CAAF will hear oral argument in the certified Navy case of United States v. Pease, No. 16-0014/NA (CAAFlog case page), on Tuesday, January 12, 2016. The court will review the published decision of the Navy-Marine Corps CCA that reversed the appellee’s convictions of sexual assault and abusive sexual contact on the basis of factual insufficiency. The CCA concluded 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 Judge Advocate General of the
Air Force Navy certified two issues to CAAF:
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?
The case involves two female alleged victims: S.K. and B.S. Both were subordinates of the appellee, and both had (separate) sexual encounters with the appellee after drinking significant amounts of alcohol. The appellee was convicted of engaging in sexual activity with the alleged victims when they were incapable of consenting to the conduct due to impairment by an intoxicant and that the appellee knew or reasonably should have known of their impairment.
The CCA reversed these convictions because it found that the evidence did not support the conclusion that the alleged victims were incapable of consenting, and also because it found that the evidence did support the conclusion that the appellee “reasonably may have believed that they were willing partners in sexual activity.” United States v. Pease, 74 M.J. 763, __, No. 201400165, slip op. at 14 (N-M. Ct. Crim. App. Jul. 14, 2015). The CCA’s conclusions were based in part on the following facts:
[S.K.’s] fragmentary memory of kissing the appell[ee] and telling him he was cute, then of being propped up supporting her own weight on her elbows having sexual intercourse with him
Slip op. at 13-14. And:
[B.S.] . . . 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. The CCA viewed these facts as evidence of capacity to consent that undercut the sufficiency of the prosecution’s evidence.
Yet the CCA also went further, analyzing the meaning of the statutory term incapable of consenting in the context of the UCMJ’s definition of consent:
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.
Slip op. at 12. This analysis was likely prompted by the prosecutor’s closing argument that the alleged victims weren’t just incapable of consenting in fact, they were also not competent people to consent as a matter of law:
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.)
Gov’t Br. at 9. Significantly, during deliberations the members asked the military judge to provide them with a definition of a competent person. However, the prosecution objected and the judge declined to provide a definition. Gov’t Br. at 10. But the CCA determined that by the plain language of the statute,
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.
Slip op. at 12-13. It then interpreted the statutory term incapable of consenting as requiring that the alleged victims:
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.
Slip op. at 13.
The first certified issue challenges the CCA’s ability to engage in this statutory interpretation. The second issue challenges the CCA’s conclusion about the meaning of the term incapable of consenting.
On the first issue, the Government’s brief makes the assertion that “A service court cannot find a conviction factually insufficient based on a different interpretation of the law than the one relied on by the factfinder.” Gov’t Br. at 14. Functionally, the Government’s position appears to be that a CCA may not decide questions of law before conducting a factual sufficiency review. The Government equates such legal analysis to an improper modification of the record:
The service courts cannot change the legal basis of a conviction——including instructions given, or the legal definition of a crime——and thereby modifying the record on appeal.
Gov’t Br. at 20.
The appellee’s brief eventually responds to this argument:
Third, the meaning of a statute is a question of law and questions of law, which are reviewed de novo, are never off limits to an appellate court, no matter how the military judge instructed the members. Furthermore, Article 66(c), UCMJ, recognizes that the court must look at the law and facts to conduct its review.
Fourth, conclusions regarding questions of law are not evidence and they are not matters outside the record. Finally, the lower court does not cite to any extraneous evidence in making its finding of factual insufficiency.
App. Br. at 12 (citations omitted). It seems remarkably straightforward to say that a CCA must determine what the law is prior to determining whether the evidence admitted at trial is sufficient to prove a violation of the law.
On the second issue, the Government’s brief complains that the CCA’s interpretation of the statutory term incapable of consenting “creates ambiguity within the statutory scheme.” Gov’t Br. at 27. This is an odd argument since the CCA merely interpreted the plain language of the statute. Additionally, the Government’s brief focuses in part on the CCA’s interpretation of the term competent, asserting that:
Without explanation, the lower court defined competent as “the physical and mental ability to consent.” Pease, 74 M.J. at 770. The lower court did not explain this definition or why this definition was necessary.
Significantly, the use and definition of the word “competent” was disputed at trial and again challenged on appeal.
Gov’t Br. at 29. However, considering the disputed nature of the meaning of competent and the significance of that condition in determining whether there was consent, defining that term seems unavoidable in this case.
The Government’s brief also asserts that the CCA’s interpretation of incapable of consenting increases the burden of proof on the prosecution:
it increases the burden on the United States to prove that a victim is “incapable of consenting”——the lower court described the second prong of its definition of “incapable of consenting” with the conjunctive “and” rather than the disjunctive “or.” Pease, 74 M.J. 770. Thus, the United States’ burden is now two-fold: the person must be able to both make and communicate a decision, either physically or mentally. Id. (emphasis added).
Gov’t Br. at 37-38. This is an awfully convoluted (and frankly nonsensical) reading of the CCA’s opinion. The CCA held that the alleged victims were not incapable of consenting because they did not lack the “physical or mental ability to make and to communicate a decision.” Pease, slip op at 13. Put differently, the CCA found that incapability is the inability to make and communicate a decision. The converse of this is that a capable person is one who can both make and communicate a decision, while an incapable person is one who can’t both make and communicate (either because they can’t make, can’t communicate, or both). Accordingly, the burden on the prosecution is to show (at least) that the alleged victim either couldn’t make a decision or couldn’t communicate a decision.
In Pease, by finding the evidence insufficient to prove that the alleged victims lacked the ability to make and communicate decisions, the CCA expressed a belief that the alleged victims could make and communicate a decision. This is abundantly clear in the CCA’s analysis of the facts:
[S.K.’s] fragmentary memory of kissing the appell[ee] 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 (emphasis added). 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 (emphasis added).
The Government ultimately asks CAAF to reverse the CCA’s decision and remand for a new review that is constrained by the “legal principles instructed upon by the Military Judge and considered by the Members,” and that will “address whether the Military Judge abused his discretion in failing to give the defense-requested instruction on the definition of competent.” Gov’t Br. at 40. It’s hard not to see this as a request for a mulligan. Regardless of the CCA’s findings about the meaning of the statutory term incapable of consenting, the CCA’s conclusion that the evidence nevertheless shows a reasonable belief by the appellee that the alleged victims were willing partners in the sexual activity appears dispositive. Only by disproving such a reasonable belief beyond a reasonable doubt could the prosecution secure a conviction.
Moreover, the facts highlighted by the CCA in reaching its conclusion about the capacity of the alleged victims (that they were communicating and participating in the sexual encounters) appear to be clear evidence of capacity. This is particularly true for [B.S.] who “was able to determine that she did not want that activity to continue and to articulate that to the appellant, who stopped.” Slip op. at 14. A person who manifests lack of consent (by, for example, saying no) is necessarily capable of consenting; they just don’t consent. The NMCCA recently explained this is an unpublished decision in United States v. Mohead, No. 201400403 (N-M. Ct. Crim. App. Oct. 29, 2015) (discussed here).
Nevertheless, CAAF’s decision in Pease could be a significant precedent regarding competency to consent, our #9 Military Justice Story of 2015. Next week’s oral argument may reveal whether the court plans to squarely address that issue.
• NMCCA opinion (74 M.J. 763)
• Blog post: The NMCCA interprets the term “incapable of consenting”
• Appellant’s (Government) Brief
• Appellee’s Brief
• Appellant’s (Government) Reply Brief
• Blog post: Argument preview