Appellate Court Sets Aside Attempted Sexual Assault Conviction

The Navy-Marine Corps Court of Criminal Appeals recently decided the case of United States v. Salinas. Petty Officer Second Class Salinas was convicted of attempted sexual assault and assault with intent to commit sexual assault. The two offenses were charged in the alternative, so PO2 Salinas was only sentenced on the attempted sexual assault offense.

At trial, the Government charged PO2 Salinas with attempting to sexually assault a fellow Sailor while she was asleep. When the offense charged is sexual assault, and not attempted sexual assault, a servicemember can be convicted if they know, or reasonably should know, the victim is asleep. So, a servicemember can be convicted even when they do not know that the victim is asleep, if a reasonable (and sober) person would have known that the victim was asleep.

However, this theory becomes problematic when the offense charged is not the actual sexual assault, but rather an attempted sexual assault. This is because in order to convict someone of attempting to commit a crime, you have to prove that they specifically intended to commit that crime. This rule is in place because whether someone was attempting to commit a crime comes down as much to intent as it does to action. If an individual legally purchases a gun and takes it home, that is not a crime. If that same individual takes the step of purchasing that gun and bringing it home with the intent to kill their spouse, they may be guilty of attempted murder.

The Navy-Marine Corps court had decided this exact issue in a case called United States v. Marin last year. In Marin, the Court determined that when a servicemember is charged with attempted sexual assault of a sleeping victim, the Government must prove that the servicemember knew the victim was asleep. Without that actual knowledge, the servicemember cannot specifically intend to commit the crime of sexual assault. Although Marin had not been decided yet when PO2 Salinas was tried, it had come out before PO2 Salinas’s case was heard on appeal. Appellate courts apply the law as it exists at the time of the appeal, not at the time of the trial, when reviewing cases.

The Court set aside PO2 Salinas’s conviction and three year sentence and sent the case back for a rehearing. The Convening Authority may retry the case, with the requirement that the Government prove that PO2 Salinas actually knew that the fellow Sailor was asleep, or may proceed on a lesser offense, or an alternative disposition of the case.

If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.

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