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Too drunk to remember does not always mean too drunk to consent…

Recently, the Court of Appeals for the Armed Forces (CAAF) reversed a conviction for sexual assault in United States v. Rogers , a Coast Guard case.  The case was reversed because CAAF found that one of the panel members showed bias and the military judge failed to correct it.  In Rogers, appellant had been charged and convicted of numerous offenses, two of which were sexual assault of a person who was too intoxicated to consent.  Prior to the trial, one of the female panel members was questioned regarding her beliefs about intoxication and consent.  The female panel member stated that it was her belief that “if you are so drunk that you can’t remember giving consent, then you are too drunk to give consent.” This belief is simply false, however, the military judge did not correct her.  Additionally, the female panel member stated that she had some personal experiences with sexual assault, for example, her brother had been convicted of child molestation.  Defense challenged the panel member for both actual and implied bias based on these two things and the challenge was denied by the military judge.  Therefore, the panel member remained on appellant’s panel.  Ultimately, Electrician’s Mate Third Class Rogers was found guilty and sentenced to 10 years confinement, reduction to E-1, total forfeitures and a bad conduct discharge.  He appealed his case to the Coast Guard Court of Criminal Appeals (CGCCA), however the court found no error and upheld the conviction.  Then, CAAF granted the issue for review.  CAAF unanimously held that the panel member’s belief regarding consent was simply wrong and should have been corrected.  Therefore, CAAF found that her false belief that being too drunk to remember means you are too drunk to consent constituted actual bias.  Appellant’s conviction and sentence was reversed due to this error.  This case shows that CAAF is willing to find error in a sexual assault conviction even in this political environment.  If you or your loved one is facing sexual assault charges or you are looking to appeal a court-martial, you need experience by your side.  I am here to help.  The call is free.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.