Articles 120(b)(3)(A) and 120(d) prohibit sexual activity with a person who is incapable of consenting due to impairment by any drug, intoxicant, or other similar substance.
In recent decision in United States v. Newlan, No. 201400409 (N.M. Ct. Crim. App. Sep. 13, 2016) (link to slip op.), a three-judge panel of the NMCCA finds that a military judge erred when he defined impairment under Article 120 as:
“Impaired” means any intoxication which is sufficient to impair the rational and full exercise of the mental or physical faculties.
Slip op. at 8 (quoting instructions). This definition was drawn from language in the Manual for Courts-Martial that defines impairment under Article 111 (drunken or reckless operation of vehicle, aircraft, or vessel). See MCM, Part IV, ¶ 35.c.(6).
Writing for the panel, Judge Rugh explains that:
Article 120(b)(3)(A), UCMJ, does not prohibit engaging in sexual acts with a person who is drunk or impaired by alcohol. Put more plainly, mere impairment is no more the standard under Article 120(b)(3)(A), UCMJ, than the SAPR-perpetuated “one drink and you can’t consent” axiom is the standard. And litigants and military judges who fixate solely on the term “impairment” do so at their peril.
Instead, the statute establishes a required level of impairment. In other words, sexual acts are prohibited only when the person’s impairment rises to the level of rendering him or her “incapable of consenting to the sexual act.” Art. 120(b)(3)(A), UCMJ.
Slip op. at 10 (emphasis in original). By appropriating the Article 111 definition of impaired, “the military judge’s instructions failed to provide the members with an accurate, complete, and intelligible statement of the law.” Slip op. at 12.
The opinion is the latest in a number of recent decisions that reach the blindingly-obvious conclusion that intoxicated or otherwise impaired people can legally consent, despite popular misconceptions to the contrary (see our #9 military justice story of 2015).