Due Process Concerns Are Raised with Inconsistent Theories of Liability Against Defendant in Convictions for Sexual Assault
In U.S. v. Mendoza, 85 M.J. 213 (C.A.A.F. 2024) the U.S. Court of Appeals for the Armed Forces considered a defendant’s convictions for sexual assault. The government initially charged Isac Mendoza with sexual assault under the theory that the sexual act occurred without consent. But at trial, the government advanced a different theory that the alleged victim was incapable of consenting because of intoxication. The court ruled that this shift in the factual theory deprived Mr. Mendoza of fair notice regarding the charge against him, thereby violating his constitutional right to due process. Mr. Mendoza’s conviction was set aside and the case remanded to the lower court.
Facts of the Case
In July 2020, while stationed at Camp Casey, Korea, soldier J.W. awoke to Staff Sergeant Isac Mendoza, whom she did not recognize, knocking on her door to return her shoes. She had no memory of the previous night’s events, aside from drinking with fellow soldiers. She noticed physical signs and irregularities on her person, suggesting she had been sexually assaulted. J.W. grew increasingly distressed and sought help from the barracks authorities, who referred her to a Sexual Harassment/Assault Response and Prevention (SHARP) representative. J.W. subsequently underwent a sexual assault forensic examination (SAFE).
During the investigation, Sgt. Mendoza admitted to intercourse with J.W. while she was highly intoxicated. Surveillance footage from the barracks captured Sgt. Mendoza escorting J.W. unsteadily to his room while making physical contact with her. DNA evidence further confirmed Sgt. Mendoza’s involvement. The government charged Sgt. Mendoza with sexual assault in violation of Article 120(b)(2)(A) of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 920(b)(2)(A) (2018), meaning that he was alleged to have engaged in a sexual act with a person who is capable of consenting but did not consent. Notably, the government did not pursue charges under UCMJ Article 120(b)(3)(A)(2018), which involves a sexual act with a person who is unable to consent and whose inability to consent is known or reasonably should have been known to the accused. Sgt. Mendoza was convicted of the former charge at trial by a military judge. On appeal, Sgt. Mendoza argued that the government did not produce evidence that J.W. had withheld consent as required by Article 120(b)(2)(A). The Army Court of Criminal Appeals rejected this argument, finding his conviction factually sufficient based on the extent of J.W.’s intoxication and the other evidence presented. The U.S. Court of Appeals for the Armed Forces granted review to determine if Sgt. Mendoza’s conviction for sexual assault without consent was legally substantiated.
Ruling and Reasoning
The U.S. Court of Appeals for the Armed Forces ruled to set aside the decision of the United States Army Court of Criminal Appeals (ACCA) and remand the case for a new review under Article 66, UCMJ, 10 U.S.C. § 866 (2018). The court found that subsections (b)(2)(A) and (b)(3)(A) of UCMJ Article 120 establish separate theories of liability regarding sexual assault. That is, Article 120(b)(2)(A) addresses circumstances in which a sexual act is committed against a person who is capable of consenting but did not give consent. In contrast, subsection (b)(3)(A) pertains to sexual activity involving a person incapable of consent because of impairment, with the additional requirement that the accused is aware or reasonably should be aware of that incapacity. Interpreting subsection (b)(2)(A) to include lack of capacity because of intoxication both renders (b)(3)(A) superfluous and allows the government to circumvent the requirement that they prove the defendant’s knowledge of incapacity.
The court also noted that charging a defendant under one factual theory (lack of consent) and later arguing a different factual theory at trial (incapacity to consent because of intoxication) undermines the defendant’s constitutional right of due process, specifically his right to fair notice of the legal theory under which he will be tried. In this case, the military judge’s conviction of Sgt. Mendoza, potentially on the theory that J.W. was incapable of consenting, was found to be problematic without proof provided by the government addressing the additional required element under 120(b)(3)(A) that the appellant knew or should have known the victim’s incapacitation. To avoid further due process violations, the court set aside the decision and remanded the case back to that court for a new review of the factual and legal sufficiency of the conviction for violating Article 120(b)(2) in light of its ruling.
Dissent
Judge Sparks filed a separate opinion, concurring in part and dissenting in part in the judgment. He agreed with the majority that the government’s improper conflation of two separate legal theories violated Sgt. Mendoza’s due process rights by depriving him of fair notice. But Judge Sparks disagreed with the majority’s decision to remand the case for further review. He stated that the government failed to prove J.W.’s lack of consent because they focused instead on arguing that she could not consent and included expert testimony from a forensic biologist regarding the impact of alcohol on behavior. No further review was needed. He maintained that the appropriate remedy was to reverse the conviction. He concluded that the case should be dismissed with prejudice because of the legal insufficiency of the evidence and the due process violation, rejecting the majority’s suggestion of a remand.
Judge Maggs, concurring in part and dissenting in part, agreed with the court’s interpretation of Article 120(b)(2)(A) and conclusion that incapacity to consent is distinct from lack of consent. But he parted ways with the majority regarding the remedy. Judge Maggs believed that, aside from the emphasis on victim incapacity, the evidence in total was legally sufficient for conviction under Article 120(b)(2)(A). He agreed with the decision to remand the case for reassessment of its factual findings, given the court’s clarification of the distinction in legal theories.
Discussion
This case, decided by the U.S. Court of Appeals for the Armed Forces, primarily affects prosecution of sexual assault within the military justice system. The court found that the prosecution’s approach in this case undermined Sgt. Mendoza’s ability to prepare an effective defense, as it deprived him of fair notice regarding the elements of the charge he must contest. This case underscores the importance of ensuring that the legal theories presented at a trial align with the charges filed, as failure to do so can jeopardize the integrity of the prosecution and violate the defendant’s rights.
Because the case arose under the UCMJ, its direct legal impact is limited to military courts and those subject to the UCMJ. But the due process concerns raised in this case are rooted in constitutional principles that apply broadly beyond military courts. This case may serve as persuasive authority for arguments in other jurisdictions, particularly in cases where the prosecution’s trial strategy substantially deviates from the charged offense. The case is instructive to forensic evaluators who may be involved in assessing claims related to consent and sexual assault in that the legal theory may determine the question asked of the evaluator.
- © 2025 American Academy of Psychiatry and the Law
