This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
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 Finnen, USMC (argued);
Lieutenant Commander Kevin R. Larson, JAGC, USN.
For Appellee: Lieutenant Jennifer Joseph, JAGC, USN (ar-
gued); Lieutenant Colonel Nicholas L. Gannon, USMC, Ma-
jor 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, whom 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 Marine
Corps general order prohibiting hazing under Article 92, Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. § 892 (2012)
(for which consent is not a defense), the Government elected
instead to charge Appellant with three specifications of as-
sault consummated by battery in violation of Article 128,
UCMJ, 10 U.S.C. § 892 (2012) (for which consent generally is
a defense). 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
ble” because “[a]s a matter of law . . . under these circum-
stances 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 whether the NMCCA
erred when it concluded that “no person in any similar cir-
cumstance 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 for
deviating from the general rule that consent is a defense to
simple assault, we reverse the NMCCA’s opinion as to Speci-
fications 1, 2, and 4 of Charge II and the sentence, and re-
mand for it to determine whether Appellant’s mistaken belief
that the junior Marines consented was reasonable, and if so,
whether Appellant established that his conduct was precipi-
tated 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 Corps
Base Hawaii. A few days prior to leaving his duty station, Ap-
pellant 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 and
other junior Marines received cigarette burns from senior Ma-
rines to create a sense of pride and belonging within the pla-
toon. 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 phys-
ical or verbal signs of lack of consent,” and that the “socializ-
ing continued for some time into the evening without inci-
dent.” Mader, 79 M.J. at 807. None of the junior Marines
reported the incident. Id.
1 The NMCCA opinion referred to the junior Marines present 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. We adopt those same pseudonyms
throughout this opinion.
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United States v. Mader, No. 20-0221/MC
Opinion of the Court
Although some of the junior Marines gave conflicting or
uncertain testimony at trial about whether they had con-
sented 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 evi-
dence phase of the court-martial, the military judge in-
structed the members that mistake of fact as to consent was
a defense to assault consummated by a battery.
An officer and enlisted panel sitting as a general court-
martial convicted Appellant, contrary to his pleas, of two
specifications of failure to obey a lawful general order or reg-
ulation (for acts unrelated to the cigarette burns) and four
specifications of assault consummated by a battery (one of
which was unrelated to the cigarette burns) in violation of Ar-
ticles 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 discharge.
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 conflicting 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 in-
stance of hazing and could have been charged as such.” Id.
Noting that the Marine Corps has prohibited hazing and ex-
pressly 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, 2013)), the NMCCA similarly concluded that Appellant’s
mistaken belief that the junior Marines had consented was
not a lawful defense. Id. at 818.
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United States v. Mader, No. 20-0221/MC
Opinion of the Court
Second, even without the hazing aspects of the underlying
events, the NMCCA concluded that it would be contrary to
public policy to allow victims to consent to receiving a ciga-
rette 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 NMCCA
held that no victim could lawfully consent under the circum-
stances 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 a
battery. The lower court found that even though Ap-
pellant had mistakenly believed other Marines con-
sented, 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 defined as “bodily
harm to another . . . done without legal justification or excuse
and without the lawful consent of the person affected.” Man-
ual for Courts-Martial, United States pt. IV, para. 54.c.(1)(a),
(2)(a) (2016 ed.) (MCM). “ ‘Bodily harm’ ” is defined 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 con-
sent to being touched, an accused cannot be convicted of as-
sault consummated by a battery if the accused mistakenly be-
lieved 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 and
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United States v. Mader, No. 20-0221/MC
Opinion of the Court
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 vio-
lation of the Marine 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 charge 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 discre-
tion over how to charge Appellant and it elected to charge his
acts as assault consummated by a battery in violation of Ar-
ticle 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 vic-
tims from this type of harm.” Mader, 79 M.J. at 818. Even if
there might be certain circumstances in which a public policy
interest would be strong enough to overcome the general prin-
ciple that consent is a defense to simple assault, this Court
has never recognized one. And here, the NMCCA failed to
identify any specific public policy reason that would support
its conclusion, let alone one that would be sufficiently compel-
ling to overcome the general rule. Consent is a well-estab-
lished 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.
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Opinion of the Court
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 as 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
Bygrave, 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 “grievous” 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 con-
summated by battery. As stated, consent is a generally avail-
able defense for such a charge. Although the Government
might have charged Appellant with hazing or aggravated as-
sault, 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 matter 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 consent 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 an
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Opinion of the Court
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 that
court is affirmed as to Charge I and Specification 2 thereun-
der and Charge II and Specification 3 thereunder. The record
of trial is returned to the Judge Advocate General of the Navy
for remand to the court for further consideration in light of
this opinion.
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