Article 120(b) (sexual assault) and (d) (abusive sexual contact) prohibit the commission of a sexual touching upon another person under various circumstances, including when the accused:

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

Article 120(b)(2) (emphasis added), and when the accused:

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;

Article 120(b)(3) (emphasis added).

In a recent unpublished decision in United States v. Mohead, No. 201400403 (N-M. Ct. Crim. App. Oct. 29, 2015) (link to slip op.), a three-judge panel of the NMCCA considers the difference between these two offenses in a case involving a victim who was asleep at the beginning of the encounter and awake (and resisting) at the end, for which the Government charged the appellant with both offenses in order to address his conduct both before and after the victim awoke. The CCA affirms the finding of guilt involving a sleeping person, but reverses the finding of guilt involving a person incapable of consenting, reasoning that:

[The victim’s] actions upon waking indicate she was then capable of consenting despite the earlier alcohol consumption. While trying to “reason with” the appellant, she articulated her clear understanding of what was happening, that she thought it was wrong, and that she did not consent. While his actions may have constituted a different sort of sexual assault, based on this record and these facts we are not convinced beyond a reasonable doubt of the appellant’s guilt for Specification 1 [sexual assault of a person incapable of consenting due to impairment by alcohol]. Thus we will set aside the finding and dismiss that specification.

Slip op. at 7.

The CCA’s opinion highlights that a person who manifests lack of consent (through physical resistance, verbal protest, or otherwise) is necessarily capable of consenting. A sexual touching of such a person may well be a sexual offense, but it is not one involving a person who is incapable of consenting.

2 Responses to “The NMCCA highlights the difference between a victim who is asleep or unconscious and one who is incapable of consenting”

  1. Advocaat says:

    No mistake of fact for the rubbing the CW’s butt/thigh when she traveled to visit him, stayed in his room, and let him plop down behind her?  I suppose NMCCA has never heard of friends with benefits or all the magazines my wife gets where friendships grow romantic all the time–let’s call it the Prince Not-So-Charming defense.  The court members should have been instructed on MOF and NMCCA’s “harmless error” rationale was risible.  Separately, it was unclear whether MOF played a role in the sex allegations b/c moaning + “we’re being bad” (testimony from the other dude in the room) = mistake of fact for both of those 120 specs (i.e., people moan and talk while asleep, and the CW apparently did not recall doing/saying these things, which means she could have been asleep and he could have believed otherwise).  I don’t think I have a problem with charging both sleeping and drunken sex for the same encounter if TC’s strategic purpose was to defeat MOF but I doubt that’s what they had in mind.

  2. Abe Froman says:

    A girl travels to visit a guy and hangs out in his barracks for an undisclosed period, I am shocked — SHOCKED — to hear that he put the moves on her (for the abusive sexual contact claim).  What else did they do in the barracks besides watch TV?  Netlfix and Chill?  Did they go out at night?  How long did she come to stay with him?  Seems like a MoF instruction was warranted from the facts.  He tried to make the moves on her and she shot him down.  It doesn’t seem criminal.  He tried until he got the red light, and once he did, he stopped. That argument, however, seems to undercut the MoF for the sexual assault claim; if he knew she was asleep, was there anything from their prior interactions where he thought he could try to initiate wake up sex?  In that scenario, does MoF even apply?  If he thought she was awake and talking with him, then the moaning, and the “we’re being bad, brother” also shows that she knew exactly who was on top of her and what they were doing.  If he thought she was awake and those facts came out, then MoF seems to have been warranted for that as well.