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“Incapable of Consenting” Under Article 120

Under Article 120, a Soldier can be found guilty of rape or sexual assault if an alleged victim is incapable of consenting to a sexual act due to impairment by any drug, intoxicant, or other similar substance. This raises the important question – what does it mean to be incapable of consenting under Article 120?  How do you determine when a person is, and is not, capable of consenting?  The meaning of this term was one of the many issues that the Judicial Proceedings Panel Subcommittee addressed in its initial report regarding Article 120.

The Subcommittee reviewed seventeen specific issues concerning Article 120 and recommended some significant changes. One of those recommendations included adding a statutory definition of the term “incapable of consenting.”

The term “incapable of consenting” appears in the statute at Article 120(b)(3), but unlike other terms, there is no explanation or definition provided. The lack of a definition for “incapable of consenting” is problematic given that the majority of cases prosecuted at a court-martial involve the issue of capacity under Article 120.

Recommended Definition of “Incapable of Consenting”

Due to how often this issue comes up in an Article 120 court-martial, the Subcommittee believed that a clear definition of the term was necessary. The Subcommittee also believed that additional guidance was needed regarding the factors that should be considered by a trier of fact when resolving the question of whether an alleged victim was incapable of consenting.  The Subcommittee recommended that the following definition of “incapable of consenting” be adopted as part of a redraft of Article 120:

Incapable of consenting. 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.

The Subcommittee further recommended that the following language be promulgated in an executive order to be published in the Manual for Courts-Martial and the Military Judges’ Benchbook instructions:

A totality of circumstances standard applies when assessing whether a person was incapable of consenting. In deciding whether a person was incapable of consenting, many factors should be considered and weighed, to the extent they are known, including, but not limited to, that person’s:

  • Decision-making ability;
  • Ability to foresee and understand consequences;
  • Awareness of the identity of the person with whom they are engaging in the conduct;
  • Level of consciousness;
  • Amount of alcohol or other intoxicants ingested;
  • Tolerance to the ingestion of alcohol or other intoxicants; and/or
  • Ability to walk, talk, and engage in other purposeful physical movements.

Until the Subcommittee’s recommendations are implemented, a good civilian defense attorney should file a motion for appropriate relief in any case involving this issue, requesting that the military judge provide the above definition and guidance concerning the meaning of “incapable of consenting.” It is important that a trier of fact be informed that just because an alleged victim consumed alcohol or other intoxicants, this does not mean that they were necessarily incapable of consenting.  Without the above guidance, it is possible that a Soldier could wrongly be found guilty of a sexual assault due to the confusion over what it means to be “incapable of consenting.”

If you have been accused of a sexual offense under Article 120, it is important that you consider retaining an experienced civilian defense attorney who understands how best to defend you. Military defense attorney David Coombs has over 18 years of experience representing Soldiers charged with Article 120 offenses.