Articles Posted in Sex Offenses

Since United States v. Hills, and then United States v. Hukill, the appellate courts have been trying to sort out quite a few cases on remand.  Here is a list of the most recent CAAF actions.

No. 18-0087/AF. U.S. v. Jonathan P. Robertson. CCA 39061. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F.2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE UNCONSTITUTIONAL PROPENSITY INSTRUCTION IN THIS CASE WAS HARMLESS BEYOND A REASONABLE DOUBT.

In United States v. Sager, the accused was convicted of abusive sexual contact because the victim was “otherwise unaware” of the acts.  The Navy-Marine Corps Court of Criminal Appeals affirmed the findings and sentence.  Appellant petitioned the CAAF.

This case is before us for a second time. The Court of Appeals for the Armed Forces (CAAF) reversed our earlier opinion affirming the appellant’s conviction for abusive sexual contact.2 At the heart of the appellate litigation in this case is a question over the interpretation of Article 120(b)(2), UCMJ, which proscribes sexual contact with people the accused knows, or reasonably should know, are incapable of consenting to the contact because they are “asleep, unconscious, or otherwise unaware” that the contact is occurring.  The unusual posture of this case after trial required us to decide whether the terms asleep, unconscious, and otherwise unaware represented distinct theories of criminal liability. In our first review of this case, we held that they do not. Rather, we held that the reasons for a victim’s lack of awareness, be it sleep, unconsciousness, or something else, were only relevant to whether the accused should have known that the victim was unaware of the contact.

The CAAF held that our interpretation was incorrect. Reversing this court, the CAAF held that “asleep, unconscious, or otherwise unaware” represents three separate theories of liability.  The CAAF also held that the term otherwise unaware means unaware in a manner different from both sleep and unconsciousness.

The Air Force Court of Criminal Appeals (AFCCA) has issued an interesting en banc (5-3) opinion in United States v. Hamilton, 76 M.J. ___ (A. F. Ct. Crim. App. 2017), about victim impact evidence or statements.

The accused pleaded guilty to the possession and distribution of child pornography.  On sentencing, as we often see in these cases, the prosecution introduced unsworn statements of the victims, all of which predated the accused’s date of offenses.  For those who haven’t been exposed to these statements, generally, they review the abuse that occurred at the time the video or image was taken and the subsequent life and health effects on the victim.  We know that courts allow such information because of the idea that a victim is re-victimized each time a person views or distributes the images–it’s essentially an ongoing crime.  Slip op. at 7-8.

I think there are several takeaways for practitioners.

I’ve been told more than once that a person doesn’t make a false allegation of rape because they have been rejected by someone they are romantically interested in.  Such denials a batguano crazy.  Take this as an example.

Following the verdict, Joanne Jakymec, chief Crown prosecutor for Wessex said: “Rebecca Palmer indulged in consensual sexual activity with the victim, but on being rejected by him embarked on a malicious campaign which led to him being arrested on more than one occasion and held in custody for periods of time.

From the Swindon Advertiser.

 

United States v. Campbell, decided by the Coast Guard Court of Criminal Appeals (9/17), presents a current look at United States v. Terlap and proper sentencing evidence.  The Appellant “that the military judge admitted improper evidence in aggravation and testimony contradictory to the stipulation of fact.”

During presentencing testimony, the military judge asked BI, “You never moved away or pushed away from the hand; it stopped voluntarily?” (R. at 129.) She answered, “I did push his hand away.” (Id.) During closing argument, defense counsel requested that the military judge not consider that testimony, as it conflicted with the stipulation of fact.

The CGCCA decided that the information did not contradict the stipulation of fact and was, likely, more of the facts and circumstances surrounding the offense to which the appellant pleaded guilty.

As I have argued, for some time in courts-martial, sex offender registration is effectively a punishment in today’s society–despite what legislators and courts say.  Well, now we have an interesting decision from the Pennsylvania Supreme Court, in a 3-1 decision, about ex post facto changes to SOR.

[T]he provisions of the state’s sex offender registration law (SORNA) [are] unconstitutional under the state and federal constitutions, according to the majority in Commonwealth v. Muniz held that 1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.

The bottom line here for me is that various courts are now holding that SOR is punitive.  I argue that as the reason an accused should be able to raise SOR requirements in sentencing and that the members should not be given a “Talkington” instruction.

In United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), the Court of Appeals for the Armed Forces decided that–

[B]ecause the evidence of the charged sexual misconduct was already admissible in order to prove the offenses at issue, the application of Military Rule of Evidence (M.R.E.) 413 — a rule of admissibility for evidence that would otherwise not be admissible — was error. Neither the text of M.R.E. 413 nor the legislative history of its federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to prove beyond a reasonable doubt in the same case.

M.R.E. 413 otherwise allows the prosecution to introduce evidence of other similar sexual offenses to “prove” a pattern of sexually assaultive behavior.  It’s profile evidence (and it’s wrong, but the law allows it).  Hills was a members case!  As a consequence, the trial and lower appellate courts were limiting Hills to members cases only and refused to apply Hills to judge alone cases–until–

So goes the post of Rep. Ratcliffe (R-TX).

Similarly, the second portion of my bill addresses enhanced sentences for individuals with prior sex offenses. Our child exploitation laws consistently call for higher sentences when a defendant has a prior conviction for federal or state sex offenses. However, these sentencing provisions do not consistently include all similar sex offense convictions that arise under the Uniform Code of Military Justice (UCMJ). My bill amends those federal child exploitation laws to include all similar child sexual exploitation offenses under the UCMJ in the recidivist provisions, as appropriate.