Last month, the United States Court of Appeals for the Armed Forces made its final ruling on United States v. Jacob L. Pease, Information Systems Technician Second Class, United States Navy. Pease was initially accused and convicted of three specifications of sexual assault and one charge of abusive sexual contact but, upon appeal, those verdicts were overturned in the higher courts. His case is not only exemplary of how nuanced some legal considerations must be during litigation but also will now likely to be a touchstone for countless other cases that must depend on a legal definition of consent.
Pease served as an information systems technician on the USS MOUNT WHITNEY, stationed in Italy. He was in command of a number of sailors under him, including his first accuser, identified in case documents as ITSN S.K. In late 2012, ITSN S.K. went out drinking with shipmates and became intoxicated. While out barhopping with friends, she came across CWO3 G.B., another superior, who ordered her back to the ship due to her level of drunkenness. CWO3 G.B. witnessed ITSN S.K. accompany Pease (also out that night) go back to the ship. By his account, ITSN S.K. was sober enough to not only walk on her own, but to follow ship protocol (scan ID, use a ladder, ask permission to come aboard, etc.) without assistance.
Later that night, ITSN S.K. recalls smoking with Pease, calling him cute and kissing him. From there, her memory becomes spotty, but she does recall engaging in sexual intercourse with Pease. She even recalls the position she propped herself up in whilst the intercourse was going on. In the days that followed, shipmates testified that ITSN S.K. shared the encounter openly, without apparent distress, even reiterating that Pease was "cute."
Pease's second accuser is identified as IT2 B.S., another sailor who worked under Pease on the MOUNT WHITNEY. IT2 B.S. reported to the ship in early 2013. Much like ITSN S.K., IT2 B.S. went out for a night of barhopping with shipmates (even patronized the same establishments) and was witnessed by others in a moderate state of intoxication. Pease was again out that night and volunteered to walk IT2 B.S. back to the ship. IT2 B.S.'s memory also becomes spotty, but she does testify of engaging in sexual intercourse with Pease in various ways that tend to show she was consenting based off the positions they were engaged in. She stayed the night with him and remembers Pease specifically concerned that ITSN S.K. would find out about the encounter. IT2 B.S. was later confronted by ITSN S.K. and, together, they filed reports with a victim advocate accusing Pease of sexual assault.
At the center of the accusations against Pease is a question of consent and whether or not ITSN S.K. and IT2 B.S., in their state of intoxication, were able to give it. Both Pease and prosecutors used their own expert witnesses on alcohol consumption. While the government's expert explained that a person's peak drunkenness can occur after they have finished drinking, Pease's expert, Dr. Fromme of the University of Texas, Austin, made another critical distinction between "blackout drunk" (in which a person becomes physically incapacitated) and other stages of drunkenness that can result in memory loss. He also explained the state of alcohol myopia: where drinkers maintain "a focus on immediate effects and disregard for long-term consequences." In other words, you can be a walking, talking functioning individual in a black out state, presenting yourself to another person as if you are a willing participant in any activity that you might be engaged in to include sexual intercourse.
More critically, the judge in Pease's court-martial do not provide concrete direction when panel members requested guidance on the meaning of "competent" (as part of the definition of consent: "freely given agreement to the conduct at issue by a competent person"). The court transcript from the judge on this matter includes: "Members, the counsel and I have discussed it. There is no definition within this statute. Okay? ... so when a statute does not give a definition then it’s up to the reader to just employ the plain and ordinary meaning of the words. Okay?"
Pease was convicted and sentenced to six years of prison and a dishonorable discharge. Pease's counsel, however, appealed the decision on several grounds, including that the military judge erred in failing to give a requested instruction and that the evidence against Pease is legally and factually insufficient.
APPEAL WITH THE NMCCCA
Pease's appeal went to the United States Navy-Marine Corps Court of Criminal Appeals. In their decision, the court overturned the lower court's conviction of Pease, affirming his counsel's assertions that a) the military judge failed to provide proper direction on the meaning of consent and that hence, b) the evidence against Pease does not implicate him beyond a reasonable doubt.
The NMCCA designed its definition of incapable of consenting by looking at the definitions of three Article 120 terms, “competent,” “incompetent,” and “freely given agreement.” The NMCCA defined a competent person as “a person who possess the physical and mental ability to consent”. Next, the Court defined an incompetent person as a person “who lacks either the mental or physical ability to consent due to a cause enumerated in the statute.” Third, the Court defined “freely given agreement” as happening when a person first realizes and appreciates the nature of the conduct in question, and “then possesses the mental and physical ability to make and to communicate a decision regarding that conduct to another person.” In sum, the Court defined “incapable of consent” as “lacking the cognitive ability to appreciate the sexual conduct in question or lacking the physical or mental ability to make and to communicate a decision about whether they agreed to the conduct.”
Using this definition, the NMCCCA recognizes the fact that the claims of ITSN S.K. and IT2 B.S. may be sincere and genuine: due to their intoxication, they may not have been in a state to give consent. The question at hand, however, is whether or not that government proved that Pease could have recognized this condition in ITSN S.K. and IT2 B.S. In this case, the court believed that the witnesses' testimony was inconsistent in both incidences: moment-to-moment, ITSN S.K. and IT2 B.S.'s state of intoxication seems to fluctuate. The accusers walk on their own, follow military protocol, and are aware of their surroundings in one phase of the testimony, and then are staggering for assistance and smoking the wrong ends of cigarettes in the next.
The court then also must extend that same skepticism to ITSN S.K. and IT2 B.S.'s testimony. Both women admit under oath to either initiating (kissing) or enjoying parts of their encounters with Pease. The gaps in their memory then do "not persuade us beyond a reasonable doubt that somewhere in between [the memories], she had become manifestly unaware of what was happening or unable to make or to communicate decisions."
Applying the facts elicited at trial to their definition of incapable of consent, the NMCCCA overturned the conviction of Pease. The government, however appealed the decision, claiming that a) the NMCCCA's definition of consent was not included in the original trial and b) their definition of consent is insufficient for this case and even perhaps future cases dealing with similar claims.
THE FINAL DECISION
Pease's case was then brought to the United States Court of Appeals for the Armed Forces earlier this year. On the first matter of the appeal, the court writes that NMCCCA did not err in establishing its own definition of consent/competent. While the government argues that this is not within the court's authority, the CAAF cites United States v. Leak, which states that the court's "application of the law to the facts must... be based on a correct view of the law." The CAAF believed that NMCCCA did this appropriately by basing their definition on Article 120. CAAF noted that just because the original judge had left the definition to the panel to determine, that does not exclude Article 120's relevance to the case.
Secondly, CAAF found that the government's claim that the NMCCCA's consent definition was too broad was not valid. In its decision, CAAF does recognize that NMCCCA's definition does not cover every circumstance where consent might be given due to pressure or threats, but also argues that these distinctions do not change its other findings about Pease's circumstances.
Few disagree that cases like Jacob Pease's are difficult to navigate, but in this case, justice appears to be served. Just as NMCCCA conceded, there may be elements of legitimacy to the claims of ITSN S.K. and IT2 B.S., but in order to assign guilt and punish, our military and civilian criminal justice systems must demand more: more proof, more consistency, and more understanding. This case is important, because it shows the courts willingness to examine the facts closely to see if they due indeed match up with the law. In this case, the court had to expressly define the law, and upon doing so, recognized that that the Governments evidence elicited at trial did not survive the Governments burden of proof. Attorney Jordan also adds that he routinely consults with Dr. Fromme of the University of Texas, Austin and, due to her testimony, secured a courtroom victory in a Navy case in Bahrain several years ago. Thorough investigation of a case, consultation with the right experts, and proper application of the law to the facts more often than not wins cases.
If you are a military servicemember who stands accused of a criminal act or has been issued an adverse administrative action, then Joseph L. Jordan, Attorney at Law is ready to hear from you. Attorney Jordan is an Army veteran with more than a decade of experience who now travels the globe to protect the rights of his clients.
Do not confront the allegations against you without a trusted and proven military law advocate by your side. Contact us today to request a free case evaluation.