The case of the unwelcome kiss

What happens when a Marine kisses the sleeping wife of another Marine during a party at her off-base home? This Marine Corps Times article reports:

According to court documents obtained by Marine Corps Times, investigative officers recommended the case be taken to special court-martial — the military equivalent of misdemeanor court — on a simple assault charge. But the commanding officer supervising the case decided instead to prosecute the incident as a sex assault at general court-martial, the military court reserved for the most serious felony offenses. . .
The alleged incident occurred at a July 2013 house party in South Carolina outside Marine Corps Air Station Beaufort. According to court documents, the wife of the Marine hosting the party said she went to bed early and woke up to find Cpl. Andie Arado, a guest at the party, in her room, kissing her on the mouth. Arado left, according to the allegation, when he heard the woman’s husband calling from the other room. . . 

At an investigative hearing about the accusations in April, investigators recommended the allegations be prosecuted, but said charging Arado with sex assault was problematic.

For one, the alleged victim’s initial sworn statement indicated she never opened her eyes during the incident, as she was pretending to be asleep, and identified Arado only by his accent. Even so, a jury might find the account credible and still find the incident did not amount to sex assault under the law, according to documents.

“She states that Cpl. Arado made no physical contact, of any kind or nature, with any of her other body parts ... this important fact may reasonably lead the members to not find that a sexual offense occurred,” an investigator wrote. “As [the alleged victim] declined to participate in the investigation, I was unable to evaluate her demeanor or credibility or receive any further sworn testimony to substantiate this charge. ... For these reasons, and in the interest of justice and discipline, I recommend withdrawing and dismissing [the sexual assault charge].”

In a civilian court, allegations of an unwanted kiss would have a slim chance of going to trial at all, said Jim Brown, a defense attorney based in Beaufort. The incident would likely be charged as an assault and battery in the third degree, a charge carrying a maximum sentence of 30 days’ confinement, though the court would still have to work to prove the injury that resulted from the alleged incident. A more serious charge, assault and battery of a high and aggravated nature, would be unlikely, he said.

“I think they would find that [the incident] was criminal, but I don’t think they would find it was high and aggravated,” he said.

Cpl. Arado faces a maximum punishment of seven years' confinement. Trial is set for September.