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 victiman 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 decisionsor 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.