Whether Congress's omission of a mens rea for the offense of sexual assault by bodily harm means mere negligence as to the lack of consent suffices

QUESTION PRESENTED Of the thousands of courts-martial convened each year, a significant percentage—in some years nearly half—involve a charge that the accused sexually assaulted a complaining witness. The Uniform Code of Military Justice criminalizes any sexual act accomplished by causing bodily harm to another person. 10 U.S.C. § 920(b)(1)(B) (2012). The statute defines “bodily harm” as “any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact.” This Court has repeatedly emphasized the import of requiring a “vicious will” on the part of an accused—absent a clear legislative intent to do away with one—to support a conviction. Yet, the lower court interpreted congressional silence as to the accused’s state of mind to require merely that the prosecution prove that a reasonable person would believe the complaining witness did not consent. The question presented is: Whether Congress’s omission of a mens rea for the offense of sexual assault by bodily harm means mere negligence as to the lack of consent suffices. (i)