Franciscus M. Madigar Health Services Technician Second Class U.S. Coast Guard Convicted Sex Offender Indecent Assault

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Name: Franciscus M. Madigar

Case: U.S. v. Madigar CGCMG 0102

Date Of Conviction June 21, 1995

Plea: Not Guilty

Charges: Indecent Assault

Military Branch: U.S. Coast Guard

Listed In National Sex Offenders Registry? Yes, Colorado

General Court-Martial convened by Commander, U.S. Coast Guard Maintenance and Logistics Command Atlantic. Tried at U.S. Coast Guard Training Center, Cape May, New Jersey, on 19-21 June 1995.

Appellant was tried by general court-martial, judge alone. Pursuant to guilty pleas, entered in accordance with a pretrial agreement, he was convicted of the following offenses: three specifications of dereliction of duty; thirteen specifications of maltreatment of female recruits; one specification of wrongful use of heroin and one specification of wrongful use of marijuana; five specifications of assault consummated by battery by subjecting female recruits to unnecessary X-ray procedures; and seven specifications of indecent assault of female recruits, in violation of Articles 92, 93, 112a, 128 and 134, Uniform Code of Military Justice (UCMJ). The judge sentenced appellant to a dishonorable discharge, confinement for ten years, forfeiture of all pay and allowances, and reduction to pay grade E-1. The convening authority reduced the confinement to seven years and six months in accordance with the terms of the pretrial agreement, but otherwise approved the sentence as adjudged. Before this Court, appellant has challenged this Court's jurisdiction based on an assertion of a defective civilian judicial appointment That assignment has been found to be without merit by the U.S. Supreme Court, Edmond v United States, ___ U.S. ___, 65 U.S.L.W. 4362 (1997), and is rejected for that reason. Appellant also contends that his pleas of guilty to assault and battery by exposing female recruits to unnecessary X-rays are improvident. That assignment will be addressed.

ASSAULT AND BATTERY BY X-RAY

Appellant, a Health Services Technician Second Class, whose duty at the Coast Guard Recruit Training Center, Cape May, New Jersey, was that of X-ray technician at the Center's Medical Clinic, pled guilty to five specifications of assault by unlawfully exposing female recruits to X-ray radiation by making unnecessary X-ray images of their bodies. The inquiry into the providence of appellant's pleas established that he, indeed, took the X-rays alleged and that they had not been ordered by a doctor and, in fact, were not medically indicated. Nevertheless, he now contends that those guilty pleas were improvident because an X-ray is insufficient to constitute the harmful or offensive touching necessary to support such an assault. He asserts that a physical touching of the victim is necessary for the offense and that X-ray radiation does not amount to such a touching.

Appellant is correct that one of the elements of assault consummated by a battery, the type of assault encompassed by these specifications, requires bodily harm, which is defined as any offensive touching, however slight. Manual for Courts-Martial, 1995 Edition (MCM 1995), Part IV, ¶54. b(2)(a) & c(1)(a). Moreover, as indicated by appellant, all the examples of battery in MCM 1995, Part IV, ¶54. c(2)(c) involve a physical touching of the victim by something solid. Those examples, however, are by no means exhaustive. Neither they nor any other provision of the MCM expressly preclude the possibility that a force, such as X-ray radiation, passing through the body may constitute the requisite touching. Non-solids such as smoke and chemical gas have been found by other courts to be agents of assault and battery. United States v. Banks, 39 M.J. 571 (NMCMR 1993) (smoke), and United States v. Schroder, 47 CMR 430 (ACMR 1973 (chemical gas).

Appellant, as a medical technician, stands convicted of numerous offenses against trusting female recruits who had sought medical attention but, instead, were mistreated in one form or another. In many instances, they were subjected by appellant to degrading acts under the guise of required medical procedures. Among other things, in addition to the unnecessary X-ray radiation, appellant required some of these young women to remove articles of clothing and assume contorted positions, exposing their private parts, which he then touched in highly inappropriate ways. He violated the trust of these women and he violated his professional obligations. The approved sentence is fully supported by the offenses and it is appropriate for this accused. Having reviewed the record in accordance with Article 66, UCMJ, the findings and sentence are determined to be correct in law and fact and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty and sentence, as approved below, are affirmed.