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Monday, September 21, 2015

CIVILIAN COURT-MARTIAL DEFENSE LAWYERS: Military Appellate Courts…“Yes, people can engage in consensual sex when drunk!”


Another military sex assault post?  Yes, I’m afraid so.  For those of you who read my posts from time to time, I know that a vast number of them address allegations of rape and sexual assault in the military justice system.  That just happens to be the reality of my legal practice, and the state of the military justice system.  

I have been handling military justice cases on and off active duty since 1995.  In that time, no broad topic has been as prominent in the system as rape and sexual assault.  No category of clients is even close to the number of clients I’ve defended in the military who were accused of rape or sexual assault.  No, that doesn’t mean there’s an epidemic of actual rape and sexual assault in the military, although there might be an “epidemic” of such allegations (irrespective of the merits of a large percentage of them).

Within the broad topic of military sexual assault cases, no subtopic has been as prominent as engaging in sex after drinking alcohol…and no issue has been as misunderstood and misstated.  This issue reaches crescendos in the wake of scandals.  Right after the Air Force Academy scandal in 2003, “drunk sex” was THE issue in military briefings and cases.  Here, for example, is an article I wrote back in 2004 after having successfully defended the first litigated rape court-martial trial at the Air Force Academy post-scandal:

Likewise, after the 2011-2012 Lackland AFB MTI scandal (military training instructor) scandal, agenda-driven politicians and advocacy groups once again high jacked the public narrative about the military justice system (including completely inaccurate statements about the system and ill-advised systemic changes), and the military has once again overreacted, with mandatory sexual assault training and briefings; many of which are still legally inaccurate…even in 2015!  There are still those who perpetuate the legally incorrect message that people can’t consent to sex if they have been drinking or are drunk.  In fact, this message has included claims that as few as one drink renders people (particularly women) incapable of consenting to sex and not responsible for their own behavior or decisions.    

The drunken hookup comedy movie “Knocked Up” is all of a sudden a rape movie, if we are to believe politicians, advocacy groups, and many military briefings.  Absurd!  There is a big difference between the law of consent and preferred social behavior.  I’m not advocating that military members should “get drunk and screw” as Jimmy Buffet sang, but if they do, that’s not the definition of “rape,” although it may be a poor or regrettable personal choice. 

One of the big problems is that this issue is one to be avoided if you’re in a position of authority, as any attempt to have a real conversation about it results in claims of “victim blaming.”  Just consider, for example, how the Air Force Chief of Staff, General Mark Welsh, not only had to promise Congress that he would be tough on the issue of alleged sexual assault in order to be confirmed as Chief of Staff, but he had to go on a public apology tour for daring to mention the problem of the “hookup culture” among the young.  Just Google “General Mark Welsh and Air Force and ‘hookup culture’” and you will be amazed by the vitriol.  So much for an attempt to address the issues in a way that could suggest some level of participation or involvement by the other individual in an alleged drunk sex scenario.  You must allege rape and presume guilt in these scenarios or you are a misogynist, a “victim blamer,” etc. etc.

But then there’s the LAW.  And, the Navy-Marine Corps Court of Criminal Appeals has again reminded us that, according to the law:

drunk ≠ unable to consent

drunk sex ≠ per se rape

The latest appellate opinion appears here:

The only time alcohol intoxication renders a person unable to consent to sex is when the level of intoxication is SO HIGH that the person is either unconscious or the person “does not possess the cognitive ability to appreciate the sex act and does not possess the mental and physical ability to make and communicate a decision regarding that conduct to the other person.”  In other words, it’s about the ABILITY to make and communicate a decision at the time of the sex, it’s NOT about whether that decision was a good one, a regrettable one, or even a different one than would have been made if the person was sober. 

If the person recognizes at the time that she is having sex and she is able to communicate her decision to engage in the sex, albeit drunkenly, that is NOT sexual assault.  It may be behavior that should be avoided.  It may be behavior that causes regret, and guilt, and shame, and emotional upheaval…but, it is NOT rape or sexual assault.  Until that legal concept is understood and disseminated throughout the military population, there will continue to be court-martial after court-martial and military conviction rate statistics that are deemed "unacceptable" by those who are determined to change, and destroy, the military justice system. 

For more information about the military justice system, particularly cases alleging rape and/or sexual assault in violation of UCMJ Article 120, type “rape” or “sexual assault” into the search bar above the blog posts.  Also, see:

We offer free consultations for a case you may be involved in.  Just call us.

Thank you.    

By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, P.C.

Blog postscript: Attorney Frank J. Spinner and I (attorney Richard V. Stevens) are former active duty military lawyers (JAG). Our perspectives and advice, therefore, are based upon our experience as military defense lawyers and as civilian criminal defense lawyers practicing exclusively in the area of military law and military justice. This blog addresses issues in military law, military justice, military discipline, military defense, court-martial practice, the Uniform Code of Military Justice (UCMJ) and other military and/or legal topics. Nothing posted in this blog should be substituted for legal advice in any particular case. If you seek legal advice for a particular case, please contact The Law Offices of Richard V. Stevens and The Law Office of Frank J. Spinner for a free consultation. These military defense law offices are located in Northern Florida (Pensacola, Ft Walton, Destin, Eglin AFB, Hurlburt Field, Duke Field, Panama City, Tyndall AFB areas) and Colorado Springs, Colorado (FT Carson, Peterson AFB, Air Force Academy, Schriever AFB, Cheyenne Mountain Air Force Station, Buckley AFB areas), but our military defense law practices are worldwide – we travel to wherever our clients are stationed or serving and need us.

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