In United States v. Sager, the accused was convicted of abusive sexual contact because the victim was “otherwise unaware” of the acts. The Navy-Marine Corps Court of Criminal Appeals affirmed the findings and sentence. Appellant petitioned the CAAF.
This case is before us for a second time. The Court of Appeals for the Armed Forces (CAAF) reversed our earlier opinion affirming the appellant’s conviction for abusive sexual contact.2 At the heart of the appellate litigation in this case is a question over the interpretation of Article 120(b)(2), UCMJ, which proscribes sexual contact with people the accused knows, or reasonably should know, are incapable of consenting to the contact because they are “asleep, unconscious, or otherwise unaware” that the contact is occurring. The unusual posture of this case after trial required us to decide whether the terms asleep, unconscious, and otherwise unaware represented distinct theories of criminal liability. In our first review of this case, we held that they do not. Rather, we held that the reasons for a victim’s lack of awareness, be it sleep, unconsciousness, or something else, were only relevant to whether the accused should have known that the victim was unaware of the contact.
The CAAF held that our interpretation was incorrect. Reversing this court, the CAAF held that “asleep, unconscious, or otherwise unaware” represents three separate theories of liability. The CAAF also held that the term otherwise unaware means unaware in a manner different from both sleep and unconsciousness.
Ultimately, the NMCCA found the facts insufficient and applying the double jeopardy case of Green v. United States dismissed the charges.