The CAAF has decided United States v. Rogers, __ M.J. ___ (C.A.A.F. 2016) today.
The issue under consideration was a challenge to a member–the senior member–for implied bias that was (as CAAF now says, wrongly) denied by the military judge. The issue and decisions are not so troubling; the whole question of challenges to members is quite common and should be pretty well understood.
What is most troubling however–AGAIN–is the basis for the challenge and the continuing false and misleading information given out in sexual assault training!
Rogers was charged with sexually assaulting M.C. while she was incapable of consenting to a sexual act due to impairment by an intoxicant, a condition that was either known or reasonably should have been known to Rogers.
CDR K was called back for individual voir dire. In response to defense counsel’s questions, CDR K asserted her understanding of the law as to when an intoxicated person could give consent. CDR K stated that if someone was too drunk to remember that they had sex, then they were too drunk to have consented to having sex. CDR K indicated that her understanding of this law came from the training provided by the Coast Guard. CDR K noted, however, that “[i]f the law told me [otherwise] … I’d follow the law.” CDR K continued, stating that it “would have to be proven to [her]” that “someone was so drunk that they can’t remember anything … [but] then [are] also able to give consent.”
This is just wrong, repeat wrong, and the military persists in falsely educating people. Memory of events has nothing to do with consent. Drinking alcohol and blacking out or not remembering is totally unrelated to whether someone consented or an accused mistakenly believed the person was consenting. The extent and depth of knowledge and research on this matter is so extensive one wonders at the education and training of people giving the training–unless, unless this is a deliberate effort to shape training to garner convictions regardless of the medical, psychological, and law truth of what does or doesn’t happen.