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