Alcohol and Sex

Many military sexual assault cases involve alcohol—both parties have been drinking and the question comes up about the alleged victim’s capacity to consent to alcohol. Here is my view of our alcohol and behavior relate, especially in rejecting the “one drink” meme, which is morphing in the “above the legal limit” meme.

It is important to encourage the court to avoid being misled about and misapplying the expert testimony of BM1’s possible blood alcohol content at the time of the alleged offenses. Thankfully, we appear to be past the “one-drink means no consent’ meme. However, a new meme appears to be creeping into the trial lexicon impliedly that “a. bac of 0.08 or above means no consent.” The. bac meme appears in this case, although not as explicitly as the one-drink phrase.

The parties focused a great deal on. bac level based on a quasi-speculative back, or retrograde, extrapolation. In principle there is nothing untoward about this approach so long as the parties, and especially the members, understand that there is no fixed. bac level at which someone cannot consent to sexual activity. To do so would not be in accordance with the law or medicine. The .bac level presents a guide on how the average person may be expected to act and perform under the influence of alcohol. The famous Dubowski Chart is a common reference guide.

The Widmark formula usually used in DUI cases is most effective when there is a blood test taken and the evaluator can then extrapolate back from the time the blood was drawn using a number of mathematical and physical attributes of the person. When there is no blood drawn, the back extrapolation becomes suspect. It is widely accepted that a number of physical factors can affect the calculations: percentage and type of alcohol consumed, hydration, food intake, height, body weight and composition. These factors do not appear in this case. See, e.g., Douglas Posey, The estimation of blood alcohol concentration: Widmark revisited. [ ] Also, reliance on self- reporting of drinks consumed can be “notoriously inaccurate and, in fact, are of little practical use.” See M. R. Montgomery and M. J. Reasor, Retrograde extrapolation of blood alcohol date: an applied approach. [ ]

While back extrapolation is generally accepted in court, how it is applied in a specific case is of the most importance. The point is that overreliance on a supposed. bac level can be prejudicial to an accused where the substance of the testimony of how a person acted and talk is the most relevant evidence for or against the capacity to consent. [ ] Appellant also points out that x having alcohol on board could lead to sexual risk-taking on her part.

See Kelly Cue Davis, P.D., et al, Effects of Alcohol and Blood Alcohol Concentration Limb on Sexual Risk-Taking Intentions. J. Studies on Alco. and Drugs 499, 505 (2009).

The court should also be mindful that witnesses may themselves have difficulty assessing with reasonable accuracy whether someone is drunk or not simply by observation. Cf. Steve Rubenzir, Judging Intoxication. 29 Behav. Sci. Law. 116 (2011).

In the early days of the current fight against sexual assaults, the Department of Defense, in 2006, released a short and correct statement on Intoxication and Consent. The piece begins with “True or false: One can never consent to a sexual act while intoxicated?” The article went on to say, “The correct answer is FALSE.” (See attachment A.)

Other Service Courts of Criminal Appeals have given some helpful guidance on how to evaluate a peson’s “drunkenness” in relation to their ability to consent to sex, or do most other things for that matter, such as fly airplanes, drive cars, navigate ships, or a host of daily activities.

In Solis, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) found that the alleged victim was “impaired by alcohol when appellant performed sexual acts on her.” But, the NMCCA did not stop there and went on to explain that “Mere impairment, however, does not end the analysis. Article 120(b)(3) “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.” United States v. Solis, 75 M.J. 759, 763 (N-M. Ct. Crim. App. 2016). In Pease the NMCCA further explained that an individual is incapable of consenting to sexual conduct when that individual lacks “the cognitive ability to appreciate the nature of the conduct in question, [or] the mental and physical ability to make and to communicate a decision regarding that conduct to the other person.

In a published opinion in United States v. Pease, 74 M.J. 763 (N-M. Ct. Crim. App. 2015) aff’d 75 M.J. 180 (C.A.A.F. 2016), the court reversed convictions for sexual assault and abusive sexual contact, because 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. See also United States v. Bailey, 77 M.J. 11, 13 (C.A.A.F. 2017). “Proving incapacity to consent to a sexual act because of impairment from alcohol requires more than proving intoxication.” United States v. Clugston, 2017 CCA LEXIS 43, *6 (N-M. Ct. Crim. App. 31 Jan. 2017) (memorandum op.) review den. 76 M.J. 428 (C.A.A.F. 2017).

Taken together and applied to the facts of the allegations against GM2 Armitage, the evidence fails to be sufficient beyond reasonable doubt. While the NMCCA decisions, like many, are fact specific, the important takeaway is that an intoxicated person can consent to sexual activity. NMCCA’s conclusion accords with those of Army Court of Criminal Appelas’s (ACCA) decision in United States v. Long, 73 M.J. 541 (A. Ct. Crim. App. (2014). Essentially, ACCA finds in principle that that drunk people can consent to sex.

As the ACCA explained in United States v. Gosney,

It appears to me that no one at trial understood the relationships between volitional behavior, consent, mistake of fact as to consent, intoxication, and lack of memory. Chief Judge Everett’s concurring comments in United States v. Baran, 22 M.J. 265, 270 (1986) are directly applicable to this case:[ The victim’s] inability to recall what happened does not signify that at the time of intercourse she was unable to give consent. As this Court recognized long ago, alcohol may affect a person’s memory and inhibitions without depriving him of volition; and proof of amnesia does not conclusively establish that someone was unconscious or lacked mental responsibility at the time of the events they have forgotten. Not only is it questionable that the Government has met its burden of establishing that the intercourse took place without the victim’s consent, but also it would appear that, if she did not consent, [appellant] reasonably believed that she did, and the Government’s evidence failed to disprove the mistake-of-fact defense which he asserted.

United States v. Gosney, 1999 CCA LEXIS 420 (A. Ct. Crim. App. February 25, 1999) (memorandum op.) aff’d No. 99-0515, 2000 CAAF LEXIS 692 (C.A.A.F. Jul. 6, 2000).

A competent person has the “physical and mental ability to consent,” while an incompetent person “lacks either the mental or physical ability to consent.” Id. The culprit may be alcohol or another “cause enumerated in the statute.” Id. Lacking the capability to consent to sexual conduct means “lack[ing] the cognitive ability to appreciate the sexual conduct in question or the physical or mental ability to make or to communicate a decision about whether they agreed to the conduct.” Id. In other words, the focus of the evidentiary inquiry is the alleged victim’s awareness or ignorance of the sexual conduct pending or in progress and capacity or incapacity to consent to or oppose it, either verbally or physically.2017 CCA LEXIS 43 at *6-7 (quoting Pease, 74 M.J. at 770).

United States v. Chinchilla, No. ARMY 20150266, 2017 CCA LEXIS 561, at *5-6 (A. Ct. Crim. App. Aug. 18, 2017).

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.

United States v. Newlan, No. 201400409, 2016 CCA LEXIS 540, at *18-19 (N-M Ct. Crim. App. Sep. 13, 2016).

These cases illustrate the danger of relying too heavily on a person’s suspected .bac or characterizations of an alleged victim as being drunk. That a person was drunk is a broad term describing a continuum of conditions, rather than a precise definition of someone who is so drunk they are incapable of giving consent. As we move on to an evaluation of the other evidence, it is appropriate to again caution against over-reliance on a .bac level, for it is Appellant’s assertion that that is what happened at trial—the prosecution even capitalized on that misconception in closing argument.

This need for vigilance is particularly important when it comes to the admissibility of extrapolation evidence in the typical alcohol-related sexual assault allegation. As mentioned in the introduction, the lack of independent eyewitnesses often leaves members desperate for objective evidence to help them uncover the truth. The members will also often look for a concrete definition of what is means to be “incapable of consenting.” Consequently, they may look to extrapolation evidence to serve this purpose, and as the cases and issues discussed in this article demonstrate, there are numerous reasons why this evidence may be misleading. Only by invoking the military judge’s duty as gatekeeper, and subjecting the proposed evidence to the rigor of a Daubert hearing can counsel ensure that the evidence is admissible and, more importantly, that any verdict rests on reliable evidence.

CDR Thomas P. Belsky, JAGC, USN, Does It Add Up? Analyzing the Use of Extrapolation Calculations to Determine the Ability to Consent in Alcohol-Related Sexual Assault Cases. 62 Nav. L. Rev. 54, 75 (2013).