure of Article 120, UCMJ, subsection (b)(2)(A) and subsection (b)(3)(A) establish separate theories of liability.

• Subsection (b)(2)(A) criminalizes the sexual act upon a victim who is capable of consenting but does not consent.
  • Keep in mind that military defense counsel can argue that the facts and circumstances show consent or that the accused was reasonably mistaken that consent was given by words or actions.
• Subsection (b)(3)(A) criminalizes the performance of a sexual act upon a victim who is incapable of consenting to the sexual act due to impairment by any drug, intoxicant, or other similar substance when the victim’s condition is known or reasonably should be known by the accused.
  • Keep in mind that the military defense counsel can argue that the alleged victim was capable of consenting–and did.
  • Keep in mind that alleged victims claims of being blacked out or having memory problems can be defended against.
• Therefore the two theories cannot be wrapped into one charge.

However, CAAF notes that the Government can charge the accused with both offenses separately and then the jury or judge decide whether the victim was capable or incapable of consenting–and didn’t, or that the victim was incapable of giving consent–and there was no consent. See United Staes v. Elespuru, 73 M.J. 326, 330 (C.A.A.F. 2014) (recognizing that the “complexity of Article 120, UCMJ, . . . make[s] charging in the alternative an unexceptional and often prudent decision”).

But clearly, the government cannot charge one offense under one factual theory and then argue a different offense and a different factual theory at trial. Doing so robs the defendant of his constitutional “right to know what offense and under what legal theory he will be tried and convicted.” United States v. Riggins, 75 M.J. 78, 83 (C.A.A.F. 2016).

We were recently successful in an Air Force case where the Air Force Court of Criminal Appeals applied Mendoza and set aside the client’s conviction. Now the client doesn’t have to register as a sex offender.