The National Defense Authorization Act for FY2012 (H.R. 1540) contains language that almost-completely revises Article 120, UCMJ. The bill was presented to the President for signature on December 21 and, absent a major political shift (a pocket veto appears impossible), will become law. The amendments will take effect 180 days after enactment.

The “Revised Article 120″ splits sexual offenses into three Articles (plus Article 120a – Stalking) and eliminates some of the most difficult aspects of the “New Article 120.” The Revised Article 120:

  • Delineates  11 offenses (including stalking):
    1. Rape (Art. 120 (a))
    2. Sexual Assault (Art. 120 (b))
    3. Aggravated Sexual Contact (Art. 120 (c))
    4. Abusive Sexual Contact (Art. 120 (d))
    5. Stalking (Art. 120a)
    6. Rape of a Child (Art. 120b (a))
    7. Sexual Assault of a Child (Art. 120b (b))
    8. Sexual Abuse of a Child (Art. 120b (c))
    9. Indecent Viewing, Visual Recording, or Broadcasting (Art. 120c (a))
    10. Forcible Pandering (Art. 120c (b))
    11. Indecent Exposure (Art. 120c (c))
  • Simplifies defenses to include all defenses available under the Rules for Courts-Martial (of note: An accused must prove a marriage or mistake of fact as to age (defenses to certain offenses with a child) by a preponderance of the evidence).
  • Repeals language that eliminated “consent” and “mistake of fact as to consent” as issues (except for offenses against children (Art. 120b)).
  • Repeals the burden-shift for an affirmative defense (Art. 120 (t)(16)).
  • Expands the definition of “bodily harm” to explicitly include non-consensual sexual acts and contact.
  • Expands the definition of “sexual act” to include contact between the penis and the “vulva or anus or mouth,” and to include penetration of the vulva or anus or mouth by “any part of the body” or object.
  • Expands the definition of “sexual contact” in include touching of “any body part of any person” if done with requisite intent.

After the break I reproduce the “revised” text, noting repealed sections of the “new” text with strikeouts, new language in the “revised” text with underlines, and my notations in italics.

 

§ 920. Art. 120. Rape and Sexual Assault Generally

Contents (not part of legislative text):
(a) Rape.
(b) Sexual assault.
(c) Aggravated sexual contact.
(d) Abusive sexual contact.
(e)  Proof of threat.
(f) Defenses.
(g) Definitions.
          (1) Sexual act.
          (2) Sexual contact.
          (3) Bodily harm.
          (4) Grievous bodily harm.
          (5) Force.
          (6) Unlawful Force
          (7) Threatening or placing that other person in fear.
          (8) Consent.

(a) Rape. Any person subject to this chapter who causes commits a sexual act upon another person of any age to engage in a sexual act by—

(1) using unlawful force against that other person;

(2) using force causing or likely to cause death or grievous bodily harm to any person;

(3) threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;

(4) first rendering another person unconscious; or

(5) administering to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairs impairing the ability of that other person to appraise or control conduct;

is guilty of rape and shall be punished as a court-martial may direct.

(b) Rape of a child. Incorporated in Article 120b (a) – Rape of a Child.

(b) (c) Aggravated Sexual assault. Any person subject to this chapter who—

(1) commits a sexual act upon another person causes another person of any age to engage in a sexual act by—

(A) threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping); or

(B) causing bodily harm to that other person; or

(C) making a fraudulent representation that the sexual act serves a professional purpose; or

(D) inducing a belief by any artifice, pretense, or concealment that the person is another person;

(2) engages in commits a sexual act upon with another person when the person knows or reasonably should know that the other person is asleep, unconscious, or other unaware that the sexual act is occurring; or

(3) commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to-

(A) impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person; or

(B) a mental disease or defect, or physical disability, and that condition is known or reasonably should be known by the person;

of any age if that other person is substantially incapacitated or substantially incapable of—

(A) appraising the nature of the sexual act;

(B) declining participation in the sexual act; or

(C) communicating unwillingness to engage in the sexual act;

is guilty of aggravated sexual assault and shall be punished as a court-martial may direct.

(d) Aggravated sexual assault of a child. Incorporated in Article 120b (b) – Sexual Assault of a Child.

(c) (e) Aggravated sexual contact. Any person subject to this chapter who engages in commits or causes sexual contact with upon or by another person, if to do so would violate subsection (a) (rape) had the sexual contact been a sexual act, is guilty of aggravated sexual contact and shall be punished as a court-martial may direct.

(d) (h) Abusive sexual contact. Any person subject to this chapter who engages in commits or causes sexual contact with upon or by another person, if to do so would violate subsection (c) (b) (aggravated sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct.

(f) Aggravated sexual abuse of a child. Incorporated in Article 120b (c) – Sexual Abuse of a Child.

(g) Aggravated sexual contact with a child. Incorporated in Article 120b (c) – Sexual Abuse of a Child.

(i) Abusive sexual contact with a child. Incorporated in Article 120b (c) – Sexual Abuse of a Child.

(j) Indecent liberty with a child. Incorporated in Article 120b (c) – Sexual Abuse of a Child.

(k) Indecent act. Any person subject to this chapter who engages in indecent conduct is guilty of an indecent act and shall be punished as a court-martial may direct. Incorporated in Article 120c(a) – Indecent Viewing, Visual Recording, or Broadcasting.

(l) Forcible pandering. Moved to Article 120c (b) – Forcible Pandering.

(m) Wrongful sexual contact. Repealed. Incorporated into Art. 120 (c) Abusive sexual contact, by the expanded definition of  bodily harm at Art. 120 (g)(3).

(n) Indecent exposure. Moved to Article 120c (c) – Indecent Exposure.

(o) Age of child. Incorporated in Article 120b (c)(d) – Age of Child.

(e)  (p) Proof of threat. In a prosecution under this section, in proving that the accused a person made a threat, it need not be proven that the accused person actually intended to carry out the threat or had the ability to carry out the threat.

(f) Defenses – An accused may raise any applicable defenses available under this chapter or the Rules for Court-Martial [sic]. Marriage is not a defense for any conduct in issue in any prosecution under this section.

(q) Marriage. Incorporated in Article 120 (f) – Defenses.

(r) Consent and mistake of fact as to consent. Incorporated in Article 120 (f) – Defenses.

(s) Other affirmative defenses not precluded. Incorporated in Article 120 (f) – Defenses.

(g) (t) Definitions. In this section:

(1) Sexual act. The term “sexual act” means—

(A) contact between the penis and the vulva or anus or mouth, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or

(B) the penetration, however slight, of the genital opening vulva or anus or mouth of another by a hand or finger any part of the body or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(2) Sexual contact. The term “sexual contact” means the intentional touching,

(A) touching, or causing another person to touch, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another any person, with an intent to abuse, humiliate, or degrade any person; or

(B) any touching, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, any body part of any person, with an intent to abuse, humiliate, or degrade any person or, if done with an intent to arouse or gratify the sexual desire of any person.

Touching may be accomplished by any part of the body.

(3) (8) Bodily harm. The term “bodily harm” means any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact.

(4) (3) Grievous bodily harm. The term “grievous bodily harm” means serious bodily injury. It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose. It is the same level of injury as in section 928 (article 128) of this chapter, and a lesser degree of injury than in section 2246(4) of title 18.

(4) Dangerous weapon or object. Repealed.

(5) Force. The term “force” means action to compel submission of another or to overcome or prevent another’s resistance by

(A) the use of a weapon;

(B) the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or

(C) inflicting physical harm sufficient to coerce or compel submission by the victim.

(6) Unlawful Force – The term ‘unlawful force’ means an act of force done without legal justification or excuse.

(7) Threatening or placing that other person in fear. Repealed.

(7) (6) Threatening or placing that other person in fear. The term “threatening or placing that other person in fear” under paragraph (3) of subsection (a) (rape), or under subsection (e) (aggravated sexual contact), means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to death, grievous bodily harm, or kidnapping the wrongful action contemplated by the communication or action.

(8) (14) Consent.

(A) The term “consent” means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused’s use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent.

(B) A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious. A person cannot consent while under threat or in fear or under the circumstances described in subparagraph (C) or (D) of subsection (b)(1).

(C) Lack of consent may be inferred based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person’s actions.

A person cannot consent to sexual activity if—

(A) under 16 years of age; or

(B) substantially incapable of—

(i) appraising the nature of the sexual conduct at issue due to

(I) mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise; or

(II) mental disease or defect which renders the person unable to understand the nature of the sexual conduct at issue;

(ii) physically declining participation in the sexual conduct at issue; or

(iii) physically communicating unwillingness to engage in the sexual conduct at issue.

(9) Child. The term “child” means any person who has not attained the age of 16 years. Incorporated in Article 120b (d) – Age of Child.

(10) Lewd act. The term “lewd act” means— Repealed, but see Article 120 (b)(h)(5) – Lewd Act.

(11) Indecent liberty. The term “indecent liberty” means indecent conduct, but physical contact is not required. Incorporated in Article 120b (h)(5) – Lewd Act.

(12) Indecent conduct. Incorporated in Article 120b (h)(5) – Lewd Act; and Article 120 (c)(a) – Indecent Viewing.

(13) Act of prostitution. The term “act of prostitution” means a sexual act, sexual contact, or lewd act for the purpose of receiving money or other compensation. Incorporated in Article 120c (d)(1).

(15) Mistake of fact as to consent. Repealed.

(16) Affirmative defense. Repealed.

§ 920a.  Art. 120a. Stalking  Unchanged

§ 920b.  Art. 120b. Rape and sexual assault of a child

Contents (not part of legislative text):
(a) Rape of a Child.
(b) Sexual Assault of a Child.
(c) Sexual Abuse of a Child.
(d) Age of Child.
(e) Proof of Threat.
(f) Marriage.
(g) Consent.
(h) Definitions.
          (1) Sexual Act and Sexual Contact.
          (2) Force.
          (3) Threatening or Placing That Child in Fear.
          (4) Child.
          (5) Lewd Act.

(a) Rape of a Child – Any person subject to this chapter who– (Formerly Article 120 (b))

(1) engages in a commits a sexual act with a upon a child who has not attained the age of 12 years; or

(2) engages in a sexual act under the circumstances described in subsection (a) with a child who has attained the age of 12 years;

(2) commits a sexual act upon a child who has attained the age of 12 years by–

(A) using force against any person;

(B) threatening or placing that child in fear;

(C) rendering that child unconscious; or

(D) administering to that child a drug, intoxicant, or other similar substance;

is guilty of rape of a child and shall be punished as a court-martial may direct.

(b) Sexual Assault of a Child- Any person subject to this chapter who engages in commits a sexual act with upon a child who has attained the age of 12 years is guilty of aggravated sexual assault of a child and shall be punished as a court-martial may direct. (Formerly Article 120 (d))

(c) Sexual Abuse of a Child- Any person subject to this chapter who engages in commits a lewd act with upon a child is guilty of aggravated sexual abuse of a child and shall be punished as a court-martial may direct. (Formerly Article 120 (f))

(d) Age of Child- (Formerly Article 120 (o))

(1) Under 12 Years- In a prosecution under this section, it need not be proven that the accused knew that the other person engaging in the sexual act, contact, or liberty had not attained the age of 12 years the age of the other person engaging in the sexual act or lewd act. It is not an affirmative defense that the accused reasonably believed that the child had attained the age of 12 years.

(2) Under 16 Years- In a prosecution under this section, it need not be proven that the accused knew that the other person engaging in the sexual act or lewd act had not attained the age of 16 years, but it is an affirmative defense that the accused reasonably believed that the child had attained the age of 16 years a defense in a prosecution under subsection (b) (sexual assault of a child) or subsection (c) (sexual abuse of a child), which the accused must prove by a preponderance of the evidence, that the accused reasonably believed that the child had attained the age of 16 years, if the child had in fact attained at least the age of 12 years.

(e) Proof of Threat- In a prosecution under this section, in proving that a person made a threat, it need not be proven that the person actually intended to carry out the threat or had the ability to carry out the threat.

(f) Marriage- In a prosecution under subsection (b) (sexual assault of a child) or subsection (c) (sexual abuse of a child), it is an affirmative defense, which the accused must prove by a preponderance of the evidence, that the persons engaging in the sexual act or lewd act were at that time married to each other, except where the accused commits a sexual act upon the person when the accused knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring or when the other person is incapable of consenting to the sexual act due to impairment by any drug, intoxicant, or other similar substance, and that condition was known or reasonably should have been known by the accused. (Formerly Article 120 (q))

(g) Consent- Lack of consent is not an element and need not be proven in any prosecution under this section. A child not legally married to the person committing the sexual act, lewd act, or use of force cannot consent to any sexual act, lewd act, or use of force.

(h) Definitions- In this section:

(1) Sexual Act and Sexual Contact- The terms `sexual act’ and `sexual contact’ have the meanings given those terms in section 920(g) of this title (article 120(g)).

(2) Force – The term ‘force’ means–

(A) the use of a weapon;

(B) the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a child; or

(C) inflicting physical harm.

In the case of a parent-child or similar relationship, the use or abuse of parental or similar authority is sufficient to constitute the use of force.

(3) Threatening or Placing That Child in Fear- The term ‘threatening or placing that child in fear’ means a communication or action that is of sufficient consequence to cause the child to fear that non-compliance will result in the child or another person being subjected to the action contemplated by the communication or action.

(4) Child- The term ‘child’ means any person who has not attained the age of 16 years.

(5) Lewd Act- The term `lewd act’ means–

(A) any sexual contact with a child;

(B) intentionally exposing one’s genitalia, anus, buttocks, or female areola or nipple to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person;

(C) intentionally communicating indecent language to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or

(D) any indecent conduct, intentionally done with or in the presence of a child, including via any communication technology, that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

§ 920c.  Art. 120c. Other sexual misconduct

Contents (not part of legislative text):
(a) Indecent Viewing, Visual Recording, or Broadcasting.
(b) Forcible Pandering.
(c) Indecent Exposure.
(d) Definitions.
          (1) Act of Prostitution.
          (2) Private Area.
          (3) Reasonable Expectation of Privacy.
          (4) Broadcast.
          (5) Distribute.
          (6) Indecent Manner.

(a) Indecent Viewing, Visual Recording, or Broadcasting- Any person subject to this chapter who, without legal justification or lawful authorization– (1) knowingly and wrongfully views the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy;

(2) knowingly photographs, videotapes, films, or records by any means the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy; or

(3) knowingly broadcasts or distributes any such recording that the person knew or reasonably should have known was made under the circumstances proscribed in paragraphs (1) and (2);

is guilty of an offense under this section and shall be punished as a court-martial may direct.

(b) Forcible Pandering- Any person subject to this chapter who compels another person to engage in an act of prostitution with another any person to be directed to said person is guilty of forcible pandering and shall be punished as a court-martial may direct. (Formerly Article 120 (l)).

(c) Indecent Exposure- Any person subject to this chapter who intentionally exposes, in an indecent manner, in any place where the conduct involved may reasonably be expected to be viewed by people other than members of the actor’s family or household, the genitalia, anus, buttocks, or female areola or nipple is guilty of indecent exposure and shall by punished as a court-martial may direct. (Formerly Article 120 (n)).

(d) Definitions- In this section:

(1) Act of Prostitution- The term ‘act of prostitution’ means a sexual act or sexual contact (as defined in section 920(g) of this title (article 120(g))) or lewd act on account of which anything of value is given to, or received by, any person for the purpose of receiving money or other compensation. (Formerly Article 120 (t)(13))

(2) Private Area- The term ‘private area’ means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple.

(3) Reasonable Expectation of Privacy- The term ‘under circumstances in which that other person has a reasonable expectation of privacy’ means–

(A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the person was being captured; or

(B) circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public.

(4) Broadcast – The term ‘broadcast’ means to electronically transmit a visual image with the intent that it be viewed by a person or persons.

(5) Distribute- The term ‘distribute’ means delivering to the actual or constructive possession of another, including transmission by electronic means.

(6) Indecent Manner- The term ‘indecent manner’ means conduct that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

16 Responses to “The Revised Article 120”

  1. k fischer says:

    So, have they prevented Servicemembers from visually recording their sexual escapades for purposes of alibi in case of a false allegation?  If someone is surreptitiously recording themselves having sex with another person, does that mean that the other person has a reasonable expectation of privacy?  Because if a woman is disrobing in front of me, then she is not disrobing in privacy is she?  You know some dipstick SVP will push for an Article 15, if their victim gets busted on tape under this new crime.

    I liked the old Article 120 better, where it just dealt with rape and most other sexual issue was dealt with under Article 134.   (Of course, they say nothing about a voice recording.  Guys, digital recorders cost about $30 down at the PX and they can download onto your computer any voice recordings you make.)

    Also, while I am not defending this practice, but what about voyeur websites?  Servicemembers need to be advised that they are not permitted click on a link that has anything to do with a voyeuristic video.  It is a crime to broadcast the video and clicking on a link that plays one of those videos would be considered ‘broadcasting.’

    And, what the heck does this mean:
    “making a fraudulent representation that the sexual act serves a professional purpose”

    So, if a Soldier says that he is going to marry an unemployed woman if she will sleep with him, but has no intent whatsoever of marrying her, would her being a housewife serve a professional purpose?  Could he be charged with sexual assault for fraudulently representing that he will marry her.  Or, is Congress attempting by this provision to ensure that hookers don’t get stiffed by their Servicemember Johns?  What is the purpose of this provision? 

    Has consent been added back into Article 120 as an element, or is it still an affirmative defense which requires the accused to prove it up by a proponderence of the evidence?

  2. Tstan says:

    KF, I think the “professional” language is intended to allow easier prosecution in cases like the Navy doctor giving unnecessary exams to patients. Punishment would be greater, too. If you look at sub-b of the definition of “sexual act” they’ve broadened the definition to allow prosecution of digital penetration with the requisite intent. This would tend to decrease the likelihood of letting a serial offender off with a dismissal and a 30-day cap.

    My question is how the discussion of consent will interact with litigation of 412 motions. The language in sub 8c seems to imply that all surrounding circumstances will be considered by the panel (assuming that forum). It might then be easier for the defense to get more before the members in consent cases.

    All in all I like the changes.

  3. SeaLawyer says:

    Agree with Tstan – all-in-all, I like the changes.  I’m a little concerned that they use the word “impaired” in the context of inability to consent.  UCMJ para. 35.c.(6) defines “impaired” as being specific to drugs (as opposed to “drunk” for alcohol).  While the new-new 120 requires an inability to consent due to impairment, it leaves some ambiguity [which hopefully will be fully addressed in the amended Benchbook] as to whether impairment = inability to consent.  Obviously that’s not the case, since “drunk” or “impaired” under the UCMJ might be considerably less than .08 BAC, e.g., which would clearly not render someone incapable of consenting.  Even at levels above .08 BAC, someone still might possess the capacity to consent.  Thankfully, they canx’ed the confusing and ambiguous”substantially incapacitated”; I just wish they’d been a little more precise in replacing it.

  4. stewie says:

    I’d agree “substantially incapacitated” wasn’t the greatest/clearest term, but I’d argue “impaired” is even more nebulous and arguably more broadly defined. At the least the form anticipates the outcome that one can be incapacitated but not substantially so. Granted, no one knows what that means exactly but it strongly implies the idea that one drink isn’t going to be enough to establish it.

    Impaired doesn’t do that because you are impaired with one drink. I think some qualifier like substantially in front of impaired would have been helpful, but I realize the intent was to make this as broad as possible in theory, with the hope/belief that panels and courts would rein it in in practice.

    Just saying the word impaired, what does that mean? How impaired is impaired? Legally drunk? Affected at all? I assume panels/judges are just going to go with the standard “too drunk to know what she was doing” analysis which of course will differ from person to person, but I fear the CID teaching of, “if she had one drink, then it was rape” might have an impact.

  5. anon says:

    I agree that “impairment” is simply inviting challenges in later litigation without the panel being provided additional instructions.  I presume this change was made in part to reflect individuals without the mental capacity to consent, i.e. mentally impaired.  Not sure why the drafter’s are choosing to use the military again to be guinea pigs but every statute, both criminal and civil, I can think of uses some form of “inability to manifest consent” language. 

  6. Article16 says:

    The removal of the marriage defense….
    Is it now an assault to spoon with a sleeping spouse?
    I can’t think of any defenses that work…consent is impossible.  Advance consent and post-hoc consent aren’t recognized defenses. 

  7. Brian le Chen says:

    Ok we will need to digest this for a while.  But so far, my favorite part is that a sexual act now includes penetration of the mouth by any object with the intent to a buse or humiliate. Kissing by force is now rape (seems extreme). But throwing a pie in someone’s face (with intent to humiliate) is now rape too (assuming some filling or crust passes thru the lips).
    This is better, but not nearly as good as it could have and should have been.

  8. stewie says:

    Yes pie in the face is now a sexual act. But really only clowns have to worry about that, and let’s be honest, do we really worry about clowns having rights? I think we all know the answer to that.
    I would think “advance consent” would go towards a reasonable mistake of fact defense.

  9. Charlie Gittins says:

    A woman who has been drinking voluntarily gets in her car and drives.  She knows she has been drinking and makes a decision to get in her car and drive.  She is pulled over by a police officer and blows a .081% BAC.  She gets no break on her conduct in that circumstance — she is legally responsible for her acts and their consequences.

    I still don’t understand how it can be that simply by having a few drinks a woman becomes incapable of consenting to sex.  I have spent alot of time as a single guy over the years and it is my experience that alcohol reduces women’s inhibitions.  But the fact that they have less inhibition didn’t meant they didn’t know what they were doing while they were doing it.  As long as we keep training military personnel that a woman who has drunk alcohol can’t consent, we will continue to have miscarriages of justice under Article 120, in whatever bastardized form Congress chooses to present it. We must keep in mind that the reason for all of these changes was because Congress was lobbied because there were not enough convictions in military sex cases.

  10. stewie says:

    Well, that’s why substantial incapacitation, while unwieldy, was workable, because it strongly implied that just being over the legal limit wasn’t necessarily enough to trigger a crime. Impaired on the other hand…

  11. SeaLawyer says:

    Charlie, completely agree.  But to address stewie’s concern:  the new standard is not just “impairment”.  It’s “INCAPABLE of consenting due to impairment”.  Those are very different.  “INCAPABLE of consenting due to impairment” is a much higher standard than “substantially incapacitated”, in my opinion.  Charlie’s example is the perfect illustration of that – clearly someone who has a .081 BAC, but CHOOSES to drive was CAPABLE of choosing to drive.  They’d obviously be capable of choosing to have sex.  That they OUGHT not drive, or OUGHT not have sex because of their intoxication level doesn’t mean they COULD not choose to.  Thankfully, having sex when you OUGHT not is now clearly not a crime.

    Now the real litigation will take place at the much higher BAC’s (not that we get the acutal BAC of the compalining witness with any frequency).  I think you’ll find in practice that “incapable of consenting due to impairment” will come very close to being synonymous with “passed out unconscious” or “so drunk they can’t even stand”.   Using the feminine pronoun for ease of analysis, if she is CAPABLE of choosing to engage in other activity (e.g. choosing to walk back to her room, choosing to remove her clothes, choosing to engage in consenual kissing, etc., etc.), axiomatically she is capable of choosing to have sex.  Conversely, if she has to be carried back to her room, is placed in bed by others, is incapable of removing her own clothes, etc., she’s pretty clearly not capable of consenting to sex.  This is exactly as it should be. 

    To Charlie’s other point – you’re absolutely right that DoD training at all levels (to include VA and SAVI training) at a minimum implies that 1 drink + sex = rape.  It’s exacerbated by those improperly trained VA’s or SAVI’s telling the people coming to them, “You don’t remember consenting?  Therefore you were raped.”  If someone in authority tells a person, “You’re a victim of rape,” then the person will FEEL victimized, even if they were not.  I had a very interesting series of conversations with Dr. Alan Berkowitz several months ago on these very issues.  He’s be retained by DoN SAPR to review the whole system.  I think I was able to open his eyes to several things he hadn’t considered or realized.  We’ll see how big Navy responds.  One of Dr. Berkowitz foci is Bystander Intervention.  I’m all for bystanders intervening (taking a drunk friend home so she doesn’t make a decision she’ll regret in the morning) if it means fewer false rape allegations. 

    Screw the clowns!!

  12. stewie says:

    “INCAPABLE of consenting due to impairment”

    Boy we read that way differently because I don’t see how that is more than can’t consent because of substantially incapacitation. I mean incapacitate(ion, ed) is just the a form of incapable, at best you could argue they are equivalent.

    EXCEPT for the fact that the former added the word substantially, while the later does not.

    The two words are definited qualitatively differently. Impairment means to simply be lessened by some degree (really any degree) while incapacitate means to be wholly (or nearly wholly) remove capabilitiy to do something (like consent).

    i’d argue “incapable” is just a synonym to “can’t” which if one were then to adopt your argument would mean that the word “substantially” under the current statute was mere surplasage.

    I certainly don’t think they intended the definition to make it HARDER to get a rape conviction or to increase the level of “impairment” required. Do you?

  13. stewie says:

    Please ignore the various horrid grammatical errors in that prior post. I was multi-tasking! (yeah, that’s the ticket!).

  14. k fischer says:

    SeaLawyer,

    Apparently Big Navy didn’t get the memo:
    http://www.navy.mil/search/display.asp?story_id=64577

    This quote is exactly what you, Stewie, and Charlie were talking about:

    There is no such thing as drunken consent,” said DeBruhl-Daniels. “Drugs and alcohol will impair a person’s judgment and may increase sexual desire, therefore, a person’s actions may be misunderstood when they are intoxicated. Do what is right morally. If you violate a person’s rights and have sex with them without their permission, you may be subject to charges under the Uniform Code of Military Justice (UCMJ) Article 120.”

    I guess I should run down to my local VA office and file a claim for military sexual assault and PTSD because I have been taken advantage of by women while I was an enlisted Soldier and an Officer.  On a few occasions, I drank only to have my judgment impaired and my sexual desire increase, aka beer goggles, and woke up in the proverbial coyote ugly situation.  Those women misunderstood my appearance of consent and should have known that my judgment was impaired, which is the only explanation why I would hook up with them.  The horror…….the horror………

    Charlie has a good point:  would a woman who blows a .15 and drives be considered a victim who could not be responsible for her actions?

    Perhaps the Navy should crack down on disorderly conduct–drunkeness, underaged drinking, and providing alcohol to minors, because if it weren’t for drunk young female Servicemembers, there wouldn’t be as much rape in the military. 

    Oh wait!  SVP’s would say that I am engaging in victim blaming; please disregard.

  15. k fischer says:

    Another small point:

    “Sexual assaults are serious crimes, therefore, victims should not report false sexual assault claims.
    Regrettable sex, absent or late for muster with a rape excuse, caught cheating on your spouse or significant other, or becoming pregnant by someone you do not want to be the father of your child are not excuses to report rape and are unacceptable.”

    While I appreciate the acknowledgment that some assault allegations are false for various reasons, how could a “victim” report a false sexual assault claim?  They left out seeking attention, attempting to explain an STD, revenge for being jilted, trying to get out of the unit, rumors that you are easy, and inability to accept your homosexual tendencies are not excuses to report sexual assault.

  16. Captain Healy says:

    I always enjoy the conundrum: does TC try to show substantial incapacitation through the alleged victim’s testimony who inevitably gives great detail as to the sexual assault, and thereby negating substantial incapcitation theory; or, to show substantial incapicitation through the alleged victim’s testimony who states she was blacked out, and thereby leaving the door wide open to mistake of fact as to consent (i.e. how can you be sure that you were not groping him or kissing him).