The most common Article 120 case the military charges is the drunken hookup: two people drink together, sex happens, and afterward her memory is fragmented and her feelings change. Military prosecutors have a few ways to charge that scenario, depending on the play-by-play of the incident, but the most common way is under Article 120(b)(3)(A), the UCMJ section that criminalizes a sexual act with someone who was incapable of consenting because of intoxication, where the accused knew or reasonably should have known the victim was too drunk to actually consent. This is also where the science of alcohol’s effect on memory, the science of memory in general, and the mistake of fact defense come together to give the accused a strong chance to survive.
How the Military Charges Drunk Sex Cases
The Office of Special Trial Counsel or the base-level prosecutor’s office can charge Article 120 cases under several different theories. The chart below shows the most common scenarios, how the UCMJ covers them, and whether OSTC is going to be interested.
| What happened | Charging theory | Likelihood OSTC takes it |
|---|---|---|
| Both drank; memory / blackout; “he said, she said” | 120(b)(3)(A) – incapable of consenting | Low, usually deferred |
| Both drank; memory / blackout; with corroboration | 120(b)(3)(A) – incapable of consenting | High if corroboration |
| Bought or pushed drinks / drugs to get her drunk for sex | 120(a)(5) rape if without knowledge / permission and substantially impaired ability; | High if corroboration |
| She was asleep or unconscious during any part of the act | 120(b)(2)(B) – asleep or unconscious person | High if corroboration |
You’ll see a common theme here. OSTC wants strong cases. A corroborated allegation is a strong case. Corroboration through lab science, medicine, and confessions.
Their congressional mandate is to send more military rapists to jail, a movement provoked by low conviction rates. OSTC was created for this purpose and given extraordinary powers and complete discretion, as a way of removing commanders from the process, since advocates saw commanders as condoning a culture of rape.
As implemented, the OSTC system only takes the easiest cases to trial, not wanting to jeopardize its winning percentage. OSTC has become, as if by accident, the greatest safeguard military defendants have against being convicted based on false allegations.
“He said, she said” cases are rarely of any interest to OSTC. At training bases, sex crime allegations in a basic training environment are almost universally handed to the command and the base legal office, since OSTC has no interest in prosecuting nut-taps. But cases with confessions, texts that amount to confessions, DNA evidence, medical evidence, and so on, are the ones OSTC keeps for itself, including alcohol-related Article 120 cases.
How Blackouts Help the Defense
The first row of that table is the most common kind of military sexual assault case. Stranger rape, date rape, and violent rape: the cases happen but they’re statistically rare. Drunken hookups gone sideways are a daily occurrence.
It usually involves a reported blackout. That’s not bad news for the defense, though. When an accused sees “blackout” in the evidence, he should think of it as an opportunity for trial.
Blackouts are either fragmentary (she remembers bits and pieces, known as islands of memory) or en bloc (she remembers nothing from a stretch of time). Blackout isn’t the same as passout. It’s not unconsciousness. It’s “anterograde amnesia,” a chemical shutdown of the brain’s ability to form new long-term memories.
A person in blackout can walk, talk, drive, make decisions, initiate sex, and appear completely functional and sober. She might have given the accused every appearance of not only being sober enough to consent, but of being completely sober.
The next morning, she remembers nothing. And despite what she says later about memories coming back to her the more she thought about that night, it’s impossible for her to ever recall what happened during a blackout, because the memories were never recorded in the first place. Anything she reports from that window of time is fiction, not memory.
The presence of alcohol cuts both ways. It escalates the danger, but Article 120 cases are also where alcohol science and memory science can be a great asset to the defense, something not available in a non-alcohol case.
What the Mistake of Fact Defense Really Is
The most common defense in alcohol cases is mistake of fact as to consent: the accused reasonably believed (a) the person was capable of consenting to sex and believed (b) she did in fact consent.
- The defense is an honest and reasonable belief that she consented.
- “Honest” means you actually believed it at the time. “Reasonable” means a sober, ordinary person would have believed it too, and this is a far more important question than whether you say you believed it.
- Your own intoxication is irrelevant.
- Prior sexual history with her can support the reasonableness of your belief that she consented on this occasion, but the facts of what happened that night can weigh more heavily than the past relationship (if she puked in your presence moments before you had sex, your prior relationship won’t save the day).
Drunk Sex Case FAQs
I was drunk too. Doesn’t that count for something?
No. Military law doesn’t recognize the accused’s intoxication as a defense in Article 120 cases. The legal standard for whether your belief in consent was reasonable is what a sober, ordinary, prudent person would have believed under the same circumstances.
The civilian prosecutor dismissed the case. Why is OSTC taking it?
Civilian prosecutors don’t dismiss these cases, they dump them on the military. A sexual assault case is hard to win without strong corroboration or a confession. The “victim’s” recollection is often self-contradictory. Other witnesses are unreliable, scientific evidence is usually weak or non-existent, and a civilian prosecutor’s office has a docket full of cases that are easier to win. They will happily dump a “he said, she said” case if given half a chance.
The military is different. The military has the investigative apparatus, the budget, the prosecutors, and a congressional mandate to take Article 120 cases, no matter how weak or strong they are.
These days, OSTC rarely goes forward with a “he said, she said case.” OSTC wants easy wins, and these cases are more often than not dead on arrival. So they will push those cases back to the command in a process known as “deferral.”
The command can then decide, in consultation with JAGs from the base legal office, how to handle the case. A case can be dropped. It can be resolved with a reprimand or Article 15. An Article 15 is tricky, because an accused can reject the offer and insist the case go to trial. Or the allegation can still be taken to a court-martial. If it goes to court, it will probably be at a Special Court-Martial. A General Court-Martial led by the base legal office is possible, but it would be without OSTC’s oversight (they might lend a hand at trial).
So when a civilian prosecutor’s office decides to let the military handle a case, that decision has no bearing at all on whether the military can prosecute you. Civilian prosecutors will sometimes let the military take jurisdiction even when the evidence is strong. They’re busy. The military prosecutors are too, but they’re always willing to take cases, even if it’s just to get reps.
The first time she told the story, she said nothing happened. Then she changed her story. Doesn’t that help me?
It can, but her flip-flopping won’t demolish the prosecution’s case all by itself. The defense needs to illustrate why she changed her story. The prosecution will have a convenient answer; the defense needs to have the inevitable answer that creates reasonable doubt.
What usually happens between the complainant’s first disclosure, often to a friend, and the report to law enforcement is that she talks to people. And every person she talks to contaminates her memory:
- Friends
- SARC
- Nurse
- Therapist
- Roommate
- Victim’s counsel
- Investigators
- Prosecutors
Each of those conversations can introduce “information” that fills gaps in her memory, and leads to interpretations of the incident she didn’t have before, and each retelling reshapes her memory. The brain doesn’t store memory like a video file. It reconstructs the event each time it’s recalled, and new information gets mixed in without the person realizing it.
By the time the case gets to trial, her memory of the night has been worked over by a dozen sympathetic or highly motivated listeners. Every one of them helped her attach herself to the version she now believes. That’s why she can be completely confident when she testifies despite being provably wrong.
Gagne, Scherer & Associates: Experienced Military Sexual Assault Lawyer
If you’re under investigation for military sexual assault or have been charged, call the UCMJ lawyers of Gagne, Scherer & Associates at (224) 935-6172. Our military lawyers have been winning these cases for over 20 years and can explain how alcohol, memory, and mistake of fact can be leveraged to win your case.