Articles 120(b)(3)(A) and 120(d) prohibit sexual activity with a person who is incapable of consenting due to impairment by any drug, intoxicant, or other similar substance.
In recent decision in United States v. Newlan, No. 201400409 (N.M. Ct. Crim. App. Sep. 13, 2016) (link to slip op.), a three-judge panel of the NMCCA finds that a military judge erred when he defined impairment under Article 120 as:
“Impaired” means any intoxication which is sufficient to impair the rational and full exercise of the mental or physical faculties.
Slip op. at 8 (quoting instructions). This definition was drawn from language in the Manual for Courts-Martial that defines impairment under Article 111 (drunken or reckless operation of vehicle, aircraft, or vessel). See MCM, Part IV, ¶ 35.c.(6).
Writing for the panel, Judge Rugh explains that:
Article 120(b)(3)(A), UCMJ, does not prohibit engaging in sexual acts with a person who is drunk or impaired by alcohol. Put more plainly, mere impairment is no more the standard under Article 120(b)(3)(A), UCMJ, than the SAPR-perpetuated “one drink and you can’t consent” axiom is the standard. And litigants and military judges who fixate solely on the term “impairment” do so at their peril.
Instead, the statute establishes a required level of impairment. In other words, sexual acts are prohibited only when the person’s impairment rises to the level of rendering him or her “incapable of consenting to the sexual act.” Art. 120(b)(3)(A), UCMJ.
Slip op. at 10 (emphasis in original). By appropriating the Article 111 definition of impaired, “the military judge’s instructions failed to provide the members with an accurate, complete, and intelligible statement of the law.” Slip op. at 12.
The opinion is the latest in a number of recent decisions that reach the blindingly-obvious conclusion that intoxicated or otherwise impaired people can legally consent, despite popular misconceptions to the contrary (see our #9 military justice story of 2015).
For example, in United States v. Solis, 75 M.J. 759, No. 201500249 (N.M. Ct. Crim. App. Aug. 11, 2016) (discussed here), the NMCCA explained that Article 120 “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.
Similarly, in United States v. Long, 73 M.J. 541 (A. Ct. Crim. App. Jan. 30, 2014) (discussed here), the Army CCA concluded that an intoxicated 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.
In Newlan, the NMCCA offers a better definition of impairment under Article 120:
In the future, when asked to provide a definition of impairment as applicable to Article 120(b), UCMJ, a military judge could instruct the members that:
“Impairment” is the state of being damaged, weakened or diminished. Impairment rendering someone “incapable of consenting” is that level of impairment which is sufficient to deprive him or her of the cognitive ability to appreciate the nature of the conduct in question or the physical or mental ability to make or to communicate a decision regarding that conduct to another person.
Slip op. at 12.
But the military judge’s failure to give an appropriate definition of impairment is only part of the problem in Newlan. Judge Rugh explains:
We also emphasize here that the definition of impairment was not nearly as important as informing the members that the impairment must rise to the level of rendering LCpl H “incapable of consenting”—meaning that she was deprived of “the cognitive ability to appreciate the sexual conduct in question or the physical or mental ability to make [or] to communicate a decision” regarding that conduct to another person. Pease, 74 M.J. at 770.
Slip op. at 11.
Moreover, the trial counsel in Newlan took advantage of the military judge’s erroneous instruction of the definition of impairment and his failure to explain that impairment must rise to the level of rendering a person incapable of consenting, aggravating the military judge’s error:
the trial counsel’s statements during closing arguments continued to equate incapacity with any level of impairment:
He [the military judge] also instructed you that ‘impaired’ means any intoxication which is sufficient to impair the rational and full exercise of the mental or physical faculties. And who’s competent? Members, a mother walking down the aisles at the commissary, choosing what groceries to take off the shelf, thinking what am I going to make for dinner tonight, competent. You gentlemen sitting here today, competent. Marines walking around, doing their jobs, day to day stuff, they’re competent. At some point though, people stop being competent. Alcohol stops someone from being competent. So, how do we know that here, in this case, [LCpl H] wasn’t competent, she couldn’t make that choice, she couldn’t give that free agreement?
Next, the trial counsel asserted that LCpl H was intoxicated when she departed the bar and, as a result, she was “someone who doesn’t have the full exercise of their rational and physical faculties, someone who can’t make that choice to have sex, someone who can’t consent.”37 Trial counsel then reiterated the fallacy that any level of alcohol impairment renders one incompetent to consent to sexual activity:
[The witness] puts us at a minimum of six [drinks], including three shots, and that’s just what she saw. At this point we are beyond the point where [LCpl H] could give that free agreement, where she was competent, had the full exercise of her rational and physical ability. She’s impaired members. She’s impaired by alcohol and she can’t consent to sex.”
Slip op. at 13 (marks in original).
Judge Rugh concludes that it was this closing argument that prejudiced the appellant’s substantial rights, requiring reversal of the sexual assault conviction:
Trial counsel’s uncorrected comments significantly increased the risk that the members, some of whom had already been exposed to identical, uncorrected SAPR training, would believe that any impairment from alcohol alone legally rendered LCpl H incapable of consenting.
Slip op. at 14.
The CCA authorizes a rehearing.