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It is not necessarily a crime to have sexual intercourse with a consenting drunk person…

In August 2016, I wrote a blog about a Navy-Marine Court of Criminal Appeals (NMCCA) case called United States v. Solis.  In this case, the appellant challenged Article 120(b)(3)(A) stating that it was “void for vagueness.”  Article 120(b)(3)(A), “prohibits sexual activity with a person who is incapable of consenting to the sexual act due to… impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the [accused].”  Appellant challenged the statute stating that it is vague and therefore he was not on notice of this offense.  The NMCCA denied his appeal, but in doing so the court made it clear that Article 120(b)(3)(A) does not state that engaging in sexual activity with someone who is impaired is a crime.  Instead, the NMCCA made it clear that this article only forbids sexual activity “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.”  Now again in September 2016, the NMCCA has shed even more light on this.  In United States v. Newlan , decided on 13 September 2016, the NMCCA determined that the military judge in the court-martial erred in defining “impairment” to the panel during his instructions.  The military judge in Newlan, instructed the panel that under Article 120 of the UCMJ, “Impaired means any intoxication which is sufficient to impair the rational and full exercise of the mental or physical faculties.”  The NMCCA found that this instruction was improper, holding that Article 120 DOES NOT  prohibit one from engaging in sexual activity with an individual who is drunk or impaired by alcohol.  Instead, the level of impairment is what matters.  “Sexual acts are prohibited only when the person’s impairment rises to the level of rendering him or her ‘incapable of consenting to the sexual act.’” The holding in Solis and now in Newlan are important to defense attorneys and to those facing charges under Article 120(b)(3)(A) at a court-martial because it shows that even in this political environment, not every sexual activity where the alleged victim is impaired will result in a conviction.  To be successful in a court-martial, a prosecutor must prove that the alleged victim was impaired, that the impairment made her incapable of consenting and that the accused knew or should have known that she was incapable.  This takes solid evidence.  So if you or your loved one are/is facing court-martial charges that involve this charge, don’t throw in the towel.  Just because the military has been in the news regarding sexual prosecutions, it does not mean that military prosecutors don’t have to fully prove their cases.  These cases are not easy.  However, you need someone with experience by your side to find the weaknesses in the evidence and highlight them to the panel or military judge.  Finally, if you feel you may have a valid appeal because the prosecution failed to really prove that you knew or should have known that the person you were with intimately could not consent, call me.  We can get working on your appeal today.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

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