Our #9 Military Justice Story of 2015 involves the significant steps taken this year to address the deeply flawed (and often misogynistic) view that an intoxicated person is necessarily incapable of consenting to sexual activity with another.
Article 120 prohibits sexual activity with a person who is incapable of consenting, but the UCMJ does not define that term. However, interpreting the prior version of the statute (which addressed a person who is substantially incapacitated), CAAF held that “if an accused proves that the victim consented, he has necessarily proven that the victim had the capacity to consent.” United States v. Prather, 69 M.J. 338, 343 (C.A.A.F. 2011).
Prather was a case involving a male accused, a female victim, and a night of drinking, and CAAF’s declaration of the seemingly obvious – that a person who does consent necessarily can consent – was just part of the court’s conclusion that the statute included an impermissible burden shift to an accused (Congress rewrote the statute soon afterward).
Today, the rewritten (2012) version of Article 120 defines consent, beginning with the explanation that: “The term ‘consent’ means a freely given agreement to the conduct at issue by a competent person.” Article 120(g)(8)(A) (2012). This definition is nearly identical to the one in the prior (2006) version, which stated that “the term ‘consent’ means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person.” Article 120(t)(14) (2006). But this language also requires judicial interpretation, as the UCMJ does not define the term competent person, enabling prosecutors to argue that an intoxicated person is not a competent person (and is therefore necessarily incapable of consenting). Such an argument functionally deprives an accused of the defenses of consent and mistake of fact as to consent.
There are some who believe that an intoxicated person cannot be a competent person for the purposes of consenting to sexual activity. Put differently, there are some people who believe that someone who is intoxicated cannot consent to sex. Those people are wrong. Drunk people can and do consent to things all the time, and they are routinely held responsible for their decisions and actions while intoxicated (DUI immediately comes to mind, but there are plenty of other examples in our system where voluntary intoxication is rarely a defense).
Two decisions of the Army CCA in 2014 addressed the meaning of a competent person in the context of consent to sexual activity. First, in January, the Army CCA explained that “competence, in this context, is a legal term of art.” United States v. Long, 73 M.J. 541, 545 (A. Ct. Crim. App. 2014) (discussed here). Then, in November, the CCA elaborated that consent is correctly defined “in terms of a competent ‘person’ and not a ‘decision.'” United States v. Brown, No. 20130177, slip op. at 5 (A. Ct. Crim. App. Nov. 21, 2014) (discussed here). This person/decision distinction is important: the law recognizes objective factors that make a person incompetent (age, infirmity, disability), while a decision is merely subjectively good or bad.
But it was the the July 2015 decision of the Navy-Marine Corps CCA in United States v. Pease, __ M.J. __, No. 201400165 (N-M. Ct. Crim. App. Jul. 14, 2015) (discussed here), cert. for rev. filed, __ M.J. __ (C.A.A.F. Sep. 14, 2015) (discussed here), that won competency to consent a spot on our Top Ten list.
In Pease, the CCA reversed the appellant’s convictions of sexual assault and abusive sexual contact involving two intoxicated alleged victims on the basis that the evidence was factually insufficient to prove beyond a reasonable doubt that the alleged victims were incapable of consenting and that the appellant knew or reasonably should have known that they were incapable of consenting. To reach that conclusion the CCA had to first determine the meaning of the statutory term incapable of consenting, and the court’s opinion noted that “there is a dearth of case law interpreting the phrase ‘incapable of consenting’ and the breadth of the current Article 120.” Pease, __ M.J. at __, slip op. at 12. Yet determining the meaning of the term required only that the CCA read the plain language of the statute:
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. Reading these provisions together, to prove a violation of Article 120(b) or (d), the Government must prove that a listed condition rendered the complainant incapable of entering a freely given agreement. Here, the terms “competent” and “incompetent” in the definitions section merely refer back to the punitive language regarding those incapable of consenting; it adds no further punitive exposure. Thus, in this context, 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.
Applying that interpretation to this case, we are not convinced beyond a reasonable doubt that the complainants were incapable of consenting. . .
Pease, __ M.J. __, slip op. at 12-13.
The CCA’s explanation is straightforward and consistent with caselaw. A competent person is simply a person who possesses the physical and mental ability to consent. An accused who proves that a victim did actually consent has necessarily proven that the victim had the ability to consent, requiring an acquittal. Accordingly, the long-present requirement that consent be from a competent person is not – as it has been used by military prosecutors – a backdoor way to foreclose the possibility to consent-related defenses in cases involving alleged incapability due to intoxication, drugs, mental disease, or the other statutory factors that can render a person incapable of consenting.
However, the Judge Advocate General of the Navy certified Pease to CAAF, asserting that the CCA “judicially defined” the statutory term incapable of consenting. The case is scheduled for oral argument early in the new year. Yet the Government’s own brief to CAAF reveals just how the trial counsel (prosecutor) in Pease equated intoxication with incompetence (thereby eliminating the possibility of consent):
Trial Counsel indicated that he intended to argue that the alleged victim was not competent “if she’s like collapsed on the floor and puking.” (J.A. 139.) The Military Judge agreed that Trial Counsel could argue it that way, explaining that, based on the charges, the issue was intoxication, not mental competence. (J.A. 137-39.)
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.)
Appellee argued that “[a] drunk person can still be a competent person.” (J.A. 171.)
Gov’t Br. at 8-9. The brief also reveals that these arguments were confusing to the members, as “during deliberations, the Members asked ‘Is there a legal definition of a competent person?’ (J.A. 174, 238.).” Gov’t. Br. at 10. However, the trial counsel opposed giving the members any guidance, instead “request[ing] that the Members apply their own ‘knowledge and common sense to the definition and give it its plain and ordinary meaning.’ (J.A. 178-80.).” Gov’t Br. at 10. Why the members should be forced to interpret the statutory language but the appellate military judges of the CCA prohibited from doing the same is likely to be an early question for the Government during oral argument at CAAF.
Suspiciously, the Government offers no alternative definition for the term incapable of consenting in its briefs to CAAF in Pease.
While CAAF may reverse the NMCCA’s straightforward analysis in Pease in the new year, other forces are already working to clarify that there is a significant difference between being intoxicated and being incompetent. The Final Report of the Subcommittee of the Judicial Proceedings Panel (discussed here) favorably noted the CCA’s decision in Pease, and the subcommittee recommended amending Article 120 to provide a definition of incapable of consenting that is based on the CCA’s decision in Pease:
Incapable of consenting. A person is ‘incapable of consenting’ if that person does not possess the mental ability to appreciate the nature of the conduct or does not possess the physical or mental ability to make or communicate a decision regarding such conduct.
Report of the Judicial Proceedings Panel Subcommittee, at 16.
These developments make competency to consent our #9 Military Justice Story of 2015.