Off The Record: Episode 9
Tim: Can you consent to sexual activity after drinking alcohol if you’re in the military? Find out on the next episode of “Off the Record.”
So if you’re drinking at a bar you meet someone and they’ve had something to drink and you go and take them home and have sex with them, I think that’s the biggest question I get asked week in and week out, when are you able to consent if you’ve had something to drink?
Noel: And the military is the worst at this. I know the army leads the way, but the Marine Corps, the Navy, they all have this training nowadays that basically says if you drink one drink, that is too much for the other person to consent. I know it’s this ridiculous notion that one drink is too much.
Tim: And think about the absurdity of this, Noel. I mean you go to a bar, you have a couple drinks, you meet someone at the bar and say hey, then you hook up, maybe you start making out, maybe you go home, whatever happens that night, the fact you’ve had one drop of alcohol or one drink is too much to consent is absurd. If that was the reality, if the teachings of the army was the reality, we better start opening up a lot of prisons, because you have a lot of married couples that go out and have a glass of wine with their spouse. But if you’re going out to a bar and you meet someone who’s had something to drink, that is absolutely not the state of the law and it gets taught to soldiers every single week. And juries oftentimes are poisoned by this notion that you cannot consent if you’ve had something to drink. The legal reality is fundamentally different. It all goes about your ability and your capacity to consent. And we all know that for some people they can have two drinks and they’re hammered, other people can have 9 or 10 or 11, they’re professional drinkers, and they’re good to go.
When Is Sex Consensual?
The issue again is the capacity for another person to consent. So oftentimes what we see is two individuals go to a bar, they start drinking, they go back, they hook up, they have sex. The next morning, someone’s spouse finds out, someone’s boyfriend finds out, a first sergeant does a barracks inspection, they find two people together, maybe their ranks are different, and all of a sudden what we have is someone claims that they did not consent, they were too intoxicated to consent and a sexual assault case happens. It is one of the most routine charges we see in the military, these alcohol-facilitated sexual assaults.
The reality of this comes down again to a person’s ability to consent. So if someone makes an allegation against you saying they didn’t have the capacity or they’re too drunk to consent, there are essentially two real defenses that we see often. The first is actual consent, that the person that you hooked up with or that you had some sexual contact with, was actually consenting to the sexual activity and they’re either making a false allegation now, or they’re lying about it, they may have all sorts of motives to do that. Or the second defense we see a lot is what’s called mistake of fact as to consent. That’s where someone has an actual belief, an objective belief, again from an objective standard, that the person that they were hooking up with was consenting. So an example is if they’re talking to you, they’re participating. They’re telling you this is what they want to do. By all accounts, it appears to an objective person that they are consenting, that is a complete and absolute defense.
Noel: It all boils down to this, the act that you engaged in was something that you both wanted, you both agreed to it. Look, at the end of the day, what it is and what the crime is is substantial incapacitation. It’s not just some incapacitation, it’s not a little bit of incapacitation, it’s not tipsy, it’s not light headed. It is substantial incapacitation. And that’s what the law talks about. It’s not just like, “Hey, look…” And they don’t measure number of drinks, one, two, three. It’s whether or not the other individual was substantially incapacitated. Was the other person really too drunk to consent.
Tim: Noel, put this into context for me, give me a story about when consent has come up in a court case involving alcohol.
Noel: Well, I represented a service member who was an E-3 in the United States Navy. And he had a friend that was also another E-3 in the Navy. And they hang out together and they did things together. Well, it turns out that there was one occasion where she wanted take a trip to Maui with her relatives. And she invited my client along. And the deal was basically, “Hey, look, I buy the tickets, you buy the alcohol.” Now, you think that they’re just friends and they’re going over there as just a guy and a girl who have no romantic inclinations whatsoever. But they go over there and, as you can imagine, they’re sharing a pull-out couch with each other, they’re hanging out, day in, day out spending all this time together, and there’s a mutual attraction. Now, one night they go out and they go drinking, and as they talked about, she bought the tickets, he bought the alcohol. She had a little bit to drink that night. Okay, she had a lot to drink that night. They took her back to the hotel room, they got in bed together and they had sex. There’s no question about it. They had sex. DNA results came back that they had sex. But the next morning her lesbian girlfriend found out that she went on this trip with my client and she had to make up a story that was going to be explainable to her girlfriend.
Tim: It happens.
Noel: And the whole question that it boiled down to was whether or not she had too much to drink.
Tim: So this individual made a false allegation against your client.
Noel: That’s what always happens in these situations. It’s the girlfriend, the boyfriend, somebody finds out and she didn’t want to be known as a person who is loose. So when she came back, she made a false allegation against my guy, and that got out and so an investigation started. The natural progression of things, once you make this allegation, the ball gets rolling. She probably didn’t know that all of this was going to happen. She just wanted to make an excuse for the girlfriend. What happened was we put together a team, we got a DNA expert, we got a sexual assault nurse examiner, we got an alcohol expert. We put that team together and we tried to make sure that the science actually backed up her claim. And what we found out through the investigation is the science did not corroborate her claim.
Tim: So she was making a false accusation to basically…she had some motive to fabricate, made a false accusation, said she had too much to drink when she really was…it sounds like she really was consenting and blame the alcohol, saying it was an alcohol facilitated sexual assault. Is that what occurred?
Noel: Absolutely. And did she have a lot to drink that night? She had a lot to drink. But the problem was for her and her allegation was that she was consenting along the way, she changed positions, she was going along with it and she had a motive to fabricate. And she just took the one step too far and it led down this road.
Tim: Kind of begs the question, how often do we see or do you see this where you have two individuals, they hook up, they go to a bar, they drink together and then there’s a claim of sexual assault the next day where alcohol kind of becomes the blame for this?
Noel: Well, you know what, the funny thing is, I like to say that I see it all the time. But what really happens is, there is the overwhelming majority of the people out there in the world who understand that they got into this situation, they drank some, and then they had sex with somebody who maybe they wouldn’t have had sex with. And they don’t always make a false allegation. I’m not going to go out there and say every person who goes out there makes a false allegation. But it happens more than you think, that in this where we are today, in this political climate that we have today, the people in the world are more willing to say that they’re the victim of something than take ownership of their own decisions.
Tim: So it sounds like one of the questions that you have to answer in any of these types of cases is why. I’m assuming a jury is going to want to know why an individual is gonna make a false allegation of sexual assault. Because that’s a big allegation to make. You can absolutely destroy someone’s life. You have to go through the court system, whether be it a state court case or a court-martial case. But you’ve got to come back and answer the why that someone would do this. Because certainly, the reality is you can drink alcohol, you can consent, you know, you can be substantially incapacitated if you’re passed out, or if you’re throwing up, those are all indicators that you probably can’t consent. But the vast majority of cases are ones where you can consent, but people don’t like the decisions that they made the night before while they were drinking alcohol. So it kind of goes to what you were saying earlier, is answering the why someone would do this, so we can show a jury that these are not actual…that these are false allegations and not true. This is not a true sexual assault.
Noel: You have to be able to answer all of those questions. The why, very important, but also did she consent and what is too much. So you have to overcome that initial notion that one drink is too much to consent.
Tim: So the reality is one drink is not too much.