CAAF decided the Coast Guard case of United States v. Rogers, 75 M.J. 270, No. 16-0006/CG (CAAFlog case page) (link to slip op.), on Monday, May 16, 2016. In a case that questioned whether a member was biased by her professional and personal experiences with sexual assault, CAAF holds that the member’s uncorrected misunderstanding about an intoxicated person’s ability to consent to sexual activity constituted implied bias. As a result, the court reverses the findings and sentence and the decision of the Coast Guard CCA, authorizing a rehearing.

Chief Judge Erdmann writes for the court, joined by Judges Ryan and Ohlson and Chief Judge Whitney of the United States District Court for the Western District of North Carolina (sitting by designation). Judge Stucky writes separately, concurring in the result.

Electrician’s Mate Third Class Rogers was charged with numerous offenses, including two specifications of sexual assault of a person who was incapable of consenting due to impairment by an intoxicant. The defense challenged a potential member for actual and implied bias based on the member’s duties (that included addressing sexual assault issues and interacting with victims), her personal experiences (her older brother was convicted of child molestation), and her expressed belief that “if you are so drunk that you can’t remember giving consent, then you are too drunk to give consent.” Slip op. at 7 (quoting record). The military judge denied the challenge, and Rogers was convicted and sentenced to confinement for ten years, reduction to E-1, total forfeitures, and a bad-conduct discharge. The Coast Guard CCA reviewed the member challenge issue and found no error. CAAF then granted review to determine:

Whether the military judge erred in denying the implied bias challenge against CDR K in light of her various professional and personal experience with sexual assault.

“The core of the implied bias test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel.” Slip op at. 2 (citation and marks omitted). Despite the granted issue focusing on the member’s experiences, however, Chief Judge Erdmann’s majority opinion finds implied bias in the member’s erroneous belief that a person who can’t remember consenting necessarily couldn’t consent. And Judge Stucky’s concurring opinion goes even further, finding that the member’s erroneous belief constituted actual bias because the military judge failed to correct it with an appropriate instruction. Ultimately CAAF is unanimous in finding bias in the member’s uncorrected belief that too drunk to remember means too drunk to consent.

This result makes this case a surprise development in the continuing effort to address the issue of competency to consent, our #9 Military Justice Story of 2015.

Chief Judge Erdmann’s opinion provides two important factual details. The first is a general description of the voir dire of the member:

In response to defense counsel’s questions, CDR K asserted her understanding of the law as to when an intoxicated person could give consent. CDR K stated that if someone was too drunk to remember that they had sex, then they were too drunk to have consented to having sex. CDR K indicated that her understanding of this law came from the training provided by the Coast Guard. CDR K noted, however, that “[i]f the law told me [otherwise] … I’d follow the law.” CDR K continued, stating that it “would have to be proven to [her]” that “someone was so drunk that they can’t remember anything … [but] then [are] also able to give consent.”

Slip op. at 3 (marks in original). The second is something that happened during deliberations:

During the members’ deliberations, CDR K forwarded a question to the military judge asking, “What is the legal definition of ‘competent?’” In response, the military judge instructed the members that, “[t]here is no further legal definition of the word ‘competent’” and that they must “rely on [their] understanding of the common definition of the word.”

Slip op. at 4 (marks in original).

Military law defines consent, in part, as “a freely given agreement to the conduct at issue by a competent person.” Article 120(g)(8)(A) (2012) (emphasis added). The meaning of a competent person is sometimes disputed, and a finding that an alleged victim was incompetent will invalidate any apparent grant of actual consent. Earlier this term, in United States v. Pease, 75 M.J. 180 (C.A.A.F. Mar. 17, 2016) (CAAFlog case page), CAAF approved a definition of incapable of consenting that states in part that a competent person is simply a person who possesses the physical and mental ability to consent; put differently, if a person can consent then they are competent to consent (and not the other way around). Of note, the members in Pease also asked for a definition of competent and were also denied further instructions on the issue.

In Rogers, CAAF doesn’t dwell on the way the parties may have used or argued the relationship between competence and consent. However, the court finds serious problems with the member’s belief that a person who can’t remember consenting necessarily couldn’t consent:

In the present case, M.C. testified that, after a night of heavy drinking, she could not remember meeting or having sex with Rogers. As Rogers’ defense was that the sexual contact was consensual, a fundamental question at trial was whether M.C. was capable of consenting to the sexual acts, despite being “blacked out.” Under these facts, the members’ understanding of the law on intoxication and consent was critical. However, as CDR K stated in voir dire, it was her belief that if someone was too drunk to remember that they had sex, then they were too drunk to consent to having sex. Moreover, CDR K told the defense during voir dire that “[y]ou’d have to work hard to make me believe that someone was so drunk that they can’t remember anything about the evening, that they were then also able to give consent….That would have to be proven to me.” These statements demonstrate a misunderstanding of the law and infer an improper burden shift from the government to the defense.

Slip op. at 6-7. Chief Judge Erdmann does not explicitly declare that an intoxicated person can consent, however his opinion makes it clear that the member’s view was “an erroneous understanding, both as to whether an intoxicated person can give consent and as to which party had the burden of proof on that issue.” Slip op. at 8-9. He also emphasizes that the definition of consent includes the admonition that “all the surrounding circumstances are to be considered in determining whether a person gave consent.” Slip op. at 6 n.5 (quoting Article 120(g)(8)). Such circumstances include intoxication.

Yet the member’s erroneous understanding about the ability of an intoxicated person to consent isn’t dispositive on its own. Rather, it’s the military judge’s failure to correct this erroneous understanding with appropriate instructions that undermines the fairness of the court-martial. Chief Judge Erdmann explains that “the military judge never issued a curative instruction on this issue at any point in the trial,” and that the lack of clarification of the definition of a competent person “effectively endorsed [the member’s] erroneous understanding, both as to whether an intoxicated person can give consent and as to which party had the burden of proof on that issue.” Slip op. at 8-9. Accordingly:

under the totality of circumstances of this case, an objective member the public would have substantial doubt about the fairness of having CDR K sit as a member of Rogers’ court-martial panel.

Slip op. at 9.

Judge Stucky, however, goes even further:

Based on her statements on the law of consent and the facts of the case—an alleged sexual offense perpetrated against an intoxicated individual—CDR K essentially “formed or expressed a definite opinion as to the guilt or innocence of the accused as to [the] offense charged.” Rule for Courts-Martial (R.C.M.) 912(f)(1)(M). This expression evinced a “personal bias which [did] not yield to the military judge’s instructions and the evidence presented at trial” because no pertinent instructions were given, Nash, 71 M.J. at 88; a clear case of actual bias.

Con. op. at 1 (emphasis in original).

There’s a large quantity of inaccurate (if not outright reckless) training about sexual assault issue in the military, and such training has tainted many potential members with possible bias. CAAF’s unanimity in finding bias in this case makes it clear that such training must be corrected with appropriate instructions if an accused is to receive a fair trial.

Case Links:
CGCCA opinion
Blog post: CAAF grants review of an implied bias challenge of a member
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
• CAAF opinion
Blog post: Opinion analysis

26 Responses to “Opinion Analysis: An uncorrected belief that too drunk to remember means too drunk to consent constitutes bias in United States v. Rogers, No. 16-0006/CG”

  1. Concerned Defender says:

    Once again, sitting here, STAGGERED at the incompetence of some MILITARY JUDGES at understanding the law or granting causal strikes.  CDR K was so clearly unable to be rehabilitated that s/he should have been excused.  There’s even a liberal grant mandate which should have been invoked to excuse someone that is questionable. United States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006).  http://www.armfor.uscourts.gov/newcaaf/opinions/2007Term/05-0779.pdf
     
    A TEN YEAR conviction and a BCD on “too drunk to consent” is so far reaching and unjust it makes me ill just thinking about it.   Thank goodness for some adults at CAAF to cut to the heart of the matter and serve up justice and exonerate this poor man, who has likely been languishing in prison for the last few years.  
    I hope the lower courts are hearing these messages and learning something from this massive waste of time, tax dollars, and wrongly convicted service members over this nonsense political issue.  Where is the accountability for these inept decisions by the lower courts, MJs, and Trial Counsel, and SJAs, etc. al.  is what I’d like to know.  

  2. Philip Cave says:

    Of significant–continued–concern is just what are they teaching in SAPR training.
     
    Something to remember for CG cases, of which I have several pending.
     
    Apparently the CG is teaching that if you don’t remember what happened you didn’t consent, or did I misread that.

  3. stewie says:

    It’s not reckless in a vacuum. If we weren’t worried about courts-martial and fairness and “law stuff” then I could see the reasons why sex assault training happens as it does. Of course, we have non-lawyers training on it so it’s also not surprising that those worries don’t appear to be present nearly enough.
     
    Of course, we don’t live in a vacuum, so good intentions lead to bad results.

  4. A shame... says:

    CD: The facts of this case supported a conviction and stiff sentence. It’s a shame that it got reversed based on the boneheaded decision not to kick an obviously biased member on a panel that had members to spare. 

  5. stewie says:

    I’ll never understand why the GOV fights so hard to keep people on and why the MJs seem to enable them (thanks Drumpf!).
     
    I get that it’s a hassle, but there are a ton of folks just sitting out there to be picked at most installations. It’s a lot less of a hassle for all then having to go through this all…over…again for all parties.

  6. Joseph Wilkinson says:

    Apparently the CG is teaching that if you don’t remember what happened you didn’t consent, or did I misread that.
     
    Philip Cave – As I commented here, I’ve seen that trained in the Army — at least by implication.  This was done by video (which presumably received legal review, though of course it couldn’t be freely accessed or downloaded outside of training).

  7. k fischer says:

    A shame/CD,
     
    The accused got convicted of a whole bunch of other stuff: conspiracy to obstruct, 3 specs of conspiracy to obstruct, false official statement, and 3 specs of some weird false pass offense under 18 USC 499.  I don’t know what all of that means, but it sounds pretty bad.
     
    I sure would like to know the facts of the case regarding the defense of consent.  Was she on top?  Did he testify to facts that indicate that he had a mistaken belief that she could consent?  Why is it that “I cannot remember” is proof beyond a reasonable doubt?  You can’t remember meeting the guy?  You can’t remember having intercourse? Was there a motive to fabricate, like she had a boyfriend, so she just couldn’t remember?  And, if he just met her, then how is he supposed to know that she is so drunk that she can’t remember?
     
    How weak was the Government’s case? 
     

  8. k fischer says:

    After re-reading the opinion, what is wrong with thinking that if you believe beyond a reasonable doubt that a person has drank so much that they cannot remember anything about the night, then that person was incapable of consenting to a sexual act due to impairment by an intoxicant?  Whether or not the accused knew or should have known is a completely different matter and a separate element.  But, if I believe BARD that she honestly cannot remember meeting the accused or having sexual intercourse wtih the accused, then is she still capable of consenting?  Of course not.
     
    Whether the accused having known or reasonably should have known of this intoxication is a separate element and the Government has the burden of showing that as well, which the evidence of how persons can act like they are capable of consenting when they are in a blackout state is relevant to that. 
     
    But, it seems like it would be similar to a child under 16 being unable to consent, but the accused believed that she is over 16, so he has a mistake of fact defense.  A person who has drank so much that they cannot remember cannot consent, but could act in such a way that the accused believed the complainant could, so the accused is not guilty.  It’s odd that such a common sense position is shot down.
     
    What about if I went into a court-martial as a panel member and said, ‘I think if an accused witnesses a clearly drunk woman throw up, then has sex with her, then (1) she is too drunk to consent and (2) he knows she is too drunk to consent.  The only reason a man wants to have intercourse with a drunk woman with puke breath is because he is afraid she won’t consent in the morning after the alcohol wears off.”  Is that out in left field and would require me to be kicked for bias?  And, I understand there are circumstances where a woman throws up and rebounds to be able to consent, but generally, that would be my position.
     
    It’s like would I believe that a woman who reports forcible sodomy the day after she is served with divorce papers, where she says that thirty days after meeting the accused that he sodomized her, so she flew to Vegas and married him 8 days later ?  I’m going to think that allegation is a bunch of bs.  It defies logic.
     

  9. Matt says:

    k fischer,
    What if she drank a lot, had consensual sex, and then drank enough to not remember the whole night?  The fact that she claims she doesn’t remember doesn’t prove that she couldn’t have consensual sex at the time she engaged the target.

  10. Zachary D Spilman says:

    You’re making the same mistake that the member made in this case, k fischer.

    The issue is whether the alleged victim consented at the time, not whether they remember consenting, have no regrets about consenting, or would have consented while sober.

    In the way of an analogy, a person may be so drunk that they don’t remember driving home, but there they are the next morning with a police cruiser in their garage. 

    Of course, we’ve discussed this before

  11. Concerned Defender says:

    This opinion – which I only skimmed – didn’t list the other offenses (or I missed it in the 11 page opinion).  But it seems that the Court would simply acquit/overturn on this sex assault, and affirm the balance which did not involve sex crimes, and then adjust to a more appropriate sentence;  if that were the case.  Dunno.  But it seems it should not even have gotten to CAAF, having been resolved at trial. 
    I agree that I don’t understand why TCs and MJs don’t err on the side of not creating these types of costly appellate issues.  If I’m the TC, I simply say, “Your Honor, Government agrees that this Panel Member should be challenged and causally struck for XYZ reasons.”  if you believe in your case, you don’t need or WANT a biased member which will undo all your work in a few years and release a bad guy.  It’s the same as law enforcement cutting corners, like a warrantless search.  Don’t do it.  
    I will say that the whole “I don’t remember” bit is ridiculous.   I’ve brought it up many times, but what if both individuals were equally intoxicated and neither can remember.  Then, by law, they are equally victims and perpetrators.  And then, how does one decide who to charge?  I’ve venture that 100% of the time, the man will be charged and the female the victim.  This is clearly a violation of equal protection and fundamental fairness.  
    I hate to complain without offering a 2 part test.  1) reverse the sexes in the fact pattern, and 2) Look at the pre-drinking sober actions. If the “too drunk to consent” person was a male, would you charge the female in the fact pattern?  (E.g., the male is flirting, sending naughty text messages, voluntarily drinks excessively, goes back to the female’s room at 1am, takes off his own clothing, performs oral, receives oral, moans pleasurably, and is on top during sex…).  Do you charge the female?  Because I’ve defended and also seen a LOT of cases with this or a mix of this fact pattern – of “too drunk to consent” where the male was charged.     
     

  12. Concerned Defender says:

    An addition to the above.  Why is it that when women drink alcohol they are not responsible for their sex actions?
    Drinking is not a defense to your actions if you rob a bank, commit assault, drive drunk, etc.  Nor is it a defense if you’re a man and had sex.  However, if you’re a woman and drink and have sex, you get a free pass for all your actions.  This has to stop.  Women should be just as responsible as the man in the scenario.  Charge them both, or charge neither, absent other evidence of force/trickery/threat/stranger rape, etc.  Again, the facts dominate, but if you voluntarily drink with your suitor, it’s the same as grabbing the car keys and driving.  Don’t dance with the devil.  
    In your garden variety both man and woman drinking and drunk, charge both or neither. 

  13. Zachary D Spilman says:

    I’ve brought it up many times, but what if both individuals were equally intoxicated and neither can remember.  Then, by law, they are equally victims and perpetrators.

    That’s right, and neither are victims or perpetrators (of a crime). 

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

    I had to attend SHARP training a couple of weeks ago.  Our trainer, an NCO, was actually pretty decent, and told the group that yes, drunk people ARE capable of consenting!  HOWEVER, he also had a definition of “consent” that required OVERT ACTS, in addition to the requirement for a “freely given agreement.”
     
    Afterwards, I had a chat with him and asked where the “overt acts” requirement came from, because when you read the statutory language, there is NOTHING about “overt acts.”  And what is an “overt act” anyway, is it words, acts, or both?  I explained that SHARP training that teaches incorrectly is hurting our cases, because it leads to acquittals or reversal on appeal, and there is no justice in that, for anyone.  We also chatted about people continuing to be responsible for their actions even when drunk.  Otherwise, we could never hold anyone accountable for misconduct because they were “too drunk.”  Also, people make really bad decisions when they are drunk and they do stupid things that result in severe injury, or even death.  Like the guy last year on the 4th of July who got drunk and put a mortar tube on his head, and lit it thinking it was a dud.  It wasn’t, and he died when it exploded.  Is his death someone else’s fault simply because he was drunk?  No.  Fortunately, the NCO was very receptive and hopefully his next session will be correct from a legal standpoint.
     
    Lawyers can help correct the problem if they speak up during training to correct incorrect information.  Used to be SHARP taught the “one drink she can’t consent.”  That’s backfiring, so now it seems they’re teaching an “affirmative consent” and/or “active ongoing consent” requirement.

  15. K fischer says:

    CD,
     
    The offenses are in the footnotes, one of the first three, I think. 
    If if you take the element “incapable of consenting due to intoxication” there are some benchmarks.  So drunk I puke more than once.  So drunk I can’t remember is probably another.  It’s like a 13 year old girl is incapable of consenting.  I understand that the instruction for intoxication does not have a remember element or puking element, but would that be an evidence you would view as very strong?
    Whether they are equally victims is a separate issue, which should be changed to allow an accused to assert a too drunk to be in control of his faculties.  But the instruction says that the intoxication of the accused is irrelevant when it should be relevant.  

  16. stewie says:

    kf, if we want the standard one way for an alleged victim to more or less be so drunk she’s nearly passed out, then if you apply that standard the other way, very very few men are going to be able to actual perform any kind of sexual act at that level of intoxication. That’s where the they were both drunk argument breaks down.  The less drunk you allow the accused to be to argue the defense, the less drunk you have to allow the alleged victim to be as well.

  17. Dew_Process says:

    In an interesting (and timely) development, the American Law Institute (ALI), just addressed this issue as noted HERE>
     
    This has been an on-going and hotly debated issue within the ALI’s membership, as documented HERE.  and HERE.
     
    See also, Intoxication and the sources for defining “consent” under the ALI’s draft sexual assault provisions 

  18. k fischer says:

     very very few men are going to be able to actual perform any kind of sexual act at that level of intoxication.
     

    Any kind?  Fingers and tongues are typically not affected by intoxication.  And, remember the instruction, “Any penetration, however slight, of the vulva?”  This does not require a man to thrust his turgid member in and out until of the vulva until climax.  So, I would imagine this happens quite often if two highly intoxicated people bump uglies until the man can’t keep it up any more and moves on to other sex acts or passes out.

  19. Concerned Defender says:

    Zach, you are correct that neither would be victims or perpetrators.   I was being sort of argumentative, but should have clarified that point of how silly it is to think that both are simultaneous victims and perps.  But yes, neither would be. 
    @ K Fischer and Stewie.  The age of male we’re generally dealing with is going to be able to perform just fine while highly intoxicated.  and KF points out that there are a myriad of sex acts not involving the man’s “junk” so to speak.  
    The modern trend is consistent with the trend that feminists want it both ways.  They want to be strong independent equals in all things military, capabable of doing everything a man can do except things like the same fitness tests (no pullups, those are hard; 1/2 the number of pushups and situps, those are hard too), and being able to control themselves if they smell alcohol, or the ability to simply say no if they sip alcohol, or the smarts to avoid late night drunken parties where men will surely be asserting themselves.  
    If you want equality in the military, stop treating 21 year old Soldiers like they are 11 years old and unable to make choices if they have  a vagina.  In cases where women purposefully put themselves in a situation where they are highly intoxicated with the keys in the ignition driving down the highway, they are just as responsible for the directly foreseeable results as a man would be.  That’s a metaphor by the way.   Unless we want to charge both of them for sex assault against the other, we simply chalk it up to don’t drink and screw, and lessons learned, and move on.  This is a societal issue of wanting to blame everyone else for individual bad decisions.  
    I applaud the Courts in recent cases like Bridenstine (2015), Pease (2015), Bright (2008), and Clark (2015), etc.  In Clark the Navy Court found factual insufficiency and overturned the forcible rape and sodomy convictions, which were based on sex with an allegedly drunken and incapacitated complaining witness who could provide no clear statement of any assault or refute that the sex acts were not consensual. The Navy Court reasoned:

     
    As our sister court succinctly stated in a recent opinion, it is simply not our role to speculate as to what may have occurred between the appellant and SW or to fill in the gaps left by the Government’s presentation of the case. The Government’s case rested nearly exclusively on SW’s delayed and partial memories that ultimately lack the detail and completeness necessary to prove the charges.  

  20. Defense Bound says:

    More evidence of why the military courts are enept when it comes to dealing with sexual assault.  The alleged bias was based on a rational thought process.  How in the world people do we think that a person can consent to sexual assault if they don’t even remember anything?  Where is the “bias?”  This was clearly a question of whether or not the defense was able to meet the burden of a reasonable mistake of fact by the accused.  Where are we headed?  

  21. Zachary D Spilman says:

    Unless that’s satire, Defense Bound, you’re completely wrong.

    First, memory is not a precondition to consent. For starters, it’s incontrovertible that a person may be so intoxicated that they no longer form memories (typically called a blackout condition) and yet still capable of making and communicating decisions. But more fundamentally, just because a person doesn’t remember making a decision doesn’t mean they didn’t make that decision. Consider the situation of an amnesic, for example.

    Second, the defense doesn’t have the burden to prove a reasonable mistake of fact by the accused. Rather, in an incapacity by intoxication prosecution the Government has the burden to prove the absence of a reasonable mistake as an element of the offense:

    (3) 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;

    is guilty of sexual assault and shall be punished as a court-martial may direct.

    Article 120(b)(3) (2012) (emphasis added). And even if it wasn’t an element, the Government would still have the burden to disprove the existence of the defense. See R.C.M. 916(b).

  22. Defense Bound says:

    “Unless that’s satire, Defense Bound, you’re completely wrong.
    First, memory is not a precondition to consent. For starters, it’s incontrovertible that a person may be so intoxicated that they no longer form memories (typically called a blackout condition) and yet still capable of making and communicating decisions.  But more fundamentally, just because a person doesn’t remember making a decision doesn’t mean they didn’t make that decision. Consider the situation of an amnesic, for example.”
    Zach, I both agree and disagree with you.  The fact that a person is “so intoxicated” that they are unable to form memories is in itself an oxymoron when you are talking about consent.  Just because a person is able to nod their head or scream “yes” in response to a sexual proposition, does not mean you communicate a decision.  You are correct in that after Prather and much statutory revision to enforce the government’s burden of proving the defendant’s guild beyond a reasonable doubt.  However, you and I both know the unfortunate reality in the courtroom with members panels.  The government simply has to prove that the accused either knew how much the victim had to drink or that the victim was in some way displaying enough signs of “incontrovertible” intoxication.  The “communication” matters not.
    Finally, direct me to your reference where a court has compared intoxication with amnesia in a sexual assault case where consent was at issue.  I find the comparison intriguing. 
     
     
     

  23. Zachary D Spilman says:

    Just because a person is able to nod their head or scream “yes” in response to a sexual proposition, does not mean you communicate a decision.

    Huh? Is this what you require: https://www.youtube.com/watch?v=5B5NMN7GBA4

    The government simply has to prove that the accused either knew how much the victim had to drink or that the victim was in some way displaying enough signs of “incontrovertible” intoxication.  The “communication” matters not.

    That’s not what the law requires or what a military judge’s instructions will say.

    If you’re going to accuse military courts of being “enept [sic] when it comes to dealing with sexual assault,” then you should try to be less inept yourself.

  24. Defense bound says:

    Zachary,  
    That’s cute.  You talk as if members panels are following the law and jury instructions.  Have you had occasion to speak with a panel after deliberations to know what exactly goes into a panel decision/vote to aquit?  They are NOT always following the “law”.  There is a cultural dynamic that goes far beyond the courtroom and “law” or jury instructions…obviously beyond what can be comprehended.
     
     

  25. SeaLawyer says:

    DB, you’re just wrong on the law AND the science, frankly, but I won’t bore you with the forensic psychiatry of it. 
     
    This case has HUGE potential to help remedy the imbalance (especially recently) against the Accused in SA cases, since I’ve known a lot of folks (like most CA’s and even some judges) who seem to be confused on this issue. 
     
    Tami, when I was the DSJA at Canoe U, the deputy SARC briefed a room of 300+ senior officers that “2 drinks means you cannot consent to sex.”  Even though I was one of the junior guys in the room, I immediately stood up and told him that he was completely wrong, and then I discussed the correct state of the law for the benefit of the room.  Afterwards I asked him where he’d gotten that from, and he said he just pulled it off the top of his head in an effort to give example of too drunk to consent.  He said he hadn’t mentioned it to any other groups, so I took no further action beyond counseling him to stick to the script.  The Navy was teaching “drunk sex equals rape” for the longest time, but they’ve fixed in the last few years.  As you point out, the problem with providing errant training not only pollutes jury pools (which may or may not get resolved through voir dire), but also creates a sense of victimization in someone who may not be a victim.  If you tell a person with no memory of an event, “You were raped!”  (which is what MANY SARCs and VAs still say to this day), then they’ll believe they were raped (when perhaps they legally gave consent), they’ll manifest all the symptoms and negative impacts of being actual rape victims (even if they’re not), and then when the Accused is acquitted, they suffer the perceived injustice of it just as a real rape victim would.  And if that weren’t bad enough, real victims seeing those results are discouraged from reporting thanks to over-zealous SARC misinformation… 

  26. Cutterman says:

    SeaLawyer,
    As a VA for the past 6 years and nationally accredited, including other training in crisis response I can attest to the fact that if you run across any of the CG VA or SARCs putting those words in anyone’s mouth it would be your duty to put them up for a 92 or 94, its not reprisals if the VA is in breach of policy or exceeding their level of expertise. Yes we want our survivors(hate the use of Victim in the VA title, if they are taking action they are surviving) to get  help, get medical attention, and report. It’s not our job to determine truth, or guilt just ensure that the support is there. Our system while progressing vs 13 yrs ago is still aged and decrepit when it comes to addressing the needs of an integrated service. The training still paints males as the main actors (yes statistically its viable  but also the vast majority of men don’t report), removes the agency from most of our female members when it comes to accountability, and relies on tired power-points, and death by flash media to push data that is outdated and not IAW current legal doctrine. We’ve reached the point where we are cutting programs like health promotions, VA, and CISM training which need to be addressed; that we spend more per year on contractors to complete work we could do our selves if only we didn’t have to pander to the states which we are based in.
    J