To be clear, this is a legal blog and not self-help guide to love and sex. Is your drunken lover trying to get you to dress up like Abraham Lincoln before intercourse? That’s weird sober or drunk and whether or not you give her the honest Abe log cabin special is up to you. What we can do is give you some pointers so that a night of drunken excess doesn’t put you in jail, destroy your military career, and haunt you for the rest of your life. We specialize in military court martial defense and that is a helpful fact because military service members are at such a unique disadvantage when it comes to the implications of drunken sex. That they are at a disadvantage is unfortunate, because few people pursue drunken sex like members of the military. The birthplace of the Marine Corps was a bar for goodness’ sake. We feel quite confident that the first Marines stumbled out of Tun Tavern on November 10th, 1775, and hooked up with Martha because she could drop ye old knickers like it was hot. We’re sorry, but sex and booze in the military is a thing that isn’t going anywhere. We can try and help you make good decisions and with so much on the line, you’re going to want to read every last word before you head out to the bar tonight. Let’s jump right in.
Eros And Booze Are Inseparable In Military Culture
We’re not going to waste time telling service members not to imbibe. Senior officers and enlisted might wish we would, but considering those same senior members are going to regale their young enlisted with tales of their own drunken adventures, we know it’s not going to take. We’re also not going to suggest that young service members completely eliminate eros from the ranks. We understand how it might be helpful if we could remove it, but biology will rule the day.
Place all the restrictions around it you want and military service members are going to find a way to do it. Like water running downhill or gravity pulling a meteorite out of the sky, we are dealing with forces far beyond our ability to restrain. Fill these young service members up with “liquid attraction” and damn it, our nation’s finest heroes are going to F*&$. So let’s move forward with this pragmatic truth in mind and keep everyone safe, consensual, and DTF.
Drunk Sex Isn’t Always A Crime, But Always Can Be A Crime
For the purpose of speed and clarity, we’re going to write from what is the most common scenario of allegations of rape or sexual misconduct in the military. That involves a man being accused by a woman. However, understand that this is not always the case. There are plenty of cases where a drunken man is waking up to a female counterpart trying to charm his whiskey hampered phallus into action like she’s taming a King Cobra. Also, in the modern military, same-sex crimes can and do occur.
Drunken sex isn’t always a crime and sometimes, it’s fantastic. However, particularly in the U.S. military, all it takes for it to become a crime is for one partner to wake up and say it was so. It’s scary as hell for a young service member to fall asleep thinking he just fell in love and wake up to realize he is now in a living nightmare. The law is clear, and consent is a thing, as it should be. In a little bit, we are going to explain consent as it is defined by the UCMJ. A person can withdraw consent at any time and intoxicated people can legally claim the inability to give consent. That’s the law and it’s not changing. As such, if you are DTF, you need to be DTF with the definition of consent at the forefront of your mind.
Why Drunk Sex In The Military Is A Bigger Problem
On any given college campus, some drunk frat boy is trying to coach some sorority girl back to his dorm room while both are in a state of severe intoxication. What neither of those young people will face is an entire justice system designed to publicly destroy their lives if they step out of line. Military service members must contend with the UCMJ and neither justice or truth is the ultimate aim of that military justice system.
The aim of the military justice system is to preserve military order and discipline. For that to work, it requires that they make a public example out of someone. Anyone will do and the more a service member loses, the scarier example it will make. The military is currently under intense pressure by the public and elected officials to root out sexual assault. While that is a righteous and worthy cause, the blind pursuit of that is getting many innocent men and women caught up and having their lives destroyed in the process.
Drunk sex in the military is a problem because any partner can claim to have never given or withdrawn that consent and the system then goes into autopilot. It never questions whether or not the partner was being honest or whether or not there were ulterior motives. This means that service members are at a unique risk and the only thing that can save them from fraudulent prosecution is their right hand. Maybe their left, but mostly, the right. First, let’s take a look at how the UCMJ defines consent.
The Definition Of Consent Under The UCMJ
According to the UCMJ, consent means a freely given agreement to the conduct at issue by a competent person. expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance does not constitute consent. Submission resulting from the use of force, threat of force, or placing another person in fear also does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue does not constitute consent.
The UCMJ then clarifies that a sleeping, unconscious, or incompetent person cannot consent. A person who is intoxicated has the ability to claim they were not competent enough to offer consent. If she fell asleep while making out because she is that drunk, she is now asleep and unconscious. Sleeping and unconscious people cannot offer consent. That’s a problem, because being super drunk makes people super tired, regardless of how super horny you may be. Unless you want to be our next client, if she falls asleep you need to treat that as a withdrawal of consent, ten times out of 10.
Now, consider the fact that the UCMJ clarifies that marriage is not a defense to this offense. If the wife who has been with you throughout multiple deployments has the ability to accuse you of rape when she falls asleep drunk, you better damn well believe the person you just met in the bar has that equal right. Again, we understand that drunk sex in the military is going to take place. As such, we’re going to offer some fairly pragmatic advice and unless you want to be our next client, it would behoove you to weigh this advice accordingly.
Some Drunk Sex Is Riskier Than Other Drunk Sex
If you’ve been seeing a girl for six months and the sex has been great, you’re at a much lower risk of allegations of rape when she drunkenly asks you to put on the Abe Lincoln hat and beard. You have history, you know each other and you’ve communicated plenty about sex and respective boundaries. So, when she drunkenly says that she wants to wear the beard and hat this time, it’s weird but you understand what she means. Remember though, a previous dating or sexual relationship does not automatically constitute consent. This is about you using proper judgment and that you genuinely understand that your partner has had a few drinks, but is indeed consenting to the behavior.
However, if you just met a girl and she is puking in the Uber home, you don’t have any idea what she means when she says President’s Day is her favorite holiday and “oh my gosh, Lincoln is my favorite President.” So, as a matter of pragmatism, go home, call it a night, and call her in the morning. Don’t do it and yes, we realize how hard that might seem at the moment. Don’t do it. Do it later this week, but not that night. Build some history and communication together. It’s what’s right for you and it’s what’s right for her.
She might genuinely want to take all you have to offer, but you don’t know this person. You don’t know her friends who are going to vouch that, “she would never willingly go with someone like you” and you don’t know her. If she is genuinely that drunk, there is no joy that will make up for the pain of having your life and career destroyed on their word alone. Go home, call it a night, call her in the morning. Build history and build communication before you put yourself at such peril and so that you both genuinely know what each other want.
Unique Risk Factors For Drunk Sex In The Military
Regret and shame are morning after risk factors that are universal across the board. In any scenario, if a girl thought she was going home with Brad Pitt and instead woke up to the captain of the Pork Chop platoon, she’s not going to take it well. However, there are some risk factors that you can look for to decide if this night of drunken lust will end poorly.
Acknowledging prior sexual abuse – If your drunken partner has already admitted prior sexual abuse to you and it’s the first night, don’t have drunk sex. Don’t do it. Go home, call it a night, and get to know her better. Time and time again we hear this come up when a good young man or woman thought they just had the night of their lives and are now facing serious charges. Sexual abuse is trauma that has lasting effects on a person and even a completely consensual sexual experience can be a trigger. You can have a relationship with them and they may be the love of your life. But that takes time and drunken sex when you barely know her puts you in great peril. Take your time, there will be plenty of nights for drinking and plenty of nights for sex in a more timely future.
They absolutely hate being stationed here – If you meet a girl or guy in some random dive bar off of Minot Air Force Base in North Dakota and they say they’d do anything to get out of here, take them at their word. If they claim they was sexually assaulted here, the military is going to roll out red carpet to get them out of there. It’s called an expedited transfer. If he or she drunkenly says that they would screw over every officer in the command just to get out of this frozen hell hole, they won’t hesitate to do the same to you.
Look, there are places in the military that suck. Minot AFB, 29 Palms Marine Corps Base and Camp Humphreys, Korea might be at the top of that list, but there are many. When someone claims sexual assault, it puts power into their hands that they wouldn’t otherwise have had. So, if he or she hates it here because 29 Palms or Camp Humphreys, take your time. You don’t want to be the reason they received an expedited transfer to the duty station of their choice. If he or she is drunk, go home, call it a night and call them back the next day. You can still hook up, but just not yet at the risk of losing your entire military career and future.
They are in their own trouble with the UCMJ – Look, if she has one too many glasses of wine at the farmer’s market and lifts up her ankle length skirt and says, “touch me like my first boyfriend Hezekiah used to on the farm”, that’s one scenario. If you are out with a girl and it’s well past curfew, you know she’s only 19 years old drunk, and she just posted on social media that her entire command is full of “bitches,” do not have sex with her that night.
Don’t get us wrong as drunk sex with the right crazy partner can be pretty awesome. But you don’t know them, and they is about to be in their own world of trouble with the UCMJ. With the military’s recent “safe to report” policy that has come out, claiming that you sexually assaulted them may be their own “get out of jail free” card. We’re not saying that’s what always happens, but it happens, but it happens enough. Take our word on that after defending one case after another. Don’t do it. Go home, call it a night, build a relationship, and have crazy consensual sex with the crazy person.
Think About Drunk Sex Before You Are Drunk
Finally, we leave you with this last piece of sage advice. Think about drunk sex before you are drunk and this is really the reason why we are writing this article. Some sex is more fun than others, but we have never encountered a young service member with his life on the line to say it was worth it to pursue that risky drunken sex encounter. They’d call it a night 10 times out of 10 if they had it to do over again. Of all the stupid things you have to memorize in the military from general orders to weapon specs, memorizing the definition of consent should be at the top of your list.
Take the time right now to re-read the definition of consent. Understand that the UCMJ is crystal clear that a sleeping, unconscious, or incompetent person cannot give consent. Remember that consent can be withdrawn at any moment. If you hear him or her drunkenly mumble anything that remotely resembles the words “stop” or “no”; go home, call it a night, and call them the next day.
Yes, we realize you might be the ugliest Marine in your unit and the girl at the bar drinking the fifth of Vodka may we willing to give you a shot. There will be other days and other opportunities for sex. Consent is a real and legit thing. The law is clear on that and it’s not changing. Drunken sex with the right partner can be fun. Anyone who says otherwise clearly hasn’t tried it or wasn’t doing it right.
You just need to understand that consent can be as fleeting a feeling as regret. It comes and goes without always fully announcing itself. You are not a bad person and you don’t want to take advantage of anyone. So, you need to recognize the red flags beforehand and when you are sober. If you don’t really know the drunk person and consent is a question, go home, call it a night, and call her tomorrow. Especially if you are a member of the United States Armed Services. No two sexual encounters are exactly the same. Use good judgment and keep yourself in the fight for our nation, because that’s where we need you most.