CAAF will hear oral argument in the Navy case of United States v. Sager, No. 16-0418/NA (CAAFlog case page), on  Tuesday, November 15, 2016, after the oral argument in Bartee. The case presents two issues involving statutory interpretation of Article 120(b)(2), which criminalizes sexual activity with a person who is asleep, unconscious, or otherwise unaware when the accused knew or reasonably should have known that the other person was in such a condition:

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?

Aviation Ordnanceman Airman (E-3) Sager was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of abusive sexual contact in violation of Article 120(d) (2012). That statute criminalizes sexual contact in the same way that Article 120(b) criminalizes sexual acts. The Government charged Sager with two specifications, both related to a sexual encounter between Sager and his roommate. One specification alleged that the roommate was incapable of consenting due to intoxication, while the other alleged that the roommate was asleep, unconscious, or otherwise unaware (an erroneous disjunctive pleading). The members acquitted Sager outright of the specification implicating intoxication, but returned findings by exceptions to the specification implicating awareness:

sager

Gov’t Br. at 10.

On appeal, Sager asserted that the specification was unconstitutionally vague because it failed to identify how the roommate was otherwise unaware, and also that the finding is factually and legally insufficient because the evidence indicated that the roommate was either asleep or unconscious. Sager’s argument was essentially that the statute’s enumeration of asleep, unconscious, or otherwise unaware creates three separate and distinct theories of criminal liability. The NMCCA, however, rejected this argument, concluding that:

asleep or unconscious are examples of how an individual may be “otherwise unaware” and are not alternate theories of criminal liability.

United States v. Sager, No. 201400356, slip op. at 7 (N-M. Ct. Crim. App. Dec. 29, 2015) (link to slip op.). Having reached this conclusion, the NMCCA then found that evidence of the roommate’s degree of intoxication or unconsciousness was relevant to Sager’s knowledge, and it affirmed the conviction.

CAAF then granted review to determine both the meaning of the statute and the adequacy of the CCA’s review of the evidence.

Sager’s argument about the meaning of the statute is relatively simple:

In this statute, the phrase “otherwise unaware” has a straightforward, ordinary meaning. “Otherwise,” when used as an adjective, means “not the same,” or “in a different state or situation.” Additionally, the use of the term “or” before the phrase is important. “Or” is a disjunctive, which creates alternatives; as opposed to the conjunctive “and,” which combines items. Therefore, “otherwise” plainly serves as a catchall for instances of unawareness different from sleep or unconsciousness.

App. Br. at 16 (footnotes omitted). Put differently, Sager argues that subsuming asleep and unconscious into otherwise unaware renders the terms mere surplusage; an outcome that statutory interpretation usually tries to avoid.

The Government’s response, however, shifts the focus to Sager’s lack of objection:

Congress has not defined the terms “asleep,” “unconscious,” or “unaware” in Article 120, UCMJ. 10 U.S.C. § 920. But by their ordinary meanings, each of these words’ definitions overlap such that Appellant rightly did not object to duplicitous charging, and general verdicts remain possible.

Gov’t Br. at 18. The Government also asserts that it need not explain how a victim is unaware in order to win a conviction:

Consistent with Pease, the lower court held that a plain reading of Article 120(b)(2) reveals that the statute’s purpose is to prohibit commission of a sexual act upon a victim who does not know that the act is happening. Sager, 2015 CCA LEXIS 571 at *9. The statute does not require Members to identify the theory of unawareness—proof of the victim’s ignorance is subject to a general verdict in the same way as the “genitals or pubic area,” Piolunek, 74 M.J. at 111-12, the varied means of indecent assault, Brown, 65 M.J. at 359, and numerous other examples under the Code.

Gov’t Br. at 19-20. It’s unclear, however, how members could find that an accused knew or should have known of a victim’s unawareness without actually identifying the reason the victim was actually unaware.

It’s tempting to blame the circumstances of this case on Congress for its drafting of a statute that many find confusing, but I think the blame more properly belongs on the prosecutorial decision to charge Sager with a sexual offense without first developing a clear legal theory of the case. Considering that the statute requires proof of an accused’s actual knowledge or unreasonable mistake, it’s entirely reasonable to expect that any conviction would require solid evidence of a specified condition.

Case Links:
NMCCA opinion
Blog post: CAAF to review the alternative ways to sexually assault someone who is unaware
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

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