The Navy-Marine Corps Court of Criminal Appeals recently decided the case of United States v. Harris. IT2 Harris was at a Fourth of July pool party with friends, many of whom were fellow Sailors. One of these other guests was a female IT1 with whom he had worked on a previous deployment. IT2 Harris and the IT1 were both intoxicated during the party and were flirting and kissing in front of other partygoers. At one point, the IT1 left to go to the bathroom. IT2 Harris followed her and when she came out of the toilet area, he started kissing her again. The IT1 said that she told him to stop and tried to walk past him, but that he pulled her hair, grabbed her neck and pushed himself against her. She believed that IT2 Harris wanted to have sex with her.
At some point, the IT1 lost consciousness and fell to the floor. She did not know if it was because IT2 Harris was squeezing her neck or because of her intoxication. She awoke on the floor without her bathing suit on. IT2 Harris handed her a towel and the IT1 left the bathroom. She was upset and crying and told the host that she “didn’t want to do it” and to kick IT2 Harris out of the party. The host and one of her roommates drove IT2 Harris home. He seemed drunk and confused as to why people were upset with him. He admitted having sex with the IT1. He was able to direct the driver to his address and to walk to his apartment unassisted.
In the ensuing investigation, the IT1 identified several bruises, including some on her neck, that she attributed to IT2 Harris’s actions in the bathroom. IT2 Harris was interviewed by NCIS and claimed that he had no memory of the time in the bathroom, but that if the IT1 said that he had done things to her in the bathroom that he believed her.
The Government charged IT2 Harris with attempted rape. When the Government charges someone with an attempted crime, they must prove that the person intended to accomplish every element of the underlying offense but that some factor outside of their control stopped the completion of the offense. For example, if a person bought and then smoked something they believed to be marijuana but was instead oregano, they would not be guilty of possession and use of marijuana. They would, however, be guilty of attempted possession and use of marijuana. They fully intended to commit the crime of possession and use of marijuana. The factor outside of their control that prevented them from completing the crime was that it was actually oregano. In IT2 Harris’ case, the Government charged that he attempted to rape the IT1 by grabbing her by the hair and throat and preventing her from leaving the bathroom. The Government alleged that this act was done to commit the intended offense of rape and that it was only not completed because the IT1 lost consciousness and fell to the floor.
At trial, one of IT2 Harris’ defenses was that he was too intoxicated to form the specific intent to rape the IT1. While rape itself normally does not require the Government prove that the accused had any specific intent in order to convict, the offense of attempted rape requires they prove that the accused specifically intended to commit each element of rape. Voluntary intoxication is not a defense to any crime, but it can negate specific intent in crimes that require it. In order to raise a reasonable doubt about his ability to intend the elements of rape, IT2 Harris had to show more than that he was intoxicated, but that he was so intoxicated that he was incapable of forming the intent.
Despite the testimony concerning IT2 Harris’ intoxication at the party and his statement to NCIS that he did not remember the events in the bathroom at all, the members found him guilty. He was sentenced to three years confinement, reduction to E-1, and a dishonorable discharge from the Navy. On appeal, the defense again argued that IT2 Harris was too intoxicated to intend to rape the IT1. The Navy-Marine Corps Court disagreed. The Court pointed to IT2 Harris’ ability to direct someone to his home, communicate, and walked unaided to find that his level of intoxication was not so severe that he could not form the specific intent to rape the IT1.
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