Another recent decision from the United States Court of Appeals for the
Armed Forces has confronted the difficulties inherent to defining consent
in sexual assault cases and resulted in the reversal of a guilty verdict.
Critical to the case,
The United States v. Rogers, was an uncorrected bias by a court-martial panel member that the appellate
judges believe should have remedied.
Rogers was an Electrician’s Mate Third Class who was accused of numerous
offenses, including two counts of sexual assault due to an encounter with
the alleged victim, M.C. M.C. had been out drinking the night she met
Rogers, but claims to have been too drunk to remember meeting with him
and, subsequently, having sexual intercourse with him.
During panel selection process of this court-martial (also known as voir
dire), Rogers' defense counsel challenged the participation of one-panel
member, CDR K, due to a possible bias she might have against Rogers. CDR
K worked with sexual assault victims, had a family member who had been
sexually assaulted, and, in
voir dire, expressed what the court is now defining as a misunderstanding of consent.
"You'd have to work hard to make me believe that someone was
so drunk that they can’t remember anything about the evening, that
they were then also able to give consent... That would have to be proven
to me," CDR K expressed.
Voir Dire Process
Voir dire is the process in which counsel and military judges examine potential
members of a court-martial panel to determine if they are fit to provide
a neutral perspective on a pending trial. This process would be considered
"jury selection" in a civilian court, and counsel and judges
can strike members from participating if there is a finding of any actual
or implied bias.
Actual bias is a bias that the panel member themselves claims and is aware
of. In the United States Court of Appeals for the Armed Forces' opinion,
they also reference the definition implied bias: "Implied bias exists
when, despite a credible disclaimer, most people in the same position
as the court member would be prejudiced."
As you can see, implied consent can be more difficult to determine and
places the burden on counsel and the judge to raise any concerns. In Rogers'
case, defense counsel did move to strike CMR K from the panel due to implied
bias based on her professional and personal history and her statements during
voir dire. That motion was denied by the judge.
Similarities to Prior Cases
Earlier this year, the court took on another case that hinged on a legal
definition of consent. In
The United States v. Pease, appellate judges determined that a "competent person" is an
individual who has the physical and mental capacity to consent and that
the presence of other factors, like intoxication, can make a someone incompetent,
but does not presumably make them so in the absence of other evidence.
Pease's conviction was overturned due to the lower court's failure
provide these definitions to the panel and—remarkably—an identical
incidence happened in Rogers' case: when CDR K asked the court-martial
judge to define "competent," the judge told the panel that “there
is no further legal definition of the word 'competent'" and
that they must apply their own definition of the word. Thus, M.C.'s
claim of being "black out" drunk does not incriminate Rogers
beyond a reasonable doubt.
No "Curative Instruction"
Unlike Pease's case (which went on to examine the accused's ability
to determine the competence of another person), Rogers' appeal ultimately
focuses on CDR K's incorrect assumption about consent during panel
selection and the lower court's failure to not only correct it before
proceeding with the court-martial, but to strike the member for implied
bias. As Chief Judge Erdmann writes: "the military judge never issued
a curative instruction on this issue at any point in the trial" and
"effectively endorsed [CDR K's] erroneous understanding, both
as to whether an intoxicated person can give consent and as to which party
had the burden of proof on that issue."
According to Judge Stucky, CDM K's comments in her interview even constituted
a predetermined opinion on Roger's guilt. "[CDR K] formed or
expressed a definite opinion as to the guilt or innocence of the accused
as to [the] offense charged," which constituted a "personal
bias which [did] not yield to the military judge’s instructions
and the evidence presented at trial." Ultimately, the appellate judges
agreed with defense counsel’s appeal: CDR K should have been struck
from the panel before the court-martial began due to implied bias. “Accordingly,
I agree with the majority’s ultimate conclusion that the military
judge erred in refusing to exclude CDR K from the panel,” Judge
As a result of the United States Court of Appeals for the Armed Forces'
new ruling, Rogers’ two convictions of sexual assault have been
overturned and a rehearing on the matter has been authorized.
If you are a military servicemember who has been accused of a sexual crime,
then it is essential that you retain defense counsel that is prepared
to protect your rights.
Joseph Jordan, Attorney at Law is a 10+ year U.S. Army veteran who now defends accused members of our
armed forces stationed all over the world. Our firm has produced consistently
favorable outcomes for our clients and always ensures that their voice
is heard before the law.
Want to learn more about what our firm can do to counter the allegations
against you? Request a
free case evaluation with us today.