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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