Over the last few years, Article 120 and the law of sexual assault in the military has undergone seemingly never-ending revisions.
One of the biggest challenges has been defining the concept of "incapacitation." Articles 120 (b)(3)(A) and 120 (d) prohibit sexual activity with a person incapable of consenting because of impairment from drugs or alcohol.
Several years ago, it was common for prosecutors to charge sexual assault cases involving alcohol under the incapacitation provisions of the law. Over time, we have seen prosecutors start to favor forcible rape charges rather than sexual assault by incapacitation charges. The thinking seems to be that it's easier and cheaper to allege rape than incapacitation. In an incapacitation case, expert testimony is usually required. That costs money.
Nonetheless, the occasional incapacitation case generates appellate case law. Recently, the United States Navy and Marine Corps Court of Criminal Appeals had the opportunity to address the definition of incapacitation. In United States v. Newlan, No. 201400409 (N.M. Ct. Crim. App. Sep. 13, 2016), a three judge panel looked a the jury instructions in that case.
In Newlan, the Military Judge - Lt Col Francis - had borrowed the definition of impairment from Article 111 (drunken or reckless operation of a vehicle). In Article 111, impairment is any intoxication sufficient to impair the rational and full exercise of the mental or physical faculties.
It seems like the task of defining incapacitation should not be difficult. However, in the law, we have all sorts of differing standards for when a person is incapacitated ranging from driving standards, to capacity to form a will, to capacity to engage in sexual behaviors.
With Newlan and other recent cases, we are starting to see the appellate courts take a more pragmatic approach to defining incapacitation. The court wrote that Article 120 does not prohibit engaging in sexual acts with a person drunk or impaired by alcohol. The law prohibits sexual acts when the person's impairment rises to a level rendering them "incapable" of consenting to a sexual act.
This appellate language is probably a backlash to Department Defense training materials that are teaching the absurd. In every recent incapacitation case this firm has done, potential panel members are asked about their views on alcohol and consent during voir dire. They nearly always respond that they are taught that a person cannot consent to sexual acts if they have had any alcohol at all. They also nearly always disagree with that proposition. Department Defense efforts to train service members on consent are clearly not working. And it is probably because they are teaching concepts that are inconsistent with our every day experiences.
Nevertheless, the Newlan opinion is the latest in a number of recent decisions designed to better define the law of consent and impairment.
On 30 August 2016, Mr. Pristera obtained a full reversal of all charges from the Navy-Marine Corps Court of Criminal Appeals. The Court determined that the military judge improperly instructed the panel with regards to consideration of evidence of one charged offense as proof of a propensity to commit the other charged offense.
Appellant was charged with two specifications of sexual assault, against two alleged victims. The alleged assaults occurred almost a year apart. After the second alleged assault, the alleged victim made a restricted report to the unit sexual assault advocate. Upon hearing the allegations from the alleged victim of the second offense, the sexual assault advocate herself also claimed to have been sexually assaulted by the same person. Both women filed unrestricted reports a month later. Appellant was ultimately convicted of both offenses.
At the trial, the military judge instructed the panel on Military Rule of Evidence 413. That rule, prior to the landmark decision in U.S. v. Hills, allowed for propensity evidence to be considered in similar sexual assault cases. Basically, that means that the government can use evidence of one charged offense to suggest that the accused had a predisposition to commit the other offense. The result is a complicated instruction requiring the panel to distinguish between guilt beyond a reasonable doubt and guilt by a preponderance of the evidence.
While this case was pending appeal, the Court of Appeals for the Armed Forces announced its decision in U.S. v. Hills. In that case, the court held that MRE 413 cannot be applied to a charged sexual offense on the same charge sheet. This landmark decision overturned years of practice in the military justice system.
Based on that decision, Mr. Pristera filed a supplemental brief and assignment of error citing the Hills decision. The Court agreed with Mr. Pristera and overturned the conviction on the basis of an improper instruction and use of MER 413 evidence.
In US v. Sterling, the Court of Appeals for the Armed Forces recently explained the balance between disobeying orders and religious freedom.
Sterling was a lance corporal in the Marine Corps. She taped a quote to her workstation that read "[n]o weapon formed against me shall prosper." The quote was based on scripture. She did not tell anyone that it was a bible verse. Unfortunately, LCpl Sterling seems to have had a personality conflict with her immediate enlisted supervisor - also a former drill instructor. He ordered her to remove the quote because he did not like it's tone. She refused. The first sergeant ordered her to remove the quote. She refused. The major ordered her to remove the quote. She still refused.
The Marine Corps ultimately opted to prosecute her at a Special Court-martial. She was convicted and demoted to E-1 and discharged from the service. There was no jail.
On appeal, she raised - for the first time - the issue of the Religious Freedom Restoration Act - 42 U.S.C. § 2000bb-2 (4). She also argued that there was no valid military purpose for the order to remove the quote. Spoiler alert - she lost. The Court found that she did not make a prima facie case that the order substantially burdened her exercise of religion under the RFRA. Likewise, they rejected her argument that there was no valid military purpose for the order.
Religious expression and speech are certainly issues that this firm has fought in the past. Years ago we represented a Navy public affairs officer who edited a book of essays that were critical to the Bush Administration and wars in Iraq and Afghanistan. The Sailor was devoutly Catholic. On a Catholic radio program he was asked about Just War Doctrine.
The radio host was asking the officer to explore the dilemma a Catholic service member might face when government policy conflicts with Catholic doctrine. The officer said:
"When [God] says, hey you murdered all those Iraqis...and the servicemembers respond, well George Bush said...I don't know that that is going to be a persuasive answer."
In that case, we fought for the Sailors rights at nonjudicial punishment. He was accused of contemptuous speech towards President Bush. Unfortunately, LCpl Sterling's case was escalated to a criminal court. Unnecessarily, I might add.
The actual balance between military orders and religious freedom, however, is not that difficult. The Sterling case offers a nice reminder of a few principles of law:
1. The legality of an order is a question of law;
2. Lawful orders must relate to a military duty;
3. A military duty includes all activities reasonably necessary to accomplish a mission, or safeguard or promote the morale or good order and discipline of a command;
4. The dictate's of a person's conscience, religion, or personal philosophy cannot justify or excuse the disobedience of a lawful order;
5. A lawful order must have a valid military purpose and be clear, specific, and narrowly drawn;
6. Orders are presumted to be lawful;
7. The burden is on the accused to show that an order is not lawful;
8. Orders must not conflict with statutory or constitutional rights;
9. The RFRA provides that government shall not substantially burden a person's exercise of religion;
10. Substantially burden is not well-defined, but generally means any government requirement that causes a person to significantly modify their behavior or violate their beliefs;
11. Restraints on behavior do not necessarily equate to substantial burdens;
12. The burden is on an individual to show - under the RFRA - that they had a sincerely held religious belief and that the belief was substantially burdened;
13. The test for sincerely held beliefs is subjective;
14. The Department of Defense has procedures for requesting religious accommodations; and,
15. The RFRA does not require an individual to exhaust administrative remedies.