Abusive Sexual Contact Offense
Abusive Sexual Contact is an offense under Article 120(d). If you are charged with this offense, it is important that you understand the charge and how your military or civilian defense counsel should defend you.
If you look on your charge sheet, you should see a charge with a specification alleging the abusive sexual contact offense. The specification will contain the elements that the government must prove beyond reasonable doubt in order for you to be found guilty. The elements that government will need to prove are:
(1) That (the time and place alleged for the offense), the accused [committed sexual contact upon] [caused sexual contact by] (state the name of the alleged victim), to wit: (state the act(s) alleged); and
[(2)] That the accused did so by:
(a) causing bodily harm to (state the name of the alleged victim), to wit: (state the bodily harm alleged).
(b) threatening or placing (state the name of the alleged victim) in fear that (state the threatened wrongful action).
(c) making a fraudulent representation that the sexual contact served a professional purpose.
(d) inducing a belief by artifice, pretense, or concealment that the accused was another person.
[(2)] That the accused did so when:
(a) he knew or reasonably should have known that (state the name of the person alleged) was (asleep) (or) (unconscious) (or) (otherwise unaware that the sexual contact was occurring).
(b) (state the name of the alleged victim) was incapable of consenting to the sexual contact due to (impairment by a drug, intoxicant, or other similar substance,) (a mental disease or defect, or physical disability,) and that condition was known or reasonably should have been known by the accused.
When the same physical act is alleged as both the actus reus (the criminal act) and the bodily harm for the charged sexual contact, then lack of consent becomes an element of the offense.
[(3)] That the accused did so without the consent of (state the name of the alleged victim).
An issue that tends to come up frequently in abusive sexual contact cases is whether the alleged victim was asleep, unconscious, or otherwise unaware of the sexual contact. Your military or civilian defense counsel needs to be aware of the ways to defend you in cases involving an allegation that the alleged victim was sleeping, unconscious, or otherwise unaware. In such cases, it will be very important that your attorney conducts a thorough investigation and prepares a defense that considers not only the facts, but how events had to have happened to make sense. Too often, military or civilian defense counsel either concentrate on the wrong facts or fail to make connections that would undercut an alleged victim’s story.
In addition to knowing how to use the facts of a case, your military or civilian counsel should also be aware of any relevant case law dealing with abusive sexual contact offenses. For instance, the Court of Appeals for the Armed Forces (CAAF) on 21 March 2017 decided the case of United States v. Sager (link to slip opinion) on 21 March 2017. In this case, CAAF concluded that the language “asleep, unconscious, or otherwise unaware” creates three separate theories under which a Soldier may be convicted. A military or civilian defense counsel needs to understand the potential impact of this case.
If you would like a civilian defense lawyer’s assistance with defending you at a court-martial, contact Mr. Coombs today for a free consultation. Mr. Coombs is a civilian defense lawyer with over 20 years of experience. He specializes in defending only Army Soldiers.