In a published opinion in United States v. Long, No. 20120114, 73 M.J. 541 (A.Ct.Crim.App. Jan 30, 2014) (link to slip op.), the Army CCA finds that the military judge did not err when he defined a “competent person” after a member asked a question about the meaning of the term. The question was about the instruction on the defense of consent, which includes the following paragraph:

“Consent” means words or overt acts indicating a freely given agreement to the sexual conduct 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 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.

Slip op. at 3 (emphasis added). Judge Krauss writes for a three-judge panel of the court.

“Appellant was charged with the rape of SB by penetrating her vulva with his penis using strength sufficient that SB could not avoid or escape the sexual conduct. Alternatively, the government charged appellant with aggravated sexual assault by causing bodily harm by holding SB’s neck, throat , and hands, as well as assault consummated by a battery by holding and squeezing SB’s neck, throat , and hands with his hands. All allegations were based on the same alleged event.” Slip op. at 2. “Although SB testified she was ‘tired,’ ‘drunk,’ and ‘stumbling,’ SB never testified she was incapacitated by alcohol or fatigue, or that she offered anything other than conscious resistance to appellant’s sexual advances and efforts. That resistance included telling appellant ‘no,’ to ‘stop,’ and kicking and pushing appellant away from her. She did testify that while appellant assaulted her, she was ‘dizzy,’ ‘was still feeling sick from before,’ and that her consumption of alcohol made it more difficult to resist.” Slip op. at 2. Appellant’s defense was based on assertions of consent and false accusation, but it’s unclear if he testified in his own defense.

After the military judge finished reading the instructions, the following occurred:

When the judge asked if any member of the court had any questions, the president said: “In your instructions you instructed us that only a competent person can give consent. Can you define ‘competence’ legally?” After initiating discussion with counsel on the matter, the judge asked the president: “And actually . . . let me just clarify; are you asking this question in relation to her state of intoxication at the time?” The president responded, “yes, sir” and the judge stated: “Okay, that’s what I thought.” The judge then called a hearing outside the presence of the members to address the question of further instruction.

Slip op. at 4. The Defense objected to additional instructions but the military judge overruled the objection, stating “I think, as [the president of the panel] has clearly indicated, his concern is whether or not somebody who is intoxicated or has been drinking is a competent person to give consent. So, I think that this instruction that I propose to give helps the members understand what someone’s level of intoxication would mean with respect to consent.” Slip op. at 4-5. The judge then gave the following additional instruction:

A person cannot consent to sexual activity if that person is substantially incapable of appraising the nature of the sexual conduct at issue, due to mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise; substantially incapable of appraising the nature of the sexual conduct at issue due to mental disease or defect, which renders the person unable to understand the nature of the sexual conduct at issue; or substantially incapable of physically declining participation in the sexual conduct at issue; or substantially incapable of physically communicating an unwillingness to engage in the sexual conduct at issue.

Slip op. at 5. Appellant was then convicted of the rape specification and acquitted of the aggravated sexual assault and assault consummated by a battery specifications. He also pleaded guilty to underage drinking as an orders violation. He was sentenced to confinement for one year and a bad-conduct discharge. The CCA affirmed the findings and sentence.

The CCA decides three related issues :

First, we find the military judge did not err by providing a definition of “competent person” in response to the president’s query. Second, we hold the definition provided was correct though not entirely complete. Third, we find the judge did not introduce a theory of criminal liability upon which the court-martial might improperly convict.

Slip op. at 5. On the first issue, the court finds that “competence, in this context, is a legal term of art whose definition is set by statute and whose meaning may or may not comport with a member’s understanding. It, therefore, warrants proper instruction from the judge.” Slip op. at 6. Next, the court notes that the judge’s instruction was incomplete because it did not include age as a competence factor, but it concludes that “the judge’s failure to reference the victim’s age does not prejudice appellant as there was no dispute that SB was 19 years old at the time of the assault.” Slip op. at 7. Finally, addressing Appellant’s assertion that the instruction introduced a new theory of criminality, the CCA concludes:

Appellant was not charged with rape by either rendering SB unconscious or by administration of an intoxicant, nor was appellant charged with aggravated sexual assault upon a substantially incapacitated person. See MCM, pt. IV, ¶¶ 45.a(a)(4)-(5), 45.a(c)(2). Though the definition of competence includes reference to unconsciousness, there is no danger that an accused charged with rape by using force will be unjustly convicted of any of these other offenses. The law as provided in the standard instructions ensures that guilt for rape by force comes only where the accused compels submission or otherwise overcomes or prevents resistance. The risk of conviction on a theory uncharged is therefore based on speculation alone. See generally United States v. Taylor, 53 M.J. 195, 199 (C.A.A.F. 2000).

There is also no evidence that SB was unconscious when appellant committed a sexual act upon her. The evidence in this case establishes that SB was competent; that she did not consent; and that she both verbally and physically resisted appellant’s sexual conduct. The evidence further includes appellant’s acknowledgement that SB said “no” to his sexual advance, that she “didn’t want to do this,” and that she brushed his hand away from her breast before he completed the sexual act alleged. In that sense, the panel’s findings of guilt comport fully with the evidence.

Slip op. at 7 (emphasis added). I’ve added emphasis to what I think is really the most significant part of this published opinion. The CCA’s review was focused on the instruction, not on the question of SB’s actual competency to consent. But the court’s somewhat-gratuitous finding in this published opinion that “the evidence in this case establishes that SB was competent” (slip op. at 7), even though SB “was ‘tired,’ ‘drunk,’ and ‘stumbling,'” (slip op. at 2) is a significant holding, even if it is dictum.

There are some who believe that an intoxicated person cannot be a competent person for the purposes of consenting to sexual activity. Put differently, there are some people who believe that someone who is intoxicated cannot consent to sex. Those people are wrong. Drunk people can and do consent to things all the time, and they are routinely held responsible for their decisions and actions while intoxicated (DUI immediately comes to mind, but there are plenty of other examples in our system where voluntary intoxication is rarely a defense).

It’s important to distinguish intoxication to the point of incapacitation (whatever that may look like in a particular case) from mere intoxication. Mere intoxication alone is not enough to eliminate the possibility of consent. It would, for example, be error for a judge to refuse to instruct on the defense of consent just because the alleged victim was intoxicated at the time of the alleged sexual activity.

A person can be too unconscious to consent, or too young to consent, or even too dead to consent, but a person cannot merely be too drunk to consent to sexual activity. The Army CCA has now gone out of its way to say so.

8 Responses to “The Army CCA finds no error in an instruction on the meaning of a “competent person” (and also finds that drunk people can consent to sex)”

  1. LCDR X says:

    This is something that has long bothered me about the Navy’s sexual assault training programs – we routinely tell our Sailors that drunk people cannot give consent and consent must always be a spoken “yes”.  Neither is true, but when you raise that to Commanding Officers, they just shrug and tell you to consider your audience.  I always reply that the audience is the pool of potential members for courts-martial and admin boards – to which I usually just get another shrug.

  2. stewie says:

    The problem is separating out incapacity by unconsciousness from incapacity by alcohol.  It would make any sense to separate the two if the line was “passed-out” so that tells me that the level of incapacity by alcohol is less than that.  On the other side though, it seems clear that the level is something higher than “drunk” or passed the legal limit.  So the line is somewhere between passed out and too drunk to drive but that’s still a pretty wide gap, and the difficulty in defining exactly where the line is has to make it tough for panels, accused, and alleged victims.
    I don’t know what the answer is other than an ad hoc I know it when I see it approach.

  3. stewie says:

    wouldn’t, not would…past, not passed…English is apparently not my first language.

  4. some TC says:

    Stewie–I have always viewed it as alcohol-induced stupor or disorientation, rather than unconciousness. I’ve also analogized it to voluntary intoxication as a defense to a specific intent crime. I once got the government to drop a larceny charge because the evidence clearly showed that my client was so drunk he didn’t understand what he was doing. And the act of giving consent (either explicitly or impliedly) is an expression of specific intent. That’s the line I draw for myself when looking at incapacity by alcohol.

  5. ArmyTC says:

    I’ve had to have the conversation with alleged victims before “Do you understand the difference between being so drunk that you can’t consent and being drunk enough that your inhibitions were lowered?” and then having a long pause as the young man/woman (it’s been both) thinks back to the night in question, and probably reflects on life. In several of those cases, the posture of the case changed immediately to the benefit of the accused.
    I think it’s a question we (as TCs) need to ask when the evidence suggests that this may be a case of lowered inhibitions resulting in sexual activity resulting in regret.

  6. stewie says:

    I don’t have a personal disagreement with either interpretation and if that were universally accepted then we’d all be good, but it isn’t, precisely because the definition (impairment) is so nebulous.  Such a critical definition should be, well, defined, not left to what an individual view of what impaired by alcohol means.

  7. k fischer says:

    I’ve always found vomiting to be a good indicator that someone was too drunk to consent.

  8. Army BN CDR says:

    Too drunk to consent vs drunk enough to lower inhibitions–that’s what I find most useful in this discussion, and I will definitely use that wise counsel in the future.  Regardless, the person who takes advantage of another’s lessened capacity is not the person we want wearing the uniform.  The poorly-raised may be groomed through our values and awareness training, but the predators are acutely aware of what they are doing, and they know what lines they can’t cross in order to maintain their ability to go after more prey.  It’s not easy sorting out the predators from the poorly-raised, and even more difficult to purge them from our ranks.