The United States Court of Appeals for the Armed Forces (CAAF) recently decided United States v. McDonald, an Army case involving a service member accused of sexual assault. The case’s conclusion is noteworthy among military criminal cases in that it has decided that sexual assault that involves nonconsensual sexual activity that causes physical harm can be viewed as a general intent crime. This conclusion was reached because members of the CAAF found that “the burden is on the actor to obtain consent,” as opposed to any burden being placed on the victim to present a lack of consent.


Viewing sexual assault of this nature as a “general intent crime” is a significant legal change in that it addresses the mens rea, or mental state, required to constitute a criminal violation of the Uniform Code of Military Justice (UCMJ). Despite legal updates to the UCMJ in both 2012 and 2016, the actual mental state of an alleged sexual assault offender was not addressed clearly. That is to say, it was not clear if a military service member could be convicted of sexual assault in violation of Article 120b when it could not be shown that they had reason to believe the alleged victim had not given consent, or when it could not be shown that they had ignored an expressed lack of consent.

The CAAF’s decision holds similarly to a ruling in December 2018 for U.S. v. Patrick. In that case, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) stated the required mental state of a perpetrator of sexual assault must be one with the “intent to abuse, humiliate, harass, or degrade” the victim. Thusly, if sexual assault by bodily harm is now a general intent offense, then the mens rea is the intention to commit the sexual act, regardless of consent or a lack thereof. In other words, the “general intent” to commit a sexual act that harms, exploits, or humiliates the victim in some way is enough to constitute sexual assault charges because the accused has the ultimate burden to both obtain consent and to understand the potential ramifications of their own actions.


The unanimously-ruling CAAF clarified its decision through a number of considerations. Firstly, the CAAF found that “it is an offense to commit a sexual act without consent,” but next explained that the honest mistake of not completely verifying consent had been given could be used as an affirmative defense to sexual assault charges. Secondly, the CAAF Judges pointed to the general intent described in Article 120 for rape and concluded it was reasonable to assume the same legal rules were meant to be used in following sub-articles, such as 120b.

The CAAF also noted that an alleged victim must freely give agreement to a sexual act in order for consent to be given. On the other hand, the letter of the law did not go into how the accused interpreted consensual statements or actions. That is to say, the statements given by the alleged victim to give or not give consent must be taken as is without any internal interpretation by the alleged aggressor.

Lastly, the CAAF held that applying a general intent rule to sexual assault charges does not run the risk of criminalizing “innocent” yet misinterpreted sexual activity because, in the eyes of the CAAF, only consensual sexual activity can be deemed “innocent” in the first place. Along this vein, a defendant that reasonably believed they had been given consent through clear actions or language could possibly use that stance as an affirmative defense.


This decision of the CAAF can lead to two important conclusions. The first being that not knowing the alleged victim did not consent to sexual activity is not a strong defense for the accused since the burden to obtain consent falls on them at the time of sexual interaction. The second being that nonconsensual sexual activity that does not cause harm to the alleged victim might not constitute sexual assault as described under Article 120b because the motivations behind the action might not fit the descriptions of “general intent.”

However, the CAAF decision for U.S. v. McDonald may still provide ample opportunities for the criminalization of sexual activities deemed wholly innocent and consensual at the time. With a general intent mens rea and the burden of proving consent fully on the accused, there is some worry regarding an accuser’s ability to fabricate past encounters, knowing that there is no evidential burden on themselves to prove that no consent was given. Ultimately, and as with so many legal updates that come from the CAAF, this case’s conclusion further stresses the importance of military service members retaining a military criminal defense attorney when accused of a serious military crime. Legal generalities and updates rarely benefit the accused.


Across the last seven years of private practice, Attorney Joseph Jordan has personally and successfully represented more than 350 clients, with 145 of those cases being taken to a verdict and all of those clients being members of all branches of the United States Armed Forces. He has rightfully earned his reputation as a world-class military criminal defense attorney capable of taking on newsworthy cases that decide the futures of brave men and women in service who have been accused of serious crimes. From rape and sexual assault to manslaughter and drug crimes, Attorney Joseph Jordan and his legal team can handle it all. He travels to bases around the globe to defend the rights of the nation’s defenders. You can even call upon him if you need representation for a military court martial.

Call (866) 624-7503now to learn how to retain Attorney Joseph Jordan for your military criminal defense case.