CAAF decided the Coast Guard case of United States v. Bailey, 77 M.J. 11, 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.

Case Links:
• 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

15 Responses to “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”

  1. stewie says:

    I mean CAAF’s being a wee bit disingenuous.
    Hey, incapable is totally an easy word for the average person to understand. But hey you should probably use the specially crafted BB definition that was unnecessarily included in there for you.

  2. Zachary D Spilman says:

    Or maybe CAAF’s just being ironical, stewie. Maybe the definition from Pease isn’t for the members.

    The NMCCA created the definition in Pease because it needed a standard for its factual sufficiency review. As Senior Judge Brubaker wrote:

    Our conclusion . . . turns, instead, on the high burden the Government carries in a criminal case and an issue the record shows the members struggled with: how impaired does a person have to be before they are “incapable of consenting”?

    United States v. Pease, 74 M.J. 763, 770 (N.M. Ct. Crim. App. 2015).

    The JAG didn’t like that, certifying an issue to CAAF that asked:


    In rejecting the certified issue, CAAF concluded that a CCA’s review must be based on a correct view of the law and so:

    the CCA first needed to determine the correct, applicable law in this case in order to properly conduct its factual sufficiency analysis. 

    United States v. Pease, 75 M.J. 180, 184 (C.A.A.F. 2016).

    Not the members, mind you. Just the CCA.

  3. Lone Bear says:

    It gets thrown off when trial counsels argue that if they are incapable of standing dity they are incapable of consenting. 

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

    I disagree the term “incapacitated” isn’t a legal term.  How long did it take for appellate courts to come up with a standard 3 part test, that people still kind of disagree on what what the first part means?  And even Judge Ryan had to ask a question what does “too drunk” look like?

  5. Muad'Dib says:

    I’m torn on this. On the one hand, it doesn’t feel right to throw out a conviction over the absence of this instruction. The standard is tough to meet: I don’t think the defense was totally unable to mount a defense. The defense can still get up and argue about the victim’s capability of consenting. I think the DC can still say “just because she was stumbling doesn’t mean she was drunk” in the absence of the instruction. Whether an instruction is “more fair” or “better” or “advisable” is wholly different from whether the absence of that instruction blows up the whole process.
    On the other hand, it feels fundamentally unfair that the defendant has a panel dealing with a concept as nebulous as “capability of consent” without any sort of guidance on what that term means. I mean, reasonable people can (and obviously do) differ on what the line is.
    The judicial conservatives would probably say, “Too bad, so sad. Congress can define the term if they want to, and we’re not going to mandate that every Article 120 court-martial give this instruction we just made up last year by ourselves.” I’m not sure that’s the wrong answer, but it isn’t a satisfying one either.

  6. Nathan Freeburg says:

    Military panel members have already had “incapable” defined for them. If she’s had a drink, she’s incapable of consenting. Or so they believe. 

  7. stewie says:

    Nathan, I think we’ve moved away or are certainly moving away from that sort of training logic.

  8. Sir Visdis Crediting says:

    This was a strange opinion. The Court says that the instruction called for a complete inability to communicate, period. But that conclusion is only reached by reading the words “competent decisions” out of the instruction.
    The Court also says, “However the instruction approved in Pease is more nuanced.” Which instruction was that?

  9. Nate Olsen says:

    I think the Model Federal Jury Instruction on point is succinct and easier for lay factfinders to understand than the Benchbook instruction.
    The crime of sexual abuse under 18 U.S.C. § 2242(2)(A)-(B) is the equivalent of sexual assault under UCMJ Article 120(b).  Instruction 61-23 of the Model Federal Jury Instructions (Criminal) defines “incapacity of the victim” for sexual abuse, in part, as being “physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.”           

  10. Nathan Freeburg says:

    Nate Olsen, I agree but they don’t want that instruction.  The military now sees itself as an affirmative consent jurisdiction (ACCA certainly does).
    stewie: I had a rather discomfiting experience at Fort Lewis ten months ago.  One drink = no consent is very much still being taught and inculcated in our panel members.  There was an even more recent example at Fort Drum.  That’s the reality in the field.  And even if they don’t go that far they are definitely teaching that “drunk” = no consent.  Muad’Dib was even confused on that above.  If drunk sex is rape then many of us were conceived by criminals and most of Manhattan and Brooklyn are rapists (or any other city composed of functional alcoholics where no one drives).  How else are people supposed to have risky sex with strangers?  

  11. stewie says:

    I haven’t seen that issue in my time nearly as much, not saying it’s completely eradicated. I will admit drunk sex = crime is way too prevalent.

  12. DCGoneGalt says:

    Luckily, most of the people I have been around automatically assume that anything being briefed on SHARP/SARC isn’t even worth listening to.  You can only be forced to tolerate BS for so long before you just screen it out and decide to make your own decisions based on common sense and the facts available to you.  IMO, the efforts by SHAPR/SARC have been counter-productive.  However, I think that will change as the young’uns start coming into the military, especially career-oriented officers who have just come through the re-education camps of the university system.

  13. Muad'Div says:

    I’m convinced of the unfairness after thinking about it more and reading these comments. Given the sort of education officers get from other sources before walking into a courtroom (i.e SHARP and such), the risk seems to great that COL So-and-so will hear “incapable of consent” and think, “Well, drunk people can’t consent. So if the victim had three or four drinks, sex is a no-go.”

  14. stewie says:

    SHARP would be more effective if they ditched the one drink rule crap and instead simply said. Look, I can’t tell you exactly how much is too much to consent, so, the smart thing to do would be to stay away from sexually contact with someone if they are drinking alcohol. Heck, if I had a son or daughter, I’d tell them the exact same thing.
    I get what they are trying to do, it’s just legally wrong and ham-fisted.

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

    Almost everyone understands at this point that one drink = no consent is BS.  The problem is when the alleged victims says “in hindsight, having sex with the person was a bad idea” OR “I wouldn’t have had sex with this person if I had been sober,” OR “I didn’t say I wanted to do anything before he did it to me,” i.e. “affirmative consent.”  That people are equating “good v. bad decision-making” and “poor judgment” with “incapable of understanding or appreciating the sexual conduct” is problematic.