Some of you may recall that in July 2015, I blogged about the Navy-Marine Court of Criminal Appeals (NMCCA) overturning an appellant’s convictions for sexual assault and abusive sexual contact on 14 July 2015, in United States v. Pease due to factually insufficiency. On that same day, the NMCCA overturned a conviction for rape and forcible sodomy in United States v. Clark, also on the basis of factual insufficiency. In this case, Airman Clark became very intoxicated one evening at a gathering and a civilian female who was present and also intoxicated later alleged that Airman Clark raped her and committed forcible sodomy on her. The female provided testimony at the court-martial which consisted of four segmented memories from that night. She stated that these were the segments she could remember and could not remember what occurred in the spaces in between. Airman Clark was convicted at his court-martial, however, the NMCCA found that “the disorganized, potentially non-sequential order of her memories prevent[ed] [them] from concluding that the charged forcible sexual acts necessarily followed.” With no physical evidence, the NMCCA noted that “the Government’s case rested nearly exclusively on SW’s delayed and partial memories that ultimately lack the detail and completeness necessary to prove the charges.” The NMCCA set aside the findings and sentence in this case and dismissed the specifications and charges with prejudice. Based on his court-martial, Airman Clark was sentenced to 7 years confinement, reduction to E-1 and a dishonorable discharge. Based on the NMCCA’s decision, Airman Clark currently awaits his release from confinement. It may be difficult to understand why Airman Clark has yet to be released from confinement. The reason for this delay is based on a former decision made by the higher military appellate court that states that release from confinement must wait until The Judge Advocate General has made a decision as to whether or not he or she will certify the case to the Court of Appeals for the Armed Forces (CAAF). Airman Clark may be entitled to release on 17 October 2015 or earlier if the case is certified earlier than 17 October. That date is approaching quickly. The holding in this case, like in United States v. Pease is significant. It demonstrates that simply because an alleged victim was intoxicated during the alleged sexual activity, he or she is NOT necessarily incapable of consent in the eyes of the court. However, if you or your loved one is accused of sexual assault in the military, this is not an easy position. Therefore, you need an experienced attorney on your side. Likewise, if you or your loved one believes that a conviction for sexual assault should be overturned because the government did not meet their burden, you need an attorney with a vast amount of experience in the military appellate courts. I have a huge amount of experience with military court-martials and court-martial appeals. You need me on your side. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.