Of the seven proposed changes the Judicial Proceedings Panel (JPP) made in its February 2016 report, those that are the most troubling regard amending Article 120’s definition of consent and creating a definition of “incapable of consenting.”
In order to address the JPP’s concerns that the UCMJ’s definition of consent included an outdated requirement for the victim to physically resist the assault, the JPP proposes to make an amendment that from my perspective has the potential to significantly increase convictions and to do so in an unfair manner. The new definition defines “consent” as “a freely given agreement to the conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance does not constitute consent. Submission resulting from the use of force, threat of force, or placing another person in fear also does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved in the conduct at issue does not constitute consent.”
The greatest risk I see in this definition is that it does not explain that the creation of the “fear” in the victim’s mind must be brought about by some action of the accused other than the “sexual assault” itself. In other words, if the victim articulates that she did not resist because she was in fear but that her fear was only brought about by the impending sexual act, and she does not articulate either in words or conduct to the other person that she does not want the sexual act to occur, the UCMJ has officially criminalized behavior and the “attacker” never knew his conduct was offensive.
Certainly the word “placing” connotes an active behavior on the part of the attacker, but this argument has fallen on deaf ears by the military trial judiciary. In a sexual assault court-martial of a U.S. Marine in 2014, I argued to the military judge that the specification alleging “placing in fear” needed to be dismissed under R.C.M. 917 (at the close of the government’s evidence) because the government had presented no evidence that my client had taken any steps in actively “placing” her in fear. I argued that it is not enough that she articulated feeling fear because in doing so the government otherwise was attempting to criminalize perception and that the military accused must be aware of it. [Thankfully, though the judge denied our motion to dismiss, he was acquitted of all sexual assault charged misconduct.]
Several complainants of sexual assault articulate freezing during an attack, so much so that it has been dubbed “frozen fright” – a sense of helplessness that literally causes a response in the person as not to move, scream, or fight back. Multiple complainants of sexual assaults have prior trauma in their lives; many admit that a word, a smell, or something else in the current experience causes them to recall the prior trauma and they freeze. The experiences combine and someone who thought everything in the moment was fine, now stands accused of sexual assault. The law’s amendment is attempting to criminalize behavior that he never understood was in any way offensive to his partner. He did not threaten her, he did not use actual physical force, and he did not take even one affirmative step to try to make her afraid of him. She said nothing, she did not move away from him, and she comes away from the experience believing it to be one that was non-consensual.
INCAPABLE OF CONSENTING
The definition of what it means to be incapable of consenting is so unbelievably problematic that it will all but ensure conviction and sexual offender registration for anyone who has drunk sex. The amendment reads that:
A person is ‘incapable of consenting’ if that person does not possess the mental ability to appreciate the nature of the conduct or does not possess the physical or mental ability to make or communicate a decision regarding such conduct.
Arguably, anyone who is intoxicated does not possess the mental ability to appreciate the nature of much. Does someone who is intoxicated appreciate the nature of making a reservation? Does someone who is intoxicated appreciate the nature of making a purchase online? Both are legal contracts, an offer or promise in exchange for a result. This definition is so broad as to seemingly include any impairment from the voluntary consumption of alcohol.
This definition also appears to criminalize regret. If later, the person decides in their mind that had they been sober, they would not have made the decision to engage in intercourse so now it must be non-consensual. This definition enables prosecution for decisions made that are later regretted, and it finally appears to criminalize what the Sexual Assault Response Coordinators and Victim Advocates have been “teaching” in their briefings, that even one drink of alcohol means it was sexual assault.
These are scary times, indeed.