The Definition of Incapacitation Under Article 120

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.