Opinion Analysis: The NMCCA properly defined “incapable of consenting” in United States v. Pease, No. 16-0014/NA
CAAF decided the certified Navy case of United States v. Pease, 75 M.J. 180, No. 16-0014/NA (CAAFlog case page) (link to slip op.), on Thursday, March 17, 2016. Rejecting both certified issues, CAAF holds that the Navy-Marine Corps CCA properly defined the statutory term incapable of consenting and then rightly applied that definition to determine that the evidence was factually insufficient (despite no such definition being provided to the members at trial). CAAF affirms the decision of the NMCCA that reversed the appllee’s convictions of sexual assault and abusive sexual contact.
Judge Ohlson writes for a unanimous court.
The case involved two female alleged victims who were subordinates of the appellee and who had (separate) sexual encounters with the appellee after drinking significant amounts of alcohol. The appellee was convicted of engaging in sexual activity with the alleged victims when they were incapable of consenting to the conduct due to impairment by an intoxicant and that the appellee knew or reasonably should have known of their impairment. However, the CCA reversed these convictions because it found that the evidence did not support the conclusion that the alleged victims were incapable of consenting, and also because it found that the appellee “reasonably may have believed that they were willing partners in sexual activity.” United States v. Pease, 74 M.J. 763, __, No. 201400165, slip op. at 14 (N-M. Ct. Crim. App. Jul. 14, 2015).
Yet to analyze the evidence the CCA also analyzed the meaning of the statutory term incapable of consenting in the context of the UCMJ’s definition of consent. The CCA determined that a person is incapable of consenting when they “lack the cognitive ability to appreciate the sexual conduct in question or the physical or mental ability to make and to communicate a decision about whether they agree to the conduct.” Pease, 74 M.J. at 770. This definition, however, was first stated by the CCA and was not provided to the members at trial.
The Judge Advocate General of the Navy then certified two issues to CAAF:
The lower court judicially defined “incapable of consenting” contrary to the instructions given to the members and used this definition to find three charges of sexual assault and one charge of abusive sexual contact factually insufficient. In creating this new legal definition not considered by the factfinder and nowhere present in the record, did the lower court consider matters outside the record and outside its statutory authority in conducting its factual sufficiency review?
The lower court judicially defined “incapable of consenting” in a manner that limits prosecutions to only two situations – “inability to appreciate” and “inability to make and communicate” an agreement. To prove the latter, the court further required proof that a victim be unable both to make and to communicate a decision to engage in the conduct at issue. Nothing in the statute reflects congressional intent to limit Article 120, UCMJ, prosecutions in this manner. Did the lower court err?
In a short and tightly written opinion for the unanimous CAAF, Judge Ohlson explains that the CCA was required to determine what the law was before it could fulfill its duty to review the sufficiency of the evidence, and he endorses (with a clarification) the CCA’s definition of the term incapable of consenting.