In United States v. Pease, __ M.J. __, No. 201400165 (N-M. Ct. Crim. App. Jul. 14, 2015), the Navy-Marine Corps CCA reversed convictions for sexual assault and abusive sexual contact after 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. I discussed the CCA’s decision in this post.
The Judge Advocate General of the Navy just certified the case to CAAF:
No. 16-0014/NA. U.S. v. Jacob L. Pease. CCA 201400165. Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issues:
THE LOWER COURT JUDICIALLY DEFINED “INCAPABLE OF CONSENTING” CONTRARY TO THE INSTRUCTIONS GIVEN TO THE MEMBERS AND USED THIS DEFINITION TO FIND THREE CHARGES OF SEXUAL ASSAULT AND ONE CHARGE OF ABUSIVE SEXUAL CONTACT FACTUALLY INSUFFICIENT. IN CREATING THIS NEW LEGAL DEFINITION NOT CONSIDERED BY THE FACTFINDER AND NOWHERE PRESENT IN THE RECORD, DID THE LOWER COURT CONSIDER MATTERS OUTSIDE THE RECORD AND OUTSIDE ITS STATUTORY AUTHORITY IN CONDUCTING ITS FACTUAL SUFFICIENCY REVIEW?
THE LOWER COURT JUDICIALLY DEFINED “INCAPABLE OF CONSENTING” IN A MANNER THAT LIMITS PROSECUTIONS TO ONLY TWO SITUATIONS – -“INABILITY TO APPRECIATE” AND “INABILITY TO MAKE AND COMMUNICATE” AN AGREEMENT. TO PROVE THE LATTER, THE COURT FURTHER REQUIRED PROOF THAT A VICTIM BE UNABLE BOTH TO MAKE AND TO COMMUNICATE A DECISION TO ENGAGE IN THE CONDUCT AT ISSUE. NOTHING IN THE STATUTE REFLECTS CONGRESSIONAL INTENT TO LIMIT ARTICLE 120, UCMJ, PROSECUTIONS IN THIS MANNER. DID THE LOWER COURT ERR?