Article 120(b) and 120(d) prohibit committing a sexual act (120(b)) or a sexual contact (120(d)) upon a person who is:

asleep, unconscious, or otherwise unaware that the sexual [act/contact] is occurring

In United States v. Sager, No. 201400356 (N-M. Ct. Crim. App. Dec. 29, 2015) (link to slip op.), the appellant was convicted of violating Article 120(d) by touching another man’s penis with his hand while the other man was otherwise unaware that the contact was occurring. Specifically, while the appellant was charged with violating the statute in all three possible ways (that the other man was asleep, unconscious, or otherwise unaware when the appellant touched him; an erroneous disjunctive pleading), the members returned a finding of guilty to only a touching when the other man was otherwise unaware. That prompted the appellant to assert on appeal that the specification was unconstitutionally vague because it failed to identify how the other man was otherwise unaware, and that the finding is factually and legally insufficient because the evidence indicated that the other man was either asleep or unconscious (he testified that he awoke from a drunken slumber to the sensation of the appellant touching him).

The Navy-Marine Corps CCA rejected the appellant’s assertions by concluding that:

asleep or unconscious are examples of how an individual may be “otherwise unaware” and are not alternate theories of criminal liability.

Slip op. at 7.

On Tuesday CAAF granted review of two issues that challenge the CCA’s conclusion:

No. 16-0418/NA. U.S. v. Jeffrey D. Sager. CCA 201400356. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. IN AFFIRMING THE ABUSIVE SEXUAL CONTACT CONVICTION, THE LOWER COURT RELIED ON FACTS OF WHICH THE MEMBERS ACQUITTED APPELLANT. WAS THIS ERROR?

II. ARTICLE 120(d), UCMJ, PROHIBITS SEXUAL CONTACT ON ANOTHER PERSON WHEN THAT PERSON IS “ASLEEP, UNCONSCIOUS, OR OTHERWISE UNAWARE.” DESPITE THESE SPECIFIC STATUTORY TERMS, THE LOWER COURT HELD THAT “ASLEEP” AND “UNCONSCIOUS” DO NOT ESTABLISH THEORIES OF CRIMINAL LIABILITY, BUT ONLY THE PHRASE “OTHERWISE UNAWARE” ESTABLISHES CRIMINAL LIABILITY. DID THE LOWER COURT ERR IN ITS INTERPRETATION OF ARTICLE 120(d), UCMJ?

Briefs will be filed under Rule 25.

25 Responses to “CAAF to review the alternative ways to sexually assault someone who is unaware”

  1. Charlie Gittins says:

    This disjunctive pleading was the problem we had with Nick Stewart’s case.  I finally had to ask the MJ to sever into two specifications otherwise, you run the risk of less than 2/3 members convicting on one theory of criminal liability and less than 2/3 convicting on another theory of criminal liability, with less than 2/3 agreeing to convict.  Asleep and unconscious are not the same things and I think CAAF will narrow the CCA’s reading of the statute.
     

  2. k fischer says:

    So, according to the CW, two E-3’s go back to an apartment where the CW E-3 pukes in a bucket, then goes to a futon. The accused homosexual E-3 begins to manually stimulate him to erection between 5 – 10 minutes after the CW E-3 says he awoke, but kept his eyes closed, then the CW proceeded to allow the accused to fellate him until the CW ejaculated.  There did not appear to be any evidence of fear on the part of the CW.  There did not appear to be rank disparity to the parties in question.  This is the evidence according to the CW.
     
    The accused testified to facts that seem to be more likely what happened in that it a consensual encounter, or in the least a mistake of fact.  But, still taking the facts according to the CW, shouldn’t there be some sort of ratification of the sexual act?  I mean, during that five to ten minute timespan, shouldn’t the CW have been able to slap away the accused’s hand if he wasn’t consenting?  By his own testimony, he was otherwise aware of what was going on, wasn’t he?  Sounds like the CW was bi-curious.  It sounds like the appellant was openly a homosexual, and this was just regret on behalf of the CW. 
     
    This sounds a lot like this case involving a male CW and a female accused at a college hearing, which I think is also ridiculous.  She never should have been expelled. 
     
    And, this guy gets 24 months by a Navy panel?  Sounds like they wanted to crunch him because he was gay, and cements my theory based on past cases that when you have a male on male sexual assault with evidence that strongly suggests that the alleged vic is also gay, or in the least bi-curious, then you should go judge alone.  Never go panel.  At least not in the near future, anyways.

  3. Zachary D Spilman says:

    Well, k fischer, I imagine the appellant was also charged with the sex act that occurred after the other guy awoke, and was acquitted of that based upon the other guy’s lack of protest. But considering that “a sleeping, unconscious, or incompetent person cannot consent,” Article 120(g)(8)(B), I don’t see how ratification (as you put it) is possible under the law. 

  4. k fischer says:

    I know there isn’t a ratification defense in the UCMJ, but if this were a female accused, I think that concept would enter into the panel’s deliberations and result in an acquittal.

  5. k fischer says:

    So, I went to a steakhouse last night and ordered the 24 oz cowboy ribeye with the bone in medium rare, but the server brought me a 20 oz Ribeye cooked medium well, which I certaintly did not order.  So, I ate what was brought to me without saying anything, and when it came time for me to pay her I got up and left without leaving any money at the table.  The server runs out into the parking lot and asks, “Did you forget something?”. I said, “No.  You never brought me the steak I ordered.”. She said, “But you ate the entire steak without saying anything!”. I said, “So what?  You didn’t bring ne what I ordered.”. That’s what good ole A TK did to the appellant.

  6. Lieber says:

    Ultimately what I think k fischer is getting at (besides “ratification” = “implied consent”) is that the UCMJ wasn’t written by people who actually have sex (at least that’s my impression of Article 120).

  7. Alfonso Decimo says:

    Mr. Gittens makes an excellent point that the trial court needs to ensure the panel has voted by a sufficient majority on the same theory of guilt. Severing it into two specifications seems like the cleanest solution. I remember one trial where the specification read something like, “June to September 2001” and then we heard testimony where each witness testified about a different date/instance when the witness saw the accused using drugs. When the panel came back with a finding of guilty, we sent them back to vote on which instance (which witness) they believed and they came back not-guilty. If I could go back in time, I would instead ensure each instance was a separate specification.

  8. k fischer says:

    Lieber,
     
    I think it’s more like ratification = retroactive consent.   I just can’t imagine how a guy gets a handy for 5 to 10 minute feigning like he’s asleep, gets a blow job once again feigning lime he is asleep knowing full well another guy is blowing him, ejaculates, then gets to say the next day that he is a victim.  I am by no means a flag carrier for the LGBT community, either.  But this verdict was flat out wrong.

  9. Concerned Defender says:

    I represented a case remarkably similar to this, where my client was facing two life sentences (or something similarly serious) for forcible sodomy and sodomy while the other person was asleep.  In short, the acts between the two male junior Enlistees in my view would lead a reasonable person to believe there was certainly some foreplay.  We went MJ alone as we felt a panel would be blinded by the acts, and not understand the technical legal arguments.  I think it was lost on the MJ too.  Without getting into the details, the MJ acquitted my client of one, and convicted him of the other.  His rationale was that by analogy, if a person were laying asleep and a stranger climbed into the bedroom window and began having sex with said sleeping person, even if the sleeping person awoke and was enjoying it, there was no “meeting of the mind” prior to the instant of the assault.  I strongly disagreed with that analysis, since a person can consent in a variety of ways… it just gets far too technical and specific for what is often an otherwise very vague situation.  Well, my client received a very light sentence such that he was not eligible for an appeal (5 months, no kick).  Is anyone aware of exceptions to appeal on such a conviction?

  10. Concerned Defender says:

    KF – I agree.  Perhaps it works for “assault” in the most technical sense on a bar exam question, but in real life and assault must be offensive touching or unwanted touching.  A guy getting a BJ and/or a HJ for minutes until orgasm without objecting was not assaulted in the real world, and probably not even on a bar exam question.  

  11. Zachary D Spilman says:

    Appellate review in the case you discuss occurs under Article 69, Concerned Defender. Contact me offline at zack@zacharyspilman.com if you want to discuss it further.

  12. Philip Cave says:

    Is anyone aware of exceptions to appeal on such a conviction?
     
    If this was GCM, you can submit a petition for reconsideration of the UCMJ art. 69a review.  Generally I (and my colleagues) follow the principle that it should be done within two years.  However, I do believe the AF requires by regulation that it be done within 30 days–little hazy on that for the AF.
     
    If this was a SPCM, the you have two years to submit a petition to TJAG under UCMJ art. 69b, with a request it be referred to the CCA.
     
    The general perception is that such “appeals” are of little likelihood for success.  But they are available.

  13. k fischer says:

    I’ve never had any luck obtaining relief under Article 69.  Most people find it quite difficult as well.  It’s like Article 69 is just there to tease the accused into hoping he could get relief.  It looks good on paper as a concept, but in practice it is rarely successful at bringing the relief desired.

  14. Scott says:

    69 appeals are made more challenging by the fact that the reviewing authority doesn’t have a verbatim transcript. Still, it is certainly worth pursuing. 

  15. Philip Cave says:

    Scott.
     
    Agreed, which is why you should always ask for a copy of the audio in a case where there is a sub-jurisdictional sentence.  A MJ should be willing to order a copy provided in such a case when you explain that it’s purpose is to aid with the 1105 and 69 reviews. At least have not had that problem before.  I know the Army will try to charge a fee, but I think they are blowing smoke on that.

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

    Was there any expert evidence on the effects alcohol has on erections?  While I’m certainly not an expert on the issue, I believe there is research out there that says if the guy is “too drunk” he can’t get an erection, much less get an erection and then sustain it for 5-10 minutes.
     
    Also incredibly interesting that this “victim” was “unaware,” and never even opened his eyes, yet could state with confidence that the experience lasted 5-10 minutes and that the appellant was the guy who did this.  If you are aware enough to be able to give these specifics, then I think it’s impossible to be “otherwise unaware.”  Seems like this is an example of Congressional influence–to show we take sexual assault seriously, we must find an accused guilty under SOME theory, and the “otherwise unaware” vague, undefined standard seems like the way to do that.
     
    If Article 69 is challenged as unconstitutional (i.e. lack off due process), would that be sufficient to get it to regular appellate review?

  17. stewie says:

    Awaiting the folks who seem focused on looking more like the civilian world to come in and agree that maybe we should have the same appeals for all CMs and get rid of the Art 69a review…
     
    ahhh, who am I kidding? :)

  18. Concerned Defender says:

    Thank you for the insights and updates CAAFlog.  I’m going to follow this case carefully and reach out to that former client, from several years ago.  Perhaps we can get some relief if the arguments and rulings align with his case.  
    Going from memory, yes we had an expert on the relevant facts, and yes we asked for clemency.  No luck.  Totally biased case because it was male-on-male.  If it was female-on-male, nobody would have cared.  And, given the fact that the receiver was erect and enjoying it, there was no assault.   I’ll refrain from any further details though. 

  19. Zachary D Spilman says:

    If Article 69 is challenged as unconstitutional (i.e. lack off due process), would that be sufficient to get it to regular appellate review?

    No. There is no jurisdiction for CCA review absent JAG referral in accordance with Article 69(d). See United States v. Arness, 74 M.J. 441 (C.A.A.F. Aug. 19, 2015) (CAAFlog case page).

    A collateral attack, however, is a different matter.

  20. CSM Howard Loomis says:

    No matter how hard you bastards try, you cannot make sex illegal. 

  21. DCGoneGalt says:

    CSM Loomis:  Yoda Gillibrand and the POD People say “Do or do not.  There is no try.”

  22. CSM Howard Loomis says:

    I wrote a book, “Military True Crime.” Free @ Amazon. I am sure you will find it interesting.
    https://www.amazon.com/dp/B01DVAJWUO
     

  23. Lieber says:

    IMHO, Gillibrand and co have been had.  Just as with porn in the 80’s, the crackdown on sexual assault has been hijacked by the Christian right in the military to become a crackdown on all extramarital sex. You can see this at the trial level on a regular basis.

  24. Concerned Defender says:

    ^^^^  WELL….. I dunno about that.  The “crackdown” seems to be coming pretty hard from the left-femin-liberal-nutz.  Screaming for equality out of one side of their mouths, while screaming for what amounts to double standards out of the other side.  They really want it both ways, the cake and icing, and eating it too.  True, some Rs have beaten the “sex assault is on the rise” drum loudly as well, but Patty Murphy, Gillibrand, and the rest of the insane are driving the crazy train pretty hard.  And Mr. Obama has been right there pushing his military down this primrose path – “The bottom line is: I have no tolerance for this,…I expect consequences…So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.” 
      
     

  25. Contract Lawyer says:

    Concerned Defender – I think one point well received is that Judge Alone turned out better.  Perhaps an appeallable sentence could result in total exoneration, but isn’t it better for the client to have a sentence below the threshold?  One issue that merits appeal is the fact that the severity of the collateral consequences (i.e., sex crime and sex offender registration) should heighten the matter to one that merits the right to appeal.  Still, your client will be on the street without a punitive discharge, but with his face on the internet it will be worse than a BCD.  See if they will accept a post trial Chapter 10?