No. 21-0004/MC United States v. Schmidt was argued October 5th at CAAF. Appellant-Defendant was convicted by GCM of sexual abuse of a child under Article 120b(c). Appellant masturbated in the same room as the victim, JMT, while JMT pretended to be asleep. JMT heard Appellant’s masturbation and felt Appellant move around and touch JMT’s back and hand. There were several issues raised in oral argument. First, is this a general or specific intent crime? Second, does Article 120b require victim awareness? Third, was appellant entitled to a mistake of fact instruction to the panel?
The first issue is one of intent. The State asserts this is a general intent crime; the actus reus must be intentional but there is no specific intent to harm the victim or commit a lewd act upon the victim or in their presence. Appellant asserts that this is a specific intent crime. Appellant’s argument is persuasive. The statue reads: “intentionally done….in the presence of” 10 U.S.C. § 920b, suggesting a heightened intent requirement beyond the requisite mental state to commit the actus reus. See generally Wayne LaFave, 1 Subst. Crim. L. § 5.2(e) (3d ed.) The State says the defendant must intentionally commit the actus reus but does not need to intentionally commit the actus reus “in the presence of” the victim. This construction would find intent if someone commits the actus reus while genuinely unaware of the presence of a child in the room.
The second issue was whether Article 120(b) requires the victim to be aware of the defendant’s conduct. If “in the presence of” requires only physical proximity, the court can decide the case on this issue alone. Prior versions of the statute required victim awareness. Appellant reads in an awareness requirement to the statute, arguing that the point of this law is to prevent the child from being exposed to conduct that would corrupt their morals, and lack of awareness avoids the harm contemplated by the statute. The State does not recognize an awareness requirement, pointing to the plain language of the statute. While Black’s Law Dictionary does define “in the presence of” as requiring awareness, this is not the primary definition, and most other dictionaries do not have an awareness requirement. The State further argues that masturbating near a child while they sleep creates a risk they will wake up and be harmed by the conduct. Appellant countered that this reduces the mens rea from intent to recklessness. This issue is dispositive: if the court finds that there is no awareness requirement then Appellant is guilty regardless of the victim’s awareness and no mistake of fact defense would matter.
Appellant argues that he honestly thought JMT was asleep. Military judges are required to give instructions on any special defenses in R.C.M. 916 that may be at issue. R.C.M. 920(e). The trial judge did not give the panel instructions on the mistake of fact defense, and Appellant’s trial counsel did not object or request that these instructions be given. Appellant argues that these instructions should have been given since there was “some evidence” that Appellant had an honest mistake of fact, and Appellant did not waive these instructions when his counsel affirmatively stated that he had no objection to the proposed instructions, or in the alternative, that this failure to object was ineffective assistance of counsel. The State argues that this failure was an affirmative waiver, an intentional relinquishment of a known right, and forfeits the objection. Assuming arguendo Appellant forfeited his right to object, it is hard to imagine how this was not ineffective assistance of counsel. The mistake of fact defense is well known, it is even listed in the Rules for Courts-Martial, R.C.M. 916(j). Of course, this defense would only be prejudicial to the Appellant if the court finds an awareness requirement.
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