In Re Ajw

This opinion is subject to administrative correction before final disposition.
Before
GASTON, STEWART, and COGLEY
Appellate Military Judges
_________________________
In Re A.J.W.
Petitioner
_________________________
UNITED STATES
Respondent
_________________________
Tyrell T. GREEN
Lance Corporal (E-3), U.S. Marine Corps
Real Party in Interest
_________________________
No. 202000084
Decided: 12 January 2021
Review of Petition Pursuant to Article 6b,
Uniform Code of Military Justice,
for Extraordinary Relief in the Nature of a Writ of Mandamus
Military Judge:
Andrea C. Goode
Sentence adjudged 4 March 2020 by a special court-martial convened
at Marine Corps Base Camp Pendleton, California, consisting of a mil-
itary judge sitting alone. Sentence in the Entry of Judgment: reduc-
tion to E-1 and confinement for 140 days.
In Re A.J.W., NMCCA No. 202000084
Opinion of the Court
For Petitioner:
Major Maryann N. McGuire, USMCR
Captain William L. Hinson, USMC
Captain Robert B. Echols, USMC
For Respondent:
Lieutenant Kevin G. Edwards, II, JAGC, USN
Major Clayton L. Wiggins, USMC
For Real Party in Interest:
Major Mary C. Finnen, USMC
Judge COGLEY delivered the opinion of the Court, in which Senior
Judge GASTON and Judge STEWART joined.
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
COGLEY, Judge:
At a special court-martial, the Real Party in Interest [RPI] was convicted,
in accordance with his pleas, of two specifications of violating a lawful order,
one specification of violating a lawful general order, and one specification of
extramarital sexual conduct, in violation of Articles 90, 92, and 134, Uniform
Code of Military Justice [UCMJ].1 One of the specifications of violating a
lawful order concerned the RPI’s violation of a military protective order
[MPO] prohibiting him from contacting or being near Petitioner. The extra-
marital sexual conduct charge related to sexual intercourse between the RPI
and Petitioner while the RPI was married to another person. In exchange for
the RPI’s guilty pleas, pursuant to a plea agreement, two specifications
charging the RPI with sexually assaulting Petitioner in violation of Article
120, UCMJ, were withdrawn and dismissed.
At the presentencing hearing, Petitioner’s victims’ legal counsel [VLC]
offered a written victim impact statement from Petitioner pursuant to Rule
for Courts-Martial [R.C.M.] 1001(c). The RPI’s trial defense counsel objected
that parts of the statement were not relevant because they referenced an
1 10 U.S.C. §§ 890, 892, 934.
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Opinion of the Court
alleged sexual assault which was not one of the charges of which the RPI was
found guilty. Both the trial counsel and the VLC argued that because the
facts underlying the extramarital sexual conduct and one of the violations of
the MPO related to the RPI’s alleged sexual assault against Petitioner, she
should be considered a victim of all three offenses and her entire statement
should be heard.
The military judge sustained the trial defense counsel’s objection, in part,
and struck several paragraphs from the victim impact statement discussing
the alleged sexual assault, reasoning that the RPI neither pleaded guilty to
nor was found guilty of sexual assault and that Petitioner was not a victim of
the extramarital sexual conduct charge. The VLC objected and sought a stay
to file a petition for an extraordinary writ with this Court. The military judge
denied the stay, proceeded with the sentencing hearing, and sentenced the
RPI for the offenses to which he had pleaded guilty. Petitioner subsequently
filed a Petition for Extraordinary Relief with this Court, seeking a writ of
mandamus for a new sentencing hearing at which the entire victim impact
statement would be heard.
Upon review, we find that the military judge’s analysis was based on a
correct understanding of the law and that her ruling was within the range of
permissible choices and not an abuse of discretion. We therefore conclude
Petitioner fails to satisfy the second prong of the analysis required for a writ
of mandamus to issue—i.e., showing that her right to the writ is clear and
indisputable. As a result, we deny the Petition.
I. BACKGROUND
The underlying facts leading to the charges in this case are not fully de-
veloped on the record, likely due to the plea agreement. The RPI stipulated to
facts pertaining to his guilty pleas. Among other things, the stipulation of
fact states that sexual intercourse occurred between the RPI and Petitioner
on 6 July 2019 in the barracks after a party while the RPI was intoxicated.
The stipulation of fact does not address whether Petitioner consented, and
the RPI was neither asked nor stated during the providency inquiry whether
the sexual intercourse was consensual. Additionally, the stipulation of fact
states that on 8 October 2019 the RPI violated an MPO directing him to stay
at least 500 feet away from Petitioner. Thus, the MPO violation occurred
three months after the sexual intercourse between the RPI and Petitioner.
The plea agreement contains a provision labelled, “Agreements by the ac-
cused,” under which a subparagraph explains that pursuant to United States
v. Terlep, 57 M.J. 344 (C.A.A.F. 2002), the RPI agreed that if there was a
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Opinion of the Court
named victim for the charges to which he pleaded guilty, the victim could
testify during the Government’s sentencing case. The provision states:
[RPI] reserves [his] right to object to any testimony of the
named victim that is not relevant or calls for hearsay. In the
event that any named victim elects not to testify in person dur-
ing the government’s sentencing case, [RPI] specifically agrees
not to object to the named victim’s submission of a Victim Im-
pact Statement. This provision does not interfere with his abil-
ity to present an effective and complete case in extenuation and
mitigation. [RPI does] not waive [his] right to cross-examine or
to rebut any crime victim statements under R.C.M. 1001(c) in
accordance with R.C.M. 1001(c)(4) and 1001(c)(5).2
In accordance with R.C.M. 1001(c)(5)(B), the VLC delivered Petitioner’s
written victim impact statement to the trial counsel and trial defense counsel
the day before the presentencing hearing. It was then offered by the VLC
after the announcement of findings, as contemplated under R.C.M.
1001(c)(5)(B), and marked as an appellate exhibit; it was not offered by the
trial counsel as evidence in aggravation.
The Defense objected to the references to a sexual assault contained in
the victim impact statement, arguing that information about a sexual assault
was not relevant to any of the charges the RPI pleaded guilty to and was thus
irrelevant—in other words, it fell outside the scope of R.C.M. 1001(c). The
Defense did not object to the portions of the victim impact statement address-
ing the RPI’s violation of the MPO concerning Petitioner. The trial counsel
and VLC responded that Petitioner should be considered a “crime victim”
under R.C.M. 1001(c)(2)(A) of the Article 134 extramarital sexual conduct
charge to which the RPI pleaded guilty. The VLC asked the military judge to
consider that the alleged sexual assault directly related to the MPO violation,
and, for the same reason, the victim impact statement should be considered
within the scope of R.C.M. 1001(c).
The VLC also argued that if Petitioner was not allowed to discuss the al-
leged sexual assault, the victim impact statement would lack context, citing
United States v. Terlep,3 as support for allowing a victim to make reference to
a sexual assault during sentencing in a case where the accused pleads guilty
to another crime. In Terlep, the accused pleaded guilty to assault consum-
2 App. Ex. I at 6-7.
3 57 M.J. 344 (C.A.A.F. 2002).
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Opinion of the Court
mated by a battery as a lesser-included offense of sexual assault, pursuant to
a negotiated pretrial agreement. The court in Terlep reasoned that “the
entrance of the Government and appellant into a plea bargain for a lesser
charge than rape does not change the facts as to what happened to the victim
that night in her view.”4 The VLC also cited United States v. Hayes,5 decided
by this Court, as support for the view that a plea agreement does not bar
victims from testifying to their version of the truth, and that although Hayes
involved a guilty plea to indecent acts with another as a lesser-included
offense of forcible sodomy, we did not rely on that as a significant factor in
defining who the victim was.6
The military judge ruled that she would not consider any reference to the
alleged sexual assault. She agreed that the portions of the victim impact
statement relating to the MPO were “fair evidence under [R.C.M.] 1001(c).”7
She noted, however, that the alleged sexual assault took place three months
before the MPO violation; thus, she found the violation of the MPO did not
relate directly to the alleged sexual assault. She further reasoned that while
the sexual activity between the RPI and Petitioner did relate to the extra-
marital sexual conduct charge, Petitioner was not a victim of that charge. She
found that the RPI’s spouse could be considered a victim of the extramarital
sexual conduct charge, but that extramarital sexual conduct implies consent
on the part of the parties involved and that, therefore, a participant in the
extramarital sexual conduct could not be considered a “crime victim” for
purposes of R.C.M. 1001(c)(2)(A). The military judge distinguished Terlep,
reasoning that neither extramarital sexual conduct nor the MPO violation
were lesser-included offenses of sexual assault. As a result, she ruled that the
“relevant portions of the statement relating to the harm [Petitioner] suffered
with respect to the violation of Article 90 is relevant, but the items . . . talk-
ing about the sexual assault are not relevant to the charged conduct.” 8
The military judge then struck four paragraphs from the victim impact
statement and parts of another paragraph that related to the sexual assault.
She did consider other portions of the victim impact statement, including a
4 Id. at 350.
5 No. 200600910, 2008 CCA LEXIS 505 (N-M. Ct. Crim. App. Dec. 11, 2008) (un-
published).
6 Id. at *9-10.
7 R. at 90-91.
8 R. at 103.
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Opinion of the Court
description of how the RPI turned the Petitioner’s “world upside down” when
she “saw [him] in the common area with one of his friends.”9 She considered
the part of the victim impact statement describing the “fear, the confusion,
[and] the distress [Petitioner] felt from the [RPI’s] violation of the Military
Protective Order.”10 She also considered Petitioner’s description of her strug-
gle to recover mentally from the RPI’s actions and the doubts she faced about
continuing her career in the Marine Corps.
II. DISCUSSION
Petitioner asserts that the military judge erred by refusing to admit the
complete victim impact statement under R.C.M. 1001(c). She seeks relief in
form of a writ of mandamus to reopen the sentencing proceedings and allow
the victim to be fully heard as required under R.C.M. 1001(c).
This Court has jurisdiction over the Petition under Article 6b, UCMJ, un-
der which a victim may petition this Court when the victim “believes . . . a
court-martial ruling violates the rights of the victim afforded by . . . [Article
6b, UCMJ].”11 One of the rights a victim has under Article 6b is the right to
be reasonably heard at a sentencing hearing related to the offense. This
Court is empowered to issue writs of mandamus as necessary to enforce such
statutory and procedural rights of victims pursuant to Article 6b(e), UCMJ.
“A writ of mandamus is a drastic instrument which should be invoked on-
ly in truly extraordinary situations.”12 “Only exceptional circumstances
amounting to a clear abuse of discretion or usurpation of judicial power
justify invocation of the writ.”13 “To prevail, a petitioner seeking an extraor-
dinary writ must show that: (1) there is no other adequate means to attain
relief; (2) the right to issuance of the writ is clear and indisputable; and
(3) the issuance of the writ is appropriate under the circumstances.”14
Here, Petitioner fails to satisfy the second prong of the test, in that she
has not shown that her right to issuance of the writ is clear and indisputable.
9 App. Ex. V.
10 Id.
11 UCMJ arts. 6b(e)(1), (4)(A), 10 U.S.C. § 806b(e)(1), (4)(A).
12 J.M. v. Payton-O’Brien, 76 M.J. 782, 785 (N-M. Ct. Crim. App. 2017).
13 Id.14Id. (citing Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012)) (internal quotation
marks omitted).
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Opinion of the Court
In analyzing this issue, we must use the standard for reviewing a military
judge’s decision to admit evidence or statements of victim impact, which is
abuse of discretion.15 “The abuse of discretion standard is a strict one, calling
for more than a mere difference of opinion. The challenged action must be
arbitrary, fanciful, clearly unreasonable, or clearly erroneous.”16 Based on the
record before us, we find the military judge did not abuse her discretion in
placing reasonable limitations on the content of the victim impact statement.
A. The Scope of Victim Impact Statements
Finding the right balance between a victim’s right to be reasonably heard
and an accused’s right to be sentenced only for those charges of which he or
she has been found guilty has resulted in a number of cases analyzing this
situation from a variety of perspectives.17 As the rules themselves make clear,
however, the right stems from the particular offense of which the accused has
been found guilty. Thus, a victim of an offense under the UCMJ has the right
to be “reasonably heard” at a sentencing hearing “relating to that offense.”18
In order to have such a right as a “crime victim,” the victim must have
suffered “direct physical, emotional, or pecuniary harm as a result of the
commission of an offense of which the accused was found guilty.”19 If so, the
victim may submit a statement of “victim impact,” which includes “any
financial, social, psychological, or medical impact on the crime victim directly
relating to or arising from the offense of which the accused has been found
guilty.”20
15 United States v. Hamilton, 78 M.J. 335, 340 (C.A.A.F. 2019).
16 United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010) (citation and internal
quotation marks omitted).
17 See e.g., Terlep, 57 M.J. at 344; United States v. White, No. ACM 39600, 2020
CCA LEXIS 235 (A.F. Ct. Crim. App. July 15, 2020) (unpublished); United States v.
Da Silva, No. ACM 39599, 2020 CCA LEXIS 213 (A.F. Ct. Crim. App. June 25, 2020)
(unpublished.); United States v. Dunlap, No. ACM 39567, 2020 CCA LEXIS 148 (A.F.
Ct. Crim. App. May 4, 2020) (unpublished); United States v. Roblero, No. ACM 38874,
2017 CCA LEXIS 168 (A.F. Ct. Crim. App. Feb. 17, 2017) (unpublished); United
States v. Daniels, No. 201600221, 2017 CCA LEXIS 240 (N-M. Ct. Crim. App. Apr.
13, 2017) (unpublished); United States v. Hayes, No. 200600910, 2008 CCA LEXIS
505 (N-M. Ct. Crim. App. Dec. 11, 2008) (unpublished).
18 R.C.M. 1001(c)(1) (emphasis added).
19 R.C.M. 1001(c)(2)(A) (emphasis added).
20 R.C.M. 1001(c)(2)(B) (emphasis added).
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Opinion of the Court
Petitioner cites cases such as Terlep and Hayes for the broad proposition
that victim impact statements should be unfettered and allow a victim to
present a complete account of what happened to the sentencing authority.
However, those cases actually support the more narrow proposition that in
determining the scope of proper victim impact, the victim is not necessarily
bound by the facts the accused admitted to during providency or in the
stipulation of fact. Neither Terlep nor Hayes supports that victim impact
statements must be admitted where a purported victim describes impact that
falls outside the scope of “victim impact” as defined under R.C.M.
1001(c)(2)(B).
Three cases recently decided by the Air Force Court of Criminal Appeals
all recognize that a victim’s right to be reasonably heard is limited in scope
by R.C.M. 1001(c)(2)(B). First, as the court held in United States v. Hamilton,
a victim’s right to be reasonably heard is not indefeasible, and the “content of
a victim impact statement must comport with the defined parameters of
victim impact or mitigation as defined by the statute and R.C.M. 1001A.” 21
Nor, as the court found in United States v. Roblero, is Article 6b a blanket
authorization for a victim to state to the sentencing authority whatever he or
she might desire: “The right to be reasonably heard does not transform the
sentencing hearing into an open forum to express statements that are not
otherwise permissible under R.C.M. 1001.”22 Rather, as the court held in
United States v. Da Silva, the military judge must make an individualized
decision about each victim who seeks to exercise the right to be reasonably
heard and the words through which he or she seeks to do so.23
Da Silva involved a recruiter who made unwanted sexual advances to two
recruiting assistants. At trial both gave unsworn victim impact statements,
orally and in writing. Although the charges involved orders violations, both
were found to be “crime victims” with the meaning of R.C.M. 1001(c)(2)(A).
However, one of the two, whom the accused had been accused of kissing, said
that “her body was violated” and made a reference that the appellant “did it
without [her] consent.”24 While the court recognized that these words were a
description of how she felt, the words were actually a description of how she
21 United States v. Hamilton, 77 M.J. 579, 585-586 (A.F. Ct. Crim. App. 2017),
aff’d, 78 M.J. 335 (C.A.A.F. 2019). R.C.M. 1001A is the predecessor to R.C.M. 1001(c).
22 Roblero, 2017 CCA LEXIS 168, at *18.
23 Da Silva, 2020 CCA LEXIS 213, at *50.
24 Id. at *52.
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Opinion of the Court
felt about an offense for which the accused was acquitted.25 The court found
that if a military judge were going to allow a victim to comment in a way that
could be reasonably interpreted as a comment about an offense for which an
accused was acquitted, members should be instructed that they cannot do
so.26 To that end, the court found that a tailored instruction may be required,
as opposed to the standard unsworn statement instruction.
We find our sister court’s reasoning in these cases persuasive in address-
ing the issues before us. First, we agree that the military judge must make
an individualized decision about each person who seeks to exercise the right
to be reasonably heard under Article 6b, to ensure he or she is a “crime
victim” under R.C.M. 1001(c)(2)(A) as a result of an offense of which the
accused has been found guilty. Second, the scope of the “victim impact”
sought to be introduced is limited by how that term is defined under R.C.M.
1001(c)(2)(B), which is restricted to impact “directly relating to or arising
from the offense of which the accused has been found guilty.” Third, if the
victim impact statement can be interpreted more broadly than the rules
allow, the military judge must take action to either limit the statement, as
the military judge did in this case, or clearly instruct the members (or state
on the record in a judge-alone trial) how the statement will be interpreted, in
order to ensure both compliance with the rules and that the accused is only
sentenced for the offenses of which he was found guilty.27
Based on the record before us, we find that the military judge in this case
properly analyzed whether Petitioner’s victim impact statement directly
related to or arose from an offense of which the RPI was found guilty. Peti-
tioner takes issue with the military judge’s use of the term, “relevance,” in
her ruling regarding the portions of the victim impact statement she was
willing to consider, implying an improper analysis by the military judge. As
the Court of Appeals for the Armed Forces tells us in United States v. Hamil-
ton, victim impact statements are not evidence—i.e., they are not admitted by
the prosecution—but are introduced by the victim or the VLC on behalf of the
victim, as was the case here.28 As a result, the question is not whether the
information contained in the victim impact statement is “relevant,” or even
whether a Mil. R. Evid. 403 balancing test is required, because those re-
25 Id.26 Id. at *53-54.
27 Cf. United States v. Erickson, 65 M.J. 221, 224 (C.A.A.F. 2007) (applying the
Fletcher factors to ensure the accused was sentenced based on the “evidence alone”).
28 78 M.J. 335 (C.A.A.F. 2019).
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Opinion of the Court
quirements relate to evidence. Rather, the proper question, according to
Hamilton, is whether the statement is within the proper “scope” of R.C.M.
1001A, or its successor, R.C.M. 1001(c).
Here, we find that the military judge properly analyzed whether the vic-
tim impact statement was within the scope of R.C.M. 1001(c) and did not
treat the victim impact statement as though it were actually evidence. The
military judge placed the introduction of the victim impact statement be-
tween the Government’s case in aggravation and the Defense case in extenu-
ation and mitigation, as contemplated under R.C.M. 1001(c), and also had the
victim impact statement properly marked as an appellate exhibit29 rather
than as a prosecution exhibit. The military judge’s analysis also focused
correctly on whether Petitioner was a victim under R.C.M. 1001(c)(2)(A) of
the offense the RPI was convicted of, which we discuss further below, and
whether the statement was within the scope of “victim impact” under R.C.M.
1001(c)(2)(B). Thus, while practitioners in the field should use the correct
terminology,30 we find that the military judge nevertheless conducted the
proper analysis under the correct law.
B. Extramarital Sexual Conduct
We further find that the military judge did not abuse her discretion by
determining that the impact as described by Petitioner in the problematic
portions of her victim impact statement was a result of an alleged sexual
assault, as opposed to directly relating to or arising from the offense of which
Appellant was found guilty: extramarital sexual conduct.
As an initial matter, however, we disagree with the military judge’s sug-
gestion that it is impossible for a participant in extramarital sexual conduct
to be a victim of that offense since the nature of the offense implies that the
parties to the underlying sexual conduct do so with consent.31 We find the
proposition that extramarital sexual contact is or must always be consensual
29 It would also have been appropriate to mark it as a court exhibit.
30We note that the language in the plea agreement concerning the victim impact
statement also reflects a lack of clarity in its use of “relevance” versus “scope,” which
may have contributed to the confusion of terms on this issue.
31The military judge stated, “Government the fact that you made the decision to
capture what, at least the victim believes was a sexual assault as a consensual act
arguably precludes her rights under 1001(c) with respect to that offense.” R. at 92-93.
She later stated, “Adultery—I guess, arguably the wife could be the victim, but a
consensual participant is not a victim of that crime.” R. at 98.
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Opinion of the Court
is unsupported by the law. First, consent is not an element of extramarital
sexual conduct, the elements of which are as follows:
(1) That the accused wrongfully engaged in [any of various
forms of sexual intercourse] with a certain person;
(2) That, at the time, the accused knew that the accused or the
other person was married to someone else; and
(3) That, under the circumstances, the conduct of the accused
was either: (i) to the prejudice of good order and discipline in
the armed forces; (ii) was of a nature to bring discredit upon
the armed forces; or [both].32
Second, as the Court of Military Appeals observed in United States v.
Hickson,33 “despite the various references to adultery as ‘voluntary’ it does
not appear that rape and adultery are so inconsistent that a man charged
with adultery is entitled to acquittal if he produces evidence that intercourse
took place without the consent of the woman.”34 The court in Hickson was
struggling with the question of whether a person could be charged with both
rape and adultery (the predecessor of the current offense of extramarital
sexual conduct) despite a number of sources defining adultery as a voluntary
act.35 Citing a number of state court cases on adultery finding that the
willingness aspect of adultery relates to the accused, or that the third party’s
willingness to participate is immaterial, the court ultimately concluded that
rape and adultery are not mutually exclusive of each other.36
Moreover, the element of prejudice to good order and discipline supports
that the offense of extramarital sexual conduct can cause the sort of harm
envisioned by R.C.M. 1001(c)(2)(A). Among the factors the Manual for Courts-
Martial [MCM] outlines for assessing this element is “[t]he impact, if any, of
the extramarital conduct on the ability of the accused, the co-actor, or the
spouse of either to perform their duties in support of the armed forces.”37
32 Manual for Courts-Martial (2019 ed.) [MCM], pt. IV, ¶ 99.b.
33 22 M.J. 146 (C.M.A. 1986).
34 Id. at 151.
35 Id. at 150 (citing Black’s Law Dictionary (5th ed. 1979)).
36 Id.; accord United States v. Hill, 1997 CAAF LEXIS 1093 (C.A.A.F. Sep. 30,
1997) (holding that under the UCMJ adultery is not a lesser-included offense of rape
and “the two offenses are not mutually exclusive”).
37 MCM, pt. IV, ¶ 99.d.
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Opinion of the Court
Thus, a proper analysis under R.C.M. 1001(c) requires more than just deter-
mining the type of offense the accused was found guilty of, but further ascer-
taining whether that offense is the source of the harm discussed by the
victim.
Our sister court’s discussion in United States v. Dunlap38 is instructive on
this issue. In that case, the wife of the accused gave a victim impact state-
ment as a victim of adultery. The Air Force Court of Criminal Appeals ana-
lyzed both whether the wife was a proper “crime victim” and whether any of
her statement was outside the scope of “victim impact.” The court concluded
that although extramarital sexual conduct is more of an offense against
marriage or against military good order and discipline,39 a non-offending
spouse could be considered a “crime victim” depending on a fact-specific
analysis of whether the spouse identifies impact that directly relates to or
arises from that offense of which the accused was found guilty. In Dunlap,
the non-offending spouse described emotional impact that the accused’s
sexual conduct had, including the shock and frustration at knowing her
husband of more than ten years was having an intimate relationship with
one of his enlisted co-workers, along with the toll that knowledge took on her
mental well-being. The Air Force Court of Criminal Appeals found that that
emotional impact was directly related to and proximately caused by the
adultery committed by the accused.40 But the court found that some of the
other impact identified by the non-offending spouse was outside the scope of
“victim impact” because it did not relate to or arise from the adultery offense
of which the accused was found guilty—e.g., his indifference to the non-
offending spouse’s being pregnant with their fifth child and his lack of inter-
est in naming his fifth child.41
Similarly, while it could be possible for the third party participant to be a
victim of extramarital sexual conduct, that offense and the harm sought to be
avoided, or punished, is different from that of sexual assault. Thus, as the
court underscored in Dunlap, and we believe the rule requires, the analysis
must go further and ascertain whether the impact as described by the victim
was related to or arose from the offense of which the accused was found
guilty. That is what the military judge did in this case.
38 No. ACM 39567, 2020 CCA LEXIS 148 (A.F. Ct. Crim. App. May 4, 2020) (un-
published).
39 Id. at *17-18.
40 Id. at *19.
41 Id. at *25.
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Opinion of the Court
In her victim impact statement, Petitioner articulated consequences re-
sulting from the act of sexual intercourse underlying the extramarital sexual
conduct charge, but she repeatedly referred to the impact as harm she suf-
fered from the RPI’s “sexual assault” against her.42 The military judge con-
ducted the required fact-specific inquiry of the language used in the state-
ment and concluded that the impact was discussed as stemming from the
offense of sexual assault, as opposed to the offense extramarital sexual
conduct of which the RPI was found guilty. She therefore excised portions of
the statement on that basis, as inconsistent with R.C.M. 1001(c). We find
reasonable her conclusions in this regard.
III. CONCLUSION
After careful consideration of the record and the briefs of VLC and the
Government,43 we determine that the military judge did not abuse her
discretion in limiting the victim impact statement only to those impacts
directly relating to or arising from the charges of which the RPI was found
guilty. We therefore conclude that a writ of mandamus cannot issue because
Petitioner has not shown her right to the writ to be clear and indisputable.
Accordingly, the relief sought by Petitioner is DENIED.
Senior Judge GASTON and Judge STEWART concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
42 App. Ex. V at 1.
43 The RPI, while represented and entitled to do so, declined to file a brief before
this Court.
13