The Navy-Marine Corps CCA reverses a Naval Academy sexual assault conviction for factual insufficiency
A court of criminal appeals “may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved.” Article 66(d)(1) (2019) (emphasis added).
That requirement for a review of the factual sufficiency of a court-martial conviction is not only a unique power of the CCAs, but it is also a power that Congress recently reenacted, in the Military Justice Act of 2016 (moving the requirement from its former location, in Article 66(c)).
Reversals for factual insufficiency are, however, very rare. But last week, in United States v. Gilpin, No. 201900033 (N-M. Ct. Crim. App. Dec. 30, 2019) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA reversed a conviction of sexual assault of a person who was asleep and otherwise unaware, concluding that the evidence – consisting primarily of the alleged victim’s lack of memory after overconsuming alcohol – was factually insufficient to sustain the conviction.
Both the appellant and the alleged victim were midshipmen (students) at the Naval Academy. They had a sexual encounter in the Academy barracks (Bancroft Hall) that – if consensual – “was a serious offense that could get both of them kicked out of the Academy.” Slip op. at 3. Word of the encounter spread at the Academy in the following weeks, but as a consensual encounter (not a sexual assault). It was even joked about:
The company was holding a Christmas party. One of the events was a humorous reading of “Dear Santa” notes. These anonymously submitted notes asked Santa, on behalf of other midshipmen, for such things as “a reasonable sized nose” and the like. One note made clear reference to possible fraternization, or even sex in Bancroft Hall, between MIDN KS [the alleged victim] and MIDN Gilpin. The general gist of the anonymous note asked Santa to “get a room” for them.
Slip op. at 10. As a result, both the alleged victim and the appellant were confronted by their student leadership. Soon afterward, the alleged victim claimed that the encounter was nonconsensual because she was too drunk to consent, eventually testifying at trial:
Sir, I did not consent because I did not have the opportunity to consent because I was wasted.
Slip op. at 12 (quoting Record of Trial at 789). Yet the alleged victim also:
testified she did not remember anything at all that evening between being in the hot tub at the home of her friend’s sponsor-family and waking up the next morning, except for the “snapshot” of MIDN Gilpin’s face as she was on top of him in her bed. The only evidence of what happened in MIDN KS’s room is her single memory and MIDN Gilpin’s statements to his friends and later to MIDN KS that they had drunk sex in which she willingly participated.
Slip op. at 12. As a result, the CCA “must rely on MIDN KS’s single memory and the attendant circumstances of the case for proof of guilt.” Slip op. at 12.
It’s not enough proof.
Writing for the three-judge panel, Judge Stephens explains:
[W] are unable to rule out every “fair and rational hypothesis” other than guilt. MIDN KS could have just as easily been experiencing fragmentary blackout the entire time MIDN Gilpin was in her room. She would have not remembered anything other than her “snapshot” of being on top of him and MIDN Gilpin would have had no reason to know she was “otherwise unaware” the sexual activity was occurring. She also could have experienced “sleep inertia” after she woke up—which could have been at any time, including before MIDN Gilpin entered her room. If so, he could have reasonably perceived her as consenting.
It is also a “fair and rational hypothesis” that two young squad-mates at the Naval Academy, who one Government witness described as “close friends” and “friends,” had been drinking alcohol and made a very poor decision to have sex. During the trial, expert opinion confirmed that alcohol does indeed lower inhibitions.
In addition, it is difficult to consider the physical and practical aspects of the Government’s case without finding reasonable doubt. . . .
Regardless of what circumstantial evidence may exist, whatever the ex-tent of MIDN Gilpin and MIDN KS’s friendship was, whatever credibility problems either various Defense or Government witnesses had, or whatever expert testimony either side presented concerning sleep behavior, intoxication, or “counter-intuitive victim behavior,” we find the simpler explanation of ill-advised, drunken consensual sex a serious possibility that we cannot ignore—and certainly do not consider it a “fanciful doubt” or “ingenious conjecture.”
Even beyond the physical and practical aspects of the alleged crime, one simply cannot ignore the Defense theory that MIDN KS had substantial motives to believe she would not have consented to sex. It is entirely possible MIDN KS does not remember what happened, but MIDN Gilpin reasonably believed they had consensual sex. She was not doing well academically or physically at the Naval Academy. She just ended a relationship with a boyfriend, which, according to all witnesses, made her very upset. She drank alcohol to excess that evening. She knew her student chain of command was aware of an incident that could get her separated from the Naval Academy unless it was a sexual assault. And she apparently, wrongly believed MIDN Gilpin gave her chlamydia.
There is simply too much reasonable doubt associated with the evidence in this case. We are not charged with deciding “who to believe,” but simply whether the Government proved its case beyond a reasonable doubt. It did not.
Slip op. at 14-15.