Given that most military sexual assault and rape cases somehow involve alcohol or being drunk, we get countless questions on whether being drunk is a defense to sexual assault.Simply put, “voluntary intoxication” is NOT a technical defense to a general intent crime. According to Note 12 of the new Military Judge’s Benchbook instructions, voluntary intoxication is not relevant to a mistake of fact defense regarding the victim’s apparent consent. So in a situation in which both parties to the sex act become substantially incapacitated but not unconscious through voluntary intoxication, have they, not each perpetrated the crime of aggravated sexual assault upon each other?
This particular “crime” essentially criminalizes having sex with a drunk person (albeit an extremely drunk person) while maintaining the legal posture that eliminates any consideration of the drunkenness of the other participant. In such situations, where both parties may have only hazy memories of the sexual conduct as a consequence of voluntary intoxication, the chasm between how the law will view the “victim’s” drunkenness as compared to the accused’s drunkenness is stark, shocking and just one more example of why we say the military is waging a fundamentally unfair war on sexual assault.
While balancing what’s in the best interests of the client, an experienced court-martial defense lawyer should discuss with you the option of making a counter-allegation (i.e., if there was a sexual act, it was the “victim” who took advantage of the accused). This could involve rendering a brief and concise formal statement drafted by a hard-hitting civilian lawyer to CID or to the chain of command, perhaps even accompanied by a sworn charge sheet filed by the “accused” against the “victim.”Trying to have the “victim” charged is truly a scorched earth method and as such, is fraught with danger for the accused and could easily backfire. Then again, such actions could also prove quite fruitful and let you beat the rap. We like to also cross-examine the testifying CID agents on their sloppy investigation and on why they focused that investigation entirely upon the accused and not the “victim”. This could be particularly interesting if you tried to get the “victim” charged as well. In short, your military defense attorney may be able to point out to the panel members the sheer ridiculousness and patent unfairness of attempting to criminalize something that happens on college campuses across America every weekend – drunken, consensual sex.
If you have been charged with a sex crime and have the financial resources to bring on a heavy-hitting trial lawyer, then you should contact the Hawaii court martial defense lawyers at Bilecki Law Group.
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