U.S. v. Pease, 75 M.J. 180

Core Criminal Law Subjects: Crimes: Article 120b - Rape and Sexual Assault Generally Pre-2019 offenses

1. in this case, for purposes of Article 120, UCMJ, the CCA properly defined a competent person as a person who possesses the physical and mental ability to consent
2. in this case, for purposes of Article 120, UCMJ, the CCA properly defined an incompetent person as a person who lacks either the mental or physical ability to consent due to a cause enumerated in the statute
3. in this case, for purposes of Article 120, UCMJ, the CCA defined a freely given agreement as occurring when a person first possesses the cognitive ability to appreciate the nature of the conduct in question, and then possesses the mental and physical ability to make and to communicate a decision regarding that conduct to the other person; while the statutory phrase “freely given agreement” reflects the voluntariness aspect of consent, the CCA’s definition of that phrase may be viewed as not accounting for those situations where a victim has the ability to appreciate the conduct, and the mental and physical ability to communicate the decision, but does not articulate non-consent out of fear or due to some other external compulsion counteracting voluntariness; nevertheless, any imprecision did not constitute reversible error here because the CCA’s definition of incapable of consenting adequately addressed the concept of voluntariness
4. in this case, for purposes of Article 120, UCMJ, the CCA defined incapable of consenting as lacking the cognitive ability to appreciate the sexual conduct in question or lacking the physical or mental ability to make and to communicate a decision about whether they agreed to the conduct; the CCA correctly defined “incapable” as meaning the victim lacked the ability to; with regard to its definition of consent, the CCA essentially adopted the meaning of that term as provided under Article 120, UCMJ - consent means a freely given agreement to the conduct at issue by a competent person; accordingly, the CCA’s inclusion of the phrase “whether they agreed to the conduct” adequately incorporated into the definition of “incapable of consenting” the voluntariness component of consent, and that the definition was correct with the exception of one apparent scrivener’s error; the CCA’s definition of “incapable of consenting” should have stated that a victim must have the ability “to make or to communicate a decision” rather than “to make and to communicate a decision;” however, this apparent scrivener’s error did not constitute reversible error because the CCA’s factual sufficiency analysis for the offenses actually applied the “to make or to communicate” standard; therefore, no reversible error resulted in the instant case; the CCA’s definition of “incapable of consenting” was properly based on the ordinary meaning of the phrase, the context in which it was used, and the broader statutory context

Trial Stages: Appeals: Generally

1. CAAF will not review certified issues when practically speaking, any action which it might take with respect to the certified issues would not materially alter the situation presented with respect either to the accused or the government

Trial Stages: Appeals: Courts of Criminal Appeals › Factual sufficiency

1. Article 66(c), UCMJ, requires CCAs to conduct a factual sufficiency review by determining whether the evidence at trial proves an appellant’s guilt beyond a reasonable doubt; when conducting this review, CCAs are limited to the evidence presented at trial, but their application of the law to the facts must be based on a correct view of the law
2. in light of its Article 66(c), UCMJ, factual sufficiency responsibility, the CCA needs to determine the correct, applicable law in order to properly conduct its factual sufficiency analysis; in this case, the fact that the CCA found it necessary to consider legal definitions not expounded upon at trial did not constitute consideration of matters outside the record or consideration of a new legal theory, but instead represented a permissible act within the CCA’s Article 66(c), UCMJ, authority; simply put, the CCA is not bound by the military judge’s trial instructions in conducting its Article 66(c), UCMJ, factual sufficiency review

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. CAAF will not review certified issues when practically speaking, any action which it might take with respect to the certified issues would not materially alter the situation presented with respect either to the accused or the government
2. CAAF reviews questions of law de novo

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. CAAF reviews questions of law de novo

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. words and phrases used in the UCMJ are interpreted by examining the ordinary meaning of the language, the context in which the language is used, and the broader statutory context