CAAFlog » September 2015 Term » United States v. Rogers

CAAF decided the Coast Guard case of United States v. Rogers, 75 M.J. 270, No. 16-0006/CG (CAAFlog case page) (link to slip op.), on Monday, May 16, 2016. In a case that questioned whether a member was biased by her professional and personal experiences with sexual assault, CAAF holds that the member’s uncorrected misunderstanding about an intoxicated person’s ability to consent to sexual activity constituted implied bias. As a result, the court reverses the findings and sentence and the decision of the Coast Guard CCA, authorizing a rehearing.

Chief Judge Erdmann writes for the court, joined by Judges Ryan and Ohlson and Chief Judge Whitney of the United States District Court for the Western District of North Carolina (sitting by designation). Judge Stucky writes separately, concurring in the result.

Electrician’s Mate Third Class Rogers was charged with numerous offenses, including two specifications of sexual assault of a person who was incapable of consenting due to impairment by an intoxicant. The defense challenged a potential member for actual and implied bias based on the member’s duties (that included addressing sexual assault issues and interacting with victims), her personal experiences (her older brother was convicted of child molestation), and her expressed belief that “if you are so drunk that you can’t remember giving consent, then you are too drunk to give consent.” Slip op. at 7 (quoting record). The military judge denied the challenge, and Rogers was convicted and sentenced to confinement for ten years, reduction to E-1, total forfeitures, and a bad-conduct discharge. The Coast Guard CCA reviewed the member challenge issue and found no error. CAAF then granted review to determine:

Whether the military judge erred in denying the implied bias challenge against CDR K in light of her various professional and personal experience with sexual assault.

“The core of the implied bias test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel.” Slip op at. 2 (citation and marks omitted). Despite the granted issue focusing on the member’s experiences, however, Chief Judge Erdmann’s majority opinion finds implied bias in the member’s erroneous belief that a person who can’t remember consenting necessarily couldn’t consent. And Judge Stucky’s concurring opinion goes even further, finding that the member’s erroneous belief constituted actual bias because the military judge failed to correct it with an appropriate instruction. Ultimately CAAF is unanimous in finding bias in the member’s uncorrected belief that too drunk to remember means too drunk to consent.

This result makes this case a surprise development in the continuing effort to address the issue of competency to consent, our #9 Military Justice Story of 2015.

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

United States v. Clark, No. 16-0068/NA (CAAFlog case page): Oral argument audio

United States v. Rogers, No. 16-0006/CG (CAAFlog case page): Oral argument audio

CAAF will hear oral argument in the Coast Guard case of United States v. Rogers, No. 16-0006/CG (CAAFlog case page), on  Tuesday, March 15, 2016. In this sexual assault case involving an intoxicated alleged victim, the court will determine whether it was error for the military judge to deny a defense challenge of a member, with the following issue:

Whether the military judge erred in denying the implied bias challenge against CDR K in light of her various professional and personal experience with sexual assault.

The member primarily served as the “Leadership, Diversity, and Inclusion Officer on the staff of the Commander, Coast Guard Atlantic Area” and her collateral duties included “writing a new sexual assault response and prevention (SAPR) operational plan.” Gov’t Br. at 8. She also personally interacted with sexual assault victims. Gov’t Br. at 8. Further, she “disclosed that she had an older brother who was twice convicted for child molestation against his young daughter and step-daughter.” Gov’t Br. at 8. Finally, she opined that “if you are so drunk that you can’t remember giving consent, then you are too drunk to give consent,” thought she claimed that she could change her belief if she was instructed otherwise. Gov’t Br. at 9-10.

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Yesterday CAAF granted review of an implied bias issue affecting a member in a Coast Guard case:

No. 16-0006/CG. U.S. v. Matthew A. Rogers. CCA 1391. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, said petition is granted on the following issue specified by the Court:

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE IMPLIED BIAS CHALLENGE AGAINST CDR K IN LIGHT OF HER VARIOUS PROFESSIONAL AND PERSONAL EXPERIENCE WITH SEXUAL ASSAULT.

Briefs will be filed under Rule 25.

The Coast Guard CCA’s opinion is available here and reveals that:

During voir dire examination, CDR K said she had been assigned to draft a sexual assault response and prevention operational plan as part of her duties on the Coast Guard Atlantic Area staff. The draft plan emphasized preventive measures. At the time of trial, her draft was complete and awaiting the Area Commander’s signature. While performing that duty, she had monitored news stories on sexual assault and read background materials on the subject. She did not deal with response to sexual assault complaints. When asked about the rate of false claims of sexual assault,  she said she had read, probably in multiple sources, that the rate of false claims is about two percent, “and that’s no different than any other crime statistic for false accusations.” When asked if she could disregard those statistics and look at the facts of this case, she responded affirmatively, and added, “I know statistics can be maneuvered by whoever produces those statistics.” She also testified that a co-worker had been falsely accused of sexual misconduct and that she was mindful of the devastating consequences that ensue from false reports.

United States v. Rogers, No. 1391, slip op. at 3-4 (C.G. Ct. Crim. App. Jul. 8, 2015) (citations to record omitted).