Opinion Analysis: No instruction is required on the meaning of incapable (and certainly not the instruction proposed by the defense), but that doesn’t mean don’t give one, in United States v. Bailey
CAAF decided the Coast Guard case of United States v. Bailey, __ M.J. __, No. 17-0265/CG (CAAFlog case page) (link to slip op.), on November 29, 2017. Holding that the term incapable in the element of incapable of consenting has such a plain meaning that no instruction is required to define the term for members – and rejecting as inaccurate the instruction on the term’s meaning that was proposed by the defense at trial – CAAF nevertheless encourages military judges to continue to give the Benchbook definition of incapable of consenting added after CAAF’s decision in United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016) (CAAFlog case page). But the court finds ambiguity in the CCA’s action on the sentence, and so remands for clarification
Judge Ohlson writes for a unanimous court.
CAAF granted review of two issues:
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.
Slip op. at 2. The prosecution opposed giving the instruction, the military judge did not give it, and Bailey was convicted.
The case was tried in 2014, before CAAF’s decision in United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016) (CAAFlog case page). Judge Ohlson, who writes for the unanimous court in today’s opinion, also wrote for a unanimous court in Pease and found that the Navy-Marine Corps CCA properly defined the statutory term incapable of consenting. Since then military judges often give an instruction consistent with the definition from Pease. That instruction is available here (Benchbook interim update 16-02).
But today’s opinion find that no such instruction is required (though a footnote encourages military judge to continue to give it), because “‘incapable’ is not a technical legal or scientific term.” Slip op. at 6. As for the instruction requested by the defense in this case, Judge Ohlson explains that “it contains an inaccurate statement of law.” Slip op. at 4. Multiple inaccuracies, in fact.