U.S. v. Johnson, 54 M.J. 67

Core Criminal Law Subjects: Crimes: Article 128 - Assault Pre-2019 offenses

1. while backrubs may, under some circumstances, constitute offensive touching and thus be an assault consummated by a battery under Article 128, UCMJ, the evidence in this case was legally insufficient to sustain a finding of guilty: (1) there was no indication that the alleged victim was unable to protest appellant’s actions; (2) the alleged victim felt comfortable enough to simply shrug appellant off; (3) the alleged victim provided no testimony that any of the various touchings that marked her relationship with appellant were offensive; (4) the only difficulty the alleged victim had with the backrubs was related to appellant’s poor judgment in giving the backrubs openly and notoriously in the work environment; (5) although appellant’s conduct may have violated other social or military norms, his bad judgement did not support a criminal conviction for assault consummated by a battery; and (6) the alleged victim did not report any of appellant’s conduct until she heard about a separate charge against appellant