Article 120, UCMJ, and Mendoza

United States v. Mendoza, No. 23‑0210 (C.A.A.F. Oct. 7, 2024), along with a review of the historical evolution of Article 120, UCMJ.

The Air Force is now challenging four decisions of the Air Force Court of Criminal Appeals (AFCCA) before the Court of Appeals for the Armed Forces (CAAF) because they disagree with AFCCA setting aside Article 120, UCMJ, convictions based on the Mendoza case.

We at Cave & Freeburg, LLP, represent one of the four.

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🧑‍⚖️ Case Summary: United States v. Mendoza

• Facts: After a night of heavy drinking, JW “blacked out.” Later that night, Staff Sergeant Mendoza had sexual intercourse with her. He was charged under Article 120(b)(2)(A) for engaging in a sexual act “without the consent” of JW. The Government also argued below that though intoxicated, JW was incapable of consenting. The military judge convicted him, and the Army CCA affirmed U.S. Courts – Armed Forces+4Justia Law+4U.S. Courts – Armed Forces+4.

• Legal Challenge:

  1. Circumstantial evidence & legal sufficiency – Mendoza contended that the Government had no affirmative evidence of non-consent, relying only on JW’s intoxication.

  2. Theory conflation – He argued that the Government improperly mingled two distinct theories: non-consent under Article 120(b)(2)(A) and incapacity under Article 120(b)(3)(A), depriving him of notice and due process .

• CAAF’s Analysis:

  1. Circumstantial evidence: The Court reiterated that circumstantial evidence is valid to establish criminal elements, including lack of consent U.S. Courts – Armed Forces+7Justia Law+7Congress.gov+7.

  2. Separate statutory theories: Emphasized that subsection (b)(2)(A) (“without consent”) and (b)(3)(A) (incapacity due to intoxication) are distinct. If charged only under (b)(2)(A), the Government must prove non-consent—not merely incapacity Justia Law.

  3. Due process concern: Because the Army CCA’s opinion did not clarify which theory supported conviction, and the Government arguably conflated them, the CAAF found the legal and factual sufficiency review inadequate U.S. Courts – Armed Forces+6Justia Law+6U.S. Courts – Armed Forces+6.

  4. Disposition: Remanded to the Army CCA for a new sufficiency review under Article 66, UCMJ, assessing both legal and factual sufficiency under clear statutory guidance U.S. Courts – Armed Forces+3Justia Law+3U.S. Courts – Armed Forces+3.

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📜 History and Evolution of Article 120, UCMJ

1. Early UCMJ and Pre-2003 Origins

• The UCMJ’s original 1950 version included sexual assault prohibitions but lacked clear categories and definitions.

• Judicial interpretation was inconsistent, often relying on civilian analogs.

2. Major Reform: 2003 Rewrite

• In 2003, Congress substantially rewrote Article 120 to:

  • Eliminate confusing distinctions between rape and sodomy;

  • Introduce defined elements and graded punishments;

  • Add specific protective language for victims;

  • Classify offenses by types of coercion, threats, lack of consent, or incapacity.

3. 2019 Amendments (NDAA 2020)

• Finally codified the distinction between:

  • Non-consent (120(b)(2)(A));

  • Incapacity due to intoxication or impairment (120(b)(3)(A));

  • Capacity issues from mental disease/defect.

• These amendments emphasized prosecutorial clarity and defendant notice—laid groundwork for demanding separate treatment in both charging and proof.

4. Jurisdictional Clarity and Sufficiency Precedents

• Precedents such as United States v. Kelly and United States v. Christian emphasized that courts-martial must interpret the UCMJ’s subsections with precision to avoid reading them in overlap.

• CAAF’s holding in Mendoza reinforces the rule that each statutory subsection forms a distinct pathway to conviction, each triggering different proof burdens and notice obligations.

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🔍 Analytical Insights

1. Statutory Interpretation & Notice

   • Mendoza confirms that the Government cannot “charge one theory and argue materially different theory at trial”—doing so violates due process Justia Law+1U.S. Courts – Armed Forces+1.

2. Sufficiency Strategy in Intoxicated Sex Cases

   • While courts accept circumstantial evidence showing non-consent, such as behavior, separation, denial after the fact, a conviction under (b)(2)(A) cannot rest solely on intoxication without evidence of non-consent Justia Law.

3. Defendant’s Right to Clear Allegations

   • Criminal defendants need concrete legal notice of the theory of liability. Evidence of incapacity cannot backfill for proof of non-consent unless (b)(3)(A) is charged.

4. Procedural Remedy: Remand for New Sufficiency Review

   • Rather than dismiss, the Court remanded for proper review—leaving open the possibility of affirmation with adequate legal framing.

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Practice Points for Litigators

1. Charging Decisions Must Reflect the Theory of Liability

   • Do not charge 120(b)(2)(A) (non-consent) if your only viable theory is incapacity due to intoxication—charge under 120(b)(3)(A).

   • If both theories may apply, consider charging both, but with clearly articulated elements.

2. Discovery and Disclosure

   • Defense should seek clear Government statements of theory (e.g., in opening statements, MRE 403/412 motions, findings instructions).

   • Government must not blur theories at trial to avoid due process concerns.

3. Instructions to Panel or Military Judge

   • Ensure separate and distinct instructions are given for 120(b)(2)(A) and 120(b)(3)(A) if charged.

   • Instructions must define consent (MCM 2024 definition: “a freely given agreement”) and clarify that lack of memory ≠ lack of consent.

4. Sufficiency Reviews Must Address Statutory Theory Specifically

   • Appellate courts must conduct separate legal and factual sufficiency analysis specific to the charged theory.

   • Legal sufficiency must be based on elements actually charged and proved, not alternate inferences.

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VI. Strategic Recommendations

• For Government Counsel: Build evidence of affirmative non-consent (e.g., witness testimony, text messages, demeanor) if charging under 120(b)(2)(A).

• For Defense Counsel: Challenge charging theory if the Government’s proof tracks intoxication rather than non-consent. Move to dismiss or for a bill of particulars.

• For Military Judges: Demand prosecutorial clarity on theory; avoid ambiguous or merged jury instructions on different Article 120 subsections.

Conclusion

United States v. Mendoza clarifies a critical aspect of Article 120(b), UCMJ: the government may prosecute under either non-consent or incapacity—but must choose clearly and prove accordingly. Convicting under (b)(2)(A) based only on intoxication conflates two distinct legal provisions, potentially depriving defendants of notice and due process. Mendoza’s remand ensures these statutory distinctions are rightly enforced in courts-martial.