This opinion is subject to revision before publication



## U NITED 

## S TATES 

## C OURT OF 

## A PPEALS

FOR THE 

### A RMED 

### F ORCES

_______________
UNITED STATES Appellee

v.

Thomas E. MADER III
, Sergeant United States Marine Corps , Appellant

No. 20

- 0221 Crim. App. No. 201800276

Argued January 12, 2021

— Decided April 20, 2021

Military Judge: Leon J. Francis

For Appellant: Major Mary Claire Finn e n , USMC (argued); Lieutenant Commander Kevin R. Larson , JAGC, USN.

For Appellee: Lieutenant Jennifer Joseph , JAGC, USN (argued); Lieutenant Colonel Nicholas L. Gannon , USMC, Major Kerry E. Friedewald , USMC, and Brian K. Keller , Esq. (on brief).

Judge HARDY delivered the opinion of the Court, in
which Chief Judge STUCKY, and Judges OHLSON, SPARKS, and MAGGS, joined.

_______________
Judge HARDY delivered the opinion of the Court.

During a farewell party in the barracks, Appellant burned three junior Marines, who m he supervised, with a cigarette in an apparent attempt to bond with them. Although these acts might have been charged as a violation of the MarineCorps general order prohibiting hazing under Article 92, Uniform Code of Military Justice (UCMJ) , 10 U.S.C. § 892 (2012) (for which consent is not a defense), the Government electedinstead to charge Appellant with three specifications of assault consummated by battery in violation of Article 128,
UCMJ , 10 U.S.C. § 892 (2012) (for which consent generally is
a d efense). On review, the United States Navy

- Marine Corps Court of Criminal Appeals (NMCCA) found that Appellant had an honest, albeit mistaken, belief that the three junior Marines consented to being burned, but then concluded that

“ the apparent consent was not lawful and hence not reasona-United States v. Mader , No. 20

- 0221/MC Opinion of the Court

2 ble ” because “[ a]s a matter of law .

. . under these circumstances a victim cannot consent to this type of injury. ” United
States v. Mader , 79 M.J. 803, 816, 818 (N

- M. Ct. Crim. App. 2020). We granted review to determine wh ether the NMCCA
erred when it concluded that “ no person in any similar circumstance could ever lawfully consent ” to being burned by a cigarette. United States v. Mader, 80 M.J. 202 (C.A.A.F. 2020) (order granting review). Because we find no justification f or deviating from the general rule that consent is a defense to simple assault, we reverse the NMCCA ’ s opinion as to Specifications 1, 2, and 4 of Charge II and the sentence, and remand for it to determine whether Appellant ’ s mistaken belief that the junio r Marines consented was reasonable, and if so,whether Appellant established that his conduct was precipitated by his mistaken belief that his victims consented.

I. Background

Appellant, a sergeant in the United States Marine Corps, was assigned to a communications platoon at Marine CorpsBase Hawaii. A few days prior to leaving his duty station, Appellant and a group of junior Marines whom he supervised gathered for a farewell party in the barracks. 1 While talking and drinking with the junior Marines, the conversation turned to morale within the unit and life in the Marine Corps. Appellant stated that when he joined the platoon, he andother junior Marines received cigarette burns from senior Marines to create a sense of pride and belonging within the platoon. After this comment, Appellant lit a cigarette and burned PFC Bravo on his chest and did the same thing to PFC Echo before burning LCpl Delta on the shoulder. The NMCCA
found that “[ n]one of the junior Marines manifested any physical or verbal sign s of lack of consent, ” and that the “ socializing continued for some time into the evening without incident. ” Mader , 79 M.J. at 8 0 7 . None of the junior Marines reported the incident. Id

.

1 The NMCCA opinion referred to the junior Marines presen t at the gathering as Sergeant (Sgt) Alpha, Private First Class (PFC) Bravo, PFC Charlie, Lance Corporal (LCpl) Delta, and LCpl Echo.
Mader , 79 M.J. at 806 n.3. W e adopt those same pseudonyms throughout this opinion.United States v. Mader , No. 20

- 0221/MC Opinion of the Court

3 Although some of the junior Marines gave conflicting or
uncertain test imony at trial about whether they had consented to the cigarette burns, Appellant testified that each consented. Appellant stated that LCpl Delta asked to be burned, and that both PFC Bravo and PFC Echo agreed to be burned and pulled down their own shirts for Appellant to
burn each of them on the chest. At the conclusion of the evidence phase of the court

- martial, the military judge instructed the members that mistake of fact as to consent was a defense to assault consummated by a battery.

An officer and e nlisted panel sitting as a general court

martial convicted Appellant, contrary to his pleas, of twospecifications of failure to obey a lawful general order or regulation (for acts unrelated to the cigarette burns) and four specifications of assault consum mated by a battery (one ofwhich was unrelated to the cigarette burns) in violation of Articles 92 and 128, UCMJ. The members sentenced Appellant to 190 days confinement, reduction to E

- 1, forfeiture of all pay and allowances, and a bad

- conduct discha rge.
On appeal, the NMCCA reviewed the charges for factual and legal sufficiency, dismissed one violation of Article 92

, UCMJ, for factual insufficiency, but otherwise affirmed the remaining charges and sentence. Mader , 79 M.J. at 819

. Although there was confl icting testimony as to whether the junior Marines actually consented to being burned by Appellant, the lower court found that Appellant “ had an honest, though mistaken, belief that the junior Marines consented to being burned by the cigarette. ” Mader , 79 M .J. at 816. Nevertheless, the lower court held that under the
circumstances consent was “ not lawful and hence
unreasonable ” for two reasons. Id

. at 818.

First, the NMCCA stated that “[ t]his [was] a clear instance of hazing and could have been charged as su ch. ” Id

.Noting that the Marine Corps has prohibited hazing and expressly declared that “ ‘[ a]ctual or implied consent to acts of hazing are not a defense, ’ ” id. at 818 n.100 (quoting Dep ’ t of the Navy, Marine Corps Order 1700.28B, para. 2a, 3f (May 20, 2 013)), the NMCCA similarly concluded that Appellant ’ s mistaken belief that the junior Marines had consented was
not a lawful defense. Id. at 818.United States v. Mader , No. 20

- 0221/MC Opinion of the Court

4 Second, even without the hazing aspects of the underlying events, the NMCCA concluded that it would be contrar y topublic policy to allow victims to consent to receiving a cigarette burn. Vaguely citing unspecified “ harm to the general public when crimes occur ” and relying on the United States Army Court of Criminal Appeals ’ s decision in United States
v. Arab , 55 M.J. 508 (A. Ct. Crim. App. 2001), the NMCCAheld that no victim could lawfully consent under the circumstances here because of “ society ’ s need to protect victims from this type of harm. ” Mader, 79 M.J. at 817.

We granted review of the following issue:

Consent is a defense to assault consummated by abattery. The lower court found that even though Appellant had mistakenly believed other Marines consented, no person in any similar circumstance could ever lawfully consent. Did the lower court err?

Mader

, 80 M.J. 202

. II. Standard of Review

This Court reviews de novo whether consent, or mistake
of fact as to consent, is available as a defense. United States
v. McDonald , 57 M.J. 18, 20 (C.A.A.F. 2002).

III. Discussion

An assault consummated by battery is de fined as “ bodily
harm to another .

. . done without legal justification or excuse and without the lawful consent of the person affected. ” Manual for Courts

- Martial, United States pt. IV, para. 54.c.(1)(a), (2)(a) (2016 ed.) ( MCM) . “ ‘ Bodily harm ’ ” is defi ned as “ any offensive touching. ” MCM pt. IV, para. 54.c.(1)(a). This Court has long held “ that, as a general matter, consent ‘ can convert what might otherwise be offensive touching into non

- offensive touching. ’ ” United States v. Johnson , 54 M.J. 67, 69 (C .A.A.F. 2000) (quoting United States v. Greaves , 40 M.J. 432, 433 (C.M.A. 1994)). Further, the Rules for Courts

- Martial(R.C.M.) make clear that even if an alleged victim did not consent to being touched, an accused cannot be convicted of assault consummat ed by a battery if the accused mistakenly believed the alleged victim consented and that belief was

“ reasonable under all the circumstances. ” R.C.M. 916(j)(1). Thus, this Court ’ s predecessor held that a “ reasonable andUnited States v. Mader , No. 20

- 0221/MC Opinion of the Court

5 honest mistake of fact as to consent constitutes an affirmative defense in the nature of legal excuse. ” Greaves , 40 M.J. at 433.

The lower court and the Government acknowledge that consent is generally a defense to battery. Mader , 79 M.J. at

815

– 16; Brief for Appellee at 12

, United States v. Mader , No.

20

- 0221 (C.A.A.F. Nov. 19, 2020) ; see also Wayne R. LaFave,
Criminal Law 473 (6th ed. 2017). But both take the stance that in this case, as a matter of law, Appellant ’ s victims could not consent to being burned with a cigarette. We disagree.

The NMCCA ’ s conclusion that the type of harm in this case is so egregious that it is impossible, as a matter of law, to be suffered consensually, is untenable. First, the NMCCA ’ s belief that Appellant ’ s acts could have been charged as a violation of the Ma rine Corps Order against hazing

— for which
consent would not have been a lawful defense

— is irrelevant. Cf. Dunn v. United States , 442 U.S. 100, 107 (1979) (“ ‘ It is as much a violation of due process to send an accused to prison following conviction of a ch arge on which he was never tried as it would be to convict him upon a charge that was never
made. ’ ” (alteration omitted (quoting Cole v. Arkansas , 333 U.S. 196, 201 (1948) ) ) . The Government had complete discretion over how to charge Appellant and it elect ed to charge hisacts as assault consummated by a battery in violation of Article 128(a), UCMJ. When it did so, the Government accepted the risk that Appellant could not be found criminally liable if he reasonably believed

— even if that belief was mistaken

— that the junior Marines consented to the cigarette burns.

Second, we are unpersuaded by the NMCCA ’ s assertion that the junior Marines ’ consent

— even if freely given

— would
have been unlawful because of “ society ’ s need to protect victims from this type of har m. ” Mader

, 79 M.J. at 818. Even if there might be certain circumstances in which a public policyinterest would be strong enough to overcome the general principle that consent is a defense to simple assault, this Court has never recognized one. And here, t he NMCCA failed to identify any specific public policy reason that would supportits conclusion, let alone one that would be sufficiently compelling to overcome the general rule. Consent is a well

- established defense to simple assault, and nothing in this Court ’ s precedent or the specific facts of this case justify the
NMCCA ’ s deviation from that general principle.United States v. Mader , No. 20

- 0221/MC Opinion of the Court

6 The Government argues that this Court ’ s precedents support the lower court ’ s holding, citing United States v. Bygrave for the proposition that consent is only available as a
defense if consent is “ legally cognizable ” given the conduct in
the case. 46 M.J. 491, 493 (C.A.A.F. 1997). The Government ’ s reliance on Bygrave is misplaced, however, because in that
case the accused ’ s actions were charged a s aggravated assault for which consent is generally not a valid defense. Id

. Although the Government urges us to extend our holding in Bygrave beyond aggravated assaults to the simple assault charged in this case, we decline to do so. As we noted in Bygrav e , Article 128, UCMJ, differentiates aggravated assaults from simple assaults by requiring that the perpetrator of an aggravated assault inflict a heightened level
of harm on his victim

. Id . If the Government believed that Appellant ’ s acts resulted in “ gri evous ” bodily harm, then it could have charged Appellant with aggravated assault under Article 128(b), UCMJ, removing the defense of consent. In light of the Government ’ s decision to charge Appellant with assault consummated by battery under Article 128(a) , UCMJ, we see no reason to strip Appellant of a defense to which he is otherwise legally entitled.

Here, the conduct was charged as a simple assault consummated by battery. As stated, consent is a generally available defense for such a charge. Although t he Governmentmight have charged Appellant with hazing or aggravated assault, which would have eliminated the opportunity to raise a consent defense, it elected not to do so. We believe that the NMCCA erred when it barred Appellant ’ s consent defense as

a m atter of law.

As described above, the NMCCA already found that Appellant had an honest, albeit mistaken, belief that the three junior Marines consented to being burned. However, because it erroneously believed that Appellant ’ s victims could not lawfully co nsent to receiving the cigarette burns, the NMCCA never considered whether Appellant ’ s mistaken belief that the junior Marines ’ consented was “ reasonable
under all of the circumstances. ” R.C.M. 916(j)(1); see also
Greaves , 40 M.J. at 433 (requiring an honest mistake of fact regarding consent to be reasonable to constitute anUnited States v. Mader , No. 20

- 0221/MC Opinion of the Court

7 affirmative defense). We therefore return the case to the
NMCAA for further consideration.

IV. Decision
The decision of the United States Navy

- Marine Corps Court of Criminal Appeals is reversed as to Specifications 1, 2, and 4 of Charge II and the sentence. The decision of thatcourt is affirmed as to Charge I and Specification 2 thereunder and Charge II and Specification 3 thereunder. The record
of tri al is returned to the Judge Advocate General of the Navy for remand to the court for further consideration in light of this opinion.