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It is a familiar scenario to anyone involved in defending a military member accused of committing a sexual assault. Following a night of heavy drinking, a female confides to a friend or co-worker that she was sexually assaulted by a military member at some point during the previous evening. For purposes of this article, the alleged victim will be referred to as a female and the accused as a male. Although males can certainly be victims of sexual assault, the far more prevalent situation in this author’s experience is with the male being the alleged offender.

The report is referred to military criminal investigators and the female is interviewed. During the interview, the female says that although she doesn’t recall much of the evening due to her level of intoxication, she recalls the accused having sexual intercourse with her against her will. The accused is interviewed as well and tells the investigators that the pair did in fact have sex after drinking alcohol but that his partner was into it and consented to it. No BAC test is sought from either party due to the length of time that elapsed between the sexual encounter and the report.

Because consent is a complete defense to a charge of sexual assault, whether the accuser remembers giving it or not, which party the jury chooses to believe is a critical factor in whether the accused is convicted or acquitted. Furthermore, in the military system, someone cannot by law consent to sexual activity if they are “substantially incapacitated.” What this term actually means however can be difficult to determine. The law says that the term means: that level of mental impairment due to consumption of alcohol, drugs or similar substances or while the person is asleep or unconscious. There is a critical distinction between someone who is merely intoxicated and one who is impaired to the point of incapacitation. The former can consent to sexual activity while the latter cannot.

Without any concrete proof of how intoxicated our alleged victim was on the night of the sexual encounter, the investigators will certainly try to obtain any corroborating evidence in the form of bar receipts, video surveillance, or witnesses who observed the complainant in an attempt to bolster the prosecutor’s argument that she was too drunk to consent. It is vitally important in preparing the defense to the case that the defense counsel seek out any evidence that would be inconsistent with incapacitation. These may include such things like: whether the person was taking actions that required manual dexterity; whether the person was walking and talking normally; whether the person navigated stairs or difficult terrain; and whether there were medical entries or opinions rendered about competency.

Every criminal case is unique and the specific facts of each case will vary. To mount a successful defense to a charge of sexual assault in the military, the defense will have to conduct a thorough pretrial investigation and bring out those facts to the jury in a convincing way.