Both the 2006 and the 2012 versions of Article 120, UCMJ, address conduct involving a sexual act and conduct involving sexual contact. Without getting too graphic, a sexual act can occur in two ways, one of which requires no specific intent. But the other way requires an intent to abuse, humiliate, harass, or degrade any person, or to arouse or gratify the sexual desire of any person. Similar intent is required for sexual contact in the 2006 version (while the 2012 version creates two types of sexual contact, with different intent elements).

In United States v. Martin, No. 20110345 (A.Ct.Crim.App. Feb. 28, 2014) (link to slip op.), the appellant was convicted, under the 2006 version, of one specification each of attempted rape, attempted aggravated sexual contact, completed rape, and completed aggravated sexual contact. The completed offenses involved the appellant touching and digitally penetrating the female victim. The attempted offenses involved the appellant’s efforts to initiate intercourse and to place the victim’s hand on his genitals. As such, all of the offenses required some measure of specific intent by the appellant.

The victim was drinking in the hours before the assaults, but the CCA doesn’t discuss her level of intoxication. However the appellant was intoxicated. Very, very intoxicated.

The appellant – a captain – had recently returned from post-deployment leave. He was likely prohibited from consuming alcohol during the deployment, so his tolerance was presumably reduced. He went out with another captain and two lieutenants. They started at a Halloween party hosted by other officers in their unit. There the appellant consumed “beverages containing hard alcohol.” Slip op. at 2. Sometime around 11:00 p.m., after leaving the party and on the way to a bar, the appellant “was noticeably intoxicated.” Id. By midnight, he “was highly intoxicated.” Id. He was vomiting out the window of a taxicab, and,

The cab driver testified that he had seen a lot of intoxicated people, and appellant was “one of the worst ones I have ever seen.”

Slip op. at 2-3. The appellant returned to the house of one of the lieutenants, where he was going to spend the night. The other lieutenant (2LT MF; the victim in this case) was already there, having decided to go to bed early. However, she did not live there, but was sleeping in the resident’s bed (the resident was 1LT MR, another female). The explicit details about what happened next are after the jump.

Appellant was in the bathroom for several minutes, during which time 2LT MF got under the covers of 1LT MR’s bed and started to doze off again. She testified that she was lying on her left side with her back towards the bathroom when appellant unexpectedly “flopp[ed]” onto the bed. Second Lieutenant MF explained that appellant’s forehead collided with hers, waking her from her sleep and “froze” her with fear as she did not think he was going to “climb into bed.” Next, appellant got up, turned off the lights, and immediately returned to the bed.

Second Lieutenant MF testified that as appellant lay there, she tried to pretend she was asleep so he would leave her alone. But, after “maybe a minute,” appellant leaned towards her and attempted to kiss her. She told appellant “no,” and he apologized and moved away. After another minute, he attempted to kiss her again, at which point she told him “no” again, and he again apologized. After another brief pause, appellant began engaging in a series of more aggressive and unwelcomed advances, resulting in multiple sexually abusive acts.

Appellant rolled over and trapped 2LT MF under his body weight. 2 Additionally, throughout this encounter, appellant used his arms and legs to restrain 2LT MF. Overcoming her attempts to push him away, appellant put his hand underneath 2LT MF’s blouse and bra and forcefully grabbed her chest and kissed her now exposed breasts. Despite the continued resistance and pleas for h im to stop, appellant forced his hand underneath 2LT MF’s spandex shorts and digitally penetrated her vagina. She cried and begged for him to stop, but appellant did not acknowledge her protests and continued. Second Lieutenant MF was unable to get appellant to remove his hand as he was too strong. Appellant then removed his hand, proceeded to masturbate, and then went back to digitally penetrating 2LT MF’s vagina. This pattern of digital rape, momentarily rolling off his victim to masturbate his erect penis, and then returning for more digital penetration repeated itself several times.

Between the third and final instances of completed digital rape, appellant unsuccessfully tried to get 2LT MF to engage in other sexual behavior. These failures form the bases for the two attempt specifications. Specifically, appellant wanted 2LT MF to grab his exposed penis and invited her to “get on top,” presumably so they could engage in sexual intercourse. At this point in her testimony, 2LT MF testified that she believed appellant was going to “rape” her.

During the fourth and final digital rape, 2LT MF went into “survival mode” and decided she would flee, despite the risk of inciting appellant’s anger, at the next opportunity. So, when appellant next rolled off her and started masturbating again, she escaped. Second Lieutenant MF got up from the bed, calmly walked out of the room, and closed the door behind her. At this point, she scrambled downstairs, grabbing her wallet, keys, and coat.

Slip op. at 3-4. The juxtaposition of MF’s transition into survival mode, her decision to flee, her escape, and the evidence (presumably from her own testimony) that she “calmly walked out of the room,” raises some questions. Slip op. at 4. But this case is about the appellant’s mental state. Specifically, the CCA considers the affirmative defense of voluntary intoxication as it relates to the intent elements of the offenses.

The defense of voluntary intoxication requires “some evidence that the intoxication was of a severity to have had the effect of rendering the appellant incapable of forming the necessary intent, not just evidence of mere intoxication.” Slip op. at 7 (citation and marks omitted). Unsurprisingly, the CCA finds that:

[T]here was ample evidence that appellant not only ingested a significant amount of alcohol, but that his intoxication was to a degree that it could have possibly affected his ability to form the specific intent necessary to prove the charged crimes. Thus, the defense of voluntary intoxication was in issue, placing the burden on the government to prove beyond a reasonable doubt the defense did not exist.

Slip op. at 7. But the court finds that for the completed rape and aggravated sexual contact offenses, “the evidence proved beyond a reasonable doubt that appellant’s intoxication did not prevent him from forming the specific intent required.” Id. This is because, “Second Lieutenant MF’s testimony provided an abundance of evidence that appellant’s actions were aimed specifically at gratifying his sexual desires.” Id.

I’m reminded of the CCA’s January opinion in United States v. Long, No. 20120114, 73 M.J. 541 (A.Ct.Crim.App. Jan 30, 2014) (link to slip op.), about which I wrote: 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). I think the CCA’s rejection of the voluntary intoxication defense for the completed rape and aggravated sexual contact offenses in Martin is a faithful application of its reasoning in Long.

However, it’s a different story for the attempted rape and aggravated sexual contact offenses:

Here, we find appellant’s convictions for attempted rape and attempted aggravated sexual contact are legally sufficient. Viewing the evidence in the light most favorable to the government, a rational fact finder could have found appellant guilty of these offenses. See Brooks, 60 M.J. at 497. However, under the specific facts and circumstances of this case, we are not convinced beyond a reasonable doubt that appellant possessed the specific intent to have sexual intercourse and cause a sexual contact by force.

Slip op. at 10. Citing United States v. Polk, 48 C.M.R. 993, 997 (A.F.C.M.R. 1974), and United States v. Sampson, 7 M.J. 513 (A.C.M.R. 1979), the court explains:

Here, as in Polk and Sampson, we do not conclude beyond a reasonable doubt that appellant possessed the specific intent to overcome whatever resistance he might have met from 2LT MF in order to cause her to touch his penis or have sexual intercourse with him. Rather, with respect to the attempted aggravated sexual contact, 2LT MF’s testimony established that she was able to dissuade appellant with a limited amount of effort before he abandoned that endeavor in order to next try and persuade her to have sexual intercourse with him. Fortunately, this effort failed too. Apparently, 2LT MF was able to deter him with a simple refusal and kicking her “knees up.” However, appellant responded by returning to the crime of digital rape. In other words, appellant’s “desistance” from his effort s to get 2LT MF to touch his penis or have sexual intercourse with him occurred when he immediately moved on to another sexual offense, for which the government secured conviction.

Slip op. at 12-13. A footnote explains that:

A victim’s ability to successfully fend off an assailant does not foreclose a successful attempted rape by “using force” prosecution. However, the amount of physical action exercised by the accused and the degree of resistance by the victim necessary to frustrate the accused’s attempts are relevant, among other factors, and must be carefully analyzed to determine if he possessed the requisite intent to engage in sexual conduct by force.

Slip op. at 12 n.9.

Notably, the appellant elected to be tried by a military judge alone. It’s tempting to second-guess that decision. But without seeing the entire record and knowing what the defense knew, there’s really no basis for such second-guessing.

The military judge sentenced the appellant to a dismissal and confinement for six years. After setting aside the attempt convictions, the CCA reassesses the sentence to dismissal and confinement for five years.

21 Responses to “The Army CCA rejects an appellant’s claim that he was too drunk to form the intent required to commit sexual offenses”

  1. phil cave says:

    This is very interesting
    I was at the oral argument.  One of the judges asked Government, “If Martin was a complaining witness in a sexual assault, would she have been incapacitated based on this evidence.”  (or WTTE)  Caught in a box, the Government answered “No” or WTTE.
    According to Brother Bill’s account (he was arguing), this dude was really drunk.
    Would seem to me that while Martin is a difficult case for him, is it a difficult case for the Gov in other types of cases?

  2. Ama Goste says:
  3. k fischer says:

    Survival mode for me against this clearly intoxicated officer would have been my hard elbow to the bridge of his nose when he rolled over to wank himself, or I would have grabbed his scrotum where it attached to his taint by connecting my thumb and middle finger and in a combination squeeze/yank/twist motion ripped his nutsack off.

  4. DCGoneGalt says:

    Mr. Cave:  Did you laugh when the government representative said that had Martin been a complaining witness in a sexual assault he would not have been considered to be incapacitated?  I don’t think I would have been able to stifly the laughter.  The facts in Martin do not make for a sympathetic accused but the UCMJ incapacitation double-standard is something that I simply cannot find a rational justification for.
     
    k fischer:  Nutsacks everywhere cringe upon reading that post.

  5. Bill Cassara says:

    Well that’s it. We need to amend the UCMJ to do away with the presumption of innocence. 

  6. k fischer says:

    Bill, 
     
    Don’t give the enemy any ideas……
     
    DCGG, I haven’t had the case, yet, but I am itching for the day that I get two drunks who screw, but he gets charged because he has the penis.  I want to file a motion to dismiss for a violation of equal protection; have you ever heard of someone doing something like that?

  7. Neutron73 says:

    This decision is absolute BS.  So a guy cannot be incapacitated to the point he wouldn’t remember doing anything to a female, therefore he can get blown out because he is still responsible for his actions; but a female can claim “i was incapacitated” and “I don’t remember anything” and some bleeding heart sex assault advocate will say “she can’t be held accountable for what she did because while she was incapacitated he memory “recorder” didn’t record her consensual activity, so therefore the male DID sexually assault her” is the height of lunacy.
    The system is completely rigged.  What a waste of time and a travesty of “fairness”

  8. Bill Cassara says:

    You have given me a great idea for the CAAF brief in this case. 

  9. Anonymous says:

    Is there supposed to be a “sexual autopilot” defense?  Penis-led automatism?  A guy who finds himself next to a woman in bed and acts as his drunken libido directs is incapable of forming the intent to gratify his sexual desire?  The level of intoxication likely makes him act without inhibitions he normally might have if sober, but he’s still trying to get himself what many drunken dudes want when they plop into bed with a woman (aside from some aspirin).  ACCA got the intent analysis right on both counts (sex assault and attempt).

  10. Zeke says:

    @Anonymous – there absolutely should be a “sexual autopilot” defense, but it should not called that. I should be called “actually making the government prove mens rea beyond a reasonable doubt.”  Unintentional offensive acts should not be crimes.

  11. A.Firefly says:

    I once defended a case where both parties were so intoxicated they could not recall the details of what occurred in the hotel bed following a night of substantial drinking.  While the female party admitted during the Article 32 that she was (a) straddling my client and (b) moaning his name when a 3rd party busted into the room, a SARC convinced her that if she couldn’t remember consenting to the sex then she was a victim.  So she went with that, and so did the legal office, and so did the preferring commander.  During the 32, the lead investigator acknowledged that, due to my client’s very intoxicated state (verified by other witnesses, and a pub surveillance camera), my client could “theoretically” have been the victim and and female could “theoretically” have been the subject.  So why didn’t they read her her rights, and rush my client over to the SARC?  “Because she came to us first; he never reported that he was a victim.”  The case did not go to trial.

  12. Ama Goste says:

    And then there’s the case of the sober female who brings the drunk guy home. The guy gets convicted of rape.
    https://www.courtlistener.com/armfor/56XL/united-states-v-leonard/

  13. 404(b) says:

    Assuming 2d LT MF’s testimony is true, society has an interest in prohibiting and preventing appellant’s behavior.  From a public policy perspective, it should not be an excuse that in this situation, appellant was too intoxicated to form the intent to engage in the sexual behavior.
    Obviously the situation would be quite different if the two had simple had sex while both were extremely intoxicated with no resistance on the part of 2d LT MF.   Kathleen Parker had an interested op ed recently where she argued that in such drunken sex situations, the man should be held to the higher standard because he is, in almost all cases, physically stronger.  I certainly believe that is the sentiment behind what someone above called the “UCMJ incapacitation double standard.”  But I think that’s a quite different case that what we have here.
    For those who believe appellant should have been acquitted of the sex charges, is it legitimate to find him guilty of assault consummated by a battery?  Or should he be acquitted of everything?

  14. stewie says:

    Whoa there Zeke.  Are you saying in the scenario Anon describes, there’s no crime because it is an “unintentionally offensive act?”  Are you saying CAAF (and the law) are wrong?
     
     

  15. DCGoneGalt says:

    k fischer:  I have never filed, of heard of, such a motion but I did have a case in the last year where it could have been filed.  He was waaay more drunk than she was but she blacked out sex and most of the night (which she had done before). 

  16. Zeke says:

    @stewie- yes, I’m saying that Congress is wrong and the courts are complicit in that they have relieved the government of the burden of proving criminal intent in sexual assault cases where the accused is intoxicated.  Voluntary intoxication should be a basis to find lack of sufficient mens rea in SA cases just as it is in pretty much every other crime.  

  17. Zeke says:

    @stewie- But, I should clarify that I think we should start court-martialing folks for drunkenness again as an Art 134 offense, as we have in the past.  See MCM, Pt IV, para 73.  So, while I think voluntary intoxication should be a basis for doubt as to the mens rea element of any offense – including SA, it should be prosecuted as a different crime itself.  Of course I oppose selective prosecution as well, so a lot of people would be court-martialed for getting drunk at the base club if I had my way, so I don’t expect many to agree with me.  It’s easier for most to abandon our legal heritage of requiring the government to prove mens rea than it is for them to offend drunks by enforcing the prohibition on drunkenness.  It’s indicative of the decay of our sense of justice.

  18. stewie says:

    So that should extend to all general intent crimes where the accused is drunk then yes? Rape shouldn’t be any different from any of the other general intent crimes.
    So now voluntary intoxication is a defense to ALL crimes in your view? I don’t think you are going to find much support for that position.

  19. Zeke says:

    @stewie- I’ve reconsidered, and think you’re right.