Last year, in this post, I noted the Army CCA’s decision in United States v. Long, 73 M.J. 541 (A. Ct. Crim. App. Jan 30, 2014), where a panel of the court considered instructions about the definition of a competent person for the purpose of consenting to sexual activity with another. The victim in Long was very intoxicated, but the CCA concluded that “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.” 73 M.J. at 546.

Then, in this post, I analyzed a decision by a panel of the Army court in United States v. Gardner, No. 20120193 (A. Ct. Crim. App. Aug. 28, 2014), pet. for rev. filed, 73 M.J. 480 (C.A.A.F. Sep. 18, 2014). There the CCA noted:

It is important to repeat that one need not be totally incapacitated to be the victim of an aggravated sexual assault under Article 120, UCMJ. In addition, one need not be substantially incapacitated by alcohol or any singular thing or condition to be a victim of an aggravated sexual assault. One might be substantially incapacitated by any number of things or combination of things including alcohol, sleep, fear, panic, and any number of mental or physical infirmities by whatever cause.

Gardner, slip op. at 5. Notably, Judge Krauss wrote for the CCA in both Long and Gardner.

A different panel of the Army court revisited the definition of a competent person in United States v. Brown, No. 20130177 (A. Ct. Crim. App. Nov. 21, 2014) (link to slip op.). The victim in Brown was intoxicated (like the victims in Long and Gardner). However the victim in Brown did not resist (victim in Long resisted, the victim in Gardner did not). Rather, the victim in Brown testified that “she was unable to resist, and that ‘she could see what was happening but couldn’t do anything.'” Slip op. at 2.

Brown was charged with and convicted of aggravated sexual assault of a person who was substantially incapacitated, in violation of Article 120(c) (2006). But the definition of the term “substantially incapacitated” was an issue at trial. The term was not defined in the 2006 statute, and the Defense asked the military judge to modify the standard Benchbook definition as follows:

“Substantially incapacitated” and “substantially incapable” mean that level of mental impairment due to consumption of alcohol, drugs, or similar substance; while asleep or unconscious; or for other reasons; which rendered the alleged victim an individual unable to appraise the nature of the sexual conduct at issue, unable to physically communicate unwillingness to engage in the sexual conduct at issue, or otherwise unable to make or communicate competent decisions or to decline participation in the sexual act.

Slip op. at 2-3 (formatting in original). The military judge refused to give the modified instruction requested by the Defense.

On appeal the appellant argued that:

the standard, unmodified Benchbook version, would have allowed the members to find guilt if they decided that AB made a “bad” decision. Put another way, due to the instruction given, the members could have made a determination that a poor exercise in judgment or a bad decision equals an “incompetent” one. Therefore, under this theory, the members could have found AB was not capable of making competent decisions and was, therefore, substantially incapacitated.

Slip op. at 4. The CCA disagrees with the appellant’s argument:

The military judge defined consent in terms of a competent “person” and not a “decision.” Since “substantial incapacitation” is a condition under which a person is incapable of giving legal consent, the underlying, determinative finding is whether consent was or was not given. Here, the panel was properly instructed regarding consent and they were charged that the government had the burden to prove beyond a reasonable doubt that AB did not consent. As a result, in convicting appellant, the panel necessarily found that AB did not consent because consent was not freely given by a “competent person.”

Slip op. at 5.

I think the CCA’s consideration of the instruction’s focus on a person rather than a decision is a significant point of analysis, though I wonder how it was actually argued by the parties at trial. But I’m unsure about the court’s conclusion that “the underlying, determinative finding is whether consent was or was not given.” Slip op. at 5. The appellant was charged with committing a sexual upon a person who was “substantially incapacitated,” and a person need not be substantially incapacitated to not give consent. The court’s conclusion seems to be that by proving that the victim did not consent, the Government created a presumption that she was substantially incapacitated.

In Brown the CCA also notes some superfluous (and potentially confusing) language in the model instruction:

At the outset, we note the language “otherwise unable to make or communicate competent decisions” in the Benchbook instruction is not found in Article 120, UCMJ. Article 120 only uses the word “competent” in explaining the affirmative defense of consent relative to a “competent person.” UCMJ art. 120(g)(8). In the Benchbook definition of “substantially incapacitated,” the object modified by “competent” is not a “person” as in Article 120, but is “decisions.” There is no explanation for this change of language in the Benchbook and neither the parties nor this court have been able to determine the source of, or rationale behind, this change.

Slip op. at 3-4. I also wonder if the inclusion of “other reasons” for incapacitation in the instruction was improper considering the evidence in the case (that appears to involve only intoxication).

One advantage of the current (2012) version of Article 120 over the prior (2006) version is that the current statute redefined this offense:

[Any person who. . .]

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

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

UCMJ art. 120(b), 10 U.S.C. § 920(b) (2012). Besides eliminating the undefined term “substantially incapacitated,” the current statute adds a knowledge element (that I think is a crucial improvement).

Unfortunately, we’re likely going to see more cases dealing with the legacy of the flawed 2006 statute, which I described over three years ago (in this post) as:

really a remarkable piece of legislation. It encompasses 36 offenses, it contains a legal impossibility, error can result no matter how the members are instructed, it compelled the government to certify a case to CAAF even though the government prevailed at the CCA, you could hurt yourself trying to explain it, it is apparently constitutional, and now it is remarkably flexible.

8 Responses to “Another interesting competency to consent decision from the Army CCA”

  1. RY says:

    I disagree with the court that the “underlying, determinative finding is whether consent was or was not given.”   Lack of consent does not mean she was incapacitated; a person can not consent but be capable of doing so…it’s a different crime than what is charged.  If she was competent to make decisions or expressing a lack of consent, whether or not she did, then the verdict must be NG for this charge.  This is why the Gov’t can charge, in some cases, other theories of rape or sexual assault.  They have to be prepared though to explain why they have competing charges. 

  2. Brian lc says:

    ive never met a fan of the old new 120.  And I agree that the current version is better in many respects.  But when, pray tell, is a victim “incapable of consenting” under the new new120.  The statute doesn’t explain when someone crosses this threshold, and my recollection is that the benchbook doesn’t either.  I suspect some panels are substituting their SHARP training to fill in the gap.

  3. Zachary D Spilman says:

    But when, pray tell, is a victim “incapable of consenting” under the new new 120

    That’s a difficult question to answer in the abstract, but a relatively simple question to answer in a discreet hypothetical.

    Consider the victim in Brown, who testified that “she was unable to resist, and that ‘she could see what was happening but couldn’t do anything.’” Slip op. at 2. Because “the term ‘consent’ means a freely given agreement to the conduct at issue,” UCMJ art. 120(g)(8)(A), a person who was so incapacitated that they “couldn’t do anything” certainly couldn’t consent. This, of course, assumes that the finder of fact believes the person’s testimony (and I’ll note that the CCA’s opinion in Brown does not discuss the defense theory of the case).

    Similarly, the victim in Gardner testified that “she remembered appellant waking her up, penetrating her with his fingers and his penis, but testified that she was unable to move or respond or utter any words at all. She was at a loss as to why she was so paralyzed.” Slip op. at 2. Notably, in Gardner, the victim’s testimony “corroborated appellant’s admissions.” Slip op. at 2. 

    Finally, there’s Long, where the appellant was convicted of forcible rape. That victim “testified she was ‘tired,’ ‘drunk,’ and ‘stumbling,’” but she “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.” Slip op. at 2. That case did not involve an incapacitation charge, and rightly so.

    Saying that a person is “incapable of consenting due to intoxication” is different from saying that a person is “too drunk to consent,” which is a fallacy. As I wrote in my analysis of Long:

    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.

    The important thing is that the accused has a defense counsel who really understands these issues.

  4. stewie says:

    I think to me the only area really lacking clarity is intoxication.  Substantially incapacitated was somewhat vague, but at least it had some sort of discriminator: “substantially.”  “Impairment” is a lot more nebulous.

  5. Brian lc says:

    Don’t dsagree, I think, with anything you said.  But let’s say you have a panel that believes one can’t consent after, say, two drinks.  (Not a reach, I think). Nothing the judge says will explicitly dissuade them from this belief.  Sure the DC can argue, that mere intoxication is not enough, and a friendly judge may instruct that there is no magical number of drinks, but I’m not sure this will upset their mistaken premise.
    This is the one way I think the 2006 statute was clearer (if flawed in so many other ways).  It explained, and I’m paraphrasing off memory here, writing on an ancient Ipad, that the victim was unable to communicate physically or verbally, or was so out of it they couldn’t understand the nature of what was happening.  This was clearly something more than mere intoxication, and gave the DC / TC and panel a target
    Now, if you assume that a inacapble of consent means a physical inability, and that will be clear standard for everyone in the courtroom. Perhaps, I’m overly concerned and it’s not a big deal. I tend to think that least some people in that room will think of incapable of consent means legally incapable (like they are instructed with regards to minors).  And, after all, they are told quite often when someone can’t consent.  
    Your final point is probably spot on, a good DC can be on top of this, but I don’t think then staute does them any favors in making this an easy task.  Easier still in the clear (clearer?) cases you reference, but there are plenty of cases with murkier facts.  Sorry for being long winded. Watching the new show “Galavant”, it’s everything you would think a musical set in the Middle Ages would be.  

  6. Lieber says:

    I echo Brian’s concern over a panel potentially thinking that intoxication creates a de jure incapacitation.  Not only does it show up in some SHARP training but it’s a common misnomer in some parts of the real world too.  (never mind that your average panel member got married at age 19 and has never experienced a drunken hookup)

  7. Jolly Roger says:

    You might think the change from the 2006 version would make things more clear… But Army TC in two of my cases have argued that the new statute says any impairment from alcohol = incapacity.  As in, the issue is entirely whether the alcohol caused “impairment,” with no further inquiry into whether the impairment was enough to cause incapacity.  Basically the Government formally arguing what Brian lc is worried the members would come up with on their own or as a result of SHARP training.  The argument was “Hey, we know Congress wasn’t trying to be easier on sexual assault accused, and if you read the statute naturally it might seem to have narrowed the scope from the 2006 version, so read the statute backwards to say that all impairment causes incapacity.”  This supposedly was the product of reachback to TCAP and the JAG school.  Cases died early and it never got litigated.

  8. Zachary D Spilman says:

    I’ve dealt with that before Jolly Roger. The statute is clear: the person must be incapable of consenting due to impairment by intoxication, not merely impaired by intoxication. An intoxicated person (regardless of the degree of intoxication) may yet be perfectly capable of consenting. See Long (discussed here).