U.S. v. McDonald, 78 M.J. 376

Core Criminal Law Subjects: Crimes: Generally Pre-2019 offenses

1. in determining the mens rea applicable to an offense, a court must first discern whether one is stated in the text, or, failing that, whether Congress impliedly intended a particular mens rea
2. the existence of a mens rea is presumed in the absence of clear congressional intent to the contrary
3. a general intent mens rea is not the absence of a mens rea, and such offenses remain viable in appropriate circumstances
4. the appropriate mens rea can be implied from context

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

1. the required mens rea for sexual assault by bodily harm is a general intent mens rea; Congress clearly intended such a general intent where (1) the plain text of the statute clearly implies a general intent offense, (2) the offense evolved from a general intent offense, (3) the presence of a negligence mens rea elsewhere in the statute suggests that Congress affirmatively chose to leave sexual assault by bodily harm as a general intent offense, and (4) construing the statute as a general intent offense does not criminalize innocent conduct
2. the statutory elements for sexual assault by bodily harm are straightforward: it is an offense to commit a sexual act without consent, although an honest and reasonable (nonnegligent) mistake of fact as to consent serves as an affirmative defense; such a statutory construction typically suggests a general intent offense
3. as a general intent offense, sexual assault by bodily harm has an implied mens rea that an accused intentionally committed the sexual act; no mens rea is required with regard to consent, however
4. with respect to the offense of sexual assault by bodily harm, the burden is on the actor to obtain consent, rather than the victim to manifest a lack of consent; in this case, where appellant engaged in sexual intercourse with the victim by taking his roommate’s place in penetrating the victim from behind, appellant’s actions could only be considered innocent if he had formed a reasonable belief that he had obtained consent; the government only needed to prove that he had not done so to eliminate the mistake of fact defense

Trial Stages: Appeals: Preservation of Error / Plain Error

1. under the plain error standard, relief will only be granted by an appellate court where (1) there was error that was (2) clear or obvious, and that (3) materially prejudiced a substantial right of the accused

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

1. the mens rea applicable to an offense is an issue of statutory construction that an appellate court reviews de novo
2. when panel instructions are not objected to at trial, they are reviewed by an appellate court for plain error
3. under the plain error standard, relief will only be granted by an appellate court where (1) there was error that was (2) clear or obvious, and that (3) materially prejudiced a substantial right of the accused

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

1. as in all statutory construction cases, a court begins with the language of the statute
2. Congress is presumed to be aware of existing law when it passes legislation, and thus in interpreting a statute, courts must take into account the contemporary legal context at the time the statute was passed
3. it is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme
4. a court typically seeks to harmonize independent provisions of a statute
5. where Congress includes particular language in one section of a statute but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion
6. where Congress has clearly implied a mens rea, a court is obliged to respect that legislative intent