Our #9 Military Justice Story of 2015 involves the significant steps taken this year to address the deeply flawed (and often misogynistic) view that an intoxicated person is necessarily incapable of consenting to sexual activity with another.

jakejosie

Article 120 prohibits sexual activity with a person who is incapable of consenting, but the UCMJ does not define that term. However, interpreting the prior version of the statute (which addressed a person who is substantially incapacitated), CAAF held that “if an accused proves that the victim consented, he has necessarily proven that the victim had the capacity to consent.” United States v. Prather, 69 M.J. 338, 343 (C.A.A.F. 2011).

Prather was a case involving a male accused, a female victim, and a night of drinking, and CAAF’s declaration of the seemingly obvious – that a person who does consent necessarily can consent – was just part of the court’s conclusion that the statute included an impermissible burden shift to an accused (Congress rewrote the statute soon afterward).

Today, the rewritten (2012) version of Article 120 defines consent, beginning with the explanation that: “The term ‘consent’ means a freely given agreement to the conduct at issue by a competent person.” Article 120(g)(8)(A) (2012). This definition is nearly identical to the one in the prior (2006) version, which stated that “the term ‘consent’ means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person.” Article 120(t)(14) (2006). But this language also requires judicial interpretation, as the UCMJ does not define the term competent person, enabling prosecutors to argue that an intoxicated person is not a competent person (and is therefore necessarily incapable of consenting). Such an argument functionally deprives an accused of the defenses of consent and mistake of fact as to consent.

There are some who believe that an intoxicated person cannot be a competent person for the purposes of consenting to sexual activity. Put differently, there are some people who believe that someone who is intoxicated cannot consent to sex. Those people are wrong. Drunk people can and do consent to things all the time, and they are routinely held responsible for their decisions and actions while intoxicated (DUI immediately comes to mind, but there are plenty of other examples in our system where voluntary intoxication is rarely a defense).

Two decisions of the Army CCA in 2014 addressed the meaning of a competent person in the context of consent to sexual activity. First, in January, the Army CCA explained that “competence, in this context, is a legal term of art.” United States v. Long, 73 M.J. 541, 545 (A. Ct. Crim. App. 2014) (discussed here). Then, in November, the CCA elaborated that consent is correctly defined “in terms of a competent ‘person’ and not a ‘decision.'” United States v. Brown, No. 20130177, slip op. at 5 (A. Ct. Crim. App. Nov. 21, 2014) (discussed here). This person/decision distinction is important: the law recognizes objective factors that make a person incompetent (age, infirmity, disability), while a decision is merely subjectively good or bad.

But it was the the July 2015 decision of the Navy-Marine Corps CCA in United States v. Pease, __ M.J. __, No. 201400165 (N-M. Ct. Crim. App. Jul. 14, 2015) (discussed here), cert. for rev. filed, __ M.J. __ (C.A.A.F. Sep. 14, 2015) (discussed here), that won competency to consent a spot on our Top Ten list.

In Pease, the CCA reversed the appellant’s convictions of sexual assault and abusive sexual contact involving two intoxicated alleged victims on the basis that the evidence was factually insufficient to prove beyond a reasonable doubt that the alleged victims were incapable of consenting and that the appellant knew or reasonably should have known that they were incapable of consenting. To reach that conclusion the CCA had to first determine the meaning of the statutory term incapable of consenting, and the court’s opinion noted that “there is a dearth of case law interpreting the phrase ‘incapable of consenting’ and the breadth of the current Article 120.” Pease, __ M.J. at __, slip op. at 12. Yet determining the meaning of the term required only that the CCA read 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. . .

Pease, __ M.J. __, slip op. at 12-13.

The CCA’s explanation is straightforward and consistent with caselaw. A competent person is simply a person who possesses the physical and mental ability to consent. An accused who proves that a victim did actually consent has necessarily proven that the victim had the ability to consent, requiring an acquittal. Accordingly, the long-present requirement that consent be from a competent person is not – as it has been used by military prosecutors – a backdoor way to foreclose the possibility of consent-related defenses in cases involving alleged incapability due to intoxication, drugs, mental disease, or the other statutory factors that can render a person incapable of consenting.

However, the Judge Advocate General of the Navy certified Pease to CAAF, asserting that the CCA “judicially defined” the statutory term incapable of consenting. The case is scheduled for oral argument early in the new year. Yet the Government’s own brief to CAAF reveals just how the trial counsel (prosecutor) in Pease equated intoxication with incompetence (thereby eliminating the possibility of consent):

Trial Counsel indicated that he intended to argue that the alleged victim was not competent “if she’s like collapsed on the floor and puking.” (J.A. 139.) The Military Judge agreed that Trial Counsel could argue it that way, explaining that, based on the charges, the issue was intoxication, not mental competence. (J.A. 137-39.)

During argument, Trial Counsel explained that a competent person is a “person who is actually able to consent to something.” (J.A. 168.) He then argued essentially that Appellee was guilty if a reasonable person who viewed the incidents would conclude that the alleged victim was “so impaired she’s not competent to agree to [the sexual act].” (J.A. 169, 237.)

Appellee argued that “[a] drunk person can still be a competent person.” (J.A. 171.)

Gov’t Br. at 8-9. The brief also reveals that these arguments were confusing to the members, as “during deliberations, the Members asked ‘Is there a legal definition of a competent person?’ (J.A. 174, 238.).” Gov’t. Br. at 10. However, the trial counsel opposed giving the members any guidance, instead “request[ing] that the Members apply their own ‘knowledge and common sense to the definition and give it its plain and ordinary meaning.’ (J.A. 178-80.).” Gov’t Br. at 10. Why the members should be forced to interpret the statutory language but the appellate military judges of the CCA prohibited from doing the same is likely to be an early question for the Government during oral argument at CAAF.

Suspiciously, the Government offers no alternative definition for the term incapable of consenting in its briefs to CAAF in Pease.

While CAAF may reverse the NMCCA’s straightforward analysis in Pease in the new year, other forces are already working to clarify that there is a significant difference between being intoxicated and being incompetent. The Final Report of the Subcommittee of the Judicial Proceedings Panel (discussed here) favorably noted the CCA’s decision in Pease, and the subcommittee recommended amending Article 120 to provide a definition of incapable of consenting that is based on the CCA’s decision in Pease:

Incapable of consenting. A person is ‘incapable of consenting’ if that person does not possess the mental ability to appreciate the nature of the conduct or does not possess the physical or mental ability to make or communicate a decision regarding such conduct.

Report of the Judicial Proceedings Panel Subcommittee, at 16.

These developments make competency to consent our #9 Military Justice Story of 2015.

38 Responses to “Top Ten Military Justice Stories of 2015 – #9: Competency to consent”

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

    I defended a Soldier who stabbed his roommate in the liver and sent him to ICU for 2 weeks.  His BAC was .35, as was his roommates.  Yet my client was able to hold his liquor extremely well, walking and talking like a sober person.  He stabbed his roommate because he believed his roommate had stabbed him in the back (literally) and then lied to him.  Should my client have not been held responsible for his crime (convicted of aggravated assault) because he was drunk?
     
    People engage in all different kinds of actions when they’re drunk, some choices they make are obviously regrettable.  But they should still be held responsible.  Same with sleeping medication.  Read the insert–people report doing all kinds of things they don’t remember after taking sleeping meds, including driving, cooking, eating, and (yes) having sex.

  2. Concerned Defender says:

    Tami, good example.   I will never understand how people can generally and are generally held responsible for their drunk actions UNLESS that person is a drunk female having sex.  Suddenly, totally and magically unable to utter the words “no” or make a decision.  Mind you, the male would be responsible for forming the mens rea of rape if he were drunk and slept with her.  He can made a decision, but she cannot.  

  3. Zachary D Spilman says:

    The issue with competency, concerned defender, is that the alleged victim is able to utter the word no (or yes), and does. The alleged victim may even go further and be an active and enthusiastic participant in the sexual encounter (saying yes, shifting positions, and communicating pleasure with words, sounds, and actions). 

    But the prosecution argues that none of this matters because the alleged victim was not a competent person due to the alleged victim’s state of intoxication, and so could not consent as a matter of law.

    I believe that such an argument is a radical twisting of the statute. Competency is not a flexible requirement through which the prosecution can squeeze the facts of any case. Rather, competency is (as the NMCCA held in Pease) merely the requirement that the other person in a sexual encounter possess the physical and mental ability to consent. A person is competent if they

    possess the cognitive ability to appreciate the nature of the conduct in question [and] possess the mental and physical ability to make and to communicate a decision regarding that conduct to the other person

    Pease, slip op. at 13. 

    Moreover if the NMCCA is wrong and – as the prosecution argued to the members during the trial of Pease – an alleged victim is not competent “if she’s like collapsed on the floor and puking,” then competency is a term so vague as to be unconstitutional. If an ordinary person (not a ward of the state or a mental patient or a child) can be deemed incompetent at the whim of a prosecutor, without any defined legal standard, and the person’s clear expression of consent and active participation in a sexual encounter rendered meaningless under the law, then there is no sexual freedom or personal liberty.

  4. k fischer says:

    Well, Zack Spillman, collapsed on the floor and puking is a pretty good indicator that one is too drunk to consent.  For instance, take the scene from “Sixteen Candles” where Jake sets up Anthony Michael Hall with his girlfriend by saying, “I’m him.  He’s me,” then gives him the keys to his father’s Bently, so the geek can ravage his girlfriend while he goes after Molly Ringwald.  Thankfully, Jake’s girlfriend liked Anthony Michael Hall the next morning.  But, I don’t think that she had the capacity to consent, and had she accused him of rape, then he probably would have been convicted. 
     
    I’ve been collapsed on the floor and puking before, and I was in no condition to have sex with anyone.  I think under those circumstances, panel members can use their common sense with the way things work in the world and determine that such a person is incompetent to make decisions.
     
    Now, I do have a problem with evidence of the Accused’s state of intoxication being inadmissible.  I think if the Accused was also collapsed on the floor and puking, as well, then it would be unfair for him to be convicted of rape because she is incompetent.  However, you typically see one who is a predator, not drinking, acting like the big brother, then taking advantage of the drunk person.  Certainly, a prosecutor would be permitted to use that evidence to show how alcohol facilitated rapes are accomplished, so why can’t the Defense use evidence of incompetency due to alcohol as a defense? 
     
    I’ve been in that situation before where I was blacked out, but I remember fragments of what was going on. I had to be carried out of the bar by my buddy and the friend of the drunk girl who I was with.  I don’t think we had sex, but we were fooling around.  I woke up to the woman dry heaving in the bathroom the next morning.  I was way too inebriated to know her condition or to even know if penetration, however slight, occurred, but the panel would not have heard that if she accused me of rape the next morning.  My buddy and her friend, both of whom were relatively sober, were in the bed next to us, so I would have imagined that somebody would have stopped us if an illegal act was occurring.  In today’s Army, I think I would have had a big problem as the panel would not be permitted to hear evidence of my extreme intoxication.

  5. Zachary D Spilman says:

    Two responses k fischer.

    First, the term too drunk to consent is not in the statute (it’s also functionally meaningless). But assuming that you mean incapable of consenting due to intoxication, then the question is of the person’s capacity, not the person’s competency. A finder of fact that concludes that a person was incapable of consenting has necessarily concluded that the person did not in fact consent (you can’t do what you’re incapable of doing). However, a finder of fact that concludes that a person was incompetent has necessarily concluded that the person could not consent as a matter of law (the law does not recognize the consent as valid). 

    Second, falling down and puking isn’t necessarily the end of the night. Boot and rally. 

  6. stewie says:

    It may not be the end of the night in all cases, but it certainly could be in many cases, and thus it’s valid evidence for a panel to consider and argue. So I agree with kf’s second paragraph.  And of course he means incapable of consent due to intoxication which is the lawyerese way of saying too drunk to consent. It isn’t functionally meaningless at all, it’s just plain English vice 5 dollar words.  Drunk means intoxicated. Drunk/intoxicated isn’t enough obviously, you need to be TOO drunk/intoxicated to have the ability to consent.
     
    Collapsed on the floor and puking could be evidence to show that.  Might you need more? Probably yes. What happened after? Was she/he walking, talking, aware?  But it’s a valid data point for consideration.
     
    As to the idea of two drunk people…I think I’d view the exact same way…it would be fair to view it as a data point suggesting neither party was responsible for their actions but for the societal decision that we never allow voluntary drunkenness to be a defense to any general intent crimes, rape or no.  
     
    I’m also cognizant that there may be good reason for this societal decision.  If we are going to say a drunk man having sex with a drunk woman who can’t consent is excused due to his drunkenness, are we going to excuse drunk driving?  What if I get drunk and start firing off a gun randomly?  I get the argument and have sympathy for it that two drunk folks having sex makes it difficult to finger one as the “rapist” unless you default to the person with their reproductive organs on the outside loses, but if you look at from a wider view, the other side has a fair argument too.
     
    Regardless, I would be happy to see simple definitions provided to panels that limits them to asking can they physically resist/say no/yes in determining competency and capacity.  For too long it’s been too nebulous and allowed a panel to either expect complete unconsciousness on one extreme or one drink on the other.

  7. Concerned Defender says:

    As to the idea of two drunk people…I think I’d view the exact same way…it would be fair to view it as a data point suggesting neither party was responsible for their actions but for the societal decision that we never allow voluntary drunkenness to be a defense to any general intent crimes, rape or no.   I’m also cognizant that there may be good reason for this societal decision.  If we are going to say a drunk man having sex with a drunk woman who can’t consent is excused due to his drunkenness, are we going to excuse drunk driving?  What if I get drunk and start firing off a gun randomly?  I get the argument and have sympathy for it that two drunk folks having sex makes it difficult to finger one as the “rapist” unless you default to the person with their reproductive organs on the outside loses, but if you look at from a wider view, the other side has a fair argument too. Regardless, I would be happy to see simple definitions provided to panels that limits them to asking can they physically resist/say no/yes in determining competency and capacity.  For too long it’s been too nebulous and allowed a panel to either expect complete unconsciousness on one extreme or one drink on the other.
    And here is the problem.  The solution is to violate Equal Protection under the law by universally accusing the man in these situations as drunk.   Anyone ever personally seen, in the dozens or perhaps hundreds of dual intox sex cases that the female is the accused?  Not me.  I find that problematic.  That assumes a lot of things, including “the man must have wanted it by his dress, behavior, societal stigma, past sex acts…” and all sorts of other things one would be admonished to suggest for a woman.
    Here’s my proposed test.  Take any fact pattern and reverse the sexes.  If you find you would not charge the woman, then don’t charge the man.  
    Or, charge them both in separate trials, and don’t allow any evidence from the other trial.  Let’s sort it out that way.  
    But charging universally sub rosa the male in a dual drunken sex episode needs to end.  
    I agree that being drunk should not be a societal defense, since it exists only in the legal fiction of sex assaults/rape and in no other area of law that comes to mind.  Not a defense to drunk driving, robbery, assault, theft, etc.  
     
     

  8. Concerned Defender says:

    There should be an edit feature… the first section above is a quote credited to Stewie who articulated the issues quite well. 

  9. Matt says:

    CD, I have seen two cases where the accused in a substantial incapacitation case was a female and everybody involved was drunk.  But both of them involved victims who were also female, never male.

  10. k fischer says:

    I get the argument and have sympathy for it that two drunk folks having sex makes it difficult to finger one as the “rapist” unless you default to the person with their reproductive organs on the outside loses, but if you look at from a wider view, the other side has a fair argument too.
     

    Stewie, the problem with your hypos and comparing drunk sex between two people with drunk acts with one person and an object is that drunk sex involves two drunk people who are, under the definition, equally guilty of intercourse without the capacity to consent.  So, I don’t see what the other side’s fair argument is.  And who is the “other side?”  Those people who want only men to go to jail for sex crimes when both parties are equally drunk?  I don’t see why they can’t carve out an exception to this anomaly for general intent crimes where both parties would be considered victims to access whether the Accused is too drunk to comprehend that his sexual partner lacks the capacity to consent.  We do it for 413.  We carve out exceptions under 412.  
     
    This is assuming that evidence exists in a case that both parties are fubar’d.  It gets a lot easier to show rape when one party is closer to being sober, unless the sober party is female.  In that case, the male is considered lucky…..unless she gets pregnant or has the clap…….
     
    Zach, I don’t have the intellectual capacity to competently reply to your comment, as I am incapable of being culpable for an explanatory competency.  And, I mean that most complimentarily. 
     
    CD, I like your policy of reversing the sexes in making a charging decision.  That’s a good way of ensuring equal protection.

  11. stewie says:

    well kf anatomically speaking, it’s a wee bit harder to rape a male as a woman than vice versa. Not impossible mind you, not at all, but generally speaking it involves a penetrative act by the male on the female the vast majority of the time…so given that, if the woman is incapable because of intoxication, you’ve effectively said, sorry a guy put his thing into your whatsit while you were too drunk to consent, but the guy was drunk too so it’s not a crime.  If the connectors worked the opposite way, we’d see an opposing bias.
     
    What we are really talking about here I think is when both are drunk, really drunk, and both are positively engaged in the sexual act to some extent, and then one party feels remorse afterwards and says I was raped…but that’s a different scenario isn’t it?
     
    Not everything lends itself to exact equality, so reversing doesn’t always lead to the right answer, again, because, anatomy.

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

    @ Stewie,
     
    So a woman can’t be held accountable for performing oral sex on a guy who’s so drunk he’s not aware of what’s going on?  How about when they’re both drunk and she’s on top of him and she puts his thing into her whatsit?  What if she gets him aroused while he’s sleeping and starts having sex with him without a condom, and he wakes up in the middle of it asking WTF?  If we are going to hold the male responsible for his conduct while drunk, then we must also be prepared to hold the female responsible for her own conduct while drunk.  Holding them responsible doesn’t mean calling them criminals; it means not calling them victims.

  13. stewie says:

    Tami I’m pretty sure nothing I’ve said remotely equates to the scenarios you just listed. I’m a little perplexed how you think what I wrote equates to not holding a woman accountable for acts she performs on an unaware male, in fact one would think the opposite. My point is that in most cases it is the male doing the penetratative affirmative act. Is it always? No of course not. is it usually that way? Yes it is. 
     
    You say “drunk” but no one is talking merely about being drunk.

  14. Concerned Defender says:

    Nope.  Anatomy does not matter.  ANY penetration, no matter how slight….  so “just the tip” counts.  Also, we’re talking about very very very liberal “sex assault” definitions here.  MERELY touching to stimulate would count.  So a drunk female merely touching an equally drunk male sex organs would be a sex assault, since the male cannot consent by definition.  
    Charge them both, try them both, in totally separate trials barred by evidence of their own victimhood.  Or don’t charge either of them.  But charging ONLY the male in mutual drunken sex is a clear violation of the 14 Amendment. 

  15. TC says:

    “Clear violation of the 14th Amendment.”  One can only imagine what Concerned Defender would sound like if he discovered hyperbole.

  16. Cheap Seats says:

    Lots of great “what ifs” going on here.  But the number of times a man REPORTS being raped by a woman has been extremely small from what I’ve seen.  In fact, the only times I’ve seen it is AFTER the man is accused of rape.  Maybe there’s that “he’s lucky” thing kf mentioned.  Absolutely a prosecutor should “reverse the roles” and decide if it’s worth charging.  However, with the low number of reports…  Maybe we should have another DoD extrapolation.

  17. Zachary D Spilman says:

    So a drunk female merely touching an equally drunk male sex organs would be a sex assault, since the male cannot consent by definition.  

    Wrong in every way.

  18. k fischer says:

    Cheap Seats,
     
    I think the lack of reporting of rape by men is evidence of many men exercising reason and accountability.  However, I would imagine that in today’s view of drunk sex as perceived by some panel members, i.e. a woman who is merely drunk cannot consent, a man who impregnated a woman from a drunken one night stand might have a reason to say that he was “too drunk to consent” and raped in an effort to absolve himself from the responsibility of paying 18 years of child support.
     
    What I have seen is men who are raised not to hit a woman, marrying abusive women and not reporting when they are physically abused.  Then, when the man files for divorce, the wife runs down to family advocacy and makes a false unrestricted report of physical and/or sexual abuse, CID conducts an investigation in which the allegations are founded, and charges are preferred.  Of course, this has nothing to do with drunk sex, but it still is an injustice to falsely accused and abused men.

  19. stewie says:

    The vast majority of folks who commit sexual assault are men.  The majority of victims of sexual assault are also men. The stigma with that second thing is why the lack of reporting of rape occurs, not because those men are exercising reason and accountability.

  20. Concerned Defender says:

    I think the lack of reporting of rape by men is evidence of many men exercising reason and accountability.

    Bingo.  Men IMO seem to take responsibility for their own actions and the foreseeable results of getting drunk and putting themselves in a situation where sex with a woman is a natural and foreseeable action if their inhibitions are predictably lowered, even if when the act occurs they may have been unable to actually provide consent.  Women are being indoctrinated by the system to be hapless victims and to blame others instead.   This is VERY bad for society at large – “this” being training women to be less empowered and victims, rather than being proactive to just not put themselves in the situation to be a victim instead, which is what should be taught.
    To be clear, this isn’t victim blaming.  Once again, my usual disclaimer, true victims do need the help and support of the legal system, men or women alike.  However, resources are diverted from true victims to fake victims as we create a society of hapless victims.  This is my concern, that these fake victims are contributors to imprison innocent men, the collateral damage to this approach. 
    I wonder if we are moving in the indoctrination direction where men will be coached like women to proactively report a noncrime if there is even a hint of drunk sex involved, in the future race to the courthouse reporting.  

  21. Concerned Defender says:

    I’ve seen the abusive women/spouse play out with a client.  Short version, after nearly 15 of his 20 year career of suffering a violently physically abusive and emotionally destructive wife, who assaulted and battered him in front of co-workers and tortured him for all of their marriage, he tried leaving her.  It was impossible.  She did everything except claim rape; cried abuse, cried neglect, cried adultery, etc.  Weirdly, he learned that their marriage should never been allowed because she was still married when he married her, so it should have invalidated their marriage due to impossibility to contract… anyway, it cost my client $50,000 out of pocket in legal fees in divorce court, tens of thousands in various other bills, and an OTH discharge instead of his retirement at a sham of a board and to my dismay approved by the SJA/CG…  Utter disbelief.  The good news is that I advocated to HRC and thankfully the adults there saw it for what it was and gave him his Honorable Discharge and Retirement instead of the OTH.  
    So, yes, abusive women are not uncommon.  Men just typically don’t play that card.  

  22. afjagcapt says:

    @Concerned Defender: in my unscientific recollection of your posts here over the last year or so, you have provided annecdote after annecdote about a seemingly endless stream of “innocent” clients wronged by the bad faith of actors in the system (e.g. unethical TC/SJAs) and/or the vengeful or blame-shifting acts of (almost always female) lying accusers.
    Have you ever had a client you believe had a good, or maybe I should say “fair,” experience with the MJ system? And (asking this question sincerely), if not, do you think your perception/point of view may be impacting your analysis a bit in come of these annecdotes?    

  23. Concerned Defender says:

    @afjagcapt.  Have I experienced fairness on behalf of myself and my clients?  Thankfully, yes.  And truthfully, I’d say that the bulk of the cases I’ve had have been fairly handled from flash to bang.  I’ve actually walked out of most cases feeling victorious and that things played out fair – An Mil Judge once said you’re entitled to a fair trial, not a perfect trial.  I agree with that concept, in general.  So, yes, overall, it’s been fair.  I’m not naive and I do know there are bad people, and a fair trial/hearing ferrets that out and they are punished accordingly.  
    But, what stays in my mind are the egregious cases where I have felt that the SJA or some TC has been totally unfair, doens’t follow the standards and rules, and they wield incredible power to ruin a client’s life and career.  Naturally, these cases seem to rise to the top and be talked about and remembered quite vividly.  I can paint with broad brushes about fairness, but that’s what should happen. 
    I also paint with broad brushes of total injustice, because some of my clients have felt and suffered it, and in this business I do see it with colleagues too.  
    The system is fixable.  We just need responsible fair minded people to follow the rules and standards and apply them evenly and fairly.  Not over-react to policies and gut reactions, and have some compassion on how THEY would want to be treated before bringing the hammer of justice.  
     
     

  24. k fischer says:

    AFJAGCPT,
     
    Many defense minded folks highlight the injustices in the system with anecdotes of horrible actors in order to advocate for a system that does not permit a lazy, an ignorant, or an overly aggressive military attorney who “represents” the United States to ruin the career of a good Servicemember. 
     
    I’m sure CD, as have I, has met good and decent Trial counsel and SJA’s who believe that since they represent the United States, then it is not in the best interest of the United States to flippantly place a GOMOR in somebody’s fiche, or in a purely cowardly act prefer charges based on bs allegations that a 1L could demonstrate are false, so the victim doesn’t go run off to Senator Gillibrand and cry that she was not given her day in court.  And, these individuals do the right thing despite a system that is changing every year to ensure sexual assault convictions because of the victim’s rights and the perception that the military does not care about sex assault victims.
     
    But the problem is that a system should be in place to ensure that the Accused gets a fair trial, is able to confront witnesses, is permitted a system where jurors are required to convict based on proof that the Accused is guilty beyond a reasonable doubt.  Instead, over the past five years, Congress has been chipping away at a bunch of protections for the Accused either in the military or on college campuses, so defense minded folks highlight how that system can be abused by attorneys who are lazy, incompetent, or overly aggressive in order to show how a male who is fubar drunk can get convicted of a substantial incapacitation 120 offense for having sex with a female who is fubar drunk when she is on top at some point during said act.  See US v. Chinchilla, (hopefully will make the 2016 list from the ACCA opinion). 
     
    Of course, when you are a civilian who gets to pick and choose his cases, like me, and I only take cases where I have a clear plan of action that should/could result in a positive result for my client, then I most likely will have a higher percentage of stupid cases if the Government acts unreasonably.  This is all based on my opinion, of course, so whether or not that opinion is a good one can be cross referenced against my win/loss record.  And, usually, I can get my client to where he or she wants to be by being nice. But, when the Government starts going full retard, then it is no longer time to be nice and its time to fight with everything you have.
     
    But, it would probably be better for the system as a whole to add a few things to ensure that a rogue Government attorney is limited in how much damages he can do.  And anecdotes about some of the really bad things that can happen to good people are a good way to highlight the need for such a limitation.  Isn’t that what the Invisible War did?

  25. afjagcapt says:

    @Concerned Defender, thank you for the thoughtful response (and taking my question in the spirit it was intended)
     
    @k fischer, I’d agree that annecdotes can be useful but, as I think nearly everyone (Defense and Gov’t hacks alike) can agree, those annecdotes, even if fully accurate (which I believe is rarely the case), don’t necessarily form the basis for sound policy changes; I’d be the first to agree that the Invsible War is an excellent example of that point.

  26. Concerned Defender says:

    I wanted to add the case where my client was deployed and summoned to his Company Commander’s office in response to a computer hacking/virus crime criminal allegation originating back home, which was baseless and not germane to the ultimate charges.  My client was escorted by his NCOIC to the CDRs office.  My client stood before the Company Commander, incoming Company Commander, the 1SG, his NCOIC, and another senior NCO.  Outnumbered and outranked by 5 senior people, WITHOUT reading him any rights, my client was questioned and truthfully denied the allegation (which again was false).  The Commander wanted to “scan” my client’s laptop to exonerate him.   Again, offering no rights warnings, he asked to “scan” the laptop for viruses and my client agreed.  During the “scan” the E4 in the S4 shop began poking around and found evidence of a totally unrelated separate crime.  Of course this was outside the scope of the scan and was a search that was not consented to.  
    The Military Judge did not agree that this was custodial interorgation, that no rights warnings were needed, and the consented to scan was vague and the search didn’t violate his rights.  Memory is a bit fuzzy, but I think the MJ also said the E4 wasn’t a government actor.  I don’t recall some details, just that it was such an absurd ruling.  But it boxed my client into a guilty plea with a tiny cap, versus the huge potential.  So my client likely has no recourse….  
    So yeah, MJs who don’t understand custodial interrogation and Article 31/5th Amendment run amuck are also a problem.  
     
     

  27. k fischer says:

    AFJAGCAPT,
     
    My stories are highly accurate, and someone as awesomely accurate as I am is truly a rarity……. 
     
    This is a perfect example of a bs intoxication case going forward.  Three gay men, a Marine, an Air Force Officer, and a Sailor walk into a bar——-get drunk, go back to the hotel, get into bed, and fool around.  The Marine says he was “too drunk to consent” to the acts the Air Force LT performed on him.  The Sailor says the Marine was quite okay with it.  Two Article 32’s later both of which resulted in the recommendation that the charges be dismissed, and the AF LT is facing a GCM. 

     
    “The charges stem from allegations by a gay male U.S. Marine lieutenant that Seefried allegedly performed sexual acts on him in a New York hotel room in 2012 while he was intoxicated and unable to give consent.” 

     
    Seriously?  Unable to consent to a blow job or a Man-Handy because you are drunk?  Not that the Marine said, “No.”  This Marine says he was too intoxicated, so he lacked the capacity to give consent.  And, this isn’t like the Marine man on man conviction that got reversed where the alleged vic said that although he has held another man’s penis in his hand, he isn’t gay.  This Marine LT is admittedly gay, but is saying that he couldn’t consent due to the alcohol, even though the Sailor who at one point was also charged with a crime, said that the Marine was a willing participant.
     
    And Eric Montalvo hits the nail on the head with this:
     

    Following intense political pressure over the past several years by members of Congress and the White House to address reports of what critics have called an explosive number of rape and sexual assault cases in the U.S. military, Montalvo said the pendulum appears to have swung in the opposite direction, with many sexual assault cases going to court martial even if the evidence is weak or suspect.
     
    “Now particularly in the current political environment,” said Montalvo, “10 times out of 10 it’s going to get referred to a general court martial.” He said that in cases he has observed, military authorities appear to be especially aggressive in prosecuting officers like Seefried as opposed to enlisted members on sexual assault cases.
     
    “It doesn’t even have to be a straight faced allegation because I’ve seen all kinds of craziness coming through the system now,” he said. “And so the pendulum has swung to the absurd and in my opinion a lot of true victims are getting lost in this shuffle because the amount of nonsense coming through the system is beyond belief.”
     

    I like that Montalvo kid.  He’s a straight shooter.  The only way that I would somewhat understand some of the stupidity I’ve seen personally, in appellate opinions, and in the news lately, is if all the bigwigs in each JAG Corps got together and said, “Look.  McCaskill is using one yardstick to measure us and half of that yardstick is ‘more prosecutions.’  So, lets give that clueless oxygen thief what she wants.  Let’s prosecute everyone, no matter how absurd.  In fact, the more absurd, the better.  And when there are enough men who are innocent who stand up and say, ‘We aren’t going to take it anymore!’ and they have a bunch of Congressional Hearings and drag us to Capitol HIll to explain some of the idiocy, we can look them in the eye and say, ‘Well, we were just doing what we were told.'”

  28. Zachary D Spilman says:

    Well, we were just doing what we were told.

    Nobody ever went to the gallows for that. 

  29. k fischer says:

    ZS,
     
    No attorney has……….

  30. k fischer says:

    And, then you have this nonsense:  http://www.cotwa.info/2015/12/the-curious-conviction-of-air-force.html
     
    What the heck????  A victim friendly witness for the Government is paid $10k and that probably would not have had any impact on the findings? 

  31. Concerned Defender says:

    KF – your story above reminded me of one of my clients.  Short story, on a Friday night two male Specialists are hanging out drinking (underage) with their NCO in the smoke pit.  They are then invited over to the NCOs room to drink.  It gets late.  “Victim” invites Client back to “Victim’s” room – mind you it’s 11pm – to drink and play video games.  Now, to paint a picture of these two men, they are both thin and effeminate, and wear clothing from Pacific Sun in the mall.  Anyway, they are doing Yeager bombs and drinking beer, and playing a very unusual interactive video game, that requires dance moves and quite non-heterosexual male activity.  It gets to about 2am and they are sweaty and drunk.  “Victim” peels off his shirt and socks, and is just wearing tight “skinny” jeans.  Client follows suit.  Lots of inter-activity with this video game, more drinking and smoking….  3am rolls around and they call it a night.  In spite of my client living in the same barracks building area, minutes away, “Victim” invites him to stay over.  Puts him in the chair right next to the bed.  “Victim” turns out the lights and puts on a movie, and they are within arms reach of each other.  Client gets on the bed, presses up against “Victim” who has an erection, and Client starts fondling him, starts giving oral, “Victim” starts moaning.  Client moves in for a kiss, and “Victim” stops him, pushes him off, and it gets weird.  Client leaves.  “Victim” claims rape a few days later.  
    Client was facing 2 life sentences at a GCM for that.  No kidding.  In a Judge Alone contest, my Client was actually convicted of 1 spec and given 5 months.  I don’t think he was given a kick, but don’t recall.  I think the MJ wanted to avoid an appeal so I don’t think he got a kick.  Anyway, I was so upset that he was convicted on that basic fact pattern.  
    In my view, the “Victim” had clearly given at least reasonable MoF.  
    —–
    I agree with KF here, and Montalvo’s points.  It’s gone full retard with the charging and convicting.   I don’t believe the design is to just flood the system with innocent men convicted of rape to generate the pushback or a movement, but it sure does feel that way sometimes.  
     

  32. k fischer says:

    CD,
     
    Because my penchant for accuracy knows no limits, I must correct your spelling.  It’s “Jager” bombs, which has two little dots, a.k.a. an umlaut, over the “a.”
     
    “Yeager” bombs are what the Nazi’s had dropped on them from the Glamorous Glen III, when Chuck’s aircraft was not outfitted with drop tanks.

  33. krob says:

    I’ll start off by saying I do not have a law degree, and I have great issue with the way most alcohol related 120 cases are being handled. Also, this is my first post, but feel free to be as harsh as you want. Now onto something more relevant (I hope).
     
    I see a lot of argument on here about consent, and who can consent. Mainly, the definition of a competent person. I think this stems from the definition of consent in the MCM, being that a “sleeping, unconscious, or incompetent person cannot consent.” Art. 120(g)(8), UCMJ. But the argument about whether an intoxicated person is a “competent” person, is, I think at least, irrelevant.
    Yes, we all get that a competent person can consent. But what about a person that is “incapable of consenting due to impairment by an intoxicant”? The article writer put “There are some who believe that an intoxicated person cannot be a competent person for the purposes of consenting to sexual activity. Put differently, there are some people who believe that someone who is intoxicated cannot consent to sex. Those people are wrong.” While I agree with them, we’re still left with the current law.
     
    What does it mean to be impaired by an intoxicant? I think literally, any amount of alcohol causes impairment, it’s just a matter of how much. Most states agree that .08 BAC is enough impairment to make driving a vehicle dangerous. (I know, I’m not comparing driving a vehicle and deciding what to do with your sexual organs).
    Does there need to be a certain level of impairment for the person to be “incapable of consenting” due to it? My personal opinion is that if you don’t know where you are, or what’s going on, then there’s a good chance you’re incapable of consenting to anything, let alone sexual activity. And I’m not talking about being so drunk that you can’t give a cabbie your location, I mean legitimately not knowing where you are, who you’re with, or what you’re doing. Having never been that drunk, maybe I’m a little biased.
     
    In closing, I think the two important questions counsel and fact finders need to ask themselves are:
    1. What does it mean to be impaired? Was this person impaired?
    2. What level of impairment causes someone to be incapable of consenting? Was this person there? Did the accused reasonably know this person was there?
     
    Being brutally honest, I don’t know that if I was a fact finder, I could say beyond a reasonable doubt, that a reasonable person would have known someone was incapable of consenting, unless they were unconscious. Needless to say, I would never make it through voir dire if selected for jury/panel duty.

  34. Zachary D Spilman says:

    You’ve got it backwards, krob. You wrote:

    Yes, we all get that a competent person can consent. But what about a person that is “incapable of consenting due to impairment by an intoxicant”? 

    Consent is a freely given agreement to the conduct at issue. Such agreement could be through words or deeds, and the statute is very similar to the so-called yes means yes rule in California (as I discussed here). 

    When a person is incapable of consenting, that means that they don’t consent as a matter of fact. They don’t freely agree to the conduct at issue (because they can’t). 

    However, when a person is incompetent to consent, that means that they don’t consent as a matter of law. So, even though they do actually freely agree to the conduct at issue (say yes, participate, etc.), the law says it’s still not consent.

  35. krob says:

    I misspoke. I think what I meant was, we all understand what it means when it says “An incompetent person cannot consent” in the MCM 2012. But what is less clear is the term being “incapable of consenting due to impairment of an intoxicant”, because the MCM does not provide a definition of what that means. A lot of people (in my opinion) are handling alcohol related cases inappropriately, because their definition of that term is very loose, and their standard for being “incapable of consenting” is very low.

  36. Concerned Defender says:

    The real question nobody can honestly answer:  How can a person (almost always the male) be drunk and able to “consent” and for criminal “intent” whereas the other person (almost always a female and titled “victim”) who is scientifically equally drunk be simultaneously unable to consent to sex.  It is totally intellectually dishonest to say that an equally drunk man and woman (let’s say the facts is, as often happens, they were both drinking all night and bombed drunk) results in the man being able to form consent to have sex, but the woman not.  
    It’s the same as saying drunk men are liable for drunk driving but women are unable to form any intent so therefore immune from their drunk driving actions BECAUSE SHE WAS DRUNK.
    I’m unaware of any other area of law where being drunk is a defense to your own bad decisions, except if you’re a woman and have sex.
    We’ve created this legal fiction “victim” class which is both quite powerful in terms if immunity for bad decisions and quite tempting to be a part of for people wanting exoneration for adultery, GO1 violations, drug use, and a host of other benefits like VA disability, etc.  
     

  37. k fischer says:

    CD,
     
    You hit the nail on the head.  This is particularly absurd where both parties are drunk and there is ancillary misconduct such as fraternization or adultery.  The female is the vic and the male is accused.  I had a case like that down in GTMO.  Girl gets blitzed on her birthday and calls guy at midnight like she did before she was married to come over for a little sompin-sompin.  Guy comes over, walks upstairs, and girl invites him into her bed.  They start having sex and she says that she isn’t feeling well, so guy disengages immediately.  The next day, she tells her friends that he came over to her place and she thinks they had sex.  Charges are preferred against him for rape, and were dismissed after the 32.  This was in 2006, so people were a lot more sensible, but I could see the beginnings of where we are today at that 32 where I first heard the terms “victim blaming” and “victimizing the victim.”
     
    Nowadays, it’s like a drunk guy and a drunk girl get into a car with the girl driving and they get into a wreck.  Girl is not punished for drunk driving and she has a wonderful career where she gets 50% VA disability for PTSD from the wreck, but guy is punished for allowing the girl to drive drunk, goes to jail for two years and gets a dishonorable discharge (See US v. SSG Ricardo E. Chinchilla, Ft. Benning, April 2015, coming soon to ACCA)

  38. stewie says:

    Because the level of drunk to not be able to legally consent is high…nearly passed out high.  That sometimes TC argue otherwise, or panels decide otherwise is beside the point.  That’s a different problem. If the male can do the things needed to effectuate sex like remove clothing, and enter and do the deed as it were, they probably, note the word probably, are not too drunk to consent…and likewise, if a woman can take off her own clothes, and do other things to facilitate physically the sexual act then she is probably, again note the word probably, not too drunk to consent.
     
    It’s not the “legal” part that’s the problem, it’s the watering-down of that “legal” part done by the government and/or some panels that is the problem.  And it’s not about being “equally” drunk, it’s about being “too” drunk…drunk to the point of incapacitation…and almost by definition if both parties are equally drunk to incapacitation, then there probably isn’t any sex happening.