Opinion Analysis: No instruction is required on the meaning of incapable (and certainly not the instruction proposed by the defense), but that doesn’t mean don’t give one, in United States v. Bailey
CAAF decided the Coast Guard case of United States v. Bailey, __ M.J. __, No. 17-0265/CG (CAAFlog case page) (link to slip op.), on November 29, 2017. Holding that the term incapable in the element of incapable of consenting has such a plain meaning that no instruction is required to define the term for members – and rejecting as inaccurate the instruction on the term’s meaning that was proposed by the defense at trial – CAAF nevertheless encourages military judges to continue to give the Benchbook definition of incapable of consenting added after CAAF’s decision in United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016) (CAAFlog case page). But the court finds ambiguity in the CCA’s action on the sentence, and so remands for clarification
Judge Ohlson writes for a unanimous court.
CAAF granted review of two issues:
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.
Slip op. at 2. 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). Judge Ohlson, who writes for the unanimous court in today’s opinion, also wrote for a unanimous court in Pease and found that the Navy-Marine Corps CCA properly defined the statutory term incapable of consenting. Since then military judges often give an instruction consistent with the definition from Pease. That instruction is available here (Benchbook interim update 16-02).
But today’s opinion find that no such instruction is required (though a footnote encourages military judge to continue to give it), because “‘incapable’ is not a technical legal or scientific term.” Slip op. at 6. As for the instruction requested by the defense in this case, Judge Ohlson explains that “it contains an inaccurate statement of law.” Slip op. at 4. Multiple inaccuracies, in fact.
An instruction requested by a party is analyzed using a three-part test:
[W]e must determine whether: (1) the requested instruction is correct; (2) the main instruction given does not substantially cover the requested material; and (3) the instruction is on such a vital point in the case that the failure to give it deprived the accused of a defense or seriously impaired its effective presentation.
Slip op. at 3-4 (quoting United States v. Carruthers, 64 M.J. 340, 346 (C.A.A.F. 2007)) (marks and additional citation omitted). The instruction requested by the defense in this case fails the prong of this test because of three things that are not correct:
First, the defense-requested instruction is erroneous because it uses language from a different section of Article 120, UCMJ, than the one used by the Government to charge Appellant. Specifically, the defense-requested instruction uses language from Article 120(b)(2), UCMJ, by referring to the victim as being “asleep or unconscious.” . . .
Second, the defense-requested language of “while asleep or unconscious” suggests that the complainant needed to be asleep or unconscious in order to be “incapable” of consenting. That suggestion is a misstatement of the law because a person can be awake and conscious and still be incapable of consenting. . . .
Third, the proposed instruction’s use of the phrase “complete and total” and repeated use of the word “completely” are inconsistent with the language of Article 120, UCMJ, as well as with the definition approved by this Court in Pease. . . .Requiring that the complainant be completely unable to communicate is a higher burden than the statute requires and thus is an erroneous statement of the law.
Slip op. at 4-5 (citations omitted).
Having rejected the defense requested instruction, Judge Ohlson then turns to whether the military judge had a sua sponte duty to instruct on the meaning of incapable of consenting, which is “an element of the charged offense.” Slip op. at 6. Explaining that “words generally known and in universal use do not need judicial definition,” slip op. at 6 (citations omitted), Judge Ohlson concludes that:
“Incapable” is not a technical legal or scientific term. See United States v. Shepard, 1 C.M.A. 487, 492, 4 C.M.R. 79, 84 (1952) (“The words used in the instruction were not technical and would be generally understood by members of the court-martial.”). The plain meaning of “incapable” is one that is generally—and correctly—understood as being unable to do something. At trial, the military judge gave an instruction on the definition of “consent.” Therefore, the plain meaning of “incapable” combined with the definition of “consent” allowed the panel to understand the element “incapable of consenting.” As such, the military judge was not required to give an instruction on the definition of “incapable of consenting.”
Slip op. at 6-7.
A footnote, however, does some foot-stomping:
After Appellant’s trial and this Court’s decision in Pease, the Military Judges’ Benchbook was updated to include a definition for “incapable of consenting.” Military Judges’ Benchbook ch. 3, para. 3-45-14 (2017). Nothing in this opinion should be read to mean that the Benchbook definition should not be given. See United States v. Riley, 72 M.J. 115, 122 (C.A.A.F. 2013) (“While . . . the Benchbook is not binding as it is not a primary source of law, the Benchbook is intended to ensure compliance with existing law.”).
Slip op. at 7 n.6 (emphasis added).
The final paragraphs of the opinion address the fact that the convening authority approved a sentence that includes total forfeitures, but “the CCA omitted any reference to the forfeiture of all pay and allowances, although it did state that Appellant’s sentence was affirmed ‘as approved below.'” Judge Ohlson explains that CAAF finds this to be ambiguous, and so the case is remanded for clarification.
• CGCCA opinion
• Appellant’s brief
• Appellee’s (Coast Guard Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis