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Court of Appeals for the Armed Forces Reverses Navy-Marine Corps Court on Hazing Case

The Court of Appeals for the Armed Forces (CAAF) recently published its opinion in United States v. Mader reversing a Navy-Marine Corps Court of Criminal Appeals decision in a case involving an NCO’s charged hazing of junior Marines.

A Sergeant with 3rd Battalion, 3rd Marines was executing orders out of the unit. A few days before he was to leave, he went to the barracks and ended up sitting around the smoke pit and talking with several Marines from his section. During a discussion on unit morale, the Sergeant said that he and other Marines had been burned with a cigarette when they first joined the unit, as a way to bond the unit together. The Sergeant then burned three separate Marines with his cigarette. None of the Marines objected and the socializing continued for some time after.

Eventually, the Sergeant was brought to court-martial on charges for the cigarette burns as well as other conduct from that evening. He was charged with assault consummated by a battery for burning the three Marines with his cigarette. At trial, the Marines who were burned gave conflicting testimony concerning whether or not they had consented to the cigarette burn. The Sergeant testified that all three had consented and had even lifted their shirts so that they could be burned.

Despite this testimony, Sergeant Mader was convicted of three specifications of assault consummated by a battery for burning the three Marines. He was also convicted of another specification of assault consummated by a battery and two specifications of failing to obey the Marine Corps Order on hazing for conduct unrelated to the cigarette burns.

On appeal, Sergeant Mader claimed that his convictions for the cigarette burns were not factually sufficient. In order to prove that a servicemember is guilty of assault consummated by a battery, the Government must prove that the charged bodily harm was done without the victim’s consent. Even where the Government proves that the victim did not consent, a servicemember is not guilty of the offense if he believed that the victim consented and that belief was reasonable under the circumstances.

The Navy-Marine Corps Court of Criminal Appeals found that Sergeant Mader did actually believe that the three Marines consented to the cigarette burns. Despite this, the Court upheld the convictions, finding that any consent would be unlawful and therefore any mistaken belief that the three had consented would be unreasonable. The Navy-Marine Corps Court held that the three Marines could not have consented because this was essentially a hazing offense and the Marine Corps hazing order did not allow consent as a defense. The Court also found that allowing consent to this type of conduct would be contrary to public policy.

Sergeant Mader appealed the Navy-Marine Corps Court’s decision to CAAF. CAAF reversed the lower court’s decision, finding that consent and the mistaken belief that a person consented are both defenses to assault consummated by a battery. CAAF stated that the Government decided how to charge the offense and could have charged it as a violation of the hazing order if it wanted to eliminate consent as a defense, but it did not. The law on consent as a defense to assault consummated by a battery is clear, and the Government could not rely on an offense it chose not to charge to remove consent or mistake of fact as to consent from consideration. Finally, CAAF found that the lower court’s reference to public policy was unsupported by any specific policy considerations. Consent was a clear defense to assault consummated by a battery and nothing about the facts of this case justified treating it differently.

CAAF reversed the lower court’s decision and sent the case back to the Navy-Marine Corps Court for further evaluation of the mistake of fact defense. 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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