Can you be awake and conscious but still “otherwise unaware” of sexual contact?

The Court of Appeals for the Armed Forces (CAAF) on 21 March 2017 in United States v. Sager determined that an alleged victim of sexual assault could indeed be “otherwise unaware” but both awake and conscious when the sexual act was occurring.  In this case, Navy Airman Sager was accused of sexually assaulting his roommate.  His roommate, AN TK, claimed that he was heavily intoxicated and simply unaware of the sexual contact that was occurring.  At his court-martial, AN Sager was charged with two specifications of abusive sexual contact under Article 120(d) of the UCMJ.  One specification alleged that AN TK was unable to consent to the sexual contact because he was too intoxicated.  The other specification alleged that AN TK was “asleep, unconscious or otherwise unaware” of the sexual contact.  The court-martial members found AN Sager not guilty of the specification that alleged that his roommate was too intoxicated to consent.  However, the members found AN Sager guilty of the other specification and they specifically circled that the reason was not because AN TK was asleep or unconscious, but instead that he was “otherwise unaware.”  Later, AN Sager appealed this decision to the Navy-Marine Court of Criminal Appeals (NMCCA) claiming that “otherwise unaware” is unconstitutionally vague.  The NMCCA affirmed AN Sager’s finding of guilty stating that Article 120(d) was written this way to indicate that “asleep” and “unconscious” are examples of being “otherwise unaware.”  The court stated that asleep, unconscious and otherwise unaware were not meant to present three alternative theories of guilt.  The CAAF reviewed this decision last week and decided that the NMCCA erred in their interpretation of this Article.  The CAAF reasoned that the words “asleep, unconscious or otherwise unaware” were intended to be disjunctive because they are separated by commas and the phrase includes the word “or.”  Therefore, CAAF determined that these three states are meant to be alternative theories of how an offense occurred.  A lot of the accusations of sexual assault in the military involve two individuals who have become intoxicated or fall asleep in the same room together.  Much of the time there are no witnesses to what actually occurred and the individuals involved often cannot remember everything that happened.  These factors make these cases difficult.  If you or your loved one is facing a court-martial or is looking to appeal one, you need an advocate by your side with experience.  I have a huge amount of experience litigating at the court-martial and appellate level.  Don’t hesitate to call and we can talk your situation over.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.