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.

6 Responses to “The NMCCA clarifies the definition of impairment applicable to sexual assault prosecutions”

  1. The Wet Bandit says:

    Judge “Rugh” not “Ruge”

  2. Confused says:

    I’m confused though.  I get the other problems (TC’s closing, voir dire, etc.) and concur with the result, but the MJ didn’t say if she’s impaired to convict.  His instructions said that the “victim” had to be incapable of consenting due to her impairment and then he defined what impairment means.
    So, weren’t the members instructed that impairment isn’t the final question:
    -First, was she impaired?  Yes
    -Second, did it render her incapable of consenting?  Yes/No/Maybe.
    What am I missing?

  3. Zachary D Spilman says:

    Thank you The Wet Bandit. Spelling corrected and my apologies to Judge Rugh. 

  4. Philip Cave says:

    Just had a judge decline to follow Newlan recommended definition, because the judge felt it lowered the burden on the prosecution.  The judge added “significantly,” to the definition.
    And it would appear some locations are still training to the “any alcohol” means “no” standard.

  5. k fischer says:

    The judge used the impairment instruction for an Article 111 violation.  The issue is that under that instruction, any amount of alcohol consumed would impair one from exercising their “full” mental or physical capacity to consent.  This erroneous use of the instruction defining “impairment” under Article 111 was capitalized on during the TC’s closing argument:

    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.

    What I found particularly interesting is the DC argument regarding impairment for driving and impairment for sex:
    “In defining impairment, it’s complete[d] when driving a vehicle. People drink alcohol and they have sex. It’s something that happens. People do not drink alcohol to drive a vehicle.”
    I know plenty of people who go out drinking “so they can have sex” in an apparent attempt to live out the Lita Ford song “Kiss me Deadly.”  This DC was exercising excellent common sense and the knowledge of the way things work in the world.
    It appears that the new normal in the military is that Women completely lose any agency they have when drinking and must be cared for like children for they lack accountability of their actions, and whoever accepts their invitation for physical activity should be required to register as a sex offender for life. 
    And, I am concerned whether panel members nowadays might be unable to follow the MJ’s instructions to apply common sense with how things work in the world to the evidence they heard in a sexual assault case if they believe that one drink will make a person unable to consent to sexual acts. 
    Although, it sounds like the panel got it right in Newlan notwithstanding the instruction since LCpl H seemed to be pretty drunk.  I wonder how drunk Newlan was?  Oh yeah.  That’s right.  His intoxication is completely irrelevant for findings. 
    This is another case where had the Government lost a perfectly good case on appeal.  Had the TC insisted that the MJ did not use the impairment instruction for Article 111, then I would bet that Newlan still would have been convicted. 

  6. Concerned Defender says:

    Decades of legal and human experience has produced so many unpalatable results in these nonsense and often entirely unfair cases.  As KF pointed out, we treat grown adult women and Service Members like little children when the take a whiff of alcohol – that should be offensive to any woman and especially feminists as being treated as a second class person.
    Women are empowered in every arena in life to work, make decisions, serve now in infantry units, Rangers, etc.  Yet, if they see a beer on the counter, they become uncontrollable and irresponsible for anything that happens afterwards and should be shielded from any of their decisions before, during, and after drinking.  Total absolute offensive nonsense.
    Aside from that, treating a drunk man and a drunk woman differently is a stark clear bright line violation of Equal Protections.  So, here are the new proposed test.
    Remove the names/sexes from the fact pattern (or reverse them).  If you would charge the perp if it was a woman and not a man, then you have a case.  
    Second test, if both are drunk then you are required to charge both for assault, or charge neither.  Analogy.  Two drunk drivers collide and are injured.  You charge them both with drunk driving.  Or, if they are not legally drunk, charge neither.  But you can’t charge one and not the other, and especially not contingent on X and Y chromosomes. 
    Now, of course, this is not a “one size fits all” test(s), but should be implemented when feasible, strictly in “too impaired to consent” cases.  The ones where it’s entirely the “regret” type cases we all see so frequently.  Treat women with some respect that they understand that men like to have sex, and when they go out flirting, drinking, and going home with a man, it might lead to sex and if they are drunk their inhibitions or resistance might be impacted.  Women really need to be held to account for their own contributory actions in these cases.  Far more fair than ruining a man’s life with such allegations or conviction where the woman had a hand in the events.  This isn’t “blaming” the “victim” because there is no “victim.”
    Of course if there is evidence of force, violence, manipulation, or other factors it’s different.