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.