Appeals Court Redefines Definition of Consent for Sexual Assault Cases

There is a lot to discuss in this article to include the fact that the SHARP training after all these years has been wrong:

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.  [Stars & Stripes]

I read the bold text to mean that if someone is able to communicate that they want to have sex that this is consent regardless of whether they were drinking.  Because of this definition the sailor convicted of sexual assault in the article for having a drunken twosome was released from prison after serving 21 months of a six year sentence.  He left the Navy with an honorable discharge earlier this month.

Here is how the head of a major sexual assault advocacy group has responded to this change:

“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.”

So what if the accused was drinking?  Isn’t the accused decision making ability altered as well?  How is it just the accuser’s ability to make decisions is hampered by alcohol and not the accused?  Anyway I agree with what this lawyer had to say to wrap up the article:

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.”

Even with this new definition I suspect that cases with weak evidence will still get sent to court martial where juries will be left with the difficult job of figuring out the truth of what happened based off of drunken memories.