Adam E. Pitman Captain U.S. Air Force Convicted Sex Offender Wrongful Sexual Contact

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Name: Adam E. Pitman

Case: U.S. v. Pitman No. ACM 37453

Date Of Conviction: January 29, 2009

Plea: Not Guilty

Charges: Aggravated Assault

Military Branch: U.S. Air Force

Listed In National Sex Offenders Registry? NO

A general court-martial composed of officer members convicted the appellant contrary to his pleas of one specification of wrongful sexual contact as a lesser included offense of a charged specification of aggravated sexual contact and one specification of conduct unbecoming an officer and a gentleman in violation of Articles 120 and 133, UCMJ, 10 U.S.C. §§ 920, 933. He was acquitted of a second specification of indecent conduct also alleged as a violation of Article 120, UCMJ. The court-martial sentenced the appellant to a dismissal and confinement for six months, and the convening authority approved the sentence adjudged.

The appellant raises four issues: (1) whether the military judge erred by instructing that the court members could consider wrongful sexual contact as a lesser included offense of the charged aggravated sexual contact, (2) whether the military judge erred by excluding certain evidence of the victim‟s behavior, (3) whether the evidence is insufficient to support the conviction of wrongful sexual contact, and (4) whether the military judge erred by not instructing that mistake of fact as to consent is a defense to the charge of conduct unbecoming under Article 133, UCMJ. We heard oral argument on this case on 16 February 2011 at Seattle University School of Law in Seattle, Washington. Finding no error prejudicial to the substantial rights of the appellant, we affirm.

On 9 December 2007, the appellant and 1st Lt NH were ordered to serve together as a two-person missile launch control crew with the appellant as commander and 1st Lt NH as deputy commander. Both were assigned to the 12th Missile Squadron, Malmstrom Air Force Base (AFB), Montana. Launch control crews work in a launch control center, a small capsule located 60 feet underground behind an eight-ton blast door. Two officers serve on alert in the capsule at the same time, and, for security purposes, both officers are required to remain present at all times until a relief crew member arrives to permit one of the crew to leave the capsule for 12 hours of rest.

1st Lt NH testified that after they were secured in the capsule, the appellant began making sexual advances toward her by asking her to play strip poker and undress for him. She refused and tried to ignore him, but he swiveled her chair toward him and pulled her onto his lap. He picked her up and placed her on a sleeping bag that he had unrolled on the floor, telling her that he was “looking forward to the alert and that [she] shouldn‟t let him down.” She did not reply, testifying that she was “in shock.” The appellant proceeded to fondle and kiss 1st Lt NH‟s breasts, and also placed her hand on his penis. When asked why she did not fight back, 1st Lt NH testified that she feared physical retaliation if she did. When asked why she did not scream, 1st Lt NH replied “I was 60 feet underground.” Several weeks later, after discussing what happened with an officer colleague, 1st Lt NH reported the incident to the Sexual Assault Response Coordinator.

At government request and over defense objection, the military judge instructed the members that they could consider wrongful sexual contact as a lesser included offense of the charged aggravated sexual contact. He first instructed the members on the elements of the charged offense:

One, that at or near the India-1 Missile Launch Control Facility, Montana, on or about 9 December 2007, the accused engaged in sexual contact, to wit: the fondling of First Lieutenant [NH‟s] breasts with his hands, the kissing of her breasts with his mouth, and the placing of her hand upon his penis, with the said First Lieutenant [NH].

And two, that [the] accused did so by using force against First Lieutenant [NH], to wit: the use of physical strength sufficient that she could not avoid or escape the sexual contact.

He correctly defined the element of force as “action to compel submission of another or to overcome or prevent another‟s resistance by physical violence, strength, power, or restraint applied to another person, sufficient that the other person could not avoid or escape the sexual contact.”

The military judge then instructed the members on the elements of wrongful sexual contact as a lesser included offense:

One, that, at or near the India-1 Missile Launch Control Facility, Montana, on or about 9 December 2007, the accused engaged in sexual contact, to wit: the fondling of First Lieutenant [NH‟s] breasts with his hands, the kissing of her breasts with his mouth, and the placing of her hand upon his penis, with the said First Lieutenant [NH].

Two, that such sexual contact was without the permission of First Lieutenant [NH]; and

Three, that such sexual contact was wrongful.

The approved findings and the sentence are correct in law and fact and no error prejudicial to the substantial rights of the appellant occurred. Article 66(c), UCMJ; United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000).