Argument Preview: Determining whether members need a definition of incapable of consenting in United States v. Bailey, No. 17-0265/CG
CAAF will hear oral argument in the Coast Guard case of United States v. Bailey, No. 17-0265/CG (CAAFlog case page), on Wednesday, October 25, 2017, at 9:30 a.m. Nineteen months after it approved the NMCCA’s definition of the statutory term incapable of consenting, CAAF will consider whether such a definition must be provided to members. The court granted review of two issues, but only the first was briefed:
I. Upon request by the defense counsel and using a defense-drafted instruction, should the military judge have provided the members with an explanation of the term “incapable.”
II. Whether the decision of the United States Coast Guard Court of Criminal Appeals is ambiguous as to whether the affirmed sentence included forfeiture of all pay and allowances.
A general court-martial composed of members with enlisted representation convicted Seaman (E-3) Bailey, contrary to his pleas of not guilty, of three specifications of sexual assault, one specification of abusive sexual contact, and one specification of assault consummated by a battery in violation of Articles 120 and 128. The panel sentenced Bailey to confinement for 18 months, total forfeitures, and a dishonorable discharge.
The charges arose out of an alcohol-fueled sexual encounter between Bailey and a 24-year-old woman. Bailey was alleged to have committed sexual acts and contacts with the women when she was incapable of consenting due to impairment by a drug, intoxicant, or other similar substance. See Article 120(b)(3)(A), 10 U.S.C. § 920(b)(3)(A). At trial, Bailey’s defense counsel asked the military judge to instruct the members that incapable of consenting means complete and total impairment, proposing the following language:
“Incapable” means a complete and total mental impairment and incapacity due to the consumption of alcohol, drugs, or similar substance; while asleep or unconscious; which rendered the alleged victim completely unable to appraise the nature of the sexual conduct at issue, completely unable to physically communicate unwillingness to engage in the sexual conduct at issue, or otherwise completely unable to communicate competent decisions.
App. Br. at 6. The prosecution opposed giving the instruction, the military judge did not give it, and Bailey was convicted.
The case was tried in 2014, before CAAF’s decision in United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016) (CAAFlog case page), in which it unanimously held that the Navy-Marine Corps CCA properly defined the statutory term incapable of consenting. The CCA’s decision – and CAAF’s affirmation – in Pease actually defined four terms: a competent person; an incompetent person; a freely given agreement; and incapable of consenting. See Pease, 75 M.J. at 184. The final term – incapable of consenting – was defined as:
lacking the cognitive ability to appreciate the sexual conduct in question or lacking the physical or mental ability to make [or] to communicate a decision about whether they agreed to the conduct.
75 M.J. at 185 (marks and citation omitted).
On appeal Bailey challenged the constitutionality of the statute on vagueness grounds, challenged the failure to give the requested instruction, and raised other assignments of error. The Coast Guard CCA rejected them all and affirmed the findings and sentence. The CCA’s rejection of the constitutional challenge referenced the NMCCA’s rejection of the same challenge in United States v. Solis, 75 M.J. 759 (N.M. Ct. Crim. App. 2016) (discussed here). Its rejection of the instructional challenge is a little more complicated.
Writing for a three-judge panel of the CCA, Chief Judge McClelland first observed that:
At oral argument, counsel conceded that the defense-requested instruction was incongruent with the definition of “incapable of consenting” approved by the Court of Appeals for the Armed Forces in Pease, and then alternatively asserted that the military judge should have given a sua sponte instruction consistent with the approved definition.
United States v. Bailey, No. 1428, slip op. at 4 (C.G. Ct. Crim. App. Jan. 4, 2017) (link to slip op.). The incongruity is based on the fact that:
By using the terms “complete and total” and “completely,” the requested instruction would have suggested a requirement for absolute incapacity, a requirement that is not rooted in the statutory text.
Id. at 4. Chief Judge McClelland then rejected the contention that any specific instruction on the meaning of incapable of consenting was required, writing:
[W]e see no basis for the notion that additional instructions were required. For the sound and persuasive reasons that a similar argument by the appellant in United States v. Lovett, 2016 WL 1762045 (Army Ct.Crim.App. 2016) (unpublished), was rejected, we are convinced that the military judge’s instructions here, taken as a whole, were sufficient, under the circumstances of this case. Pease did not change the fact that “incapable of consenting” uses ordinary words in their ordinary meaning and can be understood by a person of ordinary intelligence.
Id. at 5-6. The Army CCA’s opinion in Lovett included the conclusion that:
[T]he definitions used in Pease are those used in every-day English. Whether “incapable of consenting” should be further explained to the panel will likely depend on the degree to which the evidence puts the matter at issue, whether the panel requests additional guidance, and is ultimately within the sound discretion of the military judge.
United States v. Lovett, No. 20140580, slip op. at 7 (A. Ct. Crim. App. Apr. 29, 2016) (link to slip op.), rev. denied, 75 M.J. 433 (C.A.A.F. Aug. 18, 2016).
CAAF’s grant in Bailey seems to be a belated review of the Army CCA’s decision in Lovett.
Bailey’s brief focuses on the instruction offered at trial and the CCA’s conclusion that it contained an incorrect statement of the law, arguing that:
[T]otal incapacity or incapability is, in fact, required by the statue. One is either incapable or capable of consenting; there is no in-between. Because the prosecution bears the burden to show an alleged victim was incapable of consenting to sex, the prosecution must prove the alleged victim was without the capacity or capability to consent. To be without a certain quality is to lack it and thus to lack it totally. If that quality is possessed in any way whatsoever, one is not without that quality. Since Article 120, UCMJ, uses the word “incapable”—which means “not capable”—members must find a total deprivation of the capacity or ability to consent beyond a reasonable doubt.
App. Br. at 10 (emphases added). But the brief also argues that the term incapable of consenting requires explanation in any case:
The phrase “incapable of consenting” can be understood by a person of ordinary intelligence—when the phrase is properly explained. Without an explanation identical or substantially similar to that affirmed in Pease, it is unlikely members of ordinary intelligence would engage in the same level of deduction or examination of the “broader statutory context” that accomplished appellate judges with extra-ordinary intelligence did with the statutory definition of “consent. Members are presumed to follow instructions, not to interpret them.
App. Br. at 13.
The Coast Guard Government Appellate Division’s brief makes four primary arguments in response to this.
First, the Government Division’s brief asserts that Bailey waived the total incapacity argument because his counsel conceded the incongruity noted in the CCA’s opinion during oral argument before the CCA:
Appellant waived this argument by conceding at oral argument in this case before the CGCCA that the definition [offered at trial] was incongruent with the language approved in Pease.
Gov’t Div. Br. at 11 n.1. I can guarantee you that waiver mania is going to be on our top ten list this year because of this (and this, and this, and this, and this), but even if there is such a thing as appellate waiver it’s hard to see how it happens during an oral argument when someone merely acknowledges the obvious differences between an instruction proposed at trial and a definition written years later in a different case in a different service. Highlighting inconsistencies in your opponent’s arguments is one thing; being a tightwad is another.
Second, the Government Division’s brief argues that Bailey’s total incapacity argument is inconsistent with Pease:
Appellant’s definition of incapable expands the scope of not capable, to “totally” not capable, which goes beyond the dictionary definitions and beyond the language this Court subsequently endorsed in Pease. If “incapable” were interpreted to require total incapacity, as argued by Appellant, the distinction made by this court in Pease regarding the meaning of incapable of consent, distinguishing between “to make and to communicate” and “to make or to communicate” would have been unnecessary. See id. at 186. Total incapacity would mean an inability to make and to communicate a decision, a reading of the statute rejected by this Court. See id.
Gov’t Div. Br. at 13. This is hard to follow, so I’m going to rewrite it. The Government Division interprets Pease as differentiating between a person who is capable of making a decision and a person who is capable of communicating a decision, and it believes that being incapable of consenting means being incapable of either decisionmaking or communicating. This interpretation was one of the issues certified to CAAF in Pease, but CAAF largely sidestepped it by deciding that the CCA’s opinion included a scrivener’s (really meaning proofreading) error. 75 M.J. at 186. The Government Division’s brief resurrects the issue. But the instruction proposed by the defense in this case separately addressed decisionmaking and communicating; it required incapability that:
rendered the alleged victim . . . completely unable to appraise . . . completely unable to physically communicate . . . or otherwise completely unable to communicate. . .
App. Br. a 6 (emphasis added).
Third, the Government Division’s brief asserts that the CCA’s holding that the statute does not require total incapacity was correct. Gov’t Div. Br. at 14.
Finally, the Government Division’s brief argues that the standard instructions actually given were adequate:
Here, the Benchbook consent instruction used derives from actual statutory language. See 10 U.S.C. § 920(g)(8). Based on the consent and mistake of fact instructions alone, the Members understood the following: (1) whether [the alleged victim] was capable of consenting depended on the surrounding circumstances; (2) some evidence of consent would rightly cause doubt about whether the United States had proved each criminal element; and (3) if Appellant, even in error, reasonably believed the circumstances showed consent, he is entitled to a defense of mistake. The burden of proof beyond a reasonable doubt, combined with the instructions, provide the necessary understanding of how intoxicated someone needs to be to be incapable of consenting. Thus, in addition to the word’s plain and ordinary meaning, the matter of “incapable” was substantially provided through the instructions already given.
Gov’t Div. Br. at 15.
Bailey’s reply brief focuses on what it takes to be incapable of something:
To be incapable to consent means to not have the ability to consent. As such, there can be no gradation to consider. Capability, on the other hand, can exist in various stages so much so that one could have diminished capability (even significantly so) and still be capable to consent. However, the law does not permit a conviction to stand on proof of diminished capability. It requires a showing of no capability. By using the words “total” and “complete,” the instruction strongly reinforces the plain meaning of “incapable” as “without capability.”
Reply Br. at 2.
While the granted issue mentions the instruction offered at trial, the real question is whether the term incapable of consenting really is ordinary words with ordinary meaning that can be understood a person of ordinary intelligence such that members don’t require an instruction. That the appellate courts spend so much time discussing what the term means suggests otherwise.