U.S. v. Mader, 81 M.J. 105

Core Criminal Law Subjects: Crimes: Article 92 - Failure to Obey Order or Regulation Pre-2019 offenses

1. consent is not a defense to hazing charged as a violation of a general order

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

1. consent is generally a defense to assault consummated by a battery
2. an assault consummated by battery is defined as bodily harm to another done without legal justification or excuse and without the lawful consent of the person affected; bodily harm is defined as any offensive touching
3. as a general matter, consent can convert what might otherwise be offensive touching into non-offensive touching
4. the RCMs make clear that even if an alleged victim did not consent to being touched, an accused cannot be convicted of assault consummated by a battery if the accused mistakenly believed that the alleged victim consented and that that belief was reasonable under all the circumstances; a reasonable and honest mistake of fact as to consent constitutes an affirmative defense in the nature of a legal excuse
5. consent is a well-established defense to simple assault
6. consent is generally not a defense to aggravated assault
7. junior Marines who appellant supervised could have lawfully consented to being burned with a cigarette by appellant in an apparent attempt to bond with them during a farewell party in the barracks, and the consent of those junior Marines would be a defense to a charge of assault consummated by a battery; although the government might have charged appellant with hazing as a violation of a general order or with aggravated assault, both of which would have eliminated the opportunity to raise a consent defense, it did not, and there was no policy reason to strip appellant of a defense to which he was otherwise legally entitled

Core Criminal Law Subjects: Defenses: Generally

1. consent is not a defense to hazing charged as a violation of a general order
2. consent is generally a defense to assault consummated by a battery
3. as a general matter, consent can convert what might otherwise be offensive touching into non-offensive touching
4. consent is a well-established defense to simple assault
5. consent is generally not a defense to aggravated assault
6. junior Marines who appellant supervised could have lawfully consented to being burned with a cigarette by appellant in an apparent attempt to bond with them during a farewell party in the barracks, and the consent of those junior Marines would be a defense to a charge of assault consummated by a battery; although the government might have charged appellant with hazing as a violation of a general order or with aggravated assault, both of which would have eliminated the opportunity to raise a consent defense, it did not, and there was no policy reason to strip appellant of a defense to which he was otherwise legally entitled

Core Criminal Law Subjects: Defenses: Affirmative Defenses

1. the RCMs make clear that even if an alleged victim did not consent to being touched, an accused cannot be convicted of assault consummated by a battery if the accused mistakenly believed that the alleged victim consented and that that belief was reasonable under all the circumstances; a reasonable and honest mistake of fact as to consent constitutes an affirmative defense in the nature of a legal excuse

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

1. an appellate court reviews de novo whether consent, or mistake of fact as to consent, is available as a defense