CAAF decided the certified Navy case of United States v. Pease, 75 M.J. 180, No. 16-0014/NA (CAAFlog case page) (link to slip op.), on Thursday, March 17, 2016. Rejecting both certified issues, CAAF holds that the Navy-Marine Corps CCA properly defined the statutory term incapable of consenting and then rightly applied that definition to determine that the evidence was factually insufficient (despite no such definition being provided to the members at trial). CAAF affirms the decision of the NMCCA that reversed the appllee’s convictions of sexual assault and abusive sexual contact.

Judge Ohlson writes for a unanimous court.

The case involved two female alleged victims who were subordinates of the appellee and who 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. However, 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 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).

Yet to analyze the evidence the CCA also analyzed the meaning of the statutory term incapable of consenting in the context of the UCMJ’s definition of consent. The CCA determined that a person is incapable of consenting when they “lack[] 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 agree[] to the conduct.” Pease, 74 M.J. at 770. This definition, however, was first stated by the CCA and was not provided to the members at trial.

The Judge Advocate General of the Navy then 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?

In a short and tightly written opinion for the unanimous CAAF, Judge Ohlson explains that the CCA was required to determine what the law was before it could fulfill its duty to review the sufficiency of the evidence, and he endorses (with a clarification) the CCA’s definition of the term incapable of consenting.

In the first certified issue, the Government asserted that the CCA was bound by the law that was instructed to the members. CAAF’s rejection of this claim is swift:

Article 66(c), UCMJ, requires the Courts of Criminal Ap-peals to conduct a factual sufficiency review by determining whether the evidence at trial proves an appellant’s guilt beyond a reasonable doubt. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002); United States v. Turner, 25 M.J. 324, 324–25 (C.M.A. 1987). When conducting this review, the Courts of Criminal Appeals are “limited to the evidence presented at trial,” United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007), but their “application of the law to the facts must … be based on a correct view of the law.” United States v. Leak, 61 M.J. 234, 242 (C.A.A.F. 2005) (emphasis added) (citation omitted) (internal quotation marks omitted).

In light of this responsibility, the CCA first needed to determine the correct, applicable law in this case in order to properly conduct its factual sufficiency analysis. The fact that the CCA found it necessary to consider legal definitions not expounded upon at trial does not constitute consideration of matters outside the record or consideration of a new legal theory, but instead represents a permissible act within the CCA’s Article 66(c), UCMJ, authority.

Slip op. at 7 (emphasis in original).

In the second certified issue, the Government asserted that the CCA gave an overly-restrictive definition to the statutory term incapable of consenting. Judge Ohlson, however, finds that the Government’s assertion is predicated on “an apparent scrivener’s error.” Slip op. at 9. Further, he finds that the CCA’s definition both “withstands legal scrutiny” and was properly applied to the facts of this case. Slip op. at 9-10.

Judge Ohlson explains that the CCA actually defined four terms, the last of which is incapable of consenting:

(1) “[A] ‘competent’ person is simply a person who possesses the physical and mental ability to consent.”

(2) “An ‘incompetent’ person is a person who lacks either the mental or physical ability to consent due to a cause enumerated in the statute.”

(3) “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.”

(4) A person is “incapable of consenting” when she “lack[s] 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 [she] agree[s] to the conduct.”

Slip op. at 5 (quoting Pease, 74 M.J. at 770) (marks in original). The first and second definitions are endorsed almost summarily. Slip op. at 7-8. The third definition gets greater scrutiny because it implicates the issue of voluntariness, but is ultimately also endorsed:

We note that the statutory phrase “freely given agreement” reflects the voluntariness aspect of consent. However, the CCA’s definition of that phrase may be viewed as not accounting for those situations where a victim has the ability to appreciate the conduct, and the mental and physical ability to communicate the decision, but does not articulate non-consent out of fear or due to some other external compulsion counteracting voluntariness. Nevertheless, we conclude that any imprecision does not constitute reversible error because, as demonstrated immediately below, the CCA’s definition of “incapable of consenting,” which ultimately is the heart of the matter before us, adequately addresses the concept of voluntariness.

Slip op. at 8 (emphases in original). Finally, the fourth definition – that of incapable of consenting – is recognized as an accurate statement of the law:

Fourth and finally, using the three definitions developed above, the CCA defined “incapable of consenting” as “lack[ing] the cognitive ability to appreciate the sexual conduct in question or [lacking] the physical or mental ability to make and to communicate a decision about whether they agreed to the conduct.” Id. As is evident, the CCA correctly defined “incapable” as meaning the victim “lacked the … ability to.” In regard to its definition of “consent,” the CCA essentially adopted the meaning of that term as provided under Article 120, UCMJ: “[C]onsent means a freely given agreement to the conduct at issue by a competent person.” Article 120(g)(8)(A), UCMJ. Thus, we conclude that the CCA’s inclusion of the phrase “whether they agreed to the conduct” adequately incorporates into the definition of “incapable of consenting” the voluntariness component of consent, and we further conclude that the definition is correct with the exception of an apparent scrivener’s error addressed below.

Slip op. at 8-9 (marks in original).

The apparent scrivener’s error is that the CCA “should have stated that a victim must have the ability ‘to make or to communicate a decision’ rather than ‘to make and to communicate a decision.'” Slip op. at 10 (quoting Pease, 74 M.J. at 770) (emphases in original). However, Judge Ohlson notes that in applying this definition the CCA “actually applied the ‘to make or to communicate’ standard.” Slip op. at 10 (emphasis added). Accordingly:

We therefore conclude that although the Government is correct that the “to make or to communicate” standard is the proper one, the Government is incorrect in arguing that the CCA actually used the “to make and to communicate” standard. Therefore, no reversible error resulted in the instant case.

Slip op. at 10.

The CCA’s decision in Pease was part of our #9 Military Justice Story of 2015, and CAAF’s approval of the four definitions stated by the CCA marks a significant precedent in the thorny intersection of intoxication and sexual assault.

Significantly, during deliberations on the findings in Pease, the members “requested guidance on the meaning of the word ‘competent’ by asking, ‘Is there a legal definition of a competent person?'” Slip op. at 4. Judge Ohlson’s opinion explains that the Government successfully argued against giving the members guidance:

Appellee proposed that the military judge use the definition of “competent” from Black’s Law Dictionary—“a basic [or] minimal ability to do something.” The Government took the position that the members should “figure it out” by applying the plain meaning of the word. The military judge followed the Government’s “figure it out” approach. . .

Slip op. at 4. Now, however, future panels will receive appropriate instructions.

Case Links:
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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

7 Responses to “Opinion Analysis: The NMCCA properly defined “incapable of consenting” in United States v. Pease, No. 16-0014/NA”

  1. Charlie Gittins says:

    Every DC in a sexual assault case where alcohol is involved should be preparing proposed instructions that track this decision.  Finally, something non-case specific and useful to the issue of sexual assault prosecution/defense and something specifically contradictory to the SAPR bull-crap of one drink and there can be no consent. 

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

    Yes!  Finally an objective standard!  What the NMCCA came up with was great, it’s nice to see CAAF support that.  No more “rely on your common sense and experience and knowledge of the ways of the world, even when your views are based on an incorrect understanding of the actual law.”

  3. Concerned Defender says:

    Judge Ohlson hits it out of the park.  Not sure why so many SJAs, SVPs, and TCs struggle with what should be otherwise common sense.  The SHARP brainwashing has done significant harm to the services.  
    Finally a case that swings the pendulum to some rational thinking and an actual standard versus just believing that a woman goes from equal strong, independent, warrior to a helpless puddle of goo unable to appreciate sex acts if she so much as smells alcohol in the next room.  Feminist groups should be up in arms at how helpless women are viewed in the military!  I digress.
    Thank you for an outstanding and useful Opinion Judge Ohlson!  

  4. DCGoneGalt says:

    SHARP has done harm to the services with their fact-free briefings in two ways.  First, by spreading false information to a tiny minority that actually take it to heart and believe it to be true.  Second, and most importantly, by causing a far larger number of individuals to recognize that what is being briefed has no basis in fact or logic and simply tune it out and lose some measure of respect for the institutional leadership that forces people to sit in a room to listen to false narratives.  In my opinion, while the first group will lead to a small number of false reports by younger members who take the briefs to heart or horror stories of panel members quoting false information in voir dire, it is dwarfed by the lack of trust and respect for leadership that results from the recognition that the people who are supposed to be trusted to make decisions on life or death in matters of war are incapable of stopping entire days of operational units from being dedicated to listening to and participating in exercises based on politically correct gibberish.

  5. Philip Cave says:

    I well remember a trial some years ago where on voir dire, an E-6 said that he could not disregard his commanding officers “one drink, no consent” instruction, even when properly instructed by the military judge about the medical and legal effects of alcohol, because it was a matter of “integrity.”

  6. Joseph Wilkinson says:

    The sad thing is…the guy who admitted that might give a fairer trial than the ones who make the right noises to get through voir dire, but carry their indoctrination with them anyway. 

  7. Dew_Process says:

    Finally, some “adult” supervision in this area that actually cerebrated over the basic legal issues!
    But, how long will it be before the POD people, Senator Gillibrand and her military justice “experts” call for the dissolution of the CAAF because it defied their continuing illogic in this area?  I don’t think this case has the proverbial “snowball’s chance in hell” of SCOTUS granting certiorari because there are no fundamental constitutional issues at play, but it wouldn’t surprise me that the government may try.
    And, as a totally off-topic aside, the new CAAF opinion formatting is so much more professional looking and easy to read than the old style was, calls for kudos to Mr. DeCicco and his staff who I happen to know put a lot of time, effort and thought into getting CAAF more in line with SCOTUS and the other Federal Circuits administrative procedures, and FRAppP’s.