More Cadets At Coast Guard Academy Under Investigation For Sexual Misconduct

New London — A cadet at the U.S. Coast Guard Academy (USCGA) is accused of breaking into a dorm room and sexually abusing another cadet.
An Academy spokesman said the alleged incident occurred in mid-September in the Chase Hall barracks.
The accused cadet is suspected of violating Articles 120, 130 and 134 of the Uniform Code of Military Justice (UCMJ), the military’s criminal code, which prohibit abusive sexual contact, housebreaking and unlawful entry. The charges were preferred, or formally initiated, and then served to the accused on Monday, February 3, 2014.
A military attorney, or judge advocate general, will now conduct an Article 32 investigation to determine whether there is enough evidence to warrant a court-martial.
The Academy would not identify the gender of either cadet involved. Capt. Eric C. Jones, the academy’s assistant superintendent, said that while Article 120 includes rape, in this case, “the alleged offense is not rape.”
The academy is sending the accused off campus to work at another Coast Guard unit while the process moves forward, Jones said in an interview Tuesday, February 4. The alleged victim is taking classes and using the support services on campus.
Rear Adm. Sandra L. Stosz, the academy superintendent, decided to proceed with the Article 32 investigation, Jones said.
This type of investigation has often been compared to grand jury proceedings in the civilian judicial system since both are concerned with determining whether there is sufficient probable cause to believe a crime was committed and whether the person accused of the crime committed it. The military investigation, however, is broader in scope and more protective of the accused.
Jones did not release the names of the cadets or many details about the alleged incident, citing the fact that the investigation is ongoing. The Coast Guard Investigative Service (CGIS) conducted the initial investigation.
Jones added that the Academy is concerned with protecting the rights of the victim and the accused and ensuring the legal process is fair.
“I ask everyone to be patient and not to engage in supposition and rumors,” he said. “As soon as it gets to the point where it’s appropriate to release information directly to the public about the case, we’ll be ready to do that.” An Article 32 hearing is a public hearing.
The only cadet ever court-martialed at the Coast Guard Academy was tried on sexual assault charges in 2006. Webster M. Smith was convicted on extortion, sodomy and indecent-assault charges and acquitted of rape.
(The Webster Smith Case was appealed all the way to the U. S. Supreme Court. It is fully documented in a book entitled "Conduct Unbecoming An Officer and a Lady" available on Amazon.com http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-Conviction/dp/1460978021 )
The Article 32 investigating officer (IO) in this case could recommend that the alleged offenses be dismissed, dealt with administratively, or referred for trial by court-martial. Stosz, as the convening authority, will decide which path to take.
Jones said he is hoping for a decision within one to three months, but there are legal processes that could extend that timeline. (By Jennifer McDermott)
j.mcdermott@theday.com
(CGA cadet accused of sexually abusing another cadet,McDermott J.,The Day, Military News, Feb 05, 2014) 
(ADDITIONAL EXPLANATORY INFORMATION)

Note: As part of the FY 2006 Military Authorization Act, Congress amended Article 120 of the Uniform Code of Military Justice (UCMJ), effective for offenses occurring on and after October 1, 2007. Article 120 was formerly known as "Rape and carnal knowledge," but is now entitled "Rape, sexual assault, and other sexual misconduct."
The new Article 120 creates 36 offenses. These 36 offenses replace those offenses under the former Article 120 and others that used to be MCM offenses under Article 134 (the "General" Article).
The new Article 120 replaces the following Article 134 offenses:

• Indecent assault
• Indecent acts or liberties with a child
• Indecent exposure
• Indecent acts with another

The UCMJ change also amends two Article 134 offenses:
(1) Indecent language communicated to another - other than when communicated in the presence of a child - remains punishable under Article 134. If the language was communicated in the presence of a child, then it is an Article 120 offense.
(2) Pandering (having someone commit an act of prostitution) is still an offense under Article 134, but if the pandering is "compelled," it becomes an Article 120 offense.

ELEMENTS OF THE OFFENSE
Rape
By using force: That the accused caused another person, who is of any age, to engage in a sexual act by using force against that other person.
By causing grievous bodily harm: That the accused caused another person, who is of any age, to engage in a sexual act by causing grievous bodily harm to any person.
By using threats or placing in fear: That the accused caused another person, who is of any age, to engage in a sexual act by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.
By rendering another unconscious: That the accused caused another person, who is of any age, to engage in a sexual act by rendering that other person unconscious.
By administration of drug, intoxicant, or other similar substance:

(i) That the accused caused another person, who is of any age, to engage in a sexual act by administering to that other person a drug, intoxicant, or other similar substance;
(ii) That the accused administered the drug, intoxicant or other similar substance by force or threat of force or without the knowledge or permission of that other person; and
(iii) That, as a result, that other person's ability to appraise or control conduct was substantially impaired.

Aggravated sexual assault
By using threats or placing in fear:

(i) That the accused caused another person, who is of any age, to engage in a sexual act; and
(ii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping).

By causing bodily harm:

(i) That the accused caused another person, who is of any age, to engage in a sexual act; and
(ii) That the accused did so by causing bodily harm to another person.

Upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness:

(i) That the accused engaged in a sexual act with another person, who is of any age; and (Note: add one of the following elements)
(ii) That the other person was substantially incapacitated;
(iii) That the other person was substantially incapable of appraising the nature of the sexual act;
(iv) That the other person was substantially incapable of declining participation in the sexual act; or
(v) That the other person was substantially incapable of communicating unwillingness to engage in the sexual act.

Aggravated sexual contact
By using force:

(i) That the accused engaged in sexual contact with another person; or
(ii) That the accused caused sexual contact with or by another person; and
(iii) That the accused did so by using force against that other person.

By causing grievous bodily harm:

(i) That the accused engaged in sexual contact with another person; or
(ii) That the accused caused sexual contact with or by another person; and
(iii) That the accused did so by causing grievous bodily harm to any person.

By using threats or placing in fear:

(i) That the accused engaged in sexual contact with another person; or
(ii) That the accused caused sexual contact with or by another person; and
(iii) That the accused did so by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.

By rendering another unconscious:

(i) That the accused engaged in sexual contact with another person; or
(ii) That the accused caused sexual contact with or by another person; and
(iii) That the accused did so by rendering that other person unconscious.

By administration of drug, intoxicant, or other similar substance:

(i) That the accused engaged in sexual contact with another person; or
(ii) That the accused caused sexual contact with or by another person; and
(iii) (a) That the accused did so by administering to that other person a drug, intoxicant, or other similar substance;
(b) That the accused administered the drug, intoxicant, or other similar substance by force or threat of force or without the knowledge or permission of that other person; and
(c) That, as a result, that other person's ability to appraise or control conduct was substantially impaired.

Abusive sexual contact
By using threats or placing in fear:

(i) That the accused engaged in sexual contact with another person; or
(ii) That the accused caused sexual contact with or by another person; and
(iii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping).

By causing bodily harm:

(i) That the accused engaged in sexual contact with another person; or
(ii) That the accused caused sexual contact with or by another person; and
(iii) That the accused did so by causing bodily harm to another person.

(i) That the accused engaged in sexual contact with another person; or
(ii) That the accused caused sexual contact with or by another person; and (Note: add one of the following elements)
(iii) That the other person was substantially incapacitated;
(iv) That the other person was substantially incapable of appraising the nature of the sexual contact;
(v) That the other person was substantially incapable of declining participation in the sexual contact; or
(vi) That the other person was substantially incapable of communicating unwillingness to engage in the sexual contact.

Wrongful sexual contact

(a) That the accused had sexual contact with another person;
(b) That the accused did so without that other person's permission; and
(c) That the accused had no legal justification or lawful authorization for that sexual contact.
 Upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness:

Indecent act

(a) That the accused engaged in certain conduct; and
(b) That the conduct was indecent conduct.

Indecent exposure

(a) That the accused exposed his or her genitalia, anus, buttocks, or female areola or nipple;
(b) That the accused's exposure was in an indecent manner;
(c) That the exposure occurred in a place where the conduct involved could reasonably be expected to be viewed by people other than the accused's family or household; and
(d) That the exposure was intentional.

Aggravated sexual abuse of a child

(a) That the accused engaged in a lewd act; and
(b) That the act was committed with a child who has not attained the age of 16 years.

Forcible pandering

(a) That the accused compelled a certain person to engage in an act of prostitution; and
(b) That the accused directed another person to said person, who then engaged in an act of prostitution.

Note: If the act of prostitution was not compelled, but "the accused induced, enticed, or procured a certain person to engage in an act of sexual intercourse for hire and reward with a person to be directed to said person by the accused," see Article 134.

DEFINITIONS
Sexual act. The term 'sexual act' means --
(A) contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or
(B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
Sexual contact. The term 'sexual contact' means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.
Grievous bodily harm. The term 'grievous bodily harm' means serious bodily injury. It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose. It is the same level of injury as in Article 128, and a lesser degree of injury than in section 2246(4) of title 18.

Dangerous weapon or object. The term 'dangerous weapon or object' means --
(A) any firearm, loaded or not, and whether operable or not;
(B) any other weapon, device, instrument, material, or substance, whether animate or inanimate, that in the manner it is used, or is intended to be used, is known to be capable of producing death or grievous bodily harm; or
(C) any object fashioned or utilized in such a manner as to lead the victim under the circumstances to reasonably believe it to be capable of producing death or grievous bodily harm.
Force. The term 'force' means action to compel submission of another or to overcome or prevent another's resistance by --
(A) the use or display of a dangerous weapon or object;
(B) the suggestion of possession of a dangerous weapon or object that is used in a manner to cause another to believe it is a dangerous weapon or object; or
(C) physical violence, strength, power, or restraint applied to another person, sufficient that the other person could not avoid or escape the sexual conduct.

Threatening or placing that other person in fear.The term 'threatening or placing that other person in fear' for the charge of 'rape' or the charge of 'aggravated sexual contact' means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to death, grievous bodily harm, or kidnapping.
Threatening or placing that other person in fear. In general. The term 'threatening or placing that other person in fear' for the charge of 'aggravated sexual assault, or the charge of 'abusive sexual contact' means a communication or action that is of sufficient consequence to cause a reasonable fear that noncompliance will result in the victim or another being subjected to a lesser degree of harm than death, grievous bodily harm, or kidnapping.
Inclusions. Such lesser degree of harm includes --

(i) physical injury to another person or to another person's property; or
(ii) a threat --
(I) to accuse any person of a crime;
(II) to expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or
(III) through the use or abuse of military position, rank, or authority, to affect or threaten to affect, either positively or negatively, the military career of some person.

Bodily harm. The term 'bodily harm' means any offensive touching of another, however slight.
Child. The term 'child' means any person who has not attained the age of 16 years.
Lewd act. The term 'lewd act' means --
(A) the intentional touching, not through the clothing, of the genitalia of another person, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or
(B) intentionally causing another person to touch, not through the clothing, the genitalia of any person with an intent to abuse, humiliate or degrade any person, or to arouse or gratify the sexual desire of any person.
 Indecent liberty. The term 'indecent liberty' means indecent conduct, but physical contact is not required. It includes one who with the requisite intent exposes one's genitalia, anus, buttocks, or female areola or nipple to a child. An indecent liberty may consist of communication of indecent language as long as the communication is made in the physical presence of the child. If words designed to excite sexual desire are spoken to a child, or a child is exposed to or involved in sexual conduct, it is an indecent liberty; the child's consent is not relevant.
Indecent conduct. The term 'indecent conduct' means that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations. Indecent conduct includes observing, or making a videotape, photograph, motion picture, print, negative, slide, or other mechanically, electronically, or chemically reproduced visual material, without another person's consent, and contrary to that other person's reasonable expectation of privacy, of --
(A) that other person's genitalia, anus, or buttocks, or (if that other person is female) that person's areola or nipple; or
(B) that other person while that other person is engaged in a sexual act, sodomy (under Article 125 ), or sexual contact.
Act of prostitution. The term 'act of prostitution' means a sexual act, sexual contact, or lewd act for the purpose of receiving money or other compensation.
Consent. The term 'consent' means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused's use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent. A person cannot consent to sexual activity if --
(A) under 16 years of age; or
(B) substantially incapable of --
(i) appraising the nature of the sexual conduct at issue due to --
(I) mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise; or
(II) mental disease or defect which renders the person unable to understand the nature of the sexual conduct at issue;
(ii) physically declining participation in the sexual conduct at issue; or

(iii) physically communicating unwillingness to engage in the sexual conduct at issue.
Mistake of fact as to consent. The term 'mistake of fact as to consent' means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct consented. The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable the ignorance or mistake must have been based on information, or lack of it, which would indicate to a reasonable person that the other person consented. Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances. The accused's state of intoxication, if any, at the time of the offense is not relevant to mistake of fact. A mistaken belief that the other person consented must be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense.

MAXIMUM PUNISHMENTS
Rape and Rape of a Child: Dishonorable Discharge, death or confinement for Life, and forfeiture of all pay and allowances.
Aggravated Sexual Assault: Dishonorable Discharge, confinement for 30 yrs, and forfeiture of all pay and allowances.
Aggravated Sexual Assault of a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.
Aggravated Sexual Abuse of a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.
Aggravated Sexual Contact:Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.
Aggravated Sexual Contact with a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.
Abusive Sexual Contact with a Child:Dishonorable Discharge, confinement for 15 yrs, and forfeiture of all pay and allowances.
Indecent Liberty with a Child: Dishonorable Discharge, confinement for 15 yrs, and forfeiture of all pay and allowances.
Abusive Sexual Contact: Dishonorable Discharge, confinement for 7 yrs, and forfeiture of all pay and allowances.
Indecent Act: Dishonorable Discharge, confinement for 5 yrs, and forfeiture of all pay and allowances.
Forcible Pandering:Dishonorable Discharge, confinement for 5 yrs, and forfeiture of all pay and allowances.
Wrongful Sexual Contact:Dishonorable Discharge, confinement for 1 yr, and forfeiture of all pay and allowances.
Indecent Exposure: Dishonorable Discharge, confinement for 1 yr, and forfeiture of all pay and allowances.

Article 130—Housebreaking
Text. “Any person subject to this chapter who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking and shall be punished as a court-martial may direct.” Elements. (1) That the accused unlawfully entered a certain building or structure of a certain other person; and (2) That the unlawful entry was made with the intent to commit a criminal offense therein. Explanation. (1) Scope of offense. The offense of housebreaking is broader than burglary in that the place entered is not required to be a dwelling house; it is not necessary that the place be occupied; it is not essential that there be a breaking; the entry may be either in the night or in the daytime; and the intent need not be to commit one of the offenses made punishable under Articles 118 through 128. (2) Intent. The intent to commit some criminal offense is an essential element of housebreaking and must be alleged and proved to support a conviction of this offense. If, after the entry the accused committed a criminal offense inside the building or structure, it may be inferred that the accused in-tended to commit that offense at the time of the entry. (3) Criminal offense. Any act or omission which is punishable by courts-martial, except an act or omission constituting a purely military offense, is a “criminal offense.” (4) Building, structure. “Building” includes a room, shop, store, office, or apartment in a building. “Structure” refers only to those structures which are in the nature of a building or dwelling. Examples of these structures are a stateroom, hold, or other compartment of a vessel, an inhabitable trailer, an in-closed truck or freight car, a tent, and a houseboat. It is not necessary that the building or structure be in use at the time of the entry. (5) Entry. See paragraph 55c(3). (6) Separate offense. If the evidence warrants, the intended offense in the housebreaking specification may be separately charged. Lesser included offenses. (1) Article 134—unlawful entry (2) Article 80—attempts Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. UCMJ Article 134—General article

“Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.”

Elements.
The proof required for conviction of an offense under Article 134 depends upon the nature of the misconduct charged. If the conduct is punished as a crime or offense not capital, the proof must establish every element of the crime or offense as required by the applicable law. If the conduct is punished as a disorder or neglect to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces, then the following proof is required:

(1) That the accused did or failed to do certain acts; and

(2) That, under the circumstances, the accused’s conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Explanation.
(1) In general. Article 134 makes punishable acts in three categories of offenses not specifically covered in any other article of the code. These are referred to as “clauses 1, 2, and 3” of Article 134. Clause 1 offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces. Clause 2 offenses involve conduct of a nature to bring discredit upon the armed forces. Clause 3 offenses involve noncapital crimes or offenses which violate Federal law including law made applicable through the Federal Assimilative Crimes Act, see subsection (4) below. If any conduct of this nature is specifically made punishable by another article of the code, it must be charged as a violation of that article. See subparagraph (5)(a) below. How-ever, see paragraph 59c for offenses committed by commissioned officers, cadets, and midshipmen.
(2) Disorders and neglects to the prejudice of good order and discipline in the armed forces (clause 1).

(a) To the prejudice of good order and discipline. “To the prejudice of good order and discipline” refers only to acts directly prejudicial to good order and discipline and not to acts which are preju dicial only in a remote or indirect sense. Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this article does not include these distant effects. It is con-fined to cases in which the prejudice is reasonably direct and palpable. An act in violation of a local civil law or of a foreign law may be punished if it constitutes a disorder or neglect to the prejudice of good order and discipline in the armed forces. However, see R.C.M. 203concerning subject-matter jurisdiction.

(b) Breach of custom of the service. A breach of a custom of the service may result in a violation of clause 1 of Article 134. In its legal sense, “custom” means more than a method of procedure or a mode of conduct or behavior which is merely of frequent or usual occurrence. Custom arises out of long established practices which by common usage have attained the force of law in the military or other community affected by them. No custom may be contrary to existing law or regulation. A custom which has not been adopted by existing statute or regulation ceases to exist when its observance has been generally abandoned. Many customs of the service are now set forth in regulations of the vari ous armed forces. Violations of these customs should be charged under Article 92 as violations of the regulations in which they appear if the regulation is punitive. See paragraph 16c.

(3) Conduct of a nature to bring discredit upon the armed forces (clause 2). “Discredit” means to injure the reputation of. This clause of Article 134 makes punishable conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem. Acts in violation of a local civil law or a foreign law may be punished if they are of a nature to bring discredit upon the armed forces. However, see R.C.M. 203 concerning subject-matter jurisdiction.

(4) Crimes and offenses not capital (clause 3).

(a) In general. State and foreign laws are not included within the crimes and offenses not capital referred to in this clause of Article 134 and violations thereof may not be prosecuted as such except when State law becomes Federal law of local application under section 13 of title 18 of the United States Code(Federal Assimilative Crimes Act— see subparagraph (4) (c) below). For the purpose of court-martial jurisdiction, the laws which may be applied under clause 3 of Article 134 are divided into two groups: crimes and offenses of unlimited application (crimes which are punishable regardless where they may be committed), and crimes and offenses of local application (crimes which are punishable only if committed in a reas of federal jurisdiction).

(b) Crimes and offenses of unlimited application. Certain noncapital crimes and offenses prohibited by the United States Code are made applicable under clause 3 of Article 134 to all persons subject to the code regardless where the wrongful act or omission occurred. Examples include: counterfeiting ( 18 U.S.C. § 471), and various frauds against the Government not covered by Article 132.
(c) Crimes and offenses of local application.

(i) In general. A person subject to the code may not be punished under clause 3 of Article 134 for an offense that occurred in a place where the law in question did not apply. For example, a person may not be punished under clause 3 of Article 134 when the act occurred in a foreign country merely because that act would have been an offense under the United States Code had the act occurred in the United States. Regardless where committed, such an act might be punishable under clauses 1 or 2 of Article 134. There are two types of congressional enactments of local application: specific federal statutes (defining particular crimes), and a general federal statute, the Federal Assimilative Crimes Act (which adopts certain state criminal laws). 

(5) Limitations on Article 134.

(a) Preemption doctrine. The preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 through 132. For example, larceny is covered in Article 121, and if an element of that offense is lacking—for example, intent— there can be no larceny or larceny-type offense, either under Article 121 or, because of preemption, under Article 134. Article 134 cannot be used to create a new kind of larceny offense, one without the required intent, where Congress has already set the minimum requirements for such an offense in Article 121. 

 

(b) Capital offense. A capital offense may not be tried under Article 134.
 Above Information from Manual for Court Martial.