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 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.


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.


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 Stucky concluded.

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.