Argument Preview: Determining whether members need a definition of incapable of consenting in United States v. Bailey, No. 17-0265/CG
CAAF will hear oral argument in the Coast Guard case of United States v. Bailey, No. 17-0265/CG (CAAFlog case page), on Wednesday, October 25, 2017, at 9:30 a.m. Nineteen months after it approved the NMCCA’s definition of the statutory term incapable of consenting, CAAF will consider whether such a definition must be provided to members. The court granted review of two issues, but only the first was briefed:
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.
App. Br. at 6. The prosecution opposed giving the instruction, the military judge did not give it, and Bailey was convicted.