In a published opinion in United States v. Solis, 75 M.J. 759, No. 201500249 (N.M. Ct. Crim. App. Aug. 11, 2016) (link to slip op.), a three-judge panel of the NMCCA rejects the appellant’s arguments that Article 120(b)(3)(A) – which criminalizes sexual activity with a person who is incapable of consenting due to impairment by an intoxicant – is void for vagueness both facially and as applied.

The decision is reminiscent of the NMCCA’s rejection of similar arguments in United States v. Torres, No. 201300396 (N-M. Ct. Crim. App. Aug. 28, 2014) (discussed here). In Torres the CCA concluded that servicemembers have fair notice that they may be prosecuted for initiating sex with an unconscious person.

The CCA reaches a similar conclusion in Solis, with an important caveat. Writing for the panel Judge Fulton explains that:

[T]he statute does not proscribe sexual acts with impaired people, but rather with people incapable of consenting to the conduct at issue because of their impairment—and even then, only when the inability to consent is known, or reasonably should be known, to an accused.

Slip op. at 5 (emphasis added). The quite-obvious conclusion that the statute does not prohibit sex with any impaired person (including, of course, a drunk person) reminds me of the Army CCA’s decision in United States v. Long, 73 M.J. 541 (A. Ct. Crim. App. Jan. 30, 2014) (discussed here) (finding that the drunk victim was competent to consent, but didn’t). And, of course, CAAF’s decision this term in United States v. Pease, 75 M.J. 180 (C.A.A.F. Mar. 17, 2016) (CAAFlog case page), provided us with a clear and uniform standard of review for a trial-stage finding that a person was incapable of consenting.

The appellant in Solis was convicted of having sexual intercourse with a high school student who was incapacitated by alcohol and marijuana. The student testified to regaining consciousness and “realiz[ing] that her pants and underwear were off and the appellant was on top of her having sexual intercourse with her.” Slip op. at 3 (she also testified that she then struggled and swore at him).

Article 120(b)(3)(A) (2012) prohibits sexual activity with a person who:

is incapable of consenting to the sexual act due to . . . impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the [accused].

The appellant in Solis asserted that “Article 120(b)(3) is unconstitutional on its face because there is no way for a person of common intelligence to determine when another person is impaired by alcohol such that they are incapable of consenting to a sexual act.” Slip op. at 5.

Rejecting this challenge, Judge Fulton writes:

The appellant argues that the statute does not “draw the line” that would determine whether a person’s degree of impairment renders that person no longer capable of consenting to sexual conduct. But by focusing narrowly on the term impaired, the appellant fails to appreciate that the statute does not proscribe sexual acts with impaired people, but rather with people incapable of consenting to the conduct at issue because of their impairment—and even then, only when the inability to consent is known, or reasonably should be known, to an accused.

The word incapable is not defined by the statute. But a person of ordinary intelligence would understand by the term’s plain meaning that sexual conduct with a person who lacks the ability to consent is proscribed. See United States v. Pease, 74 M.J. 763, 770 (N-M. Ct. Crim. App. 2015), aff’d 75 M.J. 180 (C.A.A.F. 2016) (defining “incapable of consenting” as “lack[ing] the cognitive ability to appreciate the sexual conduct in question or the physical or mental ability to make [or] to communicate a decision about whether they agreed to the conduct”). The statute defines consent as “a freely given agreement to the conduct at issue by a competent person.” Art. 120(g)(8)(A), UCMJ. Additionally, the fact that Article 120(b)(3)(A) requires that an accused know or should reasonably know that another person is incapable of consenting makes the statute even more definite. See Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 499 (1982) (“[A] scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.”). We find that Article 120(b)(3) provides a person of reasonable intelligence fair notice of what conduct it proscribes.

Similarly, the statute is not so standardless that it invites arbitrary enforcement. Cf. Kolender v. Lawson, 461 U.S. 352, 357-61 (1983) (finding statute which authorized arrest of individuals who did not provide “credible and reliable” identification to a police officer to be unconstitutionally vague, because it “fail[ed] to establish standards by which the officers may determine whether the suspect has complied with the . . . identification requirement”). Article 120(b)(3) does not require a person to arbitrarily determine how impaired another person must be before they are too impaired. Rather, it requires a person to determine if a sexual partner is capable of consenting. Again, the scienter requirement serves to narrow the sweep of the statute and to guide both prosecutors and fact finders. A successful prosecution does not depend on a trial counsel’s or panel’s subjective sense of how impaired is too impaired. Rather it depends on proving that an accused knew, or reasonably should have known, that the other person was incapable of consenting. This is a clear standard that provides reasonable guidance to prosecutors and fact finders, and does not invite arbitrary or discriminatory enforcement.

Slip op. at 5-6.

Rejecting the as-applied challenge, Judge Fulton adds that:

The appellant again misconstrues the statute by suggesting that it calls on a person to make an arbitrary judgment about another person’s degree of impairment. It does not. Article 120(b)(3) proscribes sexual acts with people who are incapable of consenting to them.

Slip op. at 7.

8 Responses to “The NMCCA continues to reject constitutional challenges to Article 120 (2012)”

  1. k fischer says:

    Similarly, the statute is not so standardless that it invites arbitrary enforcement.

    Well, except in the cases where both parties are equally drunk and the female is on top for part of the liason.  In that case, the male is prosecuted instead of the female for arbitrary reasons.  And, if both parties are seen flirting prior to the liason and the male accused is married, well, then he is also arbitrarily charged with adultery, which by the way makes the military much better than civilians in prosecuting sexual assault because when it is a weak case that should have never been brought to trial, the accused can still be held accountable for the crime he did not commit with a conviction for adultery.

  2. Shawn says:

    When I was a private in the USMC (1966) they taught us, in no uncertain terms, that it is always wrong to have sex with a female civilian under the age of 18, and never to do that despite the many opportunities back then.
    Today I would expect the DI to teach that is always wrong to have sex with anyone except your spouse.  The slippery slopes of “impairment” and capacity to “consent” are what makes this so.  That said, when was the last time an impaired victim, incapable of consent, happened to be male?

  3. Peter E. Brownback III says:

      I tried at least one case of forcible oral sodomy in the 90-91 in Germany. Male on male. D and V go to a fest, stumble back to the barracks completely foxtrot-uniform. D gets up to use the latrine, sees that V is erect, decides to see what it tastes like. Tastes, shocked at himself, confesses to V in the morning, gets the crap knocked out of him by V and others. GCM.

  4. k fischer says:

    I’ve prosecuted and defended an alcohol impairment case with a male victim, but only when the male was the accused.  I’ve never seen a female accused and male victim.  Not to say that it isn’t coming.  Some barracks lawyer is going to figure out that maybe you wouldn’t have to pay child support when you were too drunk to consent and allege rape 9 months later.   Or maybe a guy might have to explain to his wife why he just contracted a scorching case of herpes after 10 years of marriage and she is herpes free.

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

    You know this case isn’t going to turn out well for the accused when you read words like:  “recruiter,” “high school student,” “Facebook message,” “poolee,” “$200 in a weekend,” “selling wrestling equipment,” “hotel room,” “Jägermeister,” “Red Bull,” “drinking game,” “9 small cups,” “3 larger penalty cups,” “medical grade marijuana,” “never combined alcohol and marijuana before,” “going under anesthetic,” “plopped onto the couch,” “trying to stay awake,” “tunnel vision,” “unable to push him off,” “cursing at him,” “just let me finish,” “boyfriend,” “future of relationship,” “contemplating engagement,” “boot camp departure date,” “moment of truth,” “waiver for marijuana use denied,” “discharged from DEP,” “sexually molested as a child.” 

  6. k fischer says:

    Kind of scary those facts are, hmmm?  And I never grasped the appellants theory at trial.  Was she blacked out and he had a reasonable mistake of fact defense, or was she dreaming and had a flashback and he didn’t do anything?  

  7. Capt says:

    I defended a drunk sex case in which male and female made cross-accusations.  Both parties received an military defense counsel and special victim counsel.  After discussing the potential risks, everyone agreed that the risk of mutually assured destruction wasn’t worth going forward and there were non-pros letters all around. 

  8. DCGoneGalt says:

    Capt:  Prefer immediately against both of them and take them to a joint trial.