Appellant was tried and convicted at a general court-martial, military judge sitting alone, of one violation each of Articles 133 (conduct in the nature of indecent assault) and 134 (adultery), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 933, 934. He was sentenced to confinement at hard labor for 12 months, forfeiture of all lineal precedence, forfeiture of $1,000.00 pay per month for 12 months, and dismissal from the Naval Service. The convening authority approved all of the sentence with the exception of the confinement, of which he approved only three days.
Appellant has assigned three errors in this case; we will address them in order. Although sordid, a recitation of the facts is essential. On the date the offenses occurred appellant was a medical officer assigned to the Acute Care Clinic at Camp Lejeune, North Carolina. Mrs. M, a patient there, was being seen by appellant for a continuing medical problem. After conducting a pelvic examination on Mrs. M with a female observer present, appellant had Mrs. M move to a consultation room and dismissed the observer. Appellant then sent Mrs. M to another examination room. With Mrs. M lying on the examination table, appellant at first palpated her abdomen, as if to continue the medical exam, but then moved his hands up to Mrs. M’s chest, placed them underneath her blouse and bra, and began fondling her breasts. Without any response, physical or verbal, from Mrs. M, appellant continued such sexual “foreplay.” Appellant then had Mrs. M move back to the original examination room. After a few minutes, appellant joined Mrs. M there and had sexual intercourse with her. On two later dates appellant kissed Mrs. M when they met at the hospital.
Over a month after her initial sexual contact with appellant, Mrs. M told another medical officer at the hospital about these incidents. Naval Investigative Service (NIS) was notified and solicited Mrs. M’s aid by having her call appellant on the phone from the NIS office while agents listened in on other phones, and by asking her to visit appellant in the hospital while wearing a hidden transmitter. In a “Stipulation of Fact” submitted by trial counsel, the following information concerning the resultant conversations was given to the military judge:
During the telephone call and subsequent conversation, Mrs. [M] was advised by Agent Ambriz not to suggest that any further sexual activity was to occur and that she was not to attempt to deceive or trick the accused. She was to discuss the alleged rape and assaults and attempt to have the accused acknowledge that the acts did in fact occur. She was given discretion by NIS as to how the conversation was conducted.
Appellant was found not guilty of rape and of two violations of indecent assault (the two later kissing incidents) but was found guilty of an Article 133 offense consisting of the initial fondling of Mrs. M’s breasts (not the later “foreplay”) and of adultery.
I
THE MILITARY JUDGE ERRORED [sic] BY ADMITTING EVIDENCE OBTAINED IN VIOLATION OF APPELLANT’S ARTICLE 31, UCMJ RIGHT.
Appellant’s above assigned error cites Article 31, UCMJ, 10 U.S.C. § 831, which provides that:
No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him at trial by court-martial.
*702Appellant alleges that Mrs. M, in cooperating with NIS, under the provisions of Military Rule of Evidence 305(b) became a person subject to the UCMJ and was therefore under an obligation to advise appellant of his Article 31 rights prior to talking with him. Since she did not advise him of such, his statements to her, both over the phone and in his office, were obtained in violation of Article 31 and should not have been admitted.
We disagree with the appellant’s analysis. Long ago the Court of Military Appeals concluded, after careful study of Article 31’s purpose and legislative history, that Congress did not intend its literal application in every instance. United States v. Gibson, 3 U.S.C.M.A. 746, 14 C.M.R. 164 (1954). In amplification, the Court later said
that Congress did not consider a warning to be a sine qua non, but rather a precautionary measure introduced for the purpose of counteracting the presence of confinement, or other circumstances [of “presumptive coercion,” implicit in military discipline and superiority], which might operate to deprive an accused of his free election to speak or to remain silent.
United States v. Duga, 10 M.J. 206, 209 (C.M.A.1981) quoting United States v. Gibson, 14 C.M.R. at 172. The prohibitions dictated by Article 31 were based on the concept that involuntary or coerced statements were to be excluded from trial because of their inherent potential for unreliability. United States v. Lewis, 12 M.J. 205, 208 (C.M.A.1982). Article 31 warnings were to provide servicepersons with a protection which was
deemed necessary because of subtle pressures which existed in military society____ Conditioned to obey, a service-person asked for a statement about an offense may feel himself to be under a special obligation to make such a statement. Moreover, he may be especially amenable to saying what he thinks his military superior wants him to say— whether it is true or not.
United States v. Armstrong, 9 M.J. 374, 378 (C.M.A.1980).
The circumstances surrounding the giving of self-incriminating statements therefore became important in analyzing their admissibility. Only in situations where, because of rank, duty, or other similar relationship, there was the possibility of subtle pressure on a suspect to respond would Article 31, UCMJ, apply. United States v. Duga, 10 M.J. at 210. The Court of Military Appeals eventually set out a two-prong test in determining the applicability of Article 31:
[W]hether (1) a questioner subject to the Code was acting in an official capacity in his inquiry or only had a personal motivation; and (2) whether the person questioned perceived that the inquiry involved more than a casual conversation.
United States v. Duga, 10 M.J. at 210.
In applying the Duga two-prong test to the case sub judice, we find no requirement for the Article 31, UCMJ, protections. Although Mrs. M, both in the telephone conversation and the “bugged” discussion in appellant’s office, was acting under the direction of NIS agents, her status as the victim of the alleged offenses and as appellant’s patient did not change; i.e., she in no way stood in a position of authority over appellant. It was therefore not possible for her to impose on him any of the subtle pressure or coercion to make a self-incriminating statement, which Article 31 was intended to counter. In addition, neither situation was of a custodial or punitive nature. Thus, we find that appellant had no rational basis to believe his conversations with Mrs. M were anything more than private, emotion-ridden colloquies, see United States v. Whitehouse, 14 M.J. 643, 644 n. 2 (A.C.M.R.1982), so that Article 31, UCMJ, did not apply to them.
II
THE EVIDENCE WAS INSUFFICIENT TO PROVE APPELLANT’S GUILT OF THE OFFENSE OF INDECENT ASSAULT AS ALLEGED IN CHARGE II BEYOND A REASONABLE DOUBT.
and
*703THE MILITARY JUDGE ERRED IN THAT HIS FINDINGS OF GUILTY BY EXCEPTIONS OF INDECENT ASSAULT ALLEGED IN CHARGE II WAS (sic) INCONSISTENT WITH HIS FINDINGS OF NOT GUILTY OF RAPE AS ALLEGED IN CHARGE I.
(Assignments of Error II and III)
The charged offenses in this case were comprised of a series of sexual contacts between appellant and Mrs. M. Appellant was found guilty of an indecent assault involving the first sexual contact, which was initiated solely by appellant in the course of a medical examination after the stand-by corpswave had been dismissed. Mrs. M had no advance warning that her physical examination would turn into sexual gratifications for the appellant. His fraudulent use of his position as a medical officer gave Mrs. M no chance to consent or resist when surprised by his first improper touching. Consent to this initial contact could not be inferred from the subsequent and ostensibly consensual reactions of Mrs. M in relationship to the continuing sexual advances of appellant. See W. LAFAVE and A. SCOTT, CRIMINAL LAW § 57, at 409 (1983); F. LEE BAILEY and H.B. ROTHBLATT, Crimes of Violence: Rape and Other Sex Crimes, § 441 (1973). Appellant was therefore properly found guilty of indecent assault arising out of the initial fondling.
The situation changed, however, following that initial contact. From then on Mrs. M was clearly on notice that her physical examination was over and sexual activity had begun. Yet she made no motions to resist, she made no statements of resistance and, perhaps most striking, when given the opportunity prior to the sexual intercourse, she made no attempt to leave. By this time, any claim of surprise became incredible. The absence of consent was not evident therefore in these later encounters, so that the military judge’s findings were not inconsistent. See People v. Borak, 13 Ill.App.3d 815, 301 N.E.2d 1 (1973).
In accordance with the above discussion, the findings of guilty and the sentence, as partially approved on review below, are affirmed.
Judge RAPP concurs.