- as charged in this case, indecent acts (committing a sexual act in an open and notorious manner) is not a lesser included offense of aggravated sexual assault (engaging in a sexual act with an incapacitated person); as charged in this case and under the government’s lesser included theory, there is no additional fact that the members would need to find in order to convict for the offense of aggravated sexual assault which would be unnecessary to convict for the offense of indecent acts; neither requires a factual finding which the other does not; the first element of both offenses is established by the same set of facts: the “sexual act” (aggravated sexual assault) and “certain conduct” (indecent acts) refer to the digital penetration of the victim’s vagina; the second element of each offense is also established by the same alleged fact: the victim was substantially incapable of declining participation (aggravated sexual assault); and the conduct was indecent because the victim was substantially incapable of declining participation (indecent acts); although the MCM in effect at the time recognized that treating indecent acts as a lesser included offense of aggravated sexual assault was appropriate depending on the factual circumstances in each case, under the facts of this case, where there is no additional fact that the members would need to find in order to establish the offense of aggravated sexual assault which would be unnecessary to establish the offense of indecent acts, the two offenses do not stand in a relationship of greater/lesser offense, because a rational trier of fact could not acquit on the greater offense and convict on the lesser offense
- the elements of aggravated sexual assault under Article 120, as charged in this case, are: (1) that the accused engaged in a sexual act with another person; and (2) the other person was substantially incapable of declining participation in the sexual act
CAAF Opinion Digest · III.A.45.3 · Crimes Pre-2019 offenses
Article 120 - Rape, Sexual Assault, and Other Sexual Misconduct post-2007 Amendment
Offenses committed before 1 January 2019 (pre-2016 amendment) — opinions from the 1999 through 2020 Terms of Court.
For offenses on or after 1 January 2019 see
III.AA — Article 120 - Rape and Sexual Assault Generally.
** post-2007 Amendment
6 digested opinions, 2010–2012 Terms
(c) Aggravated Sexual Assault
2012 (September Term)
- aggravated sexual assault, the charged offense in this case, requires that the accused “engage in a sexual act”; abusive sexual contact, the alleged LIO, piggybacks the definition of aggravated sexual assault: “Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (c) (aggravated sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact . . . .”; because abusive sexual contact piggybacks the definition of aggravated sexual assault, all of the elements of the two offenses necessarily line up, except that aggravated sexual assault requires a “sexual act” whereas abusive sexual contact requires “sexual contact”; a “sexual act” is defined as: “(A) contact between the penis and the vulva . . .; or (B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person”; “sexual contact” is defined as: “the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person”; accordingly, abusive sexual contact is an LIO of aggravated sexual assault in some instances; for example, if an accused is charged with aggravated sexual assault by penetrating the genital opening of another, then any penetration of the genital opening would also require a touching of the genital opening
- in this case, appellant was charged with aggravated sexual assault by digitally penetrating the anus of a male victim; however, a sexual act is statutorily limited to genital openings, and the anus is not such an opening; courts are confined to the definitions formulated by Congress, and thus cannot construe “sexual act” to include the digital penetration of another’s anus; accordingly, there is plain and obvious error in this case because appellant was charged with a legal impossibility; the actions alleged could never constitute the offense of aggravated sexual assault; therefore, the specification was defective because it failed to allege the elements of aggravated sexual assault, and instructing on abusive sexual contact as an LIO was error
2011 (September Term)
- there may exist an abstract distinction between “substantially incapacitated” and “substantially incapable,” but whatever distinction exists between the terms, the distinction is rendered meaningless when the military judge defines them as the same
- in this case, the government initially charged appellant with one specification of aggravated sexual assault for engaging in a sexual act with a person “who was substantially incapacitated or substantially incapable of declining participation in the sexual act” in violation of Article 120(c)(2), UCMJ; the military judge severed the sole specification into two separate specifications which were identical except that Specification 1 alleged that the victim was “substantially incapacitated” and Specification 2 alleged that the victim was “substantially incapable of declining participation in the sexual act;” before deliberations, the military judge instructed the members as to the elements of each offense and the definitions of the terms applicable to each offense; when he defined the terms “substantially incapacitated” and “substantially incapable,” the military judge defined them in exactly the same manner; hence the members were confronted with two offenses that, as instructed, alleged exactly the same offense; as a result, the military judge created the framework for a potential double jeopardy violation; this potential was further crystallized by the procedural instructions that the military judge subsequently provided the members to assist them in reaching their findings when he told them to reach findings on Specification 1 before considering Specification 2; as a result, appellant was initially found not guilty by members for certain conduct for a specific Article 120 offense as defined by the military judge, and was then found guilty of the same conduct for the same offense; even if the members did not first make a decision on Specification 1 before considering Specification 2, as a result of the military judge’s instructions, they were placed in the untenable position of finding appellant both guilty and not guilty of the same offense; under the unique circumstances of this case, the principles underpinning the Double Jeopardy Clause made it impossible for the CCA to conduct a factual sufficiency review of Specification 2 without finding as fact the same facts the members found appellant not guilty of in Specification 1; the CCA’s holding to the contrary was error
2010 (September Term)
- the statutory interplay among the relevant provisions of Article 120, UCMJ, when an accused raises the affirmative defense of consent to a charge of aggravated sexual assault by engaging in a sexual act with a person who was substantially incapacitated under Article 120(c)(2), UCMJ, results in an unconstitutional burden shift to the accused, where the accused is required to prove the affirmative defense of consent by a preponderance of the evidence and the burden thus shifts to the defense to disprove an essential element of the offense
- under the aggravated sexual assault statute in Article 120(c)(2), UCMJ, the burden was on the accused to prove the affirmative defense of consent by a preponderance of the evidence, and the military judge erred in instructing the members that the evidence raised the defense of consent and that the government had the burden of disproving the defense beyond a reasonable doubt
- even though the military judge erred in not instructing the members under the statutory scheme of the aggravated sexual assault offense under Article 120(c)(2), UCMJ, that the burden was on the accused to prove the affirmative defense of consent by a preponderance of the evidence, the error was harmless beyond a reasonable doubt where the military judge clearly and correctly instructed the members that the evidence raised the defense of consent and that the government had the burden of disproving the defense beyond a reasonable doubt
- under Article 120(c)(2), the essential elements of aggravated sexual assault by engaging in sexual intercourse with a person who is substantially incapacitated are (1) that the accused engaged in a sexual act with another person; and (2) that person was substantially incapacitated; Article 120(r), UCMJ, provides that consent is not an element of this offense, but it is an affirmative defense that may be raised by the accused; Article 120(t)(16), UCMJ, provides that if an accused raises an affirmative defense, he must prove it by a preponderance of the evidence; and Article 120(t)(14), UCMJ, defines consent and provides that a person who is substantially incapable of appraising the nature of the sexual conduct due to impairment or unconsciousness resulting from consumption of alcohol cannot consent
- with respect to the offense of aggravated sexual assault by engaging in sexual intercourse with a person who is substantially incapacitated, an accused’s burden to prove the affirmative defense of consent by a preponderance of the evidence under Article 120(c)(2), Article 120(r), Article 120(t)(14), and Article 120(t)(16), unconstitutionally shifts the burden of disproving an element of the offense to the defense; if an accused proves that the victim consented, he has necessarily proven that the victim had the capacity to consent, which logically results in the accused having disproven an element of the offense of aggravated sexual assault - that the victim was substantially incapacitated; an affirmative defense may not shift the burden of disproving any element of the offense to the defense
- where the statutory scheme with respect to the offense of aggravated sexual assault by engaging in sexual intercourse with a person who is substantially incapacitated unconstitutionally shifted the burden to the accused to negate or disprove the element of substantial incapacity and the panel was so instructed, the standard ultimate burden instructions were insufficient to resolve the constitutional issue; in addition, the unconstitutional burden shift was not cured by the military judge instructing the members that they may consider any evidence presented on the affirmative defense of consent if they found such evidence was relevant as to whether the prosecution had proven the elements of the offense beyond a reasonable doubt; such a permissive instruction is inconsistent with the CAAF’s decision in US v. Neal, 68 MJ 289, which held that where there was an overlap between the evidence pertinent to an affirmative defense and evidence negating the prosecution’s case, there was no due process violation when instructions conveyed to the members that all of the evidence, including the evidence going to the affirmative defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the government’s proof of the elements of the crime
- the second burden shift in Article 120(t)(16), UCMJ, which purports to shift the burden to the government once an accused proves an affirmative defense by a preponderance of the evidence, constitutes a legal impossibility; Article 120(t)(16), UCMJ, initially assigns the burden of proof for any affirmative defense to the accused; it then provides that after the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist; the problem with the provision is structural; if the trier of fact has found that the defense has proven an affirmative defense by a preponderance of the evidence, it is legally impossible for the prosecution to then disprove the affirmative defense beyond a reasonable doubt and there must be a finding of not guilty
- even though the MCM does not list aggravated sexual assault as a lesser included offense with respect to rape by force, the military judge properly instructed the members that aggravated sexual assault was a lesser included offense of rape by force in the context of the charge at issue
- in this case, the elements of aggravated sexual assault were necessarily included in the charge at issue, rape by force, that alleged that appellant caused the victim to engage in a sexual act, to wit: penetration of her vagina with his fingers by using power or strength or restraint applied to her person sufficient that she could not avoid or escape the sexual conduct; the first element of aggravated sexual assault - causing another person to engage in a sexual act - is the same for both offenses; the second element of aggravated sexual assault - causing bodily harm - is defined in Article 120(t)(8), UCMJ, to include an offensive touching, however slight, and that element is a subset of the force element in the offense of rape under Article 120(a), UCMJ, as defined in Article 120(t)(5)(C), UCMJ [*but note that the definitions of force in Article 120(t)(5)(A), UCMJ, and Article 120(t)(5)(B), UCMJ, which do not require an offensive touching, are not at issue in the present case]
- each circumstance set forth in the definition of force in Article 120(t)(5)(C), UCMJ, describes an act of force applied by one person against another person involving sufficient power to compel submission or overcome or prevent resistance; applying the common and ordinary understanding of the words in the statute, each act of force described in Article 120(t)(5)(C), UCMJ, at a minimum, includes an offensive touching that satisfies the bodily harm definition in Article 120(t)(8)
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Last updated by the court: Oct 13, 2026 · mirrored Oct 29, 2026 · digest page IIIA45.3 · Always confirm a holding against the opinion itself (linked from each case name).