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Tim Bilecki

Clarifying Jury Instructions in Military Sexual Assault Cases: Insights from United States v. Mendoza

The United States v. Mendoza ruling by the Court of Appeals for the Armed Forces (CAAF) has far-reaching consequences for military sexual assault cases, particularly those involving charges under Article 120(b)(2)(A) (sexual assault without consent) and Article 120(b)(3)(A) (sexual assault when the alleged victim is incapable of consenting). Defense attorneys must now be even more diligent in ensuring that jury instructions are clear and accurately reflect the distinctions between these two separate offenses.

This blog outlines the key aspects of the Mendoza decision and offers practical guidance on how to request tailored jury instructions when these charges are brought in the alternative, ensuring that the court members understand and apply the law correctly.

Distinguishing Between Article 120(b)(2)(A) and Article 120(b)(3)(A)

Under Article 120, there are multiple ways the government may prove the offense of sexual assault, but the two most common theories charged in the alternative are:

  • Article 120(b)(2)(A): This provision criminalizes sexual acts committed without the consent of the other person, where the alleged victim was capable of consenting but did not.
  • Article 120(b)(3)(A): This provision criminalizes sexual acts committed when the other person was incapable of consenting due to impairment by alcohol or drugs, and the accused knew or should have known about this incapacity.

The Mendoza decision emphasized that these are distinct theories of liability with different elements, and the jury must be instructed accordingly.

The Mendoza Ruling: Clear Boundaries Between Theories of Liability

The CAAF ruling in Mendoza directly addresses the prosecution’s common practice of conflating the two theories by using evidence of intoxication to establish both a lack of consent under Article 120(b)(2)(A) and incapacity under Article 120(b)(3)(A). The court ruled that this approach is impermissible, as it effectively removes the mens rea requirement for proving incapacity under Article 120(b)(3)(A).

The CAAF’s decision made it clear: prosecutors cannot rely on evidence of intoxication alone to prove a lack of consent under Article 120(b)(2)(A). Each charge requires separate evidence and proof to meet the government’s burden.

Why Jury Instructions Matter

In cases where these two offenses are charged in the alternative, the defense must ensure that the jury receives clear instructions distinguishing between the theories of liability. Without precise instructions, jurors may mistakenly convict the accused of sexual assault without consent (Article 120(b)(2)(A)) based on evidence that the alleged victim was incapable of consenting, which would circumvent the mens rea requirements of Article 120(b)(3)(A).

To avoid these potential issues, defense counsel should request modifications to the standard instructions to reflect the legal principles established in Mendoza.

Requesting Instruction Modifications: Key Points for Defense Counsel

Based on the Mendoza ruling, here are the critical modifications defense attorneys should request to ensure proper jury instructions:

  1. Clarify the Definition of Consent for Article 120(b)(2)(A):
  • The instruction should specify that “consent” means a freely given agreement to the conduct by a competent person. It should clearly state that intoxication alone does not equate to a lack of consent, and the prosecution must prove beyond a reasonable doubt that the alleged victim, though capable of consenting, did not.

Suggested instruction:

“For the offense of sexual assault without consent, the government must prove that the alleged victim was capable of consenting and did not, in fact, consent to the sexual act. Intoxication alone is not sufficient to prove lack of consent under Article 120(b)(2)(A).”

  1. Differentiate Between the Two Theories of Liability:
  • The instructions must clearly differentiate between sexual assault without consent and sexual assault when incapable of consenting. The jury should understand that these offenses require different elements of proof, particularly regarding the alleged victim’s capacity to consent.

Suggested instruction:

“For the charge of sexual assault when incapable of consenting, the government must prove that the alleged victim was unable to consent due to impairment by alcohol or drugs and that the accused knew or reasonably should have known of this incapacity.”

  1. Provide Clear Guidance on the Use of Intoxication Evidence:
  • The jury must be instructed that evidence of intoxication is only relevant to the charge of incapacity to consent under Article 120(b)(3)(A), and it cannot be used to infer a lack of consent under Article 120(b)(2)(A).

Suggested instruction:

“You may consider evidence of the alleged victim’s intoxication only to determine whether the alleged victim was incapable of consenting under Article 120(b)(3)(A). Intoxication alone cannot be used to prove a lack of consent under Article 120(b)(2)(A).”

Practical Application: How to Frame Instruction Requests

Defense counsel should approach the military judge with a well-reasoned argument for these instructional modifications, emphasizing that failing to provide clear instructions would risk a conviction based on an improper conflation of theories, which would violate the due process rights of the accused. Defense counsel should cite the Mendoza decision extensively, using the language of the ruling to highlight the importance of distinguishing between the different elements of each charge.

For instance, defense attorneys can argue:

  • That without proper instruction, jurors might find the accused guilty of sexual assault without consent based on the victim’s inability to consent, which would improperly merge the two offenses.
  • That clear instructions are essential to avoid a conviction based on confusion over the distinct legal theories at play, as failure to differentiate would allow a conviction without proving all required elements beyond a reasonable doubt.

Conclusion: Using Mendoza to Strengthen the Defense

The Mendoza ruling provides a significant opportunity for defense attorneys to challenge the government’s case when sexual assault is charged in the alternative. By requesting tailored jury instructions, defense counsel can ensure that the court members understand the distinct theories of liability and the different burdens of proof required for each offense.

Properly distinguishing between sexual assault without consent and sexual assault when incapable of consenting is critical for maintaining the integrity of the trial process and protecting the due process rights of the accused. Defense attorneys should leverage the Mendoza ruling to challenge overbroad prosecutorial arguments and ensure that the government meets its burden of proof for each element of the charged offense.

Contact Bilecki Law Group

If you’re handling a complex military sexual assault case and need assistance navigating the implications of United States v. Mendoza, reach out to Bilecki Law Group. Our expertise in military law can help you craft a defense strategy that ensures your client’s rights are protected. Contact us today for expert guidance on your next case.

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