Recently, the Court of Appeals for the Armed Forces (CAAF) reviewed an Army case called United States v. Feliciano. Private (PV2) Feliciano was convicted of two specifications of attempted aggravated sexual assault. The evidence produced at the court-martial showed that PV2 Feliciano had sexual intercourse in a barracks room with a female soldier who had been drinking. Another soldier who allegedly witnessed them having sexual intercourse stated that he heard the female say no repeatedly and told PV2 Feliciano that if he continued to have sex with her “they would definitely get him for rape” and that “people would probably also rape him in jail.” Allegedly PV2 Feliciano stopped having sexual intercourse with the alleged victim upon hearing this warning. The appeal was regarding whether or not the military judge erred in not providing an instruction on the defense of voluntary abandonment and in using confusing wording in an instruction regarding a second defense. The Army Court of Criminal Appeals (ACCA) and CAAF both held that there was no error because the evidence did not sufficiently raise either defense. In rendering their opinion, CAAF specifically distinguished the difference between the three types of defenses in a military court-martial. The court pointed out that first there is a “defense” which disproves that an actual element of an alleged crime exists. For example, a “defense” to failure to obey an order or regulation could be that the lawful order forbidding the act was not in effect at the time that an accused allegedly committed the act. A second type explained by CAAF is a “special defense.” A “special defense” is one that does not disprove an element, however the defense allows an accused to avoid criminal responsibility. The accused does not have the burden to show that a special defense exists. For example, voluntary abandonment is a “special defense.” If the evidence presented shows that an accused planned to participate in a crime but stopped participating before the crime was ultimately committed, the accused should be found not guilty of that crime. A final type of defense specifically explained by CAAF is an “affirmative defense.” An “affirmative defense” does not disprove an element, but the accused avoids criminal responsibility. Unlike a “special defense,” the accused has the burden to prove that an “affirmative defense” exists. There are only two affirmative defenses in effect in today’s court-martials, lack of mental responsibility and mistake of fact as to the age of an alleged victim. I am very experienced in presenting all of these defenses. Call now for help. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.