When two people get really drunk, arguably to the point of “substantial incapacitation,” and engage in sexual activity, who is the perpetrator and who is the victim? That issue is one that I’ve spit-balled before with fellow attorneys, and one which I was hoping would eventually be raised by someone in a real case. That finally happened in the case of United States v. Redmon, No. 201300077 (N-M.C.C.A. 26 Jun 2014).

In Redmon, the appellant and the victim, IT3 S, attended a farewell party thrown by a third party in honor of the appellant. The victim consumed a substantial amount of alcohol throughout the night, both before and during the party, as did the appellant. The party ended around 0300 and the victim was having difficulty walking. She was helped back to her apartment, about a 10 minute walk away, by the appellant and other sailors. Once at her apartment, the victim undressed and sat in the shower for approximately 45 minutes. Another sailor attempted to remove her from the shower, but required the appellant’s assistance to do so. They got her out and began to dress her, however she began to vomit. Eventually though, they were able to clothe her and lay her on a futon. The appellant later lay down to sleep with her.

The appellant’s roommate and her boyfriend were in the apartment that night, and both left the apartment around 0530. At that time, the appellant and victim were “spooning,” but nothing else appeared to be amiss. The victim alleged that after falling asleep, the next thing she remembers was waking up naked from the waist down, with the appellant penetrating her vagina. She began to cry, pushed the appellant away, dressed and went to sleep in her bed. After this, the appellant got a ride back to his barracks room with a friend, who observed semen on the appellant’s boxers when he changed clothes in his barracks room.

Hours after the incident, the victim made an unrestricted report of sexual assault and underwent a SAFE exam. Several days later, the appellant was informed that he was suspected of committing a sexual assault. Several days after that, via a memorandum, the appellant exercised his right to remain silent, but informed his command that he believed he was also a victim of sexual assault due to his intoxication and lack of memory of the event.  The victim was never charged with sexual assault.

At trial the defense moved to dismiss charges on the basis of selective prosecution. The appellant argued that the evidence showed both he and the victim demonstrated the same level of intoxication and neither remembered the incident, but the convening authority was unwilling to prosecute the victim because she was a female. The military judge denied this motion.

On appeal, the appellant argues that the military judge erred by not dismissing the charges based on selective prosecution and that the convening authority’s decision to prosecute him and not the victim violated his right to equal protection under the Due Process clause.

Turning first to the issue of selective prosecution, the Court notes that the burden of establishing selective prosecution is a high one for the appellant:

To raise the issue of selective or discriminatory prosecution, an appellant bears the heavy burden of establishing, at least prima facie: (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the Government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. UnitedStates v. Garwood, 20 M.J. 148, 154 (C.M.A. 1985).

Slip op. at 4. The Court makes pretty short work of the selective prosecution argument, finding that the appellant fails to even meet the first prong of the test – that the appellant and victim are similarly situated:

The evidence adduced from the NCIS investigation and provided to the CA indicated that when the party ended, the appellant had to assist IT3 S in getting home by carrying her part of the way. After they arrived at her apartment, the appellant assisted in getting her out of the shower and watched her vomit in the toilet. The appellant then assisted in getting her clothed and laid down next to her after he helped put her to bed. Prior to laying down with IT3 S, the appellant made comments to others like “I am fine” and that IT3 S was “like [his] little sister,” suggesting that IT3 S would be safe with him. IT3 S awoke up to find the appellant on top of her penetrating her vagina with his penis. Mere hours after the sexual assault, IT3 S reported it to the U.S. Naval Hospital, Naples. It was weeks later, and only after being informed by NCIS that he was suspected of sexual assault, that the appellant claimed that he was the victim in this case.

We do not find that the appellant and IT3 S are “similarly situated” and that the appellant has been “singled out” for prosecution in this case. We additionally do not find evidence of bad faith on the part of the CA in bringing the appellant to trial. The information provided to the CA, to include the Article 32 Investigating Officer’s report, the NCIS Investigative Report, and the staff judge advocate’s Article 34 Advice memorandum, quite to the contrary, all suggest that the appellant was not the victim but rather the perpetrator of this sexual assault, and that the appropriate forum in which to dispose of the appellant’s charges was at a general court-martial.

Slip op. at 5. I’ll be darned though if it doesn’t sound like the N-MCCA is failing to recognize the accused’s counterintuitive victim behaviors of delayed reporting and only reporting the crime against him once he was notified of being investigated for of his collateral misconduct.

The Court turns next to the arguably more interesting equal protection arguments raised by the appellant, with a primer on some of the finer points of equal protection jurisprudence. Just kidding, they said this:

We similarly find the appellant’s second assignment of error alleging a Fifth Amendment violation to be without merit and not worthy of further comment.

Slip op. at 5. I’ve always felt that response is the equivalent of when a parent ends an argument by saying “…because I’m your mom/dad and I say so.”

Snark aside, the Court probably made the right call here by not addressing an equal protection issue on these facts. If the facts are as reported in the opinion, taking up the equal protection argument in this case would have the substantial risk of invoking the old adage “bad facts make bad law.” Still it would have been interesting to see exactly how the appellant raised the equal protection issue and how the Court analyzed it. Presumably, the appellant in this case was convicted under the 2007-2012 Article 120(c)(2), UCMJ statute, prohibiting sexual acts when a person is substantially incapacitated. In that iteration of Article 120, “sexual act” is described as:

(A) contact between the penis and the vulva, 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 of another by a hand or finger 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.

Based on the facts, it is reasonable to assume that the portion of the definition in question for this case was (A). That’s not exactly a gender-neutral approach to aggravated sexual assault. As an aside, CAAFlog has previously posted a Government appellate brief to the CGCCA making this exact argument – i.e. that this portion of the statute is not gender neutral. See Government Brief in United States v. Bisel at 9 (“Put another way, only a woman could be violated under the first subpart of the definition of a sexual act, but both men and women could fall victim under the second part, depending on the type and size of the object used.”) While a man could theoretically be a victim under (B), that would be a pretty interesting set of facts and not one that it seems likely Congress would have felt the need to pass a law to protect against. If anyone has dealt with a case like that, I would be interested to hear about it (although I would cringe the entire time).

Since the 2007 Article 120 definition is arguably not gender-neutral, should intermediate scrutiny apply? Men aren’t exactly a group that has been traditionally discriminated against, although maybe they have in the context of frequently being overlooked as victims of military sexual assault. Assuming intermediate scrutiny applies, is the government’s “important” interest in protecting against any type of military sexual assault or only in protecting against female military sexual assault? If the compelling governmental interest is in broadly protecting against any type of military sexual assault, is the definition here “substantially related?” Maybe not, given that Congress was able to craft a much more gender neutral definition of “sexual act” in the 2012 revision. While intermediate scrutiny does not require the “narrow tailoring” of strict scrutiny, the 2007 definition might still fail to meet the “exceedingly persuasive justification” language of cases like Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982).

Realistically, it’s unlikely any court would decide this issue as a facial challenge. If a court is going to decide in an accused’s favor on an equal protection issue related to sexual assault it’s going to be on an “as applied” challenge and would probably fit under the selective prosecution rubric, which is essentially an equal protection argument itself. That case may come, but it does not appear to be this case.


11 Responses to “NMCCA Addresses Selective Prosecution and Equal Protection in the Context of Sexual Assault”

  1. DCGoneGalt says:

    To answer the question of whom to prosecute in these situations, I believe Duke’s Dean Sue Wasiolek (whose actions in the lacrosse case could only leave her taken seriously in academia) put it best:

    The difficulty of defining incapacitation and consent was underscored last week when Dean Wasilolek took the stand. Rachel B. Hitch, a Raleigh attorney representing McLeod, asked Wasiolek what would happen if two students got drunk to the point of incapacity, and then had sex.
    “They have raped each other and are subject to explusion?” Hitch asked.
    “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex,” said Wasiolek.


  2. Richard Stevens says:

    I had the perfect scenario in which I raised this exact issue – lost the motion – but won the trial.  The guy bought the bottle of alcohol with, and at the request of, the girl.  Went back to the party and the two of them went shot for shot with it – drinking the exact same amount.  Both were drunk and were making out at various locations at the party until they went back into the bedroom together.  She woke up the next day and did not recall what happened between them in the bedroom, just some very spotty recollections and felt like she had had sex.  No claims that she protested and he proceeded anyway, just that she didn’t recall.  During the pretext phone call, he too said he had very little recollection, but what he did recall included her being on top of him and consensually engaging in sex.  It was the perfect set up for my argument asking why she wasn’t charged, because they were both drunk and the only difference were their genders – but the motion failed.

  3. stewie says:

    Well, the facts of this case linked and the one in the headline are not great facts for this argument.
    You’d need a case where the female alleged victim admitted to or was observed taking some sort of active role in sex (on top, helped to insert penis in vagina, etc).  Or you would need a case where the male made the first accusation of sexual assault.
    The problem with the equality argument is that, generally speaking, it’s the male who inserts into the female. (again, generally speaking). It’s the physical set-up that to some extent guides the law here IMO.
    I concur the law could be written more “gender-neutrally.” And yes, men can be raped, and they can be raped by women. But that’s not exactly a high-volume/percentage occurrence.

  4. DCGoneGalt says:

    Stewie:  Concur, the facts of this case are not good for the argument.  I would imagine many of the fact patterns that set up this argument for appellate success never get to that point because they end in acquittals.  I had a case where I considered filing this motion but ended up not doing it, in large part because the male accused did not report even with a higher BAC and a blackout.  One item that I found frustrating was that his blackout-induced lack of memory was taken by the command as evidence that he was lying, even though toxicology indicated it was entirely legitimate, whereas the complainant’s blackout-induced lack of memory was used as evidence to support incapacitation.

  5. Long Time Listener says:

    That Duke case is a perfect example of facts that a civilian DA didn”t touch, but the military would feel compelled to take to a GCM.  The irony is that if a military service were to pursue such a case at an admin sep hearing instead of CM because the evidence wouldn’t support beyond a reasonable doubt, certain members of Congress would be all over that decision. 

  6. Anonymous Air Force Seniore Defense Counsel says:

    I had a similar case to the one described by Mr. Stevens.  Cept in my case, the charged victim followed the accused to his dorm room, invited herself in, closed the door behind them, and climbed into his bed, all without being asked.  Neither party had a clear memory of exactly how intercourse began, but at some point, she was on top.  We used those facts to argue she was as much an instigator as he was.  Again, the motion for selective pros failed.  I think more data points would’ve helped, e.g. more statistics on lack of pros against females who are similarly situated to males.  Anyway, we won at trial, so no appeal.  I was almost disappointed in the victory because I would have liked to have seen the appeal.
    It also seems odd to me, and maybe I’m the only one with this experience, but it seems to me that my african american clients have been more likely to go to C-M while my white clients have been more likely to get a chapter 4 (discharge in lieu of trial)granted.  I do not at all think this is the result of racism within the chain of command.  But it does occur to me that allowing victims to have more say in whether a case goes to trial does allow the system to be affected by any bias/prejudice that particular victim might have.  For example, if a victim is motivated by racism in deciding whether to support a non-trial resolution of a case, there doesn’t seem to be any way for the govt to control for that.  And the result will be a higher proportion of african americans facing trial.
    IMHO, there are a lot of equal protection issues with this new scheme that are just waiting for the right fact pattern.

  7. k fischer says:

    This is a bad case to bring this argument.  The fact that the appellant helped her into the shower, he watched her puked, and he told his friends that she is like my little sister before ushering them out of the apartment indicates that he was in control of the situation.
    Once again, an accused watching the complaining witness puking is the litmus test of too drunk to consent leading to a conviction. Who in the hell wants to have sex with someone they just saw throw up from too much alcohol?   

  8. k fischer says:

    Speaking two drunk people hooking up for sex, anybody know what the status is of US v. Brandon Wright???????  Did he take an admin sep in lieu of Court martial?  I haven’t been able to find anything on his court martial.

  9. stewie says:

    Vomit: The Ultimate Aphrodisiac, by Chanel.  And, for a limited time: Dry Heave by Estee Lauder.

  10. Zachary D Spilman says:

    I’m with k fischer on this one. I don’t think this argument helped the appellant at all at the trial stage.

    As for the definition of a sexual act under the 2006 statute, I don’t know that the expansion of the definition in the 2012 statute necessarily made things better. See my post: A sexual assault Rorschach.

  11. Sam Adams says:

    @Zachary D Spilman,

    I think the 2012 statute probably fixes any equal protection issue on the face of the statute, but I would agree that it’s highly questionable whether it made things better overall. Sort of like fixing a hole in the wall by knocking down the wall.