Alcohol can become a central issue in a military sexual assault case. Whether the accused’s intoxication matters depends on the charged offense and the mental state the government must prove.
Voluntary intoxication is not, by itself, a defense. Under Rule for Courts-Martial 916(l)(2), however, intoxication evidence may raise reasonable doubt about actual knowledge, specific intent, willfulness or premeditation when that mental state is an element of the charged offense. The current Army Benchbook distinguishes actual knowledge from what the accused reasonably should have known. Intoxication may bear on actual knowledge. It does not lower the standard for what the accused reasonably should have known or make an unreasonable belief in consent reasonable; those questions are judged against an ordinary, prudent, sober adult.
For a current charge under Article 120(b)(3)(A), the government must prove that the other person was incapable of consenting because of impairment by alcohol, drugs or a similar substance, and that the accused knew or reasonably should have known of that condition. Drinking alone does not establish incapacity, and mutual intoxication does not automatically establish an offense by either participant. A charge that a person did not consent is a separate theory from a charge that the person was incapable of consenting. The older terms “aggravated sexual assault” and “substantially incapacitated” concern a former version of Article 120; the alleged offense date and the precise charged theory control the analysis.
The defense should test the evidence about both participants’ conduct and condition, including messages, witness accounts, the timeline and the investigation. If the evidence supports an allegation that the accused was subjected to nonconsensual sexual conduct, counsel should assess the facts and consequences before deciding whether to make a report or statement. A counter-allegation should not rest on the assumption that mutual intoxication makes both participants offenders. The government still must prove the charged offense, and the defense should identify evidence that undermines that proof.
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 court-martial defense lawyers at Bilecki Law Group.