      This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                 FOR THE    ARMED FORCES
                        _______________

                      UNITED STATES
                          Appellee
                               v.
        Cedric L. McDONALD, Private First Class
               United States Army, Appellant
                         No. 18-0308
                   Crim. App. No. 20160339
       Argued February 19, 2019—Decided April 17, 2019
              Military Judge: Douglas K. Watkins
   For Appellant: Captain Steven J. Dray (argued); Colonel
   Elizabeth G. Marotta, Lieutenant Colonel Christopher D.
   Carrier, Lieutenant Colonel Tiffany D. Pond, and Major
   Julie L. Borchers (on brief).
   For Appellee: Captain Sandra L. Ahinga (argued); Colonel
   Steven P. Haight and Major Wayne H. Williams (on brief).
   Chief Judge STUCKY delivered the opinion of the
   Court, in which Judges RYAN, OHLSON, SPARKS, and
   MAGGS, joined.
                      _______________

   Chief Judge STUCKY delivered the opinion of the Court.

   Appellant was convicted of sexual assault by bodily harm
on a nonconsent theory. The military judge in his case gave
no specific mens rea instruction beyond the standard mis-
take of fact defense, which provides a defense if the accused
had an honest and reasonable (nonnegligent) belief that con-
sent was obtained. Appellant, however, contends that Elonis
v. United States, 135 S. Ct. 2001 (2015), required the mili-
tary judge to instruct the members that a mens rea of at
least recklessness with regard to consent was necessary for
conviction. We granted review to determine the required
mens rea for sexual assault by bodily harm, and conclude
that Congress clearly implied a general intent mens rea for
that offense.
          United States v. McDonald, No. 18-0308/AR
                     Opinion of the Court

                   I. Procedural History
    A general court-martial composed of officer and enlisted
members convicted Appellant, contrary to his pleas, of one
specification of conspiracy to commit sexual assault and one
specification of sexual assault by bodily harm in violation of
Articles 81 and 120, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 881, 920 (2012). He was sentenced to a
dishonorable discharge, reduction to the lowest enlisted
grade, forfeiture of all pay and allowances, and three years
of confinement. The convening authority approved the find-
ings and sentence, and the United States Army Court of
Criminal Appeals (CCA) affirmed. United States v. McDon-
ald, No. ARMY 20160339, 2018 CCA LEXIS 239, at *9, 2018
WL 2273588, at *4 (A. Ct. Crim. App. May 16, 2018).
                       II. Background
    Private Quantavious Thomas, Appellant’s barracks
roommate, met DJ, a civilian woman, on a dating website in
the summer of 2015. Private Thomas and DJ had met social-
ly on two occasions prior to the night in question. Appellant
was present for both these occasions, but had never spoken
with DJ.
    On August 31, DJ went to Appellant and Private Thom-
as’s shared barracks room at the latter’s request. Prior to
arriving, DJ asked twice via text message if anyone else
would be in the room, and he replied no both times. DJ also
insisted via text that she was not coming over for sex. It was
dark when she first entered the shared barracks room, and
she testified that there was no sign of anyone else in the
room. However, Appellant was present, in his half of the
shared room.
   The parties all agree that eventually DJ and Private
Thomas began to have sex, that at some point DJ bent over
the bed so that Private Thomas could penetrate her vulva
with his penis from behind, and that at some point Appel-
lant took Private Thomas’s place and penetrated DJ from
behind.
    DJ stated that she was unaware of Appellant’s presence
in the room until she reached back during intercourse and
felt Appellant’s wristwatch, an accessory she knew Private



                              2
          United States v. McDonald, No. 18-0308/AR
                     Opinion of the Court

Thomas was not wearing. She testified that no one had
asked her for her consent to sexual intercourse with Appel-
lant. Private Thomas testified that DJ could clearly see Ap-
pellant when she walked into the room, and that he (Private
Thomas) asked her—with Appellant standing next to both of
them—if both he and Appellant could have sex with her.
Appellant’s statement to CID, admitted into evidence, in-
cluded a claim that he asked DJ if he could have sex with
her, “and she said yeah.” It also stated that he did not feel
like he had done anything wrong because “there was con-
sent.” Defense counsel argued in closing that “[Appellant]
knew he was 100 percent, convinced she was consenting.
There is no lack of consent on his part, as he told CID.”
    Appellant did not object to the instructions given by the
military judge, which were provided in advance with time to
review and make objections. Nor did he object when the in-
structions were read to the members. The military judge in-
structed the members that they must find three elements
beyond a reasonable doubt: (1) that Appellant committed a
sexual act upon DJ by penetrating her vulva with his penis,
(2) that he did so by causing bodily harm, namely penetrat-
ing DJ’s vulva with his penis, and (3) that he did so without
DJ’s consent.
    His instructions regarding consent and mistake of fact as
to consent mirrored the language of the Military Judges’
Benchbook, the Rules for Courts-Martial (R.C.M.), and Arti-
cle 120, UCMJ. 1 Specifically, the military judge instructed
that consent “means a freely given agreement to the conduct
at issue by a competent person,” that “[l]ack of verbal or
physical resistance … does not constitute consent,” and that
any mistake of fact must be “reasonable under all the cir-
cumstances” and not “based on the negligent failure to dis-
cover the true facts.”
                  III. Law and Discussion
   The mens rea applicable to an offense is an issue of stat-
utory construction, reviewed de novo. See United States v.


   1 Dep’t of Army, Pam. 27–9, Legal Services, Military Judges’
Benchbook para. 3–45–14 (2014); R.C.M. 916(j)(1); Article
120(g)(8), (f), UCMJ, 10 U.S.C. § 920(g)(8), (f) (2012).



                              3
          United States v. McDonald, No. 18-0308/AR
                     Opinion of the Court

Gifford, 75 M.J. 140, 142 (C.A.A.F. 2016). When panel in-
structions are not objected to at trial, they are reviewed by
this Court for plain error. United States v. Haverty, 76 M.J.
199, 208 (C.A.A.F. 2017). Relief will only be granted where
(1) there was error that was (2) clear or obvious, and that (3)
materially prejudiced a substantial right of the accused.
United States v. Armstrong, 77 M.J. 465, 469 (C.A.A.F.
2018). In determining the mens rea applicable to an offense,
we must first discern whether one is stated in the text, or,
failing that, whether Congress impliedly intended a particu-
lar mens rea. Gifford, 75 M.J. at 143–44.
    We conclude that Congress clearly intended a general
intent mens rea for Article 120(b)(1)(B), 10 U.S.C.
§ 920(b)(1)(B) (2012), sexual assault by bodily harm. The
military judge’s instructions were therefore not erroneous.
Accordingly, we need not reach the second or third prongs of
the plain error analysis. We reach this conclusion for four
reasons: (1) the plain text of the statute clearly implies a
general intent offense, (2) the offense evolved from a general
intent offense, (3) the presence of a negligence mens rea
elsewhere in the statute suggests that Congress affirmative-
ly chose to leave sexual assault by bodily harm as a general
intent offense, and (4) construing the statute as a general
intent offense does not criminalize innocent conduct.
                     A. Plain Language
    “As in all statutory construction cases, we begin with the
language of the statute.” Barnhart v Sigmon Coal Co., 534
U.S. 438, 450 (2002). Appellant was charged with “sexual
assault by causing bodily harm” in violation of Article
120(b)(1)(B), UCMJ, 10 U.S.C. § 920(b)(1)(B) (2012). At the
time, Article 120(b)(1)(B) provided that any person subject to
the UCMJ who “commits a sexual act upon another person
by … causing bodily harm to that other person … is guilty of
sexual assault and shall be punished as a court-martial may
direct.” Article 120(g)(1)(A) defined “sexual act” to include
“contact between the penis and the vulva or anus or mouth,
and for purposes of this subparagraph contact involving the
penis occurs upon penetration, however slight.” Article
120(g)(3) defined “bodily harm” as “any offensive touching of
another, however slight, including any nonconsensual sexual
act.” Article 120(g)(8)(A) further defined “consent” as “a


                              4
            United States v. McDonald, No. 18-0308/AR
                       Opinion of the Court

freely given agreement to the conduct at issue by a compe-
tent person.” Article 120(f), meanwhile, permitted an ac-
cused to raise any applicable defenses available under the
R.C.M., and here Appellant raised the affirmative defense of
mistake of fact. R.C.M. 916(j)(1). For the defense of mistake
of fact to exist, “the ignorance or mistake of fact must have
existed in the mind of the accused and must have been rea-
sonable under all the circumstances.” Id. Once raised, the
Government bore the burden to prove beyond a reasonable
doubt that the defense did not exist. R.C.M. 916(b)(1).
    The    statutory     elements    are   thus    ultimately
straightforward: it is an offense to commit a sexual act
without consent, although an honest and reasonable
(nonnegligent) mistake of fact as to consent serves as an
affirmative defense. Such a construction typically suggests a
general intent offense. Cf. United States v. Langley, 33 M.J.
278, 281 (C.M.A. 1991) (“No specific intent is mentioned in
the [Article 120 rape] statute—only general criminal mens
rea is involved.”); United States v. Binegar, 55 M.J. 1, 11
(C.A.A.F. 2001) (Crawford, C.J., dissenting on other
grounds) (Discussing the elements of rape: “Here, the
statutory language of the crime does not assign a specific
intent mens rea to any of the elements. Therefore, only an
honest and reasonable mistake will suffice because the
entire crime is one of general intent.”).
   We have recognized that, per Elonis, the existence of a
mens rea is presumed in the absence of clear congressional
intent to the contrary. Haverty, 76 M.J. at 203–04. However,
we also recognize that a general intent mens rea is not the
absence of a mens rea, and such offenses remain viable in
appropriate circumstances post-Elonis. Elonis, 135 S. Ct. at
2010 (“In some cases, a general requirement that a defend-
ant act knowingly is itself an adequate safeguard.”). Thus,
we conclude that the plain text clearly implies a general in-
tent offense. 2


   2  We note that Congress did articulate a specific mens rea for
other types of sexual assault by bodily harm. For certain types of
sexual acts, the government must show that the accused acted
with the “intent to abuse, humiliate, harass, or degrade any per-
son,” or “to arouse or gratify the sexual desire of any person.” Arti-


                                  5
           United States v. McDonald, No. 18-0308/AR
                      Opinion of the Court

                        B. Legal Context
    Further, the appropriate mens rea can be implied from
context. Haverty, 76 M.J. at 204. “We assume that Congress
is aware of existing law when it passes legislation.” Miles v.
Apex Marine Corps, 498 U.S. 19, 32 (1990). Thus we must
“take into account [the] contemporary legal context” at the
time the statute was passed. Cannon v. University of Chica-
go, 441 U.S. 677, 699 (1979).
    Article 120 rape stated a general intent offense when
Congress established sexual assault by bodily harm. See
Langley, 33 M.J. at 281–82. This was consistent with the
common law crime of rape, which was also a general intent
crime. 2 Wayne R. LaFave, Substantive Criminal Law
§ 17.2(b) (3d ed. 2018) (“[T]here exists no issue in the prose-
cution of the crime of rape regarding defendant's perception
of the requisite attendant circumstances (e.g., whether or
not the woman had given consent).”); see also 75 C.J.S. Rape
§ 55 (2019) (“The crime of rape has always been considered a
general-intent crime….”). Nothing in the text of the statute
indicates any congressional intent to introduce a higher
mens rea than the historical general intent.
   Because the antecedent offense was a general intent of-
fense, we can infer by Congress’s silence on the mens rea for
sexual assault by bodily harm that it impliedly stated a gen-
eral intent mens rea for that offense.
                     C. Statutory Structure
   Additionally, the structure of the statute implies a gen-
eral intent mens rea. “It is a fundamental canon of statutory
construction that the words of a statute must be read in
their context and with a view to their place in the overall
statutory scheme.” United States v. Kelly, 77 M.J. 404, 406–
407 (C.A.A.F. 2018) (internal quotation marks omitted)
(quoting FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 133 (2000)); see also United Sav. Ass’n of Tex. v.
Timbers of Inland Forest Assoc., 484 U.S. 365, 371 (1988)


cle 120(g)(1)(B), UCMJ, 10 U.S.C. § 920(g)(1)(B) (2012)). In such a
case, obviously, that specific intent must be proved as well.




                                6
           United States v. McDonald, No. 18-0308/AR
                      Opinion of the Court

(“Statutory construction …. is a holistic endeavor.”). Conse-
quently, “[t]his Court typically seeks to harmonize inde-
pendent provisions of a statute.” Kelly, 77 M.J. at 407 (al-
teration in original) (internal quotation marks omitted)
(quoting United States v. Christian, 63 M.J. 205, 208
(C.A.A.F. 2006)).
   Consent is to be determined objectively. Article
120(g)(8)(C), 10 U.S.C. § 920(g)(8)(C) (2012). It is also to be
determined from the alleged victim’s perspective—consent is
his or her freely given agreement. Article 120(g)(8)(A), 10
U.S.C. § 920(g)(8)(A) (2012). No reference is made to the ac-
cused’s perception of consent. Interpreting the statute to re-
quire a specific mens rea on the part of the accused with re-
spect to consent, as Appellant suggests, would override these
provisions. By contrast, inferring a general intent mens rea,
with the ability to raise a mistake of fact defense, avoids this
conflict.
    Additionally, where “Congress includes particular lan-
guage in one section of a statute but omits it in another sec-
tion of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion
or exclusion.” Rodriguez v. United States, 480 U.S. 522,
525(1987) (internal quotation marks omitted) (citation omit-
ted). In Article 120(b)(2) and 120(b)(3), 10 U.S.C. § 920(b)(2),
(3) (2012), Congress provided an explicit mens rea that the
accused “knows or reasonably should know” certain facts:
that the victim is unaware of the sexual act or incapable of
consenting to it. By contrast, under Article 120(b)(1)(B), it is
an offense simply to commit a sexual act without consent.
The fact that Congress articulated a specific mens rea with
respect to the victim’s state of mind elsewhere in the statute
further demonstrates that the required mens rea in this case
is only the general intent to do the wrongful act itself.
             D. Wrongfulness of the Misconduct
   Where Congress has clearly implied a mens rea, this
Court is obliged to respect that legislative intent. Haverty,
76 M.J. at 204. Because we have determined that Congress
intended Article 120(b)(1)(B) to state a general intent of-
fense, that is the end of the matter. We also reject Appel-
lant’s contention that general intent is insufficient to sepa-



                               7
          United States v. McDonald, No. 18-0308/AR
                     Opinion of the Court

rate wrongful from innocent conduct because sexual inter-
course is ordinarily innocent conduct.
   As a general intent offense, sexual assault by bodily
harm has an implied mens rea that an accused intentionally
committed the sexual act. Cf. United States v. Grant, 38 M.J.
684, 694 (A.F.C.M.R. 1993) (considering but disbelieving the
appellant’s assertion that his penis accidentally penetrated
the victim’s vagina when they were in bed together). No
mens rea is required with regard to consent, however.
    This does not criminalize otherwise innocent conduct be-
cause only consensual sexual intercourse is innocent. The
burden is on the actor to obtain consent, rather than the vic-
tim to manifest a lack of consent. Appellant’s actions could
only be considered innocent if he had formed a reasonable
belief that he had obtained consent. The Government only
needed to prove that he had not done so to eliminate the
mistake of fact defense. The military judge’s instructions
properly reflected that.
                       IV. Judgment
   The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed.




                              8
