Judge Advocate General's Corps, United States Army



APPROVED CHANGE 16-13 (Forcible Sodomy – 3-51-2) – Formerly Proposal 14-15 and 15-02REPLACE THE CURRENT INSTRUCTION 3-51-3 (BESTIALITY) WITH THE FOLLOWING:3–51–3. FORCIBLE SODOMY (ARTICLE 125)NOTE 1: Applicability of this instruction. Use this instruction for offenses occurring on or after 26 December 2013.a. MAXIMUM PUNISHMENT: DD, TF, life without eligibility for parole, E-1. A dishonorable discharge or a dismissal is a mandatory minimum sentence for forcible sodomy occurring on or after 24 June 2014.b. MODEL SPECIFICATION: In that __________ (personal jurisdictional data), did, (at/on board— location), on or about __________, engage in unnatural carnal copulation with __________, (by unlawful force) (and) (without the consent of the said __________).c. ELEMENTS: (1) That (state the time and place alleged), the accused engaged in unnatural carnal copulation with (state the name of the alleged victim); (and)(2) That the act was done (by unlawful force) (or) (without the consent of the said state the name of the alleged victim).d. DEFINITIONS AND OTHER INSTRUCTIONS:“Sodomy” is unnatural carnal copulation. “Unnatural carnal copulation” occurs when a person (takes into his/her (mouth) (anus) the sexual organ of another person) (places his/her sexual organ into the (mouth) (anus) of another) (penetrates the female sex organ with his/her (mouth) (lips) (tongue)) (places his/her sexual organ into any opening of the body, except the sexual parts, of another person).Penetration of the (mouth) (anus) (female sexual organ) (opening of the body) (__________), however slight, is required to establish this offense. An ejaculation is not required.NOTE 2: Lack of penetration in issue. If lack of penetration of the female sex organ is in issue, the military judge should further define what is meant by the female sex organ. The instruction below may be helpful. See also United States v Williams, 25 MJ 854 (AFCMR 1988) pet. denied, 27 MJ 166 (CMA 1988) (licking clitoris is penetration) and United States v. Tu, 30 MJ 587 (ACMR 1990) (guilty plea where accused admitted to kissing and licking vagina sufficient to permit finding of penetration.) But see United States v. Deland, 16 MJ 889 (ACMR 1983), aff’d in part and rev’d in part, 22 MJ 70 (CMA 1986), cert. denied, 479 U.S. 856 (1986) (“licking vagina” or “licking penis” not sufficient to sustain conviction.) The military judge must be alert to inaccurate terminology or squeamishness in describing body parts. For example, the vagina is clearly an internal organ and reaching it requires penetration of the labia. Witnesses and counsel should avoid using the terms “private parts” or the “pubic area” to describe touching the vagina since it may lead to confusion about whether penetration occurred.The “female sex organ” includes not only the vagina which is the canal that connects the uterus to the external opening of the genital canal, but also the external genital organs including the labia majora and the labia minora. “Labia” is the Latin and medically correct term for “lips.”NOTE 3: Using this instruction. Article 125 contains two methods to commit a violation: "by unlawful force" and "without . . . consent." NOTEs 4 through 12 and the instructions that follow address common scenarios involving potential force and consent issues. The military judge must identify which methods are charged, those issues raised by the evidence and select the appropriate instruction. Where multiple issues of force and ability to consent are raised (sleeping child victim, for example), the military judge may have to combine the instructions. In such cases, the military judge should carefully tailor the instructions to the factual situation present:a. Actual, physical force: NOTE 4.b. Constructive force by intimidation and threats: NOTE 5.c. Constructive force—abuse of military power: NOTE 6.d. Constructive force (parental or analogous compulsion) and consent of a child of tender years NOT in issue: NOTE 7.e. Evidence of consent when sodomy is “by unlawful force”: NOTE 8. f. Victim incapable of giving consent (children of tender years): NOTE 9.g. Victim incapable of giving consent - due to mental infirmity: NOTE 10.h. Victim incapable of giving consent - due to sleep, unconsciousness, or intoxication: NOTE 11.i. BOTH unlawful force and without consent charged: NOTE 12.NOTE 4: Actual, physical force. Where the force involved is actual, physical force and constructive force and special situations involving lack of consent are not raised, give the following instructions AND NOTE 8 below:“Unlawful Force” means an act of force done without legal justification or excuse, and includes physical violence or power applied by the accused to the victim. An act of sodomy occurs “by unlawful force” when the accused uses physical violence or power to compel the victim to submit against his/her will.NOTE 5: Constructive force by intimidation or threats. Where the evidence raises the issue of constructive force by threat or intimidation, give the following instructions AND NOTE 8 below:“Unlawful Force” means an act of force done without legal justification or excuse. In the law of sodomy, various types of conduct are sufficient to constitute unlawful force. The most obvious type is actual physical force, that is, the application of physical violence or power, which is used to overcome or prevent active resistance. Actual physical force, however, is not the only way unlawful force can be established. Where intimidation or threats of death or physical injury make resistance futile, it is said that “constructive force” has been applied, thus satisfying the requirement of unlawful force. Hence, when the accused’s (actions and words) (conduct), coupled with the surrounding circumstances, create a reasonable belief in the victim’s mind that death or physical injury would be inflicted on her/him and that (further) resistance would be futile, the act of sodomy has been accomplished by unlawful force.NOTE 6: Constructive force—abuse of military power. When there is some evidence the accused employed constructive force based upon his military position, rank, or authority, give the following instructions AND NOTE 8 below:“Unlawful Force” means an act of force done without legal justification or excuse. In the law of sodomy, various types of conduct are sufficient to constitute unlawful force. The most obvious type is actual physical force, that is, the application of physical violence or power, which is used to overcome or prevent active resistance. Actual physical force, however, is not the only way unlawful force can be established. Where intimidation or threats of death or physical injury make resistance futile, it is said that “constructive force” has been applied, thus satisfying the requirement of unlawful force. Hence, when the accused’s (actions and words) (conduct), coupled with the surrounding circumstances, create a reasonable belief in the victim’s mind that death or physical injury would be inflicted on her/him and that (further) resistance would be futile, the act has been accomplished by unlawful force.The evidence has raised the issue of whether the accused (used) (abused) (his) (her) (military) (__________) (position) (and) (or) (rank) (and) (or) (authority) (__________) in order to (coerce) (and) (or) (force) (state the name of the alleged victim) to commit sodomy. (Specifically, I draw your attention to (summarize the evidence concerning the accused’s possible use or abuse of (his) (her) position, rank, or authority).) You may consider this evidence in deciding whether (state the name of the alleged victim) had a reasonable belief that death or physical injury would be inflicted on her/him and that (further) resistance would be futile. NOTE 7: Constructive force—parental or analogous compulsion. When the evidence raises the issue of constructive force based upon a child’s acquiescence because of duress or a coercive atmosphere created by a parent or one acting in loco parentis, give the following instructions AND NOTE 8 below: “Unlawful Force” means an act of force done without legal justification or excuse. In the law of sodomy, various types of conduct are sufficient to constitute unlawful force. The most obvious type is actual physical force, that is, the application of physical violence or power, which is used to overcome or prevent active resistance. Actual physical force, however, is not the only way unlawful force can be established. Where intimidation or threats of death or physical injury make resistance futile, it is said that “constructive force” has been applied, thus satisfying the requirement of unlawful force. Hence, when the accused’s (actions and words) (conduct), coupled with the surrounding circumstances, create a reasonable belief in the victim’s mind that death or physical injury would be inflicted on her/him and that (further) resistance would be futile, the act of sodomy has been accomplished by unlawful force.Sexual activity between a (parent) (stepparent) (__________) and a minor child is not comparable to sexual activity between two adults. The youth and vulnerability of children, when coupled with a (parent’s) (stepparent’s) (__________) position of authority, may create a situation in which explicit threats and displays of force are not necessary to overcome the child’s resistance. On the other hand, not all children invariably accede to (parental) (__________) will. In deciding whether the victim (did not resist) (or) (ceased resistance) because of constructive force in the form of (parental) (__________) (duress) (compulsion) (__________), you must consider all of the facts and circumstances, including but not limited to (the age of the child when the alleged abuse started) (the child’s ability to fully comprehend the nature of the acts involved) (the child’s knowledge of the accused’s parental power) (any implicit or explicit threats of punishment or physical harm if the child does not obey the accused’s commands) (state any other evidence surrounding the parent-child, or similar, relationship from which constructive force could reasonably be inferred). If (state the name of the alleged victim) (did not resist) (or) (ceased resistance) due to the (compulsion) (or) (duress) of (parental) (__________) command, constructive force has been established and the act of sodomy was done by force.NOTE 8: Evidence of consent when sodomy is "by unlawful force." “By” means the sodomy occurred because of the unlawful force. Evidence of consent to the sodomy logically precludes that causal link; when the alleged victim consented, the sodomy occurred because of the consent, not because of the force. Although lack of consent is not an element when sodomy is charged "by unlawful force," evidence that the alleged victim consented to the sodomy may be relevant to negate that causal link. In all situations in which “by unlawful force” is alleged, the following instruction, properly tailored, would be appropriate. The evidence has raised the issue of whether (state the alleged victim’s name) consented to the sexual conduct listed in (The) Specification(s) (__________) of (The) (Additional) Charge (___). All of the evidence concerning consent to the sexual conduct is relevant and must be considered in determining whether the government has proven (the elements of the offense) (that the sexual conduct was done by unlawful force) (state the element(s) to which the evidence concerning consent relates) beyond a reasonable doubt. Stated another way, evidence the alleged victim consented to the sexual conduct, either alone or in conjunction with the other evidence in this case, may cause you to have a reasonable doubt as to whether the government has proven (every element of the offense) (that the sexual conduct was done by unlawful force) (state the element(s) to which the evidence concerning consent relates).NOTE 9: Victims incapable of giving consent—children of tender years. If the victim is of tender years and may not have, as a matter of fact, the requisite mental maturity to consent, give the following instructions:When a victim is incapable of consenting because she/he lacks the mental capacity to understand the nature of the act, there is no consent. If (state the name of the alleged victim) was incapable, due to her/his (tender age) (and) (lack of) mental development, of giving consent, then the act was done without consent. A child (of tender years) is not capable of consenting to an act of sodomy until she/he understands the act, its motive, and its possible consequences. In deciding whether (state the name of alleged victim) had, at the time of the sodomy, the requisite knowledge and mental (development) (capacity) (ability) to consent you should consider all the evidence in the case (including but not limited to: (the military judge may state any lay or expert testimony relevant to the child’s development or any other information about the alleged victim, such as the level and extent of education, and prior sex education and experiences, if any)). If (state the name of the alleged victim) was incapable of giving consent, and if the accused knew or had reasonable cause to know that (state the name of the alleged victim) was incapable of giving consent, the act of sodomy was done without consent.NOTE 10: Victims incapable of giving consent—due to mental infirmity. Where there is some evidence that the victim may be incapable of giving consent because of a mental handicap or disease, give the following instructions:If the alleged victim consents to the act of sodomy, it is not without consent. The lack of consent required, however, is more than mere lack of acquiescence. If a person, who is in possession of her/his mental and physical faculties, fails to make her/his lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she/ he consented. Consent, however, may not be inferred if resistance would have been futile under the totality of the circumstances, or where resistance is overcome by a reasonable fear of death or great bodily harm, or where she/he is unable to resist because of the lack of mental or physical faculties. You must consider all the surrounding circumstances in deciding whether (state the name of the alleged victim) consented. If (state the name of the alleged victim) submitted to the act of sodomy (because resistance would have been futile under the totality of the circumstances) (because of a reasonable fear of death or great bodily harm) (because he/she was unable to resist due to mental or physical inability) (__________), sodomy was done without consent. If (state the name of the alleged victim) was incapable, due to mental infirmity, of giving consent, then the act was done without her/his consent. A person is capable of consenting to an act of sodomy unless her/his mental infirmity is so severe that she/he is incapable of understanding the act, its motive, and its possible consequences. In deciding whether (state the name of the alleged victim) had, at the time of the sodomy, the requisite mental capacity to consent you should consider all the evidence in the case (including but not limited to: (the military judge may state any expert testimony relevant to the alleged victim’s mental infirmity or any other information about the alleged victim, such as the level and extent of education; ability, or inability, to hold a job or manage finances; and prior sex education and experiences, if any)). You may also consider her/his demeanor in court and her/his general intelligence as indicated by her/his answers to questions propounded to her/him in court. If (state the name of the alleged victim) was incapable of giving consent, and if the accused knew or had reasonable cause to know that (state the name of the alleged victim) was incapable of giving consent, the act of sodomy was done without consent.NOTE 11: Victims incapable of giving consent—due to sleep, unconsciousness, or intoxication. Where there is some evidence that the victim may have been asleep, unconscious, or intoxicated and, therefore, incapable of giving consent at the time of the act, give the following instructions:If the alleged victim consents to the act of sodomy, it is not without consent. The lack of consent required, however, is more than mere lack of acquiescence. If a person, who is in possession of her/his mental and physical faculties, fails to make her/his lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she/he consented. Consent, however, may not be inferred if resistance would have been futile under the totality of the circumstances, or where resistance is overcome by a reasonable fear of death or great bodily harm, or where she/he is unable to resist because of the lack of mental or physical faculties. You must consider all the surrounding circumstances in deciding whether (state the name of the alleged victim) consented. If (state the name of the alleged victim) submitted to the act of sodomy (because resistance would have been futile under the totality of the circumstances) (because of a reasonable fear of death or great bodily harm) (because she/he was unable to resist due to mental or physical inability) (__________), sodomy was done without consent. If (state the name of the alleged victim) was incapable, due to lack of mental or physical faculties, of giving consent, then the act was done by force and without consent. A person is capable of consenting to an act of sodomy unless she/he is incapable of understanding the act, its motive, and its possible consequences. In deciding whether (state the name of the alleged victim) had consented to the sodomy you should consider all the evidence in the case, (including but not limited to: ((the degree of the alleged victim’s) (intoxication, if any,) (and) (or) (consciousness or unconsciousness) (and) (or) (mental alertness)) ((the ability or inability of the alleged victim) (to walk) (and) (or) (to communicate coherently)) ((whether the alleged victim may have consented to the act of sodomy prior) (to lapsing into unconsciousness) (and) (or) (falling asleep)) (the military judge may state any other evidence tending to show the alleged victim may have been acquiescing to the act rather than actually being asleep, unconscious, or otherwise unable to consent).) If (state the name of the alleged victim) was incapable of giving consent, and if the accused knew or had reasonable cause to know that (state the name of the alleged victim) was incapable of giving consent because he/she was (asleep) (unconscious) (intoxicated), the act of sodomy was done (by unlawful force) (without consent) (by unlawful force and without consent).NOTE 12: BOTH unlawful force and without consent charged: When both methods are charged, in addition to the appropriate force / consent instructions above, the military judge must give the following instruction:Either unlawful force or lack of consent are necessary to the offense; it is not required that you find both to convict the accused. NOTE 13: Mistake of fact as to consent—completed forcible sodomy. Honest and reasonable mistake of fact as to the victim’s consent is a defense to forcible sodomy. See United States v. Carr, 18 MJ 297 (CMA 1984); United States v. Taylor, 26 MJ 127 (CMA 1988); and United States v. Peel, 29 MJ 235 (CMA 1989), cert. denied, 493 U.S. 1025 (1990). If mistake of fact is in issue, the following instructions should be given:The evidence has raised the issue of mistake on the part of the accused concerning whether (state the name of the alleged victim) consented to sodomy. If the accused had an honest and mistaken belief that (state the name of the alleged victim) consented to the act of sodomy, (he) (she) is not guilty of forcible sodomy, if the accused’s belief was reasonable. To be reasonable the belief must have been based on information, or lack of it, which would indicate to a reasonable person that (state the name of the alleged victim) was consenting to sodomy. In deciding whether the accused was under the mistaken belief that (state the name of the alleged victim) consented, you should consider the probability or improbability of the evidence presented on the matter. You should also consider the accused’s (age) (education) (experience) (prior contact with (state the name of the alleged victim)) (the nature of any conversations between the accused and (state the name of alleged victim)) (__________) along with the other evidence on this issue, (including but not limited to (here state other evidence that may bear on the accused’s mistake of fact)).The burden is on the prosecution to establish the accused’s guilt. If you are convinced beyond a reasonable doubt that, at the time of the charged sodomy, the accused was not under the mistaken belief that (state the name of the alleged victim) consented to sodomy, the defense of mistake does not exist. Even if you conclude that the accused was under the honest and mistaken belief that (state the name of the alleged victim) consented to sodomy, if you are convinced beyond a reasonable doubt that, at the time of the charged offense, the accused’s mistake was unreasonable, the defense of mistake does not exist.NOTE 14: Voluntary intoxication and mistake of fact as to consent. If there is evidence the accused may have been under the influence of an intoxicant and the evidence raises mistake of fact as to consent to a completed sodomy, give the following instruction:There is evidence in this case that indicates that at the time of the alleged sodomy, the accused may have been under the influence of (alcohol) (drugs).You may not consider the accused’s voluntary intoxication in deciding whether the accused reasonably believed (state the name of the alleged victim) consented to sodomy. A reasonable belief is one that an ordinary, prudent, sober adult would have under the circumstances of this case. Voluntary intoxication does not permit what would be an unreasonable belief in the mind of a sober person to be considered reasonable because the person is intoxicated.NOTE 15: Consent obtained by fraud. Consent obtained by fraud in the inducement (e.g., a promise to pay money, misrepresentation as to marital status, or to “respect” the partner in the morning) is valid consent. Consent obtained by fraud in factum (e.g., a misrepresentation as to the nature of the act performed) is not valid consent and is not a defense to sodomy. United States v. Booker, 25 MJ 114 (CMA 1987).NOTE 16: MRE 412 (“Rape shield”). Notwithstanding the general proscriptions in MRE 412 about the admissibility of a sexual assault victim’s past sexual behavior, such evidence may be admissible if probative of a victim’s motive to fabricate or to show that the accused was mistaken about the victim’s consent. United States v. Williams, 37 MJ 352 (CMA 1993) (extra-marital affair as to victim’s motive to lie) and United States v. Kelley, 33 MJ 878 (ACMR 1991) (victim’s public and aggressive sexual behavior to show accused’s mistaken belief as to consent.)e. REFERENCES:(1) Force: Black’s Law Dictionary (6th ed. 1990) (West Law, 1993).(2) Constructive force: Coker v. Georgia, 433 U.S. 584 (1977); United States v. Hicks, 24 MJ 3 (CMA 1987), cert. denied, 484 U.S. 827 (1987); United States v. Bradley, 28 MJ 197 (CMA 1989); United States v. Palmer, 33 MJ 7 (CMA 1991).(3) Constructive force—abuse of military authority: United States v. Hicks, supra; United States v. Bradley, supra; United States v. Clark, 35 MJ 432 (CMA 1992), cert. denied, 507 U.S. 1052 (1993).(4) Constructive force—parental compulsion and children of tender years: United States v. Palmer, supra; United States v. Rhea, 33 MJ 413 (CMA 1991), aff’d, 37 MJ 213 (CMA 1993); United States v. Torres, 27 MJ 867 (AFCMR), opinion set aside, 29 MJ 299 (CMA 1989), unpublished opinion clarifying prior opinion (AFCMR November 15, 1989), pet. denied, 30 MJ 226 (CMA 1990), original opinion cited with approval in Palmer, supra, 33 MJ at 10; United States v. Dejonge, 16 MJ 974 (AFCMR 1983), pet. denied, 18 MJ 92 (CMA 1986); North Carolina v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).(5) Victim incapable of giving consent—mental infirmity: United States v. Henderson, 15 CMR 268 (CMA 1954); United States v. Lyons, 33 MJ 543 (ACMR 1991), aff’d, 36 MJ 183 (CMA 1992); 75 C.J.S. Rape section 14(b) n. 10.(6) Victim incapable of giving consent—sleep, intoxication, or unconsciousness: Part IV, Paragraph 45c(1) (b), MCM; United States v. Mathi, 34 MJ 33 (CMA 1992); United States v. Robertson, 33 CMR 828 (AFBR 1963), rev’d on other grounds, 34 CMR 108 (CMA 1963).ADD THE FOLLOWING NEW NOTE 1 AND REPLACE PARAGRAPH a. TO INSTRUCTION 3-51-2 FORCIBLE SODOMY WITH THE FOLLOWING. RENUMBER CURRENT NOTE 1 AS NOTE 1.1.3–51–2. FORCIBLE SODOMY (ARTICLE 125)NOTE 1: Applicability of this instruction. Use this instruction only for offenses occurring BEFORE 26 December 2013.a. MAXIMUM PUNISHMENT: DD, TF, life without eligibility for parole, E-1. ADD THE FOLLOWING AS INSTRUCTION 3-51-4:3–51–4. BESTIALITY (ARTICLE 125)a. MAXIMUM PUNISHMENT: DD, TF, 5 years, E-1.b. MODEL SPECIFICATION: In that __________ (personal jurisdictional data), did, (at/on board— location), on or about __________, engage in unnatural carnal copulation with (state the alleged animal).c. ELEMENTS: That (state the time and place alleged), the accused engaged in unnatural carnal copulation with (state the alleged animal).d. DEFINITIONS AND OTHER INSTRUCTIONS:“Bestiality” is unnatural carnal copulation with an animal. “Unnatural carnal copulation” with an animal occurs when a person (takes into his/her (mouth) (anus) the sexual organ of an animal) (places his/her sexual organ into an animal’s (mouth) (anus)) (places his/her sexual organ into the sexual organ of an animal) (takes the animal’s sexual organ into his/her sexual organ). Penetration of the (mouth) (anus) (sexual organ), however slight, is required to establish this offense. An ejaculation is not required.The “female sexual organ” includes not only the vagina which is the canal that connects the uterus to the external opening of the genital canal, but also the external genital organs including the labia majora and the labia minora. “Labia” is the Latin and medically correct term for “lips.” ................
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