(dissenting):
I cannot join the Judges of the majority today when they reverse the assault-and-battery conviction of appellant, because I believe they do so in violation of the well-established standard set out by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Looking at the record in this case, one can plainly see that there is sufficient evidence, when vieived in the light most favorable to the Government, to uphold the jury’s conviction of appellant for assault and battery. Jackson v. Virginia, supra.
The record clearly shows that the victim, Specialist (SPC) MC, was given repeated uninvited “back massages” by her superior, Staff Sergeant (SSG) Johnson in her workplace. These back massages formed the basis for the conviction of SSG Johnson for assault and battery of SPC C. The evidence of the assault and battery comes from the direct testimony of SPC C. A key and unrebutted portion of that evidence from the record of trial is as follows:
Q. [By Prosecutor] I want to talk about the back massages you made reference to. Describe for us how he would massage you.
A. [By the Victim, SPC C] It was usual-. ly when I was working in the Admin office upstairs in T-341. I was usually typing or doing some type of work and he would come up to me and massage my back. And I would shrug to try to get out of it, and I never really did say anything, because I didn’t want attention. And I didn’t want and — because there was other people around and I didn’t want any attention.
Q. How did you feel about those massages?
A. I didn’t like them. They were interrupting my work.
Q. And what if anything did you do to try to stop the accused from massaging you?
A. I would just shrug my shoulders to try to get out of it. I would never say anything. I would just pull myself forward just to get out of it.
Q. And what did he do in response to your shrugging?
A. Sometimes he would quit. And there were other occasions, he would just massage a little bit more.
Q. Do you believe that was appropriate conduct for a noncommissioned officer?
A. No, I do not.
Q. [SPC C], has the accused ever made any[1] sexually related comments to you?
*71A. Yes, he has, ma’am.
(R. 123-24)
There is no direct evidence in the record that the victim consented to these touchings by appellant. The only evidence in the record which is directly related to the issue of consent is the fact that the victim tried to escape these back massages by her superior. She stated:
I would just shrug my shoulders to try to get out of it [the uninvited back massages by appellant]. I would never say anything. I would just pull myself forward just to get out of it.
(R. 124) Appellant apparently understood the meaning of the non-verbal actions of the victim sending signals of non-consent because as she testified:
Q. [By Prosecutor] And what did he do in response to your shrugging?
A. [By Victim] Sometimes he would quit. And there were other occasions, he would just massage a little bit more.
(R. 124)
If one looks for direct evidence that appellant may have been under the mistaken belief that the victim consented to the touching, there is also none in this record. Neither the Government nor the defense offered any direct evidence either through witnesses or by testimony of appellant that appellant thought she consented. To make up for no direct evidence in this area, the majority circumstantially relies on evidence of prior consensual physical touchings (“hugs”) of the alleged victim by appellant.2 Surprisingly, the majority ignores the evidence that there was no express consent in this case and the evidence that appellant was under no mistaken belief of consent with respect to these particular back massages. Instead, the majority focuses on the victim’s late reporting of the massages3 and its semantic assertion that “she did not provide any evidence that they were offensive.” 54 MJ at 69 (only evidence she was “uncomfortable”).
Contrary to the majority, the court below (a court with special factfinding powers) had no trouble with the legal sufficiency of the assault-and-battery charge and the finding of non-consent. That court found:
In two additional, related assignments of error, appellant attacks his conviction for assault consummated by a battery. He maintains that SPC C consented to his hugging her and rubbing her back, and the victim’s conduct gave him the mistaken belief that she did consent to the contact. The evidence shows otherwise.
SPC C testified that appellant’s back massages “made her feel uncomfortable.” She shrugged her shoulders and wriggled to manifest her discomfort and dislike of appellant’s actions. A failure to verbally protest, and thus draw attention to oneself, when the assault takes place in an open administrative office, does not equate to consent. See generally United States v. Bonano-Torres, 29 MJ 845 (ACMR 1989). Similarly, SPC C’s failure to confront appellant and verbalize that his improper touching bothered her could not have raised an honest and reasonable belief in the mind of this experienced NCO that SPC C consented to his advances.
We have considered the matters personally raised by the appellant pursuant to United States v. Grostefon, 12 MJ 431 (CMA 1982), and find them to be without merit.
United States v. Johnson, unpub. op. at 2-3.
In a separate concurring opinion, one of the judges concisely summarized the evi*72dence supporting the assault-and-battery charge as follows:
The evidence shows appellant to be a sexual predator who, inter alia, embarked on a campaign of unwarranted sexually suggestive remarks and physically assaultive overtures in hopes of engaging a subordinate, SPC C, in a romantic adventure.
United States v. Johnson, unpub. op. at 3 (Squires, J., concurring).
Contrary to the majority, I agree with the lower court’s findings on the legal sufficiency of the assault-and-battery conviction of appellant. See Jackson v. Virginia, supra. Furthermore, in my view, the U.S. Army Court of Criminal Appeals properly used its factfinding power and experience to correctly assess all the evidence in this case on the question of legal sufficiency and consent in light of the unique military setting of a superior-subordinate relationship. See generally Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974).
In this regard, I note my dissenting opinion in United States v. Hullett, 40 MJ 189, 194-95 (1994) (Sullivan, C.J., and Crawford, J., dissenting), where I said:
Here, a competent jury of his peers found that the above-quoted words spoken by a married senior noncommissioned officer (NCO) to a young junior soldier in the performance of her duties during work hours at the workplace of the senior NCO were of an indecent nature. I cannot disagree with their finding and that of the court below. In today’s Army, no junior soldier should have to put up with such remarks and appellant should not be excused from the consequences of his remark because, as the lead opinion puts it, “The remark in question was a common joke.” 40 MÜT at 193. I would affirm.
(Emphasis added.)
Likewise, in appellant’s case, I do not agree with the majority’s holding that appellant should be excused from the consequences of his offensive physical touchings because there was no verbal protest by the junior enlisted female victim in this military-office environment. See United States v. Clark, 35 MJ 432, 436 (CMA 1992) (recognizing unique situation of discrimination and control presented by superior rank and position), cert. denied, 507 U.S. 1052, 113 S.Ct. 1948, 123 L.Ed.2d 653 (1993). Some subordinates in the Army, like some subordinates in the workplaces of America, may not verbally protest every offensive touching by their boss. Some subordinates may say nothing or may communicate by non-verbal conduct like the victim in this case. Why? Well, in this case, the victim explained that she “never really did say anything, because I didn’t want attention ... because there were other people around and I didn’t want any attention.” R. 123.
From a legal viewpoint, this case should be affirmed. In this case, a military judge implicitly found that there was sufficient evidence of assault and battery by his allowing this charge to be submitted to the military jury. That jury which heard the evidence convicted appellant of this crime beyond a reasonable doubt. Later, three appellate military judges, on the appeal, found that there was sufficient evidence to sustain the conviction. Notwithstanding this solid legal case, the majority of this Court, without legal authority, substitutes its view for the supported findings of the judge, the jury, and the lower appellate court.4
The majority is bound by the evidence of record legally supporting this crime. The record showed that the victim by non-verbal conduct did show that she didn’t want to be touched by her superior. The record further showed that appellant was in a power relationship with her, not a dating or sexual relationship. On the contrary, the record showed that there was a one-way sexual interest manifested by sexual comments and touchings by her supervisor, who was at one point her squad leader, her work-detail su*73pervisor, and then later her operations non-commissioned officer. The record clearly shows that the victim evidenced her lack of consent by obvious evasive conduct, that she did so on a number of occasions, and that appellant persisted in continuing to physically massage her. In view of this evidence, Supreme Court precedent does not allow me to overturn this conviction. Jackson v. Virginia, supra; see United States v. Cage, 42 MJ 139, 147 (1995) (Sullivan, C.J., dissenting) (“If the majority were driving a car on the road to justice in this case, I am certain it would crash into the stonewall of Jackson v. Virginia, supra.”). Evidence of appellant’s repeated uninvited public massages of a female subordinate’s person against her will is a rational basis for the members to reject the mistake-of-fact defense and is sufficient to uphold the conviction of assault and battery.
In my view, the majority today takes the law relating to sexual harassment in the workplace back a few steps from the progress our modern armed forces have made along the path of true protection for subordinate servicemembers. I respectfully dissent in this significant case.
. At trial, the jury heard evidence that appellant made four sexually-related comments to the victim. These comments formed the basis of the conviction of appellant for maltreatment. The lower court voided that conviction on appeal on legal, not factual, grounds. However, it is unrebutted that appellant made such comments to the victim. One example of such comments was a remark by appellant when he was supervising the victim on a work detail; appellant said to the males on the detail that they could take off their shirts and the victim could also. He said, "Go *71ahead and take off your shirt. I wouldn’t mind seeing your breasts.” (R. 126)
. I disagree with the majority's suggestion that failure to object to prior sexual advances somehow constitutes a defense to later sexual advances which are rejected by the victim. See United States v. Hullett, 40 MJ 189, 194 (CMA 1994) (Sullivan, C.J., and Crawford, J., dissenting); R. Perkins and R. Boyce, Criminal Law, Ch. 9 § 3A at 1077 (3d ed.1982).
. It is telling of the majority's mind-set to note that while the trial record and the lower court consistently refer to appellant's touchings of SPC C as "back massages” in the course of this criminal prosecution, the majority uses the euphemism "backrubs” to describe the uninvited touchings. 54 MJ at 68, 69, and 70.
. Hie majority is not a jury of factfinders. If they were members of the jury in this case, perhaps they could have argued to the other jury members that the back massages were not offensive to them. They also could have tried to convince the other jury members that the victim consented to the massages. But the majority are not factfinders and they cannot find such facts now when sitting as an appellate court of law. Article 67(c), UCMJ, 10 USC § 867(c) (1994).