In United States v. McDonald, the Court of Appeals for the Armed Forces (CAAF) examined the required mens rea, or criminal intent, necessary for a conviction of sexual assault. PFC McDonald’s roommate invited a woman over to his barracks room. He told her that no one else would be in the room. The woman testified that when she arrived she did not see anyone else in the room. She and PFC McDonald’s roommate began to have sex, and at some point, PFC McDonald jumped in and took his roommate’s place. The woman testified that she only realized that PFC McDonald was in the room when he began engaging in intercourse with her. At trial, PFC McDonald’s roommate testified that the woman knew that PFC McDonald was there and that she had consented to having sex with the two men. The military judge instructed the members that the Government had to prove beyond a reasonable doubt that: 1) PFC McDonald did have intercourse with the woman; 2) that he did so through penile penetration; and 3) that she did not consent. Because the defense had raised the issue of PFC McDonald’s mistaken belief that the woman consented, the military judge also instructed the members that the Government had to prove beyond a reasonable doubt that PFC McDonald did not have an honest and reasonable belief that the woman consented. The members convicted PFC McDonald of conspiracy to commit sexual assault and sexual assault and he was sentenced to three years confinement, reduction to E-1, total forfeitures, and a dishonorable discharge.
On appeal, PFC McDonald argued that the 2015 Supreme Court case of Elonis v. United States required the Government to prove that PFC McDonald had a specific criminal intent when it came to his understanding of the woman’s consent. The defense argued that the military judge should have instructed the members that they had to find that PFC McDonald was at least reckless in his assessment of the woman’s consent in order to convict.
The CAAF rejected this argument and reaffirmed that this type of sexual assault is a general intent crime. This means that the Government must prove that PFC McDonald knowingly did the criminal act, that is the sexual intercourse, but not that he had a specific mindset, such as knowingly or recklessly ignoring whether the woman consented. The Court reasoned that the element regarding consent is from the victim’s perspective alone. If the members believe beyond a reasonable doubt that the victim did not agree to the sexual activity, this element is proven no matter the accused’s belief. The accused’s perspective can then be introduced through a mistake of fact defense, but is not a part of the element regarding the victim’s consent.
Many cases regarding mens rea have followed the Elonis decision as statutes that do not have explicit intent elements are tested. In this case, CAAF decided that the legislators intended this offense to be a general intent offense.
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