CAAF decided the Navy case of United States v. Sager, 76 M.J. 158, No. 16-0418/NA (CAAFlog case page) (link to slip op.), on  Tuesday, March 21, 2017. Reviewing the text of Article 120(b)(2), as incorporated by Article 120(d), CAAF concludes that the language “asleep, unconscious, or otherwise unaware” creates three separate theories under which an accused may be convicted. The court reverses the decision of the Navy-Marine Corps CCA that found that the language creates only a single theory of criminal liability, and remands the case for further consideration.

Chief Judge Erdmann writes for the court, joined by all but Judge Stucky who dissents.

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. The members acquitted Sager outright of the specification implicating intoxication, but returned findings by exceptions to the specification implicating unawareness:

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.). From this conclusion the NMCCA then found that evidence of the roommate’s degree of intoxication or unconsciousness was relevant, and it affirmed the conviction. CAAF then granted review of two issues questioning both the meaning of the statute and the adequacy of the CCA’s review of the evidence:

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?

In today’s opinion Chief Judge Erdmann and the majority answer the second issue in the affirmative, finding that the CCA erred in its statutory interpretation, but decline to answer the first issue, remanding it to the CCA for further review. Judge Stucky, however, would affirm the conviction.

Sager’s conviction is of Article 120(d), 10 U.S.C. 920(d), which states:

(d)Abusive Sexual Contact.—
Any person subject to this chapter who commits or causes sexual contact upon or by another person, if to do so would violate subsection (b) (sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct.

The statutory language at issue, however, comes from Article 120(b)(2), 10 U.S.C. 920(b)(2), which states:

(b)Sexual Assault.—Any person subject to this chapter who—
. . .
(2) commits a sexual act upon another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring; . . .
. . .
is guilty of sexual assault and shall be punished as a court-martial may direct.

Statutory interpretation begins with the plain meaning of the text of the statute, and Chief Judge Erdmann needs look no further than the plain language in this case:

In reviewing the language in question, we note that the words, “asleep, unconscious, or otherwise unaware,” are separated by the disjunctive, “or.” “In ordinary use the word ‘or’ … marks an alternative which generally corresponds to the word ‘either.’” Earl T. Crawford, The Construction of Statutes § 188 (1940); see also Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise; here it does not.”). Under the “ordinary meaning” canon of construction, therefore, “asleep,” “unconscious,” or “otherwise unaware” as set forth in Article 120(b)(2) reflect separate theories of liability. Sager, 2015 CCA LEXIS 571, at *9, 2015 WL 9487926, at *3.

In addition, the phrase “otherwise unaware” is important to the context of the offense. Webster’s Third New International Dictionary Unabridged 1598 (2002), defines “[o]therwise” as, “in a different way or manner.” Under a plain reading of this language, therefore, the words “otherwise unaware” mean unaware in a manner different from asleep and different from unconsciousness.

Finally, to accept the view that the words “asleep, unconscious, or otherwise unaware,” create only one theory of criminality would be to find that the words “asleep,” “unconscious,” and “or” are mere surplusage. This we are unwilling to do. See Yates v. United States, 135 S. Ct. 1074, 1085 (2015) (“[T]he canon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme.”) (internal quotation marks omitted) (citation omitted). We therefore hold that the CCA erred in its interpretation of Article 120(d) when it “conclude[d] that asleep or unconscious are examples of how an individual may be ‘otherwise unaware’ and are not alternate theories of criminal liability.” Sager, 2015 CCA LEXIS 571, at *9, 2015 WL 9487926, at *3.

Slip op. at 6-7 (emphasis added).

Having found that the CCA erred in its statutory interpretation, the majority remands the case for a new legal and factual sufficiency review by the CCA. But Chief Judge Erdmann also advises the CCA to consider Green v. United States, 355 U.S. 184, 185 (1957), which involved alternative charges of first and second degree murder leading to a conviction of second degree murder but no clear verdict on the first degree charge. The Supreme Court found that to be an acquittal on the first degree charge for double jeopardy purposes. The Chief Judge does not explain exactly how Green might apply, but I suspect the majority is concerned about the two alternative theories – that the alleged victim was asleep or unconscious – that the members neither accepted nor explicitly rejected in their findings.

Judge Stucky’s dissent begins with a statement that he “agree[s] with the majority’s conclusion that ‘otherwise’ means ‘in a different way or manner,’ and thus that the United States Navy-Marine Corps Court of Criminal Appeals misstated the law in saying that ‘asleep or unconscious are examples of how an individual may be otherwise unaware.'” Diss. op. at 1. But his dissent also seems to suggest that the three theories are all really part of one bigger theory of criminal liability under the statute. Specifically a footnote explains that:

Faced with broad testimony and three reasons [asleep, unconscious, and otherwise unaware -zds], an astute panel might have selected “otherwise unaware” not as a rejection of the theory that the victim was “asleep” or “unconscious,” but rather because “otherwise unaware” is the language that establishes the boundaries of the element as a whole: “unaware” for any reason whatsoever.

Diss. op. at 2 n.1 (emphasis added). Furthermore, analyzing the disjunctive language of the specification in this case, Judge Stucky presents the three theories as mere questions of fact:

Contrary to the military judge’s instructions and the worksheet, we have long held that “military criminal practice requires neither unanimous panel members, nor panel agreement on one theory of liability, as long as two-thirds of the panel members agree that the government has proven all the elements of the offense.” United States v. Brown, 65 M.J. 356, 359 (C.A.A.F. 2007) (citing United States v. Vidal, 23 M.J. 319, 325 (C.M.A. 1987)). In my opinion, the court members did not have to decide between the two theoriesries set out above. Two-thirds of the members just had to agree that he knew or reasonably should have known.

Similarly, in my opinion, the court members did not have to select one of the three statutory reasons a victim could be unaware of the sexual contact. As amply shown by the facts in this case, the evidence of which reason caused the victim to be unaware will often overlap.

The victim testified that he drank excessively, “passed out,” and awoke to Appellant manually stimulating him, before Appellant then performed fellatio as the victim was too intoxicated to respond. For the specification alleging manual stimulation that we remand today, the panel was thus presented with evidence of sleep and unconsciousness, both due to intoxication. Was he just intoxicated, asleep, unconscious, or a combination thereof? The important thing is that the members did not have to agree on the reason. The required two-thirds just had to agree that the victim was unaware of the sexual contact. So even under a correct view of the statute, the CCA could consider any evidence bearing on whether the victim was “unaware,” and need not artificially excise from its review the evidence tending to show that the victim was asleep or unconscious.

Diss. op. at 1-2 (emphases added).

Brown involved a conviction of indecent assault (as a lesser included offense of rape) by penetration, the penetration having been accomplished by either fingers, a sex organ, or both. The element in Brown was penetration, and CAAF held that it was not error to instruct the members disjunctively (and without objection by the defense) on different means by which that penetration could be proven. The court reached a similar conclusion in United States v. Vidal, 23 M.J. 319 (C.M.A. 1987), where it held that the findings need not differentiate between whether the accused was either the perpetrator or an aider and abettor:

If one-third of the members are satisfied that the accused personally fired the shot and another third find that he aided someone else in doing so, he can properly be convicted of murder, because two-thirds of the court members are convinced beyond a reasonable doubt that the accused, on one theory or another, committed murder at the particular time and place. Likewise, if several persons are acting to overcome a woman’s resistance to sexual intercourse, but only one of them actually has such intercourse, the Government can still convict an accused, even though it cannot prove beyond a reasonable doubt whether he personally had intercourse or only helped someone else have intercourse with the unwilling victim.

23 M.J. at 324.

I think the circumstances of Sager are very different from those of Brown and Vidal because Sager involves three distinct, statutorily-enumerated conditions. It strikes me as particularly significant that the conditions of being asleep, unconscious, or otherwise unaware are part of the offense, and not merely part of the definition of general unawareness or of non-consent.

Moreover, because those conditions were presented to the members disjunctively, and because the members returned a conviction based on only one of those conditions, I believe that the appellant was acquitted of the other two conditions (implicating Green, as discussed above). Judge Stucky, however, sees the reference to Green as involving the other specification (involving intoxication) of which Sager was acquitted outright, and he concludes that:

[A]cquittal of one charge carries no logical implications for the other. To the extent that evidence of the victim’s intoxication is relevant to both charges, a panel and a reviewing court could permissibly consider that evidence in reviewing Appellant’s conviction. That is the import of this Court’s reasoning in United States v. Gutierrez, 73 M.J. 172, 176 (C.A.A.F. 2014) [CAAFlog case page], as well as in United States v. Rosario, 76 M.J. 114 (C.A.A.F. 2017) [(CAAFlog case page)]. Those cases, rather than Green, ought to inform the CCA’s review on remand.

Diss op. at 3.

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
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

13 Responses to “Opinion Analysis: Asleep and unconscious are different from being otherwise unaware, in United States v. Sager, No. 16-0418/NA”

  1. Lone Bear says:

    So how can a person who is awake and conscious be unaware? Please be creative. 

  2. Tami a/k/a Princess Leia says:

    Someone in a vegetative state can be awake, conscious, but unaware of their surroundings.  But your average young adult who gets drunk who is awake and conscious?  I think expert testimony would be necessary on whether someone in that state could be “unaware.”  Which then leads to a battle of the experts.  Which then leads to a successful defense argument of “two experts can’t figure it out, so how can you expect a young adult to be able to figure it out?”

  3. Concerned Defender says:

    I routinely advocate for the accused in these situations; having said that and going based solely on the record I find the mental gymnastics really odd.  I’ve seen innocent men convicted and denied relief without any reasoning whatsoever.  And then there’s this very puzzling result.  I’d say it’s the right result but a bizarre way of reaching it.  In a situation where there’s mutual intoxication and wildly different and incompatible versions of events, I think it’s unconscionable to prosecute and convict one and label the other victim absent some other compelling information – which this case lacks. 
    The problem is that the Courts are all over the place and offering ZERO consistency with the law and facts.  I have to wonder if it’s because the victim was a male.  Had the victim been a female, I would be shocked if this was a reversal; but it should be if we are consistent.  Which then means I’ve got a handful of drunk sex cases that are identical to this that need revisiting.
    This case may illustrate the need for a defense is sex crimes of drunkenness.  Whether the change from General to Specific Intent perhaps is necessary – but it seems to me that if two drunk people have sex/acts, it’s impossible to fairly decide victim status, and perhaps it’s either determined based on the race to the court-house, or the sex of the individuals with the female universally the victim.  Stated otherwise, in this case, if the accused claimed he was sodomized by TK, that would indeed be supported by the evidence as well.  These cases are a mess of injustice and I’m of the overall opinion if two drunk people have sex and it’s just a big regret show in all directions, then they should either both or neither be charged and just chalk it up to a hard life lesson. 
    I initially want to side with the dissent in this case but then I also disagree.  A panel need not determine to a medical certainty WHY or HOW the victim was unaware (was he concussed, intoxicated, a deep sleeper, narcoleptic, hypnotized, under a spell, drugged, daydreaming, stunned, etc.) – the point is that he was for whatever reason not aware and not consenting when he became aware.  Problem is I see we have two victims here, maybe.  Unaware needn’t mean that you are completely oblivious – perhaps just so unable to respond because of inability (mental of physical).  Problem in this case, is that the accused has an entirely different version of events indicating a level of mutual consent, until HE blacked out too.  And we’re having 20 year old people make fine-point legal decisions that sober 50 year old lawyers cannot agree on.  So sending a Sailor or Soldier to prison on this stuff is equally unconscionable. 
    Now, perhaps the Court chose to simply believe the appellant’s version versus the victim, and if so, fine, but I’m not sure they can review/overturn based on factual insufficiency.  Doing this dance perhaps is for justice sake, but is an end around that just creates more confusion.
    The Court seized upon Vagueness, but there’s nothing really vague about the plain language.  The evidence in the case record indicates an imprecise but overarching allegation that he was unconscious when the sex act began, and was in a state of confusion and lacking awareness due to impairment.

    (1) his charges were referred to a different court-martial than the one that adjudicated his case; (2) the CA systematically excluded E-5 personnel as potential members;2 (3) the convictions are factually and legally insufficient; (4) the military judge abused his discretion by giving a curative instruction vice declaring a mistrial after he excluded the entire testimony of a Government witness heard by the members; (5) the Additional Charge was unconstitutionally vague, as applied in the appellant’s case; and (6) the staff judge advocate (SJA) failed to comply with RULE FOR COURTS-MARTIAL 1106, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) when making his recommendation to the CA.

    Other relevant portions of the record:

    In a statement to the Naval Criminal Investigative Service (NCIS), the appellant described AN TK’s level of intoxication as “plastered.” But he later testified that AN TK was stumbling and slurring his words “a little bit” while walking to the apartment.  Once inside the apartment, AN TK vomited into a bucket the appellant provided him….
    The accounts of AN TK and the appellant diverge at this point. According to AN TK’s testimony, after vomiting he “passed out” on a futon in the living room and then awoke to the appellant manually stimulating his (AN TK’s) penis. His penis was erect after about 5-10 minutes of manual stimulation, and the appellant then performed oral sex on him until he ejaculated. He did not open his eyes during this encounter, but maintained that he knew it was the appellant because “[the appellant] was the only other one in the room.” In describing why he did not respond during the sexual encounter, AN TK stated he was frustrated, confused, and “wasn’t really sure what was going on.”13 He described himself as “too intoxicated,” and that he was unable to move, talk, or think of a way out of the encounter.14 When the encounter was over, AN TK fell back asleep.
    In his testimony, the appellant provided a different account of the incident. He stated that after AN TK vomited, he and AN TK laid down on the futon together and discussed AN TK’s problems with his girlfriend and the difficulty the appellant, a homosexual, had in a previous relationship with a heterosexual male. The appellant described this conversation as “intimate” and stated that at one point AN TK began crying, then rested his head on the appellant’s chest. He interpreted the conversation and AN TK’s actions as an invitation for sexual contact and put his hand on AN TK’s stomach to “test the waters.” When AN TK did not resist, the appellant moved his hand to AN TK’s pants, pulled his penis out of his underwear, and began to manually stimulate it. After a short time AN TK’s penis became erect and the appellant performed oral sex until AN TK ejaculated….
    Eventually, however, the appellant acknowledged the encounter, writing: “It was me it had to be I’m not lying when I say I really don’t remember doing that to you . . .

  4. stewie says:

    I agree it’s in the disjunctive, that is it’s asleep OR unconscious OR otherwise unaware…meaning some other state that is not asleep or unconscious but is unaware to a similar level (e.g. vegetative state, shell shock, seizure or some other state where the alleged victim is not sleeping and is not technically unconscious but isn’t fully conscious or aware enough to give consent).
    Having said that, I do think these are all closely related…they all deal with being unaware and being unable to legally give consent. That’s probably the problem here.

  5. Tami a/k/a Princess Leia says:

    To claim that AN TK was “unaware” of what was going on is baloney!  If you can estimate how long your penis is erect (5-10 minutes), and you can describe what is being done to you (stroking you off), and you have a good idea of who is doing it (appellant because he’s the only other person in the room) then you ARE “aware” of what was going on.  Make an effort to corroborate appellant’s version of what happened–did AN TK have problems with his girlfriend?  Yes?  Great, how would appellant know that if AN TK didn’t tell him?  The fact that they carried on an “intimate,” sensible conversation prior to sexual activity, but AN TK doesn’t remember it, tells me he was blacked out, not passed out, he wasn’t sleeping, and he wasn’t “incapacitated.”  By AN TK’s own admission, he was aware of what was being done to him.  The effects of alcohol were going down, not up.  It doesn’t take much effort at that point to simply say “no” or “stop.”  If it was truly impossible to simply say “no” or “stop” then I think that requires expert testimony.  Sounds like maybe AN TK’s confusion is about his own sexuality.  Maybe he liked what happened but doesn’t want to acknowledge he might be gay or bi.  And there’s nothing wrong with being confused about sexuality, until it leads to a false accusation of sexual assault.  It sounds like there was also a push for “affirmative consent is required to initiate or elevate.”
    This conviction should be reversed.

  6. Zachary D Spilman says:

    The obvious answer, Lone Bear, is hypnosis. 

    Other factors (such as intoxication, hallucination, seizure, etc.) implicate other subsections of the statute.

    Anyone who has a problem with this statute needs to take it up with Congress, which is presumed to have written it deliberately and intelligently.

    Anyone who has a problem with the form of the findings in this case needs to take it up with the trial counsel that went forward with a specification charged in the disjunctive; something I’ve repeatedly explained is wrong.

  7. Vulture says:

    They say that bad facts make for bad law.  Having an account from two drunk people fits that nicely.  Agree with CD.

  8. DCGoneGalt says:

    So how can a person who is awake and conscious be unaware? Please be creative. 

    Lone Bear:  Watch C-Span and listen to a live session of Congress. 

  9. k fischer says:

    I think that if you awake to someone touching your penis them allow them to fellate you to ejaculation, then report it as a crime, then the Accused should be permitted the defense of ratification.  And if this wasn’t man on man, but rather female on man, the male accused  would be laughed out of the CID office , as he very well should be.  Some Females , however, being a member of the frail and weaker sex, are understandably unable to voice their objection out of fear or the freeze.  So, we have to protect them with convictions.

  10. k fischer says:

    ***Correction (I need to stop posting from my Droid)
    I think that if a man awakens to someone touching his penis, subsequently continues to allow the toucher to fellate him for 5-10 minutes until he ejaculates, and reports it as a crime, then the Accused should be permitted the defense of ratification.  And if this wasn’t man on man, but rather female on man, the male accuser would be laughed out of the CID office , as he very well should be.  This appears to be a case brought to convict a homosexual, plain and simple, for engaging in homosexual acts.  
    However, a man doing this to a female should be convicted, and no ratification defense should apply.  Some females, being a member of the frail and weaker sex, speak for all females and, therefore, all are considered unable to voice their objection out of fear, because they freeze, or because they had a couple of drinks.  So, the patriarchy has a duty to protect females by convicting the male perpetrators who fail to obtain an enthusiastic and affirmative consent before engaging in intercourse with females, who everyone knows cannot hold their liquor or make competent decisions when drinking, and are unable to consent, even when the consent appears to be enthusiastic and affirmative.
    Italics=sarcasm font

  11. Tami a/k/a Princess Leia says:

    How can anyone even say AN TK “woke up,” as opposed to he was awake (and therefore conscious) the entire time, but his memory only kicked in during the hand job?

  12. k fischer says:

    Princess, I don’t understand your point. Please rephrase so a half-witted, scruffy-looking nerf herder could understand.
    I think AN TK said that he woke up while the appellant was manually stimulating him.   Ahhhh, but the panel rejected that testimony by convicting for being otherwise unaware, but not asleep.  So, you are questioning how he could have not been asleep, but otherwise awake but unaware, yet not remember the beginning of the handjob?  Because that does sound pretty impossible. 
    What does sound possible is that the appellant had a convo with TK about his girlfriend.  Made his move by putting his hand on TK’s stomach, then moving downwards until he heard the bass kick in, Boumf! with a side of chick-a-wah-wah.  So, really it sounds like the panel didn’t believe TK’s version, but they really wanted this homosexual out of their Marine Corps.
    Plus this TK kid had drunk to the point of vomiting and he ejaculated?  You know there was a lot of straight legged muscle flexing going on to maintain his erection after drinking so much, so he could ejaculate in five to ten minutes.  Am I right, guys?  He was hardly doing a good job acting like he was asleep.  Sounds to me like the NMCCA should have had issues with the factual sufficiency considering the panel didn’t convict for being asleep or unconscious.  Sounds like what the appellant said was probably what happened, and TK didn’t want to be gay.

  13. Tami a/k/a Princess Leia says:

    k fischer, my point, as you accurately point out, the panel did not believe AN TK “fell asleep.”  You can’t “wake up” if you don’t fall asleep or pass out.  And if you are awake and interacting with someone, as AN TK was, then you are “aware,” even if you don’t remember being “aware.”  It’s impossible, unless in a vegetative state, to be awake and unaware.  I believe that he simply “blacked out,” and as is the case with heavy drinking, he had a “fragmentary black out,” where he will only remember bits and pieces of an event. 
    It appears AN TK used “buzz words” to “pigeon-hole” the non-criminal sexual activity into criminal sexual activity.  He was disturbed at being confused about responding sexually to another dude.  And with all the “training” people get nowadays, I’m sure someone told him that was a sexual assault.  Very common for them to “train” if you don’t remember, then you were sexually assaulted.  And someone is probably teaching “not remembering” = “unaware” = “sexual assault.”