The version of the facts contained in the majority opinion is far more convincing than are the facts contained in the record of trial.
It is not unusual for an appellate opinion to be selective in reciting the facts of a case relevant to the decision. This can be attributed to several factors, most of the factors are benign and unintended, sometimes a cynic might argue the facts cited are deliberately selective. But here is the relevant part of the dissent for counsel’s takeaway in alcohol related sexual assault cases. The noted confusion must be addressed with the fact-finder through evidence perhaps, and certainly through argument.
It appears to me that the parties at trial misunderstood the relationships between volitional behavior, consent, mistake of fact as to consent, intoxication, and lack of memory. The question is not whether the alleged victim remembers what happened, but whether she participated in the sexual activity of her own volition at a time when she had too much to drink. Chief Judge Everett‘s concurring comments United States v. Baran, 22 M.J. 265, 270 (C.M.A. 1986), are directly applicable to this case:
The victim’s] inability to recall what happened does not signify that at the time of intercourse she was unable to give consent. As this Court recognized long ago, alcohol may affect a person’s memory and inhibitions without depriving him of volition; and proof of amnesia does not conclusively establish that someone was unconscious or lacked mental responsibility at the time of the events they have forgotten.
United States v. Grier, ARMY 9700651, 1998 CCA LEXIS 589, 19-20 (A.C.C.A. Dec. 11, 1998)(Johnston, J., dissenting).