Last March, the U.S. Court of Appeals for the Armed Forces handed down
a ruling that is sure to affect countless sexual assault cases going forward.
The ruling affirmed the Navy-Marine Corps Court of Criminal Appeals’
definition of “incapable of consenting,” which is one of the
elements of sexual assault under the Uniform Code of Military Justice,
creating a service-wide definition for all future prosecutions of the offense.
Stars and Stripes reports, Petty Officer 2nd (PO2) Class Jacob L. Pease was accused by two
subordinates of sexual assault while stationed in Italy on the U.S.S.
Mount Whitney. In separate incidents, the accusers had been out drinking
and were ordered back to the ship. PO2 Pease was there to escort them
and, in both cases, ended up having sexual intercourse with them. Both
accusers, after speaking to one another, claimed that they had been too
drunk to consent to the intercourse.
During Pease's court-martial, the military judge instructed the panel
that in order to find PO2 Pease guilty, they had to find that the accusers’
levels of intoxication rendered them “incapable of consenting”
to the sexual acts. The law did not provide a definition for “incapable
of consenting,” but it did provide a definition for “consent,”
which is “a freely given agreement to the conduct at issue by a
competent person.” During deliberations, the panel asked for the
definition of “competent,” but was informed that no legal
On appeal at the Navy-Marine Corps Court of Criminal Appeals, Attorney
Eric Montalvo argued that the lack of a definition constituted error.
The Court of Criminal Appeals recognized that the lack of a definition
created an issue for the members; after looking at the language of the
statute itself, the Court of Criminal Appeals defined the element of “incapable
of consenting” as lacking “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.”
Under this definition, the Court of Criminal Appeals found the sexual
assault convictions were factually insufficient and set aside the findings
of guilt. The U.S. Court of Appeals for the Armed Forces affirmed this
definition and decision.
Undoubtedly, this case is monumental for the military criminal justice
system. Prosecutors, defense counsel, military judges, and panel members
alike now have clearer guidance on what constitutes “too drunk to
consent.” Now, the consumption of alcohol in and of itself does
not mean that a person is no longer capable of consenting to sexual intercourse.
Stars and Stripes, Attorney Montalvo recognized the impact of this decision. “[It]
holds the alleged victim properly accountable for his/her actions and
conduct,” he said. Attorney Montalvo explained, “You can’t
just be drunk and say, ‘I wasn’t able to make a decision.’”
To read more about this case and Attorney Eric Montalvo's effective
work throughout the military appeals process, you can read
Stars and Stripes’ “US military court addresses ‘incapable of consent’
to sex issue”