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.