Drunk enough to consent

I found this case, pointed out by John Wesley Hall at fourthamendment.com to be of interest in light of the ongoing discussion regarding Article 120 and alcohol. As I’ve noted before, a lot of sexual assault awareness training teaches that a person who takes one drink “can’t consent” to sex. We all know that’s not true but the training persists.

Demonstrably intoxicated defendant (.27% & .33%) could consent to a search. The parties litigated the level of intoxication with expert witnesses. United States v. Tellefsen, 2011 U.S. Dist. LEXIS 108495 (E.D. Wis. June 2, 2011).

Note the .bac levels. And here is a piece that Mr. Hall quotes.

[A]s Dr. Pankiewicz explained, there is a distinction between intoxication and impairment. … Intoxication refers to a specific measure of alcohol level, while impairment is “what that actually does to a person.” … Dr. Pankiewicz further explained: “[L]evel of intoxication does not necessarily equate with level of impairment. There’s going to be a variety as far as that individual’s capabilities, depending on their own history and their own physiologic makeup.” … Thus, for example, if an experienced and an inexperienced drinker both have a blood alcohol level of .1, the experienced drinker will perform better than the inexperienced drinker at the same level of intoxication. … Dr. Pankiewicz testified that while the blood alcohol content number gives a guideline, the real measure of function is a person’s actual demonstrated capacity.

Here is a link to something I began to use some years ago in a rape case (acquittal). While at first blush this post may seem overly defense oriented, there are lessons to be learned here for the trial counsel and SJA. First and foremost, you need to get involved in the sexual assault training being given on base. The voir dire in United States v. Walton, is a prime example of problematic training that infects the potential members pool. A significant number of the members remembered being told at training that once a woman had had one drink she “couldn’t consent” to sex.