In a published opinion in United States v. Pease, 74 M.J. 765, No. 201400165 (N-M. Ct. Crim. App. Jul. 14, 2015) (CAAFlog case page) (link to slip op.), the Navy-Marine Corps CCA reverses convictions for sexual assault and abusive sexual contact, finding that the Government failed to prove that the intoxicated victims were incapable of consenting and that the appellant knew or reasonably should have known that they were incapable of consenting.

The case involves two female victims: S.K. and B.S. Both were subordinates of the appellant, and both had (separate) sexual encounters with the appellant after drinking significant amounts of alcohol. The encounter with S.K. occurred in December 2012, and the encounter with B.S. occurred in January 2014. Both women had fragmentary memories of the encounters the mornings after. But the morning after her encounter with the appellant, B.S. was awoken by S.K., and:

IT2 B.S. told ITSN S.K. about what had transpired between her and the appellant. ITSN S.K. then relayed to IT2 B.S. what had happened between herself and the appellant the previous month. They decided IT2 B.S. should report she had been assaulted. After IT2 B.S. finished her report to a victim advocate, ITSN S.K., on IT2 B.S.’s urging, reported her alleged assault as well.

Slip op. at 9. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of fraternization in violation of Article 92 and of sexual assault and abusive sexual contact in violation of Article 120 (2012). He was sentenced to confinement for six years and a dishonorable discharge.

Writing for a three-judge panel of the NMCCA, Senior Judge Brubaker finds that the sexual assault and sexual contact convictions are factually insufficient, and the court sets aside those findings of guilty. The court affirms the fraternization convictions and remands the case for a sentence rehearing.

Senior Judge Brubaker’s analysis focuses on the meaning of the term incapable of consenting, as it is a common element in both the sexual assault and abusive sexual contact charges:

Common elements for both sexual assault and abusive sexual contact as charged in this case are that the complainants were, at the time of the sexual conduct in question, incapable of consenting to the conduct due to impairment by an intoxicant and that the appellant knew or reasonably should have known this.

Slip op. at 12. The specific statutory language at issue is found in Article 120(b)(3):

(3) commits a sexual act upon another person when the other person is incapable of consenting to the sexual act [or contact -zds] 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 [or abusive sexual contact -zds] and shall be punished as a court-martial may direct.

Additionally, Article 120 provides a comprehensive definition of consent:

(8) Consent.—

(A) The term “consent” means a freely given agreement to the conduct at issue 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 use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue shall not constitute consent.

(B) A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious. A person cannot consent while under threat or in fear or under the circumstances described in subparagraph (C) or (D) of subsection (b)(1).

(C) Lack of consent may be inferred based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person’s actions.

Article 120(g)(8) (2012), 10 § U.S.C. 920(g)(8).

In Pease, Senior Judge Brubaker views the evidence objectively:

Our conclusion has nothing to do with the sincerity or credibility of either complainant. It turns, instead, on the high burden the Government carries in a criminal case and an issue the record shows the members struggled with: how impaired does a person have to be before they are “incapable of consenting”?

Slip op. at 12. Then he applies the plain language of the statute:

After enumerating that it is a crime to commit sexual acts or contact upon a person incapable of consenting, Article 120 defines “consent” as “a freely given agreement to the conduct at issue by a competent person” and goes on to state that a “sleeping, unconscious, or incompetent person cannot consent.” Art. 120(g)(8), UCMJ. Reading these provisions together, to prove a violation of Article 120(b) or (d), the Government must prove that a listed condition rendered the complainant incapable of entering a freely given agreement. Here, the terms “competent” and “incompetent” in the definitions section merely refer back to the punitive language regarding those incapable of consenting; it adds no further punitive exposure. Thus, in this context, a “competent” person is simply a person who possesses the physical and mental ability to consent. An “incompetent” person is a person who lacks either the mental or physical ability to consent due to a cause enumerated in the statute. To be able to freely give an agreement, a person must first possess the cognitive ability to appreciate the nature of the conduct in question, then possess the mental and physical ability to make and to communicate a decision regarding that conduct to the other person.

Applying that interpretation to this case, we are not convinced beyond a reasonable doubt that the complainants were incapable of consenting——that is, that they lacked the cognitive ability to appreciate the sexual conduct in question or the physical or mental ability to make and to communicate a decision about whether they agreed to the conduct. Additionally, even if we were to conclude that they were “incapable of consenting,” we conclude that under the facts of this case, the Government did not prove beyond a reasonable doubt that the appellant knew or reasonably should have known of this condition.

Slip op. at 12-13. Specific facts that support this conclusion include that:

There were no blood alcohol tests in evidence and witnesses who observed the complainants largely minimized their level of intoxication. The Government was often forced to attempt to impeach their own witnesses——somewhat unpersuasively in our opinion——on supposedly contradictory statements they had made on this point.

Slip op. at 13. And that:

ITSN S.K. herself conceded in cross-examination that she may have said “yes” to the sexual intercourse, and just could not remember doing so.

Slip op. at 13.

Senior Judge Brubaker also notes that the women testified to memory of the sexual encounters that are indicative of a capacity to consent. Specifically:

[S.K.’s] fragmentary memory of kissing the appellant and telling him he was cute, then of being propped up supporting her own weight on her elbows having sexual intercourse with him does not persuade us beyond a reasonable doubt that somewhere in between, she had become manifestly unaware of what was happening or unable to make or to communicate decisions.

Slip op. at 13-14. And:

[B.S.] had only fragmentary memory from there, but she remembered that when certain activities were painful or unpleasant, she was able to determine that she did not want that activity to continue and to articulate that to the appellant, who stopped. She further candidly related active participation in and even enjoying portions of the sexual activity.

Slip op. at 14.

Finally, Senior Judge Brubaker explains that even if the women were incapable of consenting, the Government still failed to prove the necessary element that the appellant knew or should have known of their incapacity:

In addition to not supporting the conclusion that ITSN S.W. and IT2 B.S. were “incapable of consenting,” we view this as evidence supporting the conclusion that the appellant reasonably may have believed that they were willing partners in sexual activity. Under these and all circumstances in the record, we are not convinced beyond a reasonable doubt that the appellant knew or reasonably should have known that she was incapable of consenting.

Slip op. at 14.

The NMCCA’s decision in this case is highly fact-specific, and it’s finding of factual insufficiency is narrow. However, there is one big takeaway: An intoxicated person can consent to sexual activity. This conclusion is in accord with the Army CCA’s decision in United States v. Long, No. 20120114, 73 M.J. 541 (A.Ct.Crim.App. Jan 30, 2014), which I discussed in a January 2014 post titled 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). And, of course, the conclusion that an intoxicated person can consent is perfectly consistent with the language of Article 120 and with common sense.

29 Responses to “The NMCCA interprets the term “incapable of consenting,” reversing sexual assault convictions (involving intoxicated victims) for factual insufficiency”

  1. Charlie Gittins says:

    Finally . . . .   Fragmentary memory due to ingestion of alcohol is not the same as incapacity to consent.  You can drink and not remember the details but have enthusiastically participated in sex.  Someone needs to teach the victim creation network the law.  

  2. Phil Cave says:

    Charlie.  There may be a misunderstanding here, or some didn’t get the memo, or SAPR training really isn’t as pernicious as we think it is?
    <center>One drink means you can’t consent–doesn’t it?</center>

    the record shows the members struggled with: how impaired does a person have to be before they are “incapable of consenting”?

    and of course the court?  Look for removal of the right of appeal for 120’s in the NDAA 2016.

  3. NavyDC says:

    i think you hit the nail on the head with the training issue. As long as we have 1) training that tells service members that if they’re drunk, they couldn’t consent (creates reports by non-victims and convictions by bamboozled members), and 2)CAs too scared for their own careers to dismiss cases, we’re going to have more and more of these factually insufficient cases. 
    SAPR – step up! Create training that accurately reflects the law. It doesn’t water down the message! 

  4. Phil Cave says:

    And check out Clark, decided the same day.

  5. thewritesofweiss says:

    I’m the last person to suggest we need to add any new offenses to the UCMJ–but there may be a new Article 134 offense that could kill a few birds with one stone: having sex while intoxicated.  Make it a non-sex registrable offense which can capture the events that happen in these type of cases, instead of trying to pigeon-hole (sorry for the bird references) cases into sex crimes which aren’t sex crimes.

  6. k fischer says:

    So, in this new offense, I suppose that in order to ensure equality, both the female and the male would be charged and tried together in a joint court-martial.  I would imagine that the female would still get immunity to testify against her co-accused, but perhaps she would refuse to testify because of the franternization charge that would follow.  Then, when they tried to introduce the statement she made to CID saying she was raped, her co-accused could invoke Crawford because she’s not going to testify because of the fraternization charge and he won’t have a right to confront her.  Let me know the first trial where this is attempted, so I can fly in and bring popcorn.  I hope it would be at a Navy base because, let’s face it, they are always located near water and would make a nice vacation/CLE.  If it is an Army case, Germany would be nice, but please stay away from Ft. Irwin.  That place is a craphole.

  7. Advocaat says:

    First, CAAF could take a lesson from NMCCA on how to write the facts for an opinion.  Second, I’m having a difficult time reconciling this case with the one from a few months back involving a Marine and a CW (the wife of a fellow Marine) who had a BAC of 0.00 only a few hours after having sex, which was far more conclusive re capacity to consent in my book.  Finally, while I think this case was positioned for an acquittal for the 120 specs and it looks like the right result based on the information presented, am I alone in believing NMCCA went too far in its conclusions re capacity and then left the more critical “knew or reasonably should have known” element too bare by not discussing how MRE 413 impacts the second incident?

  8. Charlie Gittins says:

    I am with you Kyle — I’ll fly in for that extravaganza myself.  Fort Polk would be my choice for craphole of the Army.

  9. DCGoneGalt says:

    I think the writesofweiss is trolling you all with an idea so stupid it can be ignored by non-POD People.

  10. k fischer says:

    Re: US v. Clark
    I would hope that Mr. WC filed a report against Ms. SW because she clearly took advantage of him when he was too drunk to consent and where the sexual encounter ended when he retreated to the bathroom to vomit.  That poor man is a victim and was victimized by this victimizer who looks for drunk man to take advantage of. 
    But, seriously, it appears that Ms. SW lacks reason and accountability, and it is a shame that the Government brought this case to a Court-martial.  I wish the judges on ACCA exercised the same logic as the NMCCA.

  11. Passing By says:

    k fischer
    Was “Ms. SW lacks reason and accountability” a nod to Jack Nicholson in “As Good as it Gets?”  If so, well-played.  If not, still a good point.

  12. Not Trolling says:

    I dunno DCGoneGalt,
    thewritesofweiss may actually be a legit mouth-breather.  We should be careful what ideas are floated here, least they become reality.  We already have “special” victim counsel, an idea so incredible that would have been regarded as an obvious troll not more than a few years ago.

  13. k fischer says:

    Passing By:
    The force is strong with you, although I am intrigued that you had to ask. 
    I’m surprised you haven’t heard about me.  I gotta bad reputations, and sometimes I just go nuts and start quoting movie lines just like now, Hahuh…..

  14. k fischer says:

    And regarding that Lethal Weapon 2 clip, how many defense counsel see the parallel’s between Mel Gibson’s character vs. the South African master race guys, and TDS or Civilian Defense Counsel going up against the government machine of Congress, SVP’s, and the sexual grievance industry who have been permitted to infiltrate the UCMJ system? 
    Because sometimes I feel like Mel Gibson’s character, but rather than pointing guns and shooting fish, I cross examine witnesses and file UCI motions and walk out of the courtroom after an acquittal saying, “Big smiles!  Big smiles!”  Not all the time, just sometimes.

  15. Passing By says:

    “Testimonial Immunity!”  BANG!  “It’s just been revoked.”

  16. No Need says:

    There is no need to create a new offense for “drunken sex.”  Being drunk, on- or off-duty, whether while disorderly or not, has always been, in and of itself, a crime punishable under the Code.  U.S. v. McMurtry, 1 CMR 715 (AFBR 1951) (“[I]t ought never to be absent from the recollection of the soldier that drunkenness constitutes of itself a breach of military discipline. . . . Drunkenness being in and of itself an offense, the place of occurrence is relatively unimportant except insofar as it may tend to aggravate or mitigate the offense. To be drunk in public may bring discredit upon the military service whereas being drunk in station is a breach of good order and military discipline. Thus, the maximum punishment for being drunk in public (under such circumstances as to bring discredit upon the military service) is more severe than for being drunk in station.”)

  17. No Need says:

    Faithfully enforcing that law might have the effect of actually reducing the rate of sexual assault.  It would, however, make a lot of commanders hypocrites, and if it were not selectively enforced it would be seen by some as “victim blaming.”   I’m not holding my breath to see that law enforced any time soon.  We would rather pretend that getting piss drunk is just fine – and that drunks are still respectable people entitled to our sympathy when they get taken advantage of (I.e. suffer the entirely foreseeable consequences of their own misconduct).  We like drunks, we aren’t willing to punish them.

  18. DCGoneGalt says:

    Not Trolling:  Sorry, but I think that’s an idea that is too stupid for even the POD People in Congress and the military, if only because it would equally apply to complainants in the typical scenario of drunk “hook ups”.

  19. Tami a/k/a Princess Leia says:

    Excellent decisions!  Glad to see a court setting objective standards and explaining them.  I can ask a dozen agents what, in their respective opinions, is “too drunk” to consent to sex.  They will all give me a different answer.  A couple of them just thought about it for a little bit, then told me they don’t know.  It’s become an “I know it when I see it” standard.  Problem is, those investigating and prosecuting haven’t seen it, unless the accused records the encounter.
    In the future, we will have SVCs for male victims–those who were drunk and had sex with drunk women, were taken advantage of those drunk women.  They’ll be encouraged to report to CID/OSI/NCIS, saying they were drunker than the women were, and the woman was on top, etc.  CID/OSI/NCIS will have its own “in house” experts, etc. in each office.  When will people realize you can’t criminalize plain old drunk sex?
    I am open to the idea of creating an Article 134 “sex while drunk” crime.  Can’t be a sex offense that requires registration.  Make it an alcohol based offense, not sex-based offense.  Require BAC test results. And both can be held responsible.  Of course, Congress, POD, SWAN, etc., will cry out “but this will chill reporting of sexual assaults.”  Perhaps the first person to report it gets immunity.  We’re already there anyway–the first person to report sexual assault to CID is automatically “the victim” anyway.
    Also an interesting civil case from UCSD on a male student winning his lawsuit against the college for its unfair procedures in its “sexual misconduct” policies.

  20. Tami a/k/a Princess Leia says:

    @No Need,
    There IS a need to specifically create a “drunk sex” offense, because right now there is no notice to an accused that consensual drunk sex is a criminal act.  Private consensual sex, even drunk, is not “disorderly,” and being drunk in private isn’t a crime.  Now I know that trial counsels like to get create sometimes and just make up stuff, but it will get tossed out due to the lack of notice.  Plus there’s the “eye roll” test–if panel members or a military judge start rolling their eyes, that should be a sign that the TC has gone too far.

  21. Anonymous Deployed Air Force SJA says:

    A “drunk sex” offense may sound like a good idea.  But it would be difficult to determine after-the-fact if the subject was actually drunk during sex.  A better offense would be, “having sex without first providing a qualified BAC test proving sobriety.”  Proof would be easy. 2 elements:  (1) you had sex; and (2) you failed to first provide proof of sobriety.  This way, we would have an objective standard that could be easily applied to all sex acts. 

  22. k fischer says:

    You guys are really blowing the lid off nookie.  But all these proposals will be a stop gap for the next 17 years because in 2032 consent to have intercourse will be clearly established when both parties wear virtual reality headsets to engage in a nonpentrating virtual reality intercourse which requires enthusiastic consent by the female who will proposition men who have all become pansy boys, unless you went underground.  Edgar Friendly knows how to party.

  23. Andy Pollock says:

    Nice Demolition man reference!

  24. DCGoneGalt says:

    Anonymous SJA:  Breath tests are not as accurate a blood tests.  Consent should be a recorded blood test that is below .02.  We could also test for STDs and that would take care of the recent case law HIV issue.  The sex would also be recorded and sealed and preemptively sent via a vacuum tube installed in every living quarters to the investigative agency as evidence of a potential sex crime.  If an allegation is made the investigative agency would be prohibited from viewing the recording because watching a complainant consent is victim blaming.  However, once charges are referred the judg could view the recording if, under the newly amended 412, the defense presents clear and convincing evidence that the complainant consented.  If, after viewing the recording, the judge is convinced beyond a reasonable doubt that the sexual was consensual then the members would be able to view the recording.

  25. Jack Burton says:

    @ k fischer:

    But I don’t like Taco Bell.

  26. k fischer says:

    Zach, you need to change the quote to “Military blogs are to blogs as military sex is to sex.” DCGG, you’re  losing it.

  27. Burt Macklin says:

    Mellow greetings k fischer. What seems to be your boggle?

  28. k fischer says:

    Nobody caught the reference in the first sentence about nookie.  C’mon guys, I’m fusing an Oscar nominated film with Demolition Man!

  29. stewie says:

    This tread escalated quickly…Burt killed a guy with a trident.