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.

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Audio of yesterday’s oral arguments at CAAF is available at the following links:

United States v. Henning, No. 16-0026/AR (CAAFlog case page): Oral argument audio

United States v. Pease, No. 16-0014/NA (CAAFlog case page): Oral argument audio

CAAF will hear oral argument in the certified Navy case of United States v. Pease, No. 16-0014/NA (CAAFlog case page), on Tuesday, January 12, 2016. The court will review the published decision of the Navy-Marine Corps CCA that reversed the appellee’s convictions of sexual assault and abusive sexual contact on the basis of factual insufficiency. The CCA concluded that the Government failed to prove that the intoxicated victims were incapable of consenting and that the appellant knew or reasonably should have known that they were incapable of consenting.

The Judge Advocate General of the Air Force Navy 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?

The case involves two female alleged victims: S.K. and B.S. Both were subordinates of the appellee, and both 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.

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 evidence did support the conclusion 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). The CCA’s conclusions were based in part on the following facts:

[S.K.’s] fragmentary memory of kissing the appell[ee] and telling him he was cute, then of being propped up supporting her own weight on her elbows having sexual intercourse with him

Slip op. at 13-14. And:

[B.S.] . . . remembered that when certain activities were painful or unpleasant, she was able to determine that she did not want that activity to continue and to articulate that to the appellant, who stopped. She further candidly related active participation in and even enjoying portions of the sexual activity.

Slip op. at 14. The CCA viewed these facts as evidence of capacity to consent that undercut the sufficiency of the prosecution’s evidence.

Yet the CCA also went further, analyzing the meaning of the statutory term incapable of consenting in the context of the UCMJ’s definition of consent:

After enumerating that it is a crime to commit sexual acts or contact upon a person incapable of consenting, Article 120 defines “consent” as “a freely given agreement to the conduct at issue by a competent person” and goes on to state that a “sleeping, unconscious, or incompetent person cannot consent.” Art. 120(g)(8), UCMJ.

Slip op. at 12. This analysis was likely prompted by the prosecutor’s closing argument that the alleged victims weren’t just incapable of consenting in fact, they were also not competent people to consent as a matter of law:

During argument, Trial Counsel explained that a competent person is a “person who is actually able to consent to something.” (J.A. 168.) He then argued essentially that Appellee was guilty if a reasonable person who viewed the incidents would conclude that the alleged victim was “so impaired she’s not competent to agree to [the sexual act].” (J.A. 169, 237.)

Gov’t Br. at 9. Significantly, during deliberations the members asked the military judge to provide them with a definition of a competent person. However, the prosecution objected and the judge declined to provide a definition. Gov’t Br. at 10. But the CCA determined that by the plain language of the statute,

a “competent” person is simply a person who possesses the physical and mental ability to consent. An “incompetent” person is a person who lacks either the mental or physical ability to consent due to a cause enumerated in the statute. To be able to freely give an agreement, a person must first possess the cognitive ability to appreciate the nature of the conduct in question, then possess the mental and physical ability to make and to communicate a decision regarding that conduct to the other person.

Slip op. at 12-13. It then interpreted the statutory term incapable of consenting as requiring that the alleged victims:

lacked 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 agreed to the conduct.

Slip op. at 13.

The first certified issue challenges the CCA’s ability to engage in this statutory interpretation. The second issue challenges the CCA’s conclusion about the meaning of the term incapable of consenting.

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In United States v. Pease, __ M.J. __, No. 201400165 (N-M. Ct. Crim. App. Jul. 14, 2015), the Navy-Marine Corps CCA reversed convictions for sexual assault and abusive sexual contact after finding that the Government failed to prove that the intoxicated victims were incapable of consenting and that the appellant knew or reasonably should have known that they were incapable of consenting. I discussed the CCA’s decision in this post.

The Judge Advocate General of the Navy just certified the case to CAAF:

No. 16-0014/NA. U.S. v. Jacob L. Pease. CCA 201400165.  Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

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 published opinion in United States v. Pease, __ M.J. __, No. 201400165 (N-M. Ct. Crim. App. Jul. 14, 2015) (link to slip op.), the Navy-Marine Corps CCA reverses convictions for sexual assault and abusive sexual contact, finding that the Government failed to prove that the intoxicated victims were incapable of consenting and that the appellant knew or reasonably should have known that they were incapable of consenting.

The case involves two female victims: S.K. and B.S. Both were subordinates of the appellant, and both had (separate) sexual encounters with the appellant after drinking significant amounts of alcohol. The encounter with S.K. occurred in December 2012, and the encounter with B.S. occurred in January 2014. Both women had fragmentary memories of the encounters the mornings after. But the morning after her encounter with the appellant, B.S. was awoken by S.K., and:

IT2 B.S. told ITSN S.K. about what had transpired between her and the appellant. ITSN S.K. then relayed to IT2 B.S. what had happened between herself and the appellant the previous month. They decided IT2 B.S. should report she had been assaulted. After IT2 B.S. finished her report to a victim advocate, ITSN S.K., on IT2 B.S.’s urging, reported her alleged assault as well.

Slip op. at 9. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of fraternization in violation of Article 92 and of sexual assault and abusive sexual contact in violation of Article 120 (2012). He was sentenced to confinement for six years and a dishonorable discharge.

Writing for a three-judge panel of the NMCCA, Senior Judge Brubaker finds that the sexual assault and sexual contact convictions are factually insufficient, and the court sets aside those findings of guilty. The court affirms the fraternization convictions and remands the case for a sentence rehearing.

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