CAAF Reverses the NMCCA in Mader

There are few times that I am left baffled by a lower court's reasoning, Mader is one of those. CAAF correctly reverses the NMCCA, remanding Appellant's case "to determine whether Appellant’s mistaken belief that the junior Marines consented was reasonable, and if so, whether Appellant established that his conduct was precipitated by his mistaken belief that his victims consented.

In an opinion by Judge Hardy, totaling just seven pages, CAAF makes clear that they are not persuaded to deviate from their general rule that consent is a defense to simple assault. Sergeant Thomas E. Mader was charged with four specifications of simple assault consummated by battery, three of those specifications related to his burning of cigarettes on junior Marines at a farewell party. These three specifications are the reason for CAAF's review. 

On appeal the NMCCA held that Appellant “had an honest, though mistaken, belief that the junior Marines consented to being burned by the cigarette.” However, the NMCCA affirmed Appellant's conviction, also holding that Appellant's actions could have been charged as hazing, to which no defense as to consent existed, and that it is contrary to public policy to allow victims to consent to cigarette burns. It is for these two reasons that CAAF reverses the NMCCA. 

Judge Hardy notes the important facts, Appellant, while he could have been charged with hazing by the government, was ultimately charged with simple assault. This charging decision by the government allowed Appellant to have a defense as to consent, the government cannot now allege that Appellant's assaults were a part of hazing and then deny Appellant a defense to his charged crimes. I would call this a steadfast principle that would not have to be reiterated, but yet it is the main ruling in this case. 

Additionally, CAAF finds the NMCCA's public policy argument, "untenable." CAAF's reasoning is simple. First, CAAF has never recognized a public policy interest that overcomes the principle that consent is a defense to simple assault. Second, the NMCCA did not specify a public policy reason that would support their finding, let alone a compelling one.

This case screams government overreach but CAAF makes clear that this will not sail. 

Mader Opinion here.

Elizabeth M. Berecin

Managing Editor