In contrast to the trend on campus, at the demand of the Department of Education’s Office of Civil Rights, of conflating intoxication with incapacity, the United States Navy-Marine Corps Court of Criminal Appeals, in an opinion by Commander Aaron Rugh, spells it out clearly:
We also emphasize here that the definition of impairment was not nearly as important as informing the members that the impairment must rise to the level of rendering LCpl H “incapable of consenting”—meaning that she was deprived of “the cognitive ability to appreciate the sexual conduct in question or the physical or mental ability to make [or] to communicate a decision” regarding that conduct to another person. Pease, 74 M.J. at 770.
This is a critical distinction that has been almost entirely lost by those contending that any use of alcohol or drugs vitiates the ability to consent.
Article 120(b)(3)(A), UCMJ, does not prohibit engaging in sexual acts with a person who is drunk or impaired by alcohol. Put more plainly, mere impairment is no more the standard under Article 120(b)(3)(A), UCMJ, than the SAPR-perpetuated “one drink and you can’t consent” axiom is the standard. And litigants and military judges who fixate solely on the term “impairment” do so at their peril.
Instead, the statute establishes a required level of impairment. In other words, sexual acts are prohibited only when the person’s impairment rises to the level of rendering him or her “incapable of consenting to the sexual act.” Art. 120(b)(3)(A), UCMJ.
This opinion, obviously, is under the Uniform Code of Military Justice, but the concept it embodies applies to all complaints of capacity to consent. Despite the efforts to water down the concepts of rape and sexual assault to conduct willingly engaged in, even with overt consent, even if initiated by the female, even if both parties have been drinking, so all concerns magically disappears if any alcohol touches a woman’s lips.
Post hoc rape has been a rallying
shriek cry among the young and restless, who are so busy screaming rapist that they’re incapable of grasping a rather significant nuance. This has not been the case with military courts.
The opinion is the latest in a number of recent decisions that reach the blindingly-obvious conclusion that intoxicated or otherwise impaired people can legally consent, despite popular misconceptions to the contrary (see our #9 military justice story of 2015).
For example, in United States v. Solis, __ M.J. __, No. 201500249 (N.M. Ct. Crim. App. Aug. 11, 2016) (discussed here), the NMCCA explained that Article 120 “does not proscribe sexual acts with impaired people, but rather with people incapable of consenting to the conduct at issue because of their impairment—and even then, only when the inability to consent is known, or reasonably should be known, to an accused.” Slip op. at 5.
Similarly, in United States v. Long, 73 M.J. 541 (A. Ct. Crim. App. Jan. 30, 2014) (discussed here), the Army CCA concluded that an intoxicated victim was competent to consent (but didn’t).
And, of course, CAAF’s decision this term in United States v. Pease, 75 M.J. 180 (C.A.A.F. Mar. 17, 2016) (CAAFlog case page), provided us with a clear and uniform standard of review for a trial-stage finding that a person was incapable of consenting.
There may be questions as to where the line is drawn, At what point of incapacitation does a person lose the capacity to consent? But what is clear, and significant, is that intoxication does not relieve a person from their choices. Being intoxicated does not equal being incapable of formulating consent. There is a spectrum of intoxication between sober and incapacitated in which a person is fully capable of valid consent, and responsible for their choices. That they may regret them the next day has no bearing on whether consent was given.
So why has it become “axiomatic” that “one drink and you can’t consent”? The reason seems obvious. It provides a black-letter rule that’s so easy to grasp that even an idiot can figure it out. While clarity isn’t a bad thing, even a “rule” this simplistic defies the reality of ordinary sexual contact. And it isn’t the law. Not on campus or in the courtroom. Not in the military or civilian courts.
Why then has this rule become the pervasive rallying cry of young men and women, to the point where disputing their beliefs engenders screams of “rapist” and “rape apologist”? Remember when the cry was “no means no,” then “yes means yes,” then “yes means yes unless we change our minds afterward”?
The reason here too seems obvious. It is consistent with an agenda of agency, where a woman can choose to engage in sexual contact after drinking, give consent, initiate sexual contact, and then get a second chance, whether next day or a year later after an unpleasant break-up, to change her mind, decide that the consent freely given is withdrawn, and claim rape.
But for the fact that this is making putative rapists out of males who have done nothing more than rely upon the freely-given consent of a woman to sexual contact, it would be of no moment that the unduly passionate social justice warriors have latched onto the most simplistic rule possible to rationalize their attacks. But when this results in criminalization, or punishment (with its array of consequences) on campus imposed upon the mindless application of simplistic axioms, males who have committed no wrong suffer.
It’s unfortunate that the law compels actual thought in order to determine whether a woman is so intoxicated as to reach the point of incapacity. It’s even more unfortunate that the law can’t be stated so simplistically that even the screaming children can grasp it. But it nonethelesss remains the law, and (for those disinclined to infantalize women) it is sound and appropriate law.
The question is, and should be, whether a woman is incapacitated, not intoxicated. Until that point, a woman is just as capable of giving consent as anyone else. And indeed, the same applies to men. Equality. It’s a good thing.