A reader gave us a heads up about State v. Causbie, 241 Ariz. 173, 384 P.3d 1253 (Ariz. Ct. App. Dec. 5, 2016) (link to slip op.), which involves a vagueness challenge to the Arizona definition of without consent for a sexual offense. The Arizona definition includes when:

(b) The victim is incapable of consent by reason of mental disorder, mental defect, drugs, alcohol, sleep or any other similar impairment of cognition and such condition is known or should have reasonably been known to the defendant. For the purposes of this subdivision, “mental defect” means the victim is unable to comprehend the distinctively sexual nature of the conduct or is incapable of understanding or exercising the right to refuse to engage in the conduct with another.

A.R.S. § 13-1401(A)(7)(b). Causbie was convicted of sexual assault in violation of A.R.S. § 13-1406, which criminalizes sexual intercourse without consent, and the absence of consent was alleged to have been due to intoxication by alcohol. On appeal he asserted that the term consent is unconstitutionally vague and further that the term incapable of consent by reason of . . . alcohol is also unconstitutionally vague.

Rejecting these arguments, the Arizona Court of Appeals gives significant and favorable consideration to the Navy-Marine Corps CCA’s decision in United States v. Solis, 75 M.J. 759 (N.M. Ct. Crim. App. Aug. 11, 2016) (discussed here).

Writing for a three-judge panel in Solis, Judge Fulton emphasized the relatively-limited reach of Article 120(b)(3)(A), which criminalizes sexual activity with a person who is incapable of consenting due to impairment by an intoxicant:

[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.

Solis, slip op. at 5. The Arizona Court of Appeals finds Solis to be very persuasive:

The [NMCCA] rejected the defendant’s reading of the statute as myopic, focusing too much on the word “impairment” and not enough on the more central issue of incapacity to consent. Id. The court held the statute provides fair notice to a person of ordinary intelligence that it proscribes sexual conduct with a person who lacks the ability to consent. Id.; see also McLamb, 188 Ariz. at 5, 932 P.2d at 270 (fact that line-drawing may be difficult does not mean statute is unconstitutionally vague).

The Solis court further held § 920(b)(3) was not so standardless as to invite arbitrary enforcement. Solis, 75 M.J. at 763-64. It underscored that the statute “does not require a person to arbitrarily determine how impaired another person must be before they are too impaired,” but rather to “determine if a sexual partner is capable of consenting.” Id. at 764. Coupled with the requirement that the defendant knew or should have known of the victim’s incapacity to consent, which further narrows the statute’s scope and guides prosecutors and juries, the statute provides constitutionally definite enforcement standards, the court ruled. Id.

Like the statute at issue in Solis, §§ 13-1401(A)(7)(b) and 13-1406(A) provide sufficiently clear notice to a person of ordinary intelligence of what conduct is prohibited, namely, sexual intercourse with a person the defendant knows or reasonably should know is impaired by alcohol beyond the point of legal capacity to consent. See Solis, 75 M.J. at 763-64; cf. Glover v. State, 760 N.E.2d 1120, 1123-24 (Ind. Ct. App. 2002) (person of ordinary intelligence would understand that statute outlawing sexual intercourse with victim who is “unaware” proscribes sex with victim who is unconscious due to inebriation); State v. Blount, 770 P.2d 852, 855-56 (Kan. Ct. App. 1989) (person of common intelligence can readily understand what constitutes lack of consent due to fear of violence). In addition, § 13-1401(A)(7)(b) turns not on a certain threshold level of alcohol consumption or intoxication, but rather on the victim’s legal capacity to consent. See Solis, 75 M.J. at 764. It therefore does not invite arbitrary enforcement against intoxicated persons engaging in consensual sex. See id.

Causbie, slip op. at 13.

The Arizona court’s discussion of legal capacity to consent highlights a significant difference between Causbie and Solis (and between the Arizona criminal code and the UCMJ). The Arizona code does not specifically define consent while the UCMJ definition of consent begins:

The term “consent” means a freely given agreement to the conduct at issue by a competent person.

Article 120(g)(8) (2012) (emphasis added). The UCMJ language created the possibility that an alleged victim was capable of consenting (or the accused mistakenly believed so) but was not competent to consent as a matter of law (eliminating any mistake of fact defense). Military prosecutors exploited this possibility until the NMCCA functionally merged the two statutory terms in its decision in United States v. Pease, 74 M.J. 763 (N.M. Ct. Crim. App. 2015), aff’d, 75 M.J. 180 (C.A.A.F. 2016) (CAAFlog case page).

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