How drunk is too drunk to consent to sex? According to military training aimed at preventing sexual harassment and assault, the answer has been: barely tipsy.

How drunk is too drunk to consent to sex? According to military training aimed at preventing sexual harassment and assault, the answer has been: barely tipsy. (Terrica Y. Jones/U.S. Air Force)

How drunk is too drunk to consent to sex?

According to military training aimed at preventing sexual harassment and assault, the answer has been: barely tipsy.

For years, Sexual Harassment and Assault Response and Prevention training informed troops that even one drink made a person incapable of giving consent.

In legal terms, that wasn’t true.

The issue has been at the heart of many cases in military courtrooms over the past decade. How many drinks an alleged victim consumed and how much alcohol rendered him or her “incapable of consenting” is frequently disputed at trial.

Now, for the first time, a military court decision has defined the term “incapable of consenting” while overturning a sailor’s conviction for sexually assaulting two subordinates under the influence of “significant amounts of alcohol.”

The U.S. Court of Appeals for the Armed Forces agreed in a March decision that a person is incapable of consenting when he or she lacks “the cognitive ability to appreciate the sexual conduct in question or the physical or mental ability to make or to communicate a decision about whether they agree to the conduct.” In rendering its decision, the court upheld a 2015 decision by the Navy-Marine appellate court.

Some defense lawyers hailed the opinion as a corrective to recent changes to military law, policy and politics that they say have resulted in weak cases going to court-martial and innocent men’s lives being ruined. It “holds the alleged victim properly accountable for his/her actions and conduct,” said Eric Montalvo, the appellate defense lawyer in the case, U.S. v. Pease. “You can’t just be drunk and say, ‘I wasn’t able to make a decision.’ ”

The 2013 case involved two women who were subordinates of Petty Officer 2nd Class Jacob L. Pease. According to court transcripts, they had separate sexual encounters with him after nights on the town in their homeport, Gaeta, Italy.

The shore patrol had ordered both obviously drunken women, both fresh arrivals, back to the USS Mount Whitney. Pease had escorted them.

Both women testified that they’d remembered only parts of the evening, including fragmented memories of sexual activity with Pease, now 26. Neither believed they’d consented, although one woman allowed that she could have.

One woman remembered kissing Pease and telling him he was cute. The other remembered telling Pease to stop hurting her, that he did so and that she had enjoyed parts of the encounter.

Pease was convicted after a jury decided that the women were incapable of consenting because of impairment by alcohol and that Pease knew or reasonably should have known of their impairment. He was sentenced to six years’ confinement and given a dishonorable discharge.

The Navy-Marine Corps Court of Criminal Appeals reversed those convictions in 2015.

“Our conclusion has nothing to do with the sincerity or credibility of either complainant. It turns, instead, on the high burden the Government carries in a criminal case and an issue the record shows the members struggled with: How impaired does a person have to be before they are ‘incapable of consenting?’ ” the court wrote.

In the end, the judges found reasonable doubt that the women were legally “incapable of consenting” as well as reasonable doubt that Pease knew or reasonably should have known they were incapable of consenting.

The court devised the definition of “incapable of consent” to help weigh the evidence.

The definition “marks a significant precedent in the thorny intersection of intoxication and sexual assault,” according to Zachary Spilman, the lead writer of a military justice blog, CAAFlog, and a military appellate lawyer.

Now, Spilman wrote, if military jurors ask what “incapable of consent” means, judges will be able to provide that definition.

Juries will still have to determine whether alleged victims were too impaired to realize what was happening or were unable to form a decision or communicate regarding their willingness.

“The key has always been mental ability,” said Don Christensen, formerly the top Air Force prosecutor and now the president of the advocacy group Protect Our Defenders. The spectrum goes from no alcohol and no impairment to unconsciousness.

“Somewhere between those two extremes, people can’t consent to sex,” he said. “The key is to find out where that point is.

“There’s that common sense part of it,” he said. “What if you were trying to do a business transaction (with a drunken person)? You’re taking advantage of that guy. He doesn’t understand the intricacies.”

Montalvo said he believes the decision would rule out the prosecution of questionable cases.

“I was on top. I was enjoying it. They told me I was too drunk and that I was raped,” Montalvo said, voicing hypothetical testimony. “That can’t be anymore.”

Jack Zimmermann, a Houston military appellate lawyer, said he doubted the case would have a significant effect.

“In reality, it’s going to be very similar to the way it’s been: You look at the words and actions of the people involved,” he said. “The bottom line in these sexual assault cases is that they are going to be won or lost in the courtroom when the complaining witness testifies and the jury believes her or not.”

Pease was also convicted of fraternization, and that conviction was affirmed. Pease spent 21 months in the brig. He was released and returned to active duty in September after the Navy asked the appeals court to decide whether the lower appellate court had erred.

Pease was honorably discharged on May 9, his lawyer said, but was barred from re-enlistment.

author picture
Nancy is an Italy-based reporter for Stars and Stripes who writes about military health, legal and social issues. An upstate New York native who served three years in the U.S. Army before graduating from the University of Arizona, she previously worked at The Anchorage Daily News and The Seattle Times. Over her nearly 40-year journalism career she’s won several regional and national awards for her stories and was part of a newsroom-wide team at the Anchorage Daily News that was awarded the 1989 Pulitzer Prize for Public Service.

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