Simple Assault
Assault Consummated by Battery
Assaults Permitting Increased Punishment Based on Status of Victim
Assault upon a commissioned, warrant, noncommissioned, or petty officer
Assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution of law enforcement duties.
Assault consummated by a battery upon a child under 16 years.
Aggravated assault with a dangerous weapon or other means of force likely to produce death or grievous bodily harm.
-That the weapon was a loaded firearm.
-That the person was a child under the age of 16 years.)[6]
Aggravated in which grievous bodily harm is intentionally inflicted.
-That the injury was inflicted with a loaded firearm.
-That the person was a child under the age of 16 years.)
Discussion
Under the Uniform Code of Military Justice the offense of assault can be committed by one of three ways – offer, attempt, or by battery. An assault by offer places another person in reasonable apprehension of force. The act or omission can be intentional or culpably negligent. A touching is not required. An example could include pointing an unloaded person at another as a joke if the person is placed in a reasonable apprehension of injury.[7] There is no assault if the circumstances indicate to the alleged victim that the accused does not intent to inflict injury.
An assault by attempt is an overt act that constitutes more than mere preparation and is coupled with a present ability and specific intent to inflict bodily harm.[8]
An assault by battery consists of an intentional or culpably negligent use of force to another person.[9] This includes any offensive touching.
A lengthier discussion of aggravated assault is included below. The question in an aggravated assault case is most often a question of whether the force was used with a means likely to cause death or grievous bodily harm.
Practice Pointers
Mere words or threats of future violence do not constitute an offer type assault. Mere preparation does not constitute an assault.[10] Culpable negligence requires disregard for the foreseeable consequences of an act or omission.[11]
In cases involving an assault by attempt, defense counsel must investigate whether the accused had the present ability and specific intent to inflict bodily harm.
Consent is not a defense to aggravated assault. The law does not generally recognize the validity of an alleged victim’s consent to activity that is likely to result in death or grievous bodily harm. See United States v. Bygrave, 46 M.J. 491 (1997); Note 10, Military Judge’s Benchbook. In an assault case, consent obviously is not an element. The definition of a criminal battery is not an application of force to the person of another without consent, but an unlawful application of force to the person of another. United States v. Outhier, 45 M.J. 326 (1996).
Aggravated assault cases, however, have a rich appellate history of the courts examining both consent and the likelihood of death or grievous bodily harm. The law in the military generally precluding the defense of consent to aggravated assault begins to a certain extent with United States v. Holmes, 24 C.M.R. 762 (A.F.B.R. 1957) and extends to United States v. Arab, 55 M.J. 508 (A.C.C.A. 2001). In Holmes, the United States Air Force Board of Review refused to recognize consent as a defense to an allegedly sadomasochistic battery when the assaultive behavior disturbed the peace. The accused alleged that the victim took pleasure in being viciously beaten in public. The couple was not married and the assault was not sexual. Nonetheless, the A.F.B.R. cited Wharton’s Criminal Law, Twelfth Edition for the following rule:
"If the prosecutor intelligently assented, this is a good defense. Thus, if it be proved that the struggle was an amicable contest, voluntarily entered into on both sides, and not likely to produce serious hurt to either party; or that the blow was given at the prosecutor's request, to save him, as was supposed, from the prosecution of a felony; or that the assault, when the offense is sexual, was agreed to by the woman, -- the defense is good . . . On the other hand, if (a) fight has anything of the character of illegality, or it the assault be of a nature injurious to the public as well as to the party assaulted, this reasoning does not apply . . . (Sec 835. Vol 1, Wharton's Criminal Law, Twelfth Edition, matter in parenthesis inserted; also see 4 Am Jur, Assault and Battery, Sec 83; 6 CJS, Assault and Battery, Sec 90).” Holmes, 24 C.M.R at 764.
Of emphasis, Wharton’s Criminal Law, Twelfth Edition noted that when the “offense is sexual, was agreed to by the woman, - the defense [consent] is good…” Id.
The Holmes court had relied primarily on case law from the late 1800’s in Massachusetts for the rule that "[i]t is settled that to commit a battery upon a person with such violence that bodily harm is likely to result is unlawful, the consent thereto is immaterial.” Id. (citing Commonwealth v. Parker, 9 Met 263, 265, Commonwealth v Colberg, 119 Mass 350, 20 Am Rep 328; Commonwealth v Pierce, 138 Mass 165, 180, 42 Am Rep 264). It appears based on commentary, having been unable to obtain all of the opinions except Colberg, that the old Massachusetts rules involved prize fights rather than sexual relationships in a marital context. In 1876, apparently the view was that prize fights served no useful purpose (building of strength) and were unlawful even when entered into by agreement. Commonwealth v. Colberg, 119 Mas. 350 (1876).
A few years after Holmes, in United States v. Dennis, 36 C.M.R. 884 (A.F.B.R. 1966), the A.F.B.R. had continued to hold that consent to an assault or battery is not a valid defense where the act is prohibited by law, or is otherwise against public policy. Dennis involved mutual combat outside of a barracks. At this point, the military courts had not elaborated on the idea that it is against public policy to allow a person to consent to an activity that could cause death or grievous bodily harm.
There is very little helpful case law from the 1970’s. By the mid-to-late 1980’s the human immunodeficiency virus (HIV) had emerged as a deadly sexually-transmitted disease. HIV related cases required military courts to provide more analysis with respect to the law of aggravated assault. In United States v. Womack, 27 M.J. 630 (A.F.C.M.R. 1988) a court-martial conviction was upheld because an NCO willfully disobeyed an order to take affirmative acts to caution and protect future sexual partners. That same year, the A.F.C.M.R. heard United States v. Johnson, 27 M.J. 798 (A.F.C.M.R. 1988).
In 1988 there was significant debate with respect to whether HIV related cases could be prosecuted as crimes ranging from attempted murder to aggravated assault. There are even a number of cases involving failures to obey safe sex orders. In Johnson, the A.F.C.M.R. concluded that semen carrying the HIV virus constitutes a means likely to produce death or grievous bodily harm. In a footnote, the Johnson court noted commentary analogizing the victim of an HIV assault to an individual handcuffed to a briefcase full of explosives. The briefcase may never explode, or it may explode and kill the victim. The analogy is interesting because an important distinction is made in the proposed instruction that a woman who voluntarily, knowingly, and intelligently consents to sexual activity without threat or fear and who controls the amount and duration of force used during the sexual intercourse necessarily controls whether the means are likely to cause death or grievous bodily harm. The consent under those circumstances is relevant to an element of the crime. In the briefcase analogy or an HIV case, the victim has no control over his or her fate.
Defense attorneys in the early HIV cases like Johnson argued that the consent of the victim was a defense. The law began to evolve in this area. The Johnson court noted that as a threshold issue the consent in that case was uninformed. For that reason, the proposed instruction above adds an element reflecting the practical notion that consent involves a knowing and intelligent decision. But, in Johnson, the A.F.C.M.R. re-stated the law from Holmes that consent by the victim is not a valid defense when the conduct is of a nature to be injurious to the public as well as to the party assaulted. Johnson, however, did not involve the lawfulness and limits of marital intercourse or the relevance of consent to the issue of whether a particular means are likely to cause death or grievous bodily harm.
By United States v. Joseph, 33 M.J. 960, 964 (N-M.C.M.R. 1991), another HIV case, the Navy Marine Corps Court of Military Review, citing Holmes adopted the “general rule” that one cannot lawfully consent to a battery that is likely to produce death or grievous bodily harm. Again, this rule had been adopted in the military from prize fight cases in Massachusetts in the late 1800’s.
In 1993, the Air Force Court of Military Review considered the case of United States v. Wilhelm, 36 M.J. 891 (A.F.C.M.R. 1993). Wilhelm was convicted of five specifications of assault and battery upon his wife. The charges arose out of a contentious marriage in which Wilhelm was accused of hitting his wife on her face and body, pinching her breasts, choking her, and biting her buttocks. The defense was horseplay, mutual combat, or that the blows in question were unintentional. The Military Judge precluded the defense from offering evidence of self-defense.
The A.F.C.M.R. affirmed that self-defense is not a defense in a mutual affray – both parties are wrongdoers. In that regard, Wilhelm is not particularly helpful other than to highlight the distinction that rough, consensual, marital intercourse would not constitute a mutual affray.
The current Benchbook instruction relies on the Court of Appeals for the Armed Forces 1997 decision in Bygrave for the general rule that when the assault involves a means likely to produce death or grievous bodily harm, the law does not recognize consent as a defense. United States v. Bygrave, 46 M.J. 491 (1997). Bygrave, of course, was another HIV related case. But, in Bygrave, for the first time the court examined the question of whether informed consent provides a defense to a prosecution under Article 128.
There is another important distinction to be made in an aggravated assault case. The standard for determining whether an instrumentality is a means likely to produce death or grievous bodily harm involves two prongs: (1) the risk of harm, and (2) the magnitude of harm. United States v. Weatherspoon, 49 M.J. 209 (1998). The risk of harm is largely a statistical analysis. Id. The HIV cases largely deal with the risk of harm – the likelihood that HIV will be transmitted and that the victim will develop Acquired Immune Deficiency Syndrome. The magnitude of harm was never an issue in the HIV cases. Here, the defense is arguing that unlike the HIV cases, consent negates that magnitude of the harm prong.
At oral argument in Bygrave, the appellant suggested that consent negated the element that the assault be perpetrated with unlawful force or violence as opposed to the issue of whether HIV is likely to cause death or grievous bodily harm. The Bygrave court, citing the line of decisions starting with Johnson, affirmed that “an act of sexual intercourse may in some circumstances be an ‘offensive touching’…even in the absence of overt coercion or violence.” Bygrave, 46 M.J. at 494. Stated otherwise, the Court indicated that acts of consensual sexual intercourse are not presumptively offensive touching.
In one particular case many years ago, the authors received the following novel instruction from a military judge (and an acquittal from the panel):
“Consent may be defense to the offense of assault consummated by a battery. A spouse may consent to being choked during an act of sexual intercourse provided that the force used by the accused is less than that force likely to produce death or grievous bodily harm.”
The Bygrave court also analyzed the constitutional arguments. In Bygrave the Court provided the following discussion on the Constitutional issues:
“There can be no doubt that certain aspects of reproductive behavior are safeguarded by a constitutional right to privacy, which has been variously located in the Due Process Clause, the Ninth Amendment, and the "penumbra" of the rights set forth in the Bill of Rights. See, e.g., Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973) (holding that women have right to terminate pregnancies); Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965) (holding that married persons have right to use contraceptives)….
This Court's prior decisions provide additional guideposts, but do not conclusively establish whether appellant's conduct falls within a constitutionally protected zone of privacy. We have previously held, for instance, that no constitutional right to privacy safeguards heterosexual oral sex between consenting adults. United States v. Henderson, 34 M.J. 174 (CMA 1992). However, the present case may be distinguishable insofar as appellant's conviction was based on heterosexual vaginal intercourse. On the other hand, the fact that appellant was unmarried at the time of these sex acts may also be of constitutional significance. See United States v. Scoby, 5 M.J. 160, 166 (CMA 1978) (holding that Constitution does not protect acts of oral sex between unmarried adults, but declining to address whether an exception would exist for a married couple); cf. Bowers, 478 U.S. at 190-91 (observing that Supreme Court's privacy decisions have been limited to contexts of "family, marriage, [and] procreation"). But cf. Eisenstadt v. Baird, 405 U.S. 438, 453, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972) ("If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."). In sum, framing the question as to whether the constitutional right of privacy encompasses private acts of heterosexual intercourse between unmarried adults, our prior decisions provide no conclusive answer.” Id. at 496.
The Court then went on to assess the governmental interest counterbalancing the proposed right. If a compelling interest may be identified, government action must be narrowly tailored to advance the relevant interest. The Court stated that ‘[w]here the life of one servicemember is put into serious jeopardy by the act of another servicemember, we must generally conclude that the Government has a compelling interest in proscribing the act…” The Court was primarily concerned with the health implications and costs associated with HIV. The Court specifically avoided the distinction, however, of whether the interests would change in the context of a marital relationship.
The most well-known case on the subject is United States v. Arab, 55 M.J. 508 (A.C.C.A. 2001). Arab was convicted of six specifications of the lesser included offense of assault consummated by battery. It is important to note that consent is ordinarily a defense to assault consummated by battery.
Arab engaged in bondage, burning, slapping, and hair-pulling. His wife was always the recipient. Arab would refuse to stop when she cried. He would choke her during fellatio and burn her with cigarettes. One night, Arab got drunk, ordered her to take her clothes off, and tied her hands behind her back with plastic bands. Her hands went numb. She was forced to lie on the floor and perform fellatio. Arab dragged her into the bedroom by her hair and directed her to straddle him. He slapped her and made cuts on her abdomen with a knife. He burned a line extending from her upper chest to her abdomen. He carved his name in block letters on her buttock. She cried and said no. A week later, following an argument, his wife fled to a woman’s shelter. When she returned to the house, Arab told her he was going to make her pay for taking their daughter to a shelter. He dragged her into the shower by her hair and forcibly scrubbed her. The daughter witnessed it. He dragged her by her hair back into the bedroom and had sex with her with her hands tied behind her back with her face resting on the bed. He then stabbed her in the buttock again with a knife.
On appeal, Arab argued that his wife consented or that he mistakenly believed that she consented. The Army Court of Criminal Appeals noted that the case intertwined questions of law and fact. If consent was a defense, then mistake of fact was a defense. The Court found that the issue of consent was relevant to whether a touching is offensive and whether it is unlawful. The Courts again did not analyze whether consent is relevant to the issue of whether a means is likely to cause death or grievous bodily harm. The Court also distinguished between actual consent and lawful consent – at that time in the law one could not lawfully consent to sex with an HIV-positive partner for instance.
In Arab, the Army Court of Criminal Appeals wrote:
“Like our superior court in Bygrave, we recognize that a right to privacy in a marital relationship certainly exists in a military context as well as a civilian one. We are unwilling, however, to recognize consent as a defense to the appellant's acts which caused injuries of the nature and scope sustained by Christine, even though the appellant's acts may not have constituted aggravated assaults. Borrowing from the rationale of the parental discipline cases, the means the appellant used and the nature of the injuries he inflicted suggest that Christine was subjected to a substantial likelihood of disfigurement or extreme pain…”Id. at 519.
The language in Arab is interesting, as it incorporates elements not necessarily found in the aggravated assault statute (substantial likelihood of disfigurement or extreme pain). The point is probably academic, as the Military Judge properly found Arab guilty only of the lesser-included offense of assault consummated by battery. Nonetheless, Arab is important for the recognition that the right to privacy in a marital relationship exists even in the military.
Clearly, in Arab, the victim sustained serious injuries including multiple stabbings. Though the definition of grievous bodily harm includes deep cuts, the Military Judge found Arab guilty only of the assault consummated by battery. The Military Judge clearly and justly resisted the temptation to exaggerate the seriousness of Christine’s injuries. One commentator has noted that “courts have managed to find ‘serious harm’ in virtually every single case, irrespective of the extent of injuries…courts commonly exaggerate the seriousness of injury or pain and the risk of harm in order to condemn an unwanted activity.” Bergelson, Vera. “The Right to Be Hurt: Testing the Boundaries of Consent.” Geo. Wash. L. Rev. 165, 178 (February 2007).
In Arab, the Court suggested in dicta that there are limits as to the degree of sadomasochism legally permissible in a marital relationship. This case, however, involves submission and force fantasies unlike any conduct described in Arab. The type of martial conduct in this case does not rise to the level of sado-masochistic activity. The essential difference is that the alleged victim controls the amount and duration of force used in order to maximize her sexual pleasure. In Arab, Christine was at the mercy of her deranged husband – there were two sanity boards in that case.
Maximum Punishment
Simple assault: Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. When committed with an unloaded firearm, dishonorable discharge, forfeiture of all pay and allowances and confinement for 3 years.
Assault consummated by a battery: Bad conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.
Assault upon a commissioned, warrant, noncommissioned, or petty officer: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months.
Assault upon a sentinel or lookout in the execution of duty or upon a person in the execution of police duties: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
Assault consummated by a battery upon a child under 16 years: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm: When committed with a loaded firearm – dishonorable discharge, forfeiture of all pay and allowances, and confinement for 8 years. When committed upon a child under 16 years – dishonorable discharge, total forfeitures, and confinement for 5 years. In other cases, dishonorable discharge, total forfeitures, and confinement for 3 years.
Assault in which grievous bodily harm is intentionally inflicted: When the injury is with a loaded firearm, dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. When the victim is under 16 years, dishonorable discharge, total forfeitures, and confinement for 8 years. In other cases, dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
Lesser Included Offenses
Simple assault: None.
Assault consummated by a battery: Simple assault.
Assault upon a commissioned, warrant, noncommissioned, or petty officer: Simple assault or assault consummated by a battery.
Assault upon a sentinel or lookout in the execution of duty or upon a person in the execution of police duties: Simple assault or assault consummated by a battery.
Assault consummated by a battery upon a child under 16 years: Simple assault or assault consummated by a battery.
Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm: Simple assault or assault consummated by a battery.
Assault in which grievous bodily harm is intentionally inflicted: Simple assault, assault consummated by a battery, and assault with a dangerous weapon.
[1] MCM, Pt. IV, ¶ 54a.
[2] MCM, Pt. IV, ¶ 54a.
[3] MCM, Pt. IV, ¶ 54a.
[4] MCM, Pt. IV, ¶ 54a.
[5] MCM, Pt. IV, ¶ 54a.
[6] MCM, Pt. IV, ¶ 54a.
[7] United States v. Bush, 47 C.M.R. 532 (N.C.M.R. 1973).
[8] MCM, Pt. IV, ¶ 54c.
[9] MCM, Pt. IV, ¶ 54c.
[10] MCM, Pt. IV, ¶ 54c.
[11] MCM, Pt. IV, ¶ 44c(2)(a)(i).
[12] Military Judges Benchbook, ¶ 3-54-1 – Simple Assault.
[13] Military Judges Benchbook, ¶ 3-54-1a – Simple Assault with an Unloaded Firearm.
[14] Military Judges Benchbook, ¶ 3-54-2 – Assault Consummated by Battery.
[15] Military Judges Benchbook, ¶ 3-54-3 – Assault Upon a Commissioned Officer.
[16] Military Judges Benchbook, ¶ 3-54-4 – Assault Upon a Warrant, Noncommissioned, or Petty Officer.
[17] Military Judges Benchbook, ¶ 3-54-5 – Assault Upon a Sentinel or Lookout.
[18] Military Judges Benchbook, ¶ 3-54-6 – Assault Upon a Peron in the Execution of Law Enforcement Duties.
[19] Military Judges Benchbook, ¶ 3-54-7 – Assault Consummated by a Battery Upon a Child Under 16 Years.
[20] Military Judges Benchbook, ¶ 3-54-8 – Assault Aggravated – with a Dangerous Weapon, Means or Force.
[21] Military Judges Benchbook, ¶ 3-54-9 – Assault Aggravated – Inflicting Grievous Bodily Harm.
- That the accused attempted or offered to do bodily harm to a certain person; and,
- That the attempt or offer was done with unlawful force or violence.[1]
Assault Consummated by Battery
- That the accused did bodily harm to a certain person; and,
- That the bodily harm was done with unlawful force or violence.[2]
Assaults Permitting Increased Punishment Based on Status of Victim
Assault upon a commissioned, warrant, noncommissioned, or petty officer
- That the accused attempted to do, offered to do, or did bodily harm to a certain person;
- That the attempt, offer, or bodily harm was done with unlawful force or violence;
- That the person was a commissioned, warrant, noncommissioned, or petty officer; and,
- That the accused then knew that the person was a commissioned, warrant, noncommissioned, or petty officer.[3]
Assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution of law enforcement duties.
- That the accused attempted to do, offered to do, or did bodily harm to a certain person;
- That the attempt, offer, or bodily harm was done with unlawful force or violence;
- That the person was a sentinel or lookout in the execution of duty or was a person who then had and was in the execution of security police, military police, shore patrol, master at arms, or other military or civilian law enforcement duties; and,
- That the accused then knew that the person was a sentinel or lookout in the execution of duty or was a person who then had and was in the execution of security police, military police, shore patrol, master at arms, or other military or civilian law enforcement duties.[4]
Assault consummated by a battery upon a child under 16 years.
- That the accused did bodily harm to a certain person;
- That the bodily harm was done with unlawful force or violence; and,
- That the person was then a child under the age of 16 years.[5]
Aggravated assault with a dangerous weapon or other means of force likely to produce death or grievous bodily harm.
- That the accused attempted to do, offered to do, or did bodily harm to a certain person;
- That the accused did so with a certain weapon, means, or force;
- The attempt, offer, or bodily harm was done with unlawful force or violence; and,
- That the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm.
-That the weapon was a loaded firearm.
-That the person was a child under the age of 16 years.)[6]
Aggravated in which grievous bodily harm is intentionally inflicted.
- That the accused assaulted a certain person;
- That grievous bodily harm was thereby inflicted upon such person;
- That the grievous bodily harm was done with unlawful force or violence; and,
- That the accused, at the time, had the specific intent to inflict grievous bodily harm.
-That the injury was inflicted with a loaded firearm.
-That the person was a child under the age of 16 years.)
Discussion
Under the Uniform Code of Military Justice the offense of assault can be committed by one of three ways – offer, attempt, or by battery. An assault by offer places another person in reasonable apprehension of force. The act or omission can be intentional or culpably negligent. A touching is not required. An example could include pointing an unloaded person at another as a joke if the person is placed in a reasonable apprehension of injury.[7] There is no assault if the circumstances indicate to the alleged victim that the accused does not intent to inflict injury.
An assault by attempt is an overt act that constitutes more than mere preparation and is coupled with a present ability and specific intent to inflict bodily harm.[8]
An assault by battery consists of an intentional or culpably negligent use of force to another person.[9] This includes any offensive touching.
A lengthier discussion of aggravated assault is included below. The question in an aggravated assault case is most often a question of whether the force was used with a means likely to cause death or grievous bodily harm.
Practice Pointers
Mere words or threats of future violence do not constitute an offer type assault. Mere preparation does not constitute an assault.[10] Culpable negligence requires disregard for the foreseeable consequences of an act or omission.[11]
In cases involving an assault by attempt, defense counsel must investigate whether the accused had the present ability and specific intent to inflict bodily harm.
Consent is not a defense to aggravated assault. The law does not generally recognize the validity of an alleged victim’s consent to activity that is likely to result in death or grievous bodily harm. See United States v. Bygrave, 46 M.J. 491 (1997); Note 10, Military Judge’s Benchbook. In an assault case, consent obviously is not an element. The definition of a criminal battery is not an application of force to the person of another without consent, but an unlawful application of force to the person of another. United States v. Outhier, 45 M.J. 326 (1996).
Aggravated assault cases, however, have a rich appellate history of the courts examining both consent and the likelihood of death or grievous bodily harm. The law in the military generally precluding the defense of consent to aggravated assault begins to a certain extent with United States v. Holmes, 24 C.M.R. 762 (A.F.B.R. 1957) and extends to United States v. Arab, 55 M.J. 508 (A.C.C.A. 2001). In Holmes, the United States Air Force Board of Review refused to recognize consent as a defense to an allegedly sadomasochistic battery when the assaultive behavior disturbed the peace. The accused alleged that the victim took pleasure in being viciously beaten in public. The couple was not married and the assault was not sexual. Nonetheless, the A.F.B.R. cited Wharton’s Criminal Law, Twelfth Edition for the following rule:
"If the prosecutor intelligently assented, this is a good defense. Thus, if it be proved that the struggle was an amicable contest, voluntarily entered into on both sides, and not likely to produce serious hurt to either party; or that the blow was given at the prosecutor's request, to save him, as was supposed, from the prosecution of a felony; or that the assault, when the offense is sexual, was agreed to by the woman, -- the defense is good . . . On the other hand, if (a) fight has anything of the character of illegality, or it the assault be of a nature injurious to the public as well as to the party assaulted, this reasoning does not apply . . . (Sec 835. Vol 1, Wharton's Criminal Law, Twelfth Edition, matter in parenthesis inserted; also see 4 Am Jur, Assault and Battery, Sec 83; 6 CJS, Assault and Battery, Sec 90).” Holmes, 24 C.M.R at 764.
Of emphasis, Wharton’s Criminal Law, Twelfth Edition noted that when the “offense is sexual, was agreed to by the woman, - the defense [consent] is good…” Id.
The Holmes court had relied primarily on case law from the late 1800’s in Massachusetts for the rule that "[i]t is settled that to commit a battery upon a person with such violence that bodily harm is likely to result is unlawful, the consent thereto is immaterial.” Id. (citing Commonwealth v. Parker, 9 Met 263, 265, Commonwealth v Colberg, 119 Mass 350, 20 Am Rep 328; Commonwealth v Pierce, 138 Mass 165, 180, 42 Am Rep 264). It appears based on commentary, having been unable to obtain all of the opinions except Colberg, that the old Massachusetts rules involved prize fights rather than sexual relationships in a marital context. In 1876, apparently the view was that prize fights served no useful purpose (building of strength) and were unlawful even when entered into by agreement. Commonwealth v. Colberg, 119 Mas. 350 (1876).
A few years after Holmes, in United States v. Dennis, 36 C.M.R. 884 (A.F.B.R. 1966), the A.F.B.R. had continued to hold that consent to an assault or battery is not a valid defense where the act is prohibited by law, or is otherwise against public policy. Dennis involved mutual combat outside of a barracks. At this point, the military courts had not elaborated on the idea that it is against public policy to allow a person to consent to an activity that could cause death or grievous bodily harm.
There is very little helpful case law from the 1970’s. By the mid-to-late 1980’s the human immunodeficiency virus (HIV) had emerged as a deadly sexually-transmitted disease. HIV related cases required military courts to provide more analysis with respect to the law of aggravated assault. In United States v. Womack, 27 M.J. 630 (A.F.C.M.R. 1988) a court-martial conviction was upheld because an NCO willfully disobeyed an order to take affirmative acts to caution and protect future sexual partners. That same year, the A.F.C.M.R. heard United States v. Johnson, 27 M.J. 798 (A.F.C.M.R. 1988).
In 1988 there was significant debate with respect to whether HIV related cases could be prosecuted as crimes ranging from attempted murder to aggravated assault. There are even a number of cases involving failures to obey safe sex orders. In Johnson, the A.F.C.M.R. concluded that semen carrying the HIV virus constitutes a means likely to produce death or grievous bodily harm. In a footnote, the Johnson court noted commentary analogizing the victim of an HIV assault to an individual handcuffed to a briefcase full of explosives. The briefcase may never explode, or it may explode and kill the victim. The analogy is interesting because an important distinction is made in the proposed instruction that a woman who voluntarily, knowingly, and intelligently consents to sexual activity without threat or fear and who controls the amount and duration of force used during the sexual intercourse necessarily controls whether the means are likely to cause death or grievous bodily harm. The consent under those circumstances is relevant to an element of the crime. In the briefcase analogy or an HIV case, the victim has no control over his or her fate.
Defense attorneys in the early HIV cases like Johnson argued that the consent of the victim was a defense. The law began to evolve in this area. The Johnson court noted that as a threshold issue the consent in that case was uninformed. For that reason, the proposed instruction above adds an element reflecting the practical notion that consent involves a knowing and intelligent decision. But, in Johnson, the A.F.C.M.R. re-stated the law from Holmes that consent by the victim is not a valid defense when the conduct is of a nature to be injurious to the public as well as to the party assaulted. Johnson, however, did not involve the lawfulness and limits of marital intercourse or the relevance of consent to the issue of whether a particular means are likely to cause death or grievous bodily harm.
By United States v. Joseph, 33 M.J. 960, 964 (N-M.C.M.R. 1991), another HIV case, the Navy Marine Corps Court of Military Review, citing Holmes adopted the “general rule” that one cannot lawfully consent to a battery that is likely to produce death or grievous bodily harm. Again, this rule had been adopted in the military from prize fight cases in Massachusetts in the late 1800’s.
In 1993, the Air Force Court of Military Review considered the case of United States v. Wilhelm, 36 M.J. 891 (A.F.C.M.R. 1993). Wilhelm was convicted of five specifications of assault and battery upon his wife. The charges arose out of a contentious marriage in which Wilhelm was accused of hitting his wife on her face and body, pinching her breasts, choking her, and biting her buttocks. The defense was horseplay, mutual combat, or that the blows in question were unintentional. The Military Judge precluded the defense from offering evidence of self-defense.
The A.F.C.M.R. affirmed that self-defense is not a defense in a mutual affray – both parties are wrongdoers. In that regard, Wilhelm is not particularly helpful other than to highlight the distinction that rough, consensual, marital intercourse would not constitute a mutual affray.
The current Benchbook instruction relies on the Court of Appeals for the Armed Forces 1997 decision in Bygrave for the general rule that when the assault involves a means likely to produce death or grievous bodily harm, the law does not recognize consent as a defense. United States v. Bygrave, 46 M.J. 491 (1997). Bygrave, of course, was another HIV related case. But, in Bygrave, for the first time the court examined the question of whether informed consent provides a defense to a prosecution under Article 128.
There is another important distinction to be made in an aggravated assault case. The standard for determining whether an instrumentality is a means likely to produce death or grievous bodily harm involves two prongs: (1) the risk of harm, and (2) the magnitude of harm. United States v. Weatherspoon, 49 M.J. 209 (1998). The risk of harm is largely a statistical analysis. Id. The HIV cases largely deal with the risk of harm – the likelihood that HIV will be transmitted and that the victim will develop Acquired Immune Deficiency Syndrome. The magnitude of harm was never an issue in the HIV cases. Here, the defense is arguing that unlike the HIV cases, consent negates that magnitude of the harm prong.
At oral argument in Bygrave, the appellant suggested that consent negated the element that the assault be perpetrated with unlawful force or violence as opposed to the issue of whether HIV is likely to cause death or grievous bodily harm. The Bygrave court, citing the line of decisions starting with Johnson, affirmed that “an act of sexual intercourse may in some circumstances be an ‘offensive touching’…even in the absence of overt coercion or violence.” Bygrave, 46 M.J. at 494. Stated otherwise, the Court indicated that acts of consensual sexual intercourse are not presumptively offensive touching.
In one particular case many years ago, the authors received the following novel instruction from a military judge (and an acquittal from the panel):
“Consent may be defense to the offense of assault consummated by a battery. A spouse may consent to being choked during an act of sexual intercourse provided that the force used by the accused is less than that force likely to produce death or grievous bodily harm.”
The Bygrave court also analyzed the constitutional arguments. In Bygrave the Court provided the following discussion on the Constitutional issues:
“There can be no doubt that certain aspects of reproductive behavior are safeguarded by a constitutional right to privacy, which has been variously located in the Due Process Clause, the Ninth Amendment, and the "penumbra" of the rights set forth in the Bill of Rights. See, e.g., Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973) (holding that women have right to terminate pregnancies); Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965) (holding that married persons have right to use contraceptives)….
This Court's prior decisions provide additional guideposts, but do not conclusively establish whether appellant's conduct falls within a constitutionally protected zone of privacy. We have previously held, for instance, that no constitutional right to privacy safeguards heterosexual oral sex between consenting adults. United States v. Henderson, 34 M.J. 174 (CMA 1992). However, the present case may be distinguishable insofar as appellant's conviction was based on heterosexual vaginal intercourse. On the other hand, the fact that appellant was unmarried at the time of these sex acts may also be of constitutional significance. See United States v. Scoby, 5 M.J. 160, 166 (CMA 1978) (holding that Constitution does not protect acts of oral sex between unmarried adults, but declining to address whether an exception would exist for a married couple); cf. Bowers, 478 U.S. at 190-91 (observing that Supreme Court's privacy decisions have been limited to contexts of "family, marriage, [and] procreation"). But cf. Eisenstadt v. Baird, 405 U.S. 438, 453, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972) ("If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."). In sum, framing the question as to whether the constitutional right of privacy encompasses private acts of heterosexual intercourse between unmarried adults, our prior decisions provide no conclusive answer.” Id. at 496.
The Court then went on to assess the governmental interest counterbalancing the proposed right. If a compelling interest may be identified, government action must be narrowly tailored to advance the relevant interest. The Court stated that ‘[w]here the life of one servicemember is put into serious jeopardy by the act of another servicemember, we must generally conclude that the Government has a compelling interest in proscribing the act…” The Court was primarily concerned with the health implications and costs associated with HIV. The Court specifically avoided the distinction, however, of whether the interests would change in the context of a marital relationship.
The most well-known case on the subject is United States v. Arab, 55 M.J. 508 (A.C.C.A. 2001). Arab was convicted of six specifications of the lesser included offense of assault consummated by battery. It is important to note that consent is ordinarily a defense to assault consummated by battery.
Arab engaged in bondage, burning, slapping, and hair-pulling. His wife was always the recipient. Arab would refuse to stop when she cried. He would choke her during fellatio and burn her with cigarettes. One night, Arab got drunk, ordered her to take her clothes off, and tied her hands behind her back with plastic bands. Her hands went numb. She was forced to lie on the floor and perform fellatio. Arab dragged her into the bedroom by her hair and directed her to straddle him. He slapped her and made cuts on her abdomen with a knife. He burned a line extending from her upper chest to her abdomen. He carved his name in block letters on her buttock. She cried and said no. A week later, following an argument, his wife fled to a woman’s shelter. When she returned to the house, Arab told her he was going to make her pay for taking their daughter to a shelter. He dragged her into the shower by her hair and forcibly scrubbed her. The daughter witnessed it. He dragged her by her hair back into the bedroom and had sex with her with her hands tied behind her back with her face resting on the bed. He then stabbed her in the buttock again with a knife.
On appeal, Arab argued that his wife consented or that he mistakenly believed that she consented. The Army Court of Criminal Appeals noted that the case intertwined questions of law and fact. If consent was a defense, then mistake of fact was a defense. The Court found that the issue of consent was relevant to whether a touching is offensive and whether it is unlawful. The Courts again did not analyze whether consent is relevant to the issue of whether a means is likely to cause death or grievous bodily harm. The Court also distinguished between actual consent and lawful consent – at that time in the law one could not lawfully consent to sex with an HIV-positive partner for instance.
In Arab, the Army Court of Criminal Appeals wrote:
“Like our superior court in Bygrave, we recognize that a right to privacy in a marital relationship certainly exists in a military context as well as a civilian one. We are unwilling, however, to recognize consent as a defense to the appellant's acts which caused injuries of the nature and scope sustained by Christine, even though the appellant's acts may not have constituted aggravated assaults. Borrowing from the rationale of the parental discipline cases, the means the appellant used and the nature of the injuries he inflicted suggest that Christine was subjected to a substantial likelihood of disfigurement or extreme pain…”Id. at 519.
The language in Arab is interesting, as it incorporates elements not necessarily found in the aggravated assault statute (substantial likelihood of disfigurement or extreme pain). The point is probably academic, as the Military Judge properly found Arab guilty only of the lesser-included offense of assault consummated by battery. Nonetheless, Arab is important for the recognition that the right to privacy in a marital relationship exists even in the military.
Clearly, in Arab, the victim sustained serious injuries including multiple stabbings. Though the definition of grievous bodily harm includes deep cuts, the Military Judge found Arab guilty only of the assault consummated by battery. The Military Judge clearly and justly resisted the temptation to exaggerate the seriousness of Christine’s injuries. One commentator has noted that “courts have managed to find ‘serious harm’ in virtually every single case, irrespective of the extent of injuries…courts commonly exaggerate the seriousness of injury or pain and the risk of harm in order to condemn an unwanted activity.” Bergelson, Vera. “The Right to Be Hurt: Testing the Boundaries of Consent.” Geo. Wash. L. Rev. 165, 178 (February 2007).
In Arab, the Court suggested in dicta that there are limits as to the degree of sadomasochism legally permissible in a marital relationship. This case, however, involves submission and force fantasies unlike any conduct described in Arab. The type of martial conduct in this case does not rise to the level of sado-masochistic activity. The essential difference is that the alleged victim controls the amount and duration of force used in order to maximize her sexual pleasure. In Arab, Christine was at the mercy of her deranged husband – there were two sanity boards in that case.
Maximum Punishment
Simple assault: Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. When committed with an unloaded firearm, dishonorable discharge, forfeiture of all pay and allowances and confinement for 3 years.
Assault consummated by a battery: Bad conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.
Assault upon a commissioned, warrant, noncommissioned, or petty officer: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months.
Assault upon a sentinel or lookout in the execution of duty or upon a person in the execution of police duties: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
Assault consummated by a battery upon a child under 16 years: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm: When committed with a loaded firearm – dishonorable discharge, forfeiture of all pay and allowances, and confinement for 8 years. When committed upon a child under 16 years – dishonorable discharge, total forfeitures, and confinement for 5 years. In other cases, dishonorable discharge, total forfeitures, and confinement for 3 years.
Assault in which grievous bodily harm is intentionally inflicted: When the injury is with a loaded firearm, dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. When the victim is under 16 years, dishonorable discharge, total forfeitures, and confinement for 8 years. In other cases, dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
Lesser Included Offenses
Simple assault: None.
Assault consummated by a battery: Simple assault.
Assault upon a commissioned, warrant, noncommissioned, or petty officer: Simple assault or assault consummated by a battery.
Assault upon a sentinel or lookout in the execution of duty or upon a person in the execution of police duties: Simple assault or assault consummated by a battery.
Assault consummated by a battery upon a child under 16 years: Simple assault or assault consummated by a battery.
Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm: Simple assault or assault consummated by a battery.
Assault in which grievous bodily harm is intentionally inflicted: Simple assault, assault consummated by a battery, and assault with a dangerous weapon.
[1] MCM, Pt. IV, ¶ 54a.
[2] MCM, Pt. IV, ¶ 54a.
[3] MCM, Pt. IV, ¶ 54a.
[4] MCM, Pt. IV, ¶ 54a.
[5] MCM, Pt. IV, ¶ 54a.
[6] MCM, Pt. IV, ¶ 54a.
[7] United States v. Bush, 47 C.M.R. 532 (N.C.M.R. 1973).
[8] MCM, Pt. IV, ¶ 54c.
[9] MCM, Pt. IV, ¶ 54c.
[10] MCM, Pt. IV, ¶ 54c.
[11] MCM, Pt. IV, ¶ 44c(2)(a)(i).
[12] Military Judges Benchbook, ¶ 3-54-1 – Simple Assault.
[13] Military Judges Benchbook, ¶ 3-54-1a – Simple Assault with an Unloaded Firearm.
[14] Military Judges Benchbook, ¶ 3-54-2 – Assault Consummated by Battery.
[15] Military Judges Benchbook, ¶ 3-54-3 – Assault Upon a Commissioned Officer.
[16] Military Judges Benchbook, ¶ 3-54-4 – Assault Upon a Warrant, Noncommissioned, or Petty Officer.
[17] Military Judges Benchbook, ¶ 3-54-5 – Assault Upon a Sentinel or Lookout.
[18] Military Judges Benchbook, ¶ 3-54-6 – Assault Upon a Peron in the Execution of Law Enforcement Duties.
[19] Military Judges Benchbook, ¶ 3-54-7 – Assault Consummated by a Battery Upon a Child Under 16 Years.
[20] Military Judges Benchbook, ¶ 3-54-8 – Assault Aggravated – with a Dangerous Weapon, Means or Force.
[21] Military Judges Benchbook, ¶ 3-54-9 – Assault Aggravated – Inflicting Grievous Bodily Harm.
