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
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.
• 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