On Monday CAAF granted review in this Army case:

No. 19-0252/AR. U.S. v. Tyler Washington. CCA 20170329. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY PERMITTING THE UNIT’S SHARP REPRESENTATIVE TO TESTIFY THAT “WHEN A PERSON SAYS ‘NO’ IT MEANS STOP, WALK AWAY.”

Briefs will be filed under Rule 25.

SHARP is the Army’s Sexual Harassment Assault Response and Prevention program.

No opinion is available on the Army CCA’s website (indicating that the CCA summarily affirmed).

18 Responses to “CAAF grants review to consider a unit SHARP representative’s testimony about the meaning of the word no”

  1. Charlie Gittins says:

    Now that is scary.  Things are much worse than I thought.  What judge would allow that to be testified to — a legal standard coming from the lips of the command SHARP?  I am guessing the judge missed the classes about law in law school and judge school.

  2. William Cassara says:

    I will reserve comment until I read the briefs, but WTH?

  3. SgtDad says:

    “No” means “no,” … … … except when it means “yes.”  Or, as Shakespeare put it: “O trespass sweetly urged!”*
    ======================
    * Romeo & Juliet I;5.

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

    They’re preaching “no means no, but yes doesn’t always mean yes.”  And “The absence of no doesn’t mean yes.”
    Also, “Consent is voluntary, sober, enthusiastic, creative, wanted, informed, mutual, honest and verbal agreement. Consent is an active agreement that cannot be coerced. It is a process, which must be asked for every step of the way and is never implied and cannot be assumed, even in the context of a relationship.”

  5. Ed says:

    Tami
    Are they human?

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

    Ed, who knows?  There’s all kinds of f’ed up “training” being given on what “consent” really means.  And in the process, making it so incredibly confusing and unrealistic no one could ever, ever give consent.

  7. Isaac Kennen says:

    It is hard to imagine a scenario in which such testimony survives a basic relevance objection. A person who wasn’t present at the time the word “no” was uttered has nothing relevant to say about what it meant in those circumstances. And, certainly, testimony such as that framed in this case, concerning what it means when “a person” (who may or may not be the victim) says “no” is even less relevant.That being said, I doubt there is any prejudice from this error. That irrelevant opinion testimony that “when a person says no, it means stop, walk away” doesn’t seem to differ much from the standard benchbook instruction on consent:

    An expression of lack of consent through words or conduct means there is no consent.

    If the lay witness erred in saying “no means no,” then so did the trial judge by giving the standard instruction.

  8. Fisch says:

    Tami,
    I like this line of thinking.  I really think we are onto something here.  It’s just like a suspect saying “No” when asked if they consent to a search or to make a statement.  They just need to combine SHARP training with Article 31 block of instruction at the MP School.  
    Below is a vignette showing how realistically this works in real life for sexual relations between Servicemembers:
    After drinking and engaging in flirtatious conduct outside the barracks at the unit “smoke pit,” PFC Billy and SPC Susie go back to Susie’s barracks room and engage in some heavy petting.  Both Servicemembers are lying on Susie’s bed in their underwear, and Billy’s tongue begins to trace its way down to Susie’s pantyline.   As Billy moves to kneel on the side of Susie’s bed, Susie moves to the side of the bed and spreads her knees apart. Billy begins to slide her panties to one side to facilitate oral copulation of Susie when Billy remembers SHARP training and requests Susie’s consent to continue.  Susie says, “No, You really should stop.”
    Billy gets up and begins redressing.  Susie, in a bewildered tone, exclaims, “Wait!  Why did you stop?”  Billy says, mimicking Forrest Gump telling his Drill Sergeant why he put his rifle back together so quickly, “Because you told me to, Specialist Susie.” Susie, realizing that Billy is merely following the instruction taught during SHARP training, exclaims, “But, I didn’t mean I actually wanted you to stop!  I just didn’t want you to think I’m a whore and that I do this every weekend.”
    Billy says, “No, I have to disengage from attempting to have sexual relations with you and give you the opportunity to cool off by walking away from you.  If at some point you would like to engage in sexual activity in the future with me, but generally no earlier than 48 hours, you may approach me, and if I believe that you are enthusiastically consenting and sober, then we may continue this interrupted foray into sexual bliss.”
     

  9. Pontius says:

     
    I find it disturbing so many people jump to the conclusion that this solider would have been acquitted of all charges, but not for some GS-9 giving some common sense (and proper) testimony known to anyone living in this country. How about we take a step back and view the case in its entirety before making any assumptions? What if this testimony does not matter because the accused gave a full confession to CID? What if the accused’s DNA was found inside the victim and the SAFE showed signs of forcible penetration? This is why the law is very clear that we must presume the accused was treated fairly at his court-martial (and they almost always are).  Even assuming the testimony was error, there is no reason to believe this soldier suffered any prejudice.
    However, the testimony was not even error.  It is just a recitation of a basic definition that we all rely upon to communicate.  As they commonly do, this is just another example of the defense warping reality.  Let me try to follow this logic- “no” can mean “yes” because the victim could be playing coy.  Thus, even though (read literally) her “no” response is unambiguous, the perpetrator has a defense because he thought her “no” was a “yes.”  There seems to be a problems with this logic.  In life, like in law, you don’t look to intent unless the words are ambiguous on their face—I don’t see how you can be any more unambiguous than “no.”  To the extent there was ANY ambiguity about the “no,” the perpetrator has a duty fully clarify it before shoving his penis into another person. That’s just no common sense; no, that’s just basic humanity and civility.

  10. Zachary D Spilman says:

    Without a CCA opinion we’re missing important context. But the meaning of the word no goes to the issues of consent and mistake of fact as to consent, and military law has undergone some significant changes with respect to the meaning of consent.

    Way back in early 2007, Article 120 defined only the offenses of rape and carnal knowledge (of a minor). The elements of rape included sexual intercourse by force and without consent, and the MCM explained that the existence of consent might be inferred based on the circumstances:

    If a victim in possession of his or her mental faculties fails to make lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that the victim did consent.

    ¶ 45(c)(1)(b), Part IV, Manual for Courts-Martial (2005 ed.).

    Congress significantly changed Article 120 in the National Defense Authorization Act for Fiscal Year 2006 (enacted on Jan. 6, 2006), effective on Oct. 1, 2007. The new statute defined consent as “words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person,” but it also attempted to eliminate consent as an issue except under limited circumstances (and then to make its existence a common-law-type affirmative defense that the defense had the burden to prove).

    The 2006 statute was flawed in a number of ways, so Congress revisited it in the National Defense Authorization Act for Fiscal Year 2012, and it added the following language to the statutory definition of consent:

    Lack of consent may be inferred based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person’s actions.

    Article 120(g)(8)(C) (2012). With that language the historic inference of the existence of consent was reversed to become an inference of the absence of consent.

    Congress changed Article 120 again in the Military Justice Act of 2016. The changes included removing the language regarding an inference of the absence of consent that was added in 2012. As a result, today the statutory definition of consent in Article 120 includes no inference regarding the existence or absence of consent. Rather, it remains an affirmative consent standard.

    CAAF’s recent jurisprudence goes a few steps further, however. In 2015 the court required something it called true consent, and this year it held that:

    The burden is on the actor to obtain consent, rather than the victim to manifest a lack of consent.

    United States v. McDonald, 78 M.J. 376, 381 (C.A.A.F. Apr. 17, 2019) (CAAFlog case page).

    I suspect that the statutory inference of the absence of consent (effective from 2012-2019) is in play in Washington, and that the SHARP representative’s testimony went to that inference (if inelegantly). But we’ll have to wait for the briefs to know for sure, and also to consider how CAAF’s consent jurisprudence applies.

  11. Contract Lawyer says:

    The Army should require the presence of a SHARP representative during call sex that occurs in the barracks between unmarried persons.  

  12. Cloudesley Shovell says:

    Lewis Carroll covered  this ground nearly 150 years ago “Through the Looking Glass”, his sequel to “Alice in Wonderland”.
    “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’’The question is,’ said Alice, ‘whether you can make words mean so many different things.’’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

  13. Brian Bouffard says:

    “No means NO!”
     
    No, it doesn’t.  “NO means no.”
     


  14. carpenter says:

    Strict liability? Or, perhaps a governmental morality test, either way a court should never essentially take judicial notice as to what “words” unquestionably mean. 

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

    Because this is realistic.  Sarcasm.  How many sexual assaults do you see in this video on “consent?”  And by who?
     
    https://www.nsfwyoutube.com/watch?v=bVHYvUpeqKI

  16. Philip D. Cave says:

    Greetings Admiral. Once again Lewis Carroll tells us the answer. Now, off with his head. Ooops, sorry Scilly notion.

  17. Fisch says:

    Pontius,
     
    I’m not disturbed.  Quite frankly, after all the misconduct that we have evidence of from experienced SVPs and TCs all the way up to apparent misconduct of the TJAG of two Services, actions taken by Senators through legislation and oversight, and my personal experience, I think such a cynical view towards a UCMJ conviction is warranted, particularly in light of consideration that there is stuff that we don’t know about.

Leave a Reply