Alcohol and Intoxication in UCMJ Article 120 Cases

Why Drinking Does Not Automatically Mean “No Consent” under the UCMJ

Many Article 120 UCMJ sexual assault cases involve alcohol. Often, both parties have been drinking, and the case turns on whether the alleged victim had the capacity to consent due to intoxication.

Military prosecutors frequently oversimplify this issue—first with the now-discredited “one drink means no consent”theory, and increasingly with a new version of the same fallacy:

“A BAC of .08 or higher means no consent.”

That is not the law, and it is not the medicine.

Intoxication Is Not the Legal Standard — Incapacity Is

Article 120 does not prohibit sexual activity with a person who has been drinking or is impaired.

Instead, the statute criminalizes sexual conduct only when the alleged victim was:

• Incapable of consenting due to impairment, and
• The accused knew or reasonably should have known of that incapacity

This distinction is critical—and routinely misunderstood by investigators, prosecutors, and even courts-martial panels.

Consent Under Article 120, UCMJ

Rejecting the “.08 BAC = No Consent” Meme

Prosecutors increasingly attempt to anchor incapacity to a numerical blood alcohol content (BAC)—often suggesting, implicitly or explicitly, that a BAC at or above .08 automatically eliminates consent.

That approach is flawed.

There is no fixed BAC level at which a person becomes legally incapable of consenting to sexual activity. BAC charts (such as the Dubowski Chart) describe average effects on populations—not legal thresholds for consent.

The law requires a functional analysis, not a number.

The Problem with Retrograde BAC Extrapolation

In many Article 120 cases, there is no blood test. Instead, experts attempt retrograde extrapolation—working backward from estimated drinking to estimate a hypothetical BAC.

While this method may be used in DUI cases, its reliability in sexual assault cases is often overstated.

Problems include:

• No blood draw to anchor calculations
• Reliance on self-reported drinking, which studies show is notoriously inaccurate
• Failure to account for critical variables:
  • Type and percentage of alcohol
  • Food intake
  • Hydration
  • Body composition
  • Height and weight

When these variables are missing—as they often are—the calculation becomes speculative.

Overreliance on speculative BAC evidence can be deeply prejudicial to an accused.

What Actually Matters: Behavior, Speech, and Decision-Making

Courts have repeatedly emphasized that how a person acted, spoke, and interacted is far more probative than a hypothetical BAC number.

Relevant considerations include:

• Ability to walk, talk, and communicate
• Coherent decision-making
• Ability to understand and respond to events
• Initiating or participating in conduct
• Communicating agreement or disagreement

A person may be drunk—and still fully capable of consenting.

Military Appellate Courts Are Clear: Intoxication ≠ Incapacity

United States v. Solis

The Navy-Marine Corps Court of Criminal Appeals made clear that:

“Mere impairment does not end the analysis. Article 120 does not proscribe acts with impaired people, but rather with people incapable of consenting… and only when that incapacity is known or reasonably should have been known to the accused.”

United States v. Pease

In a published opinion affirmed by CAAF, the court reversed convictions because the government failed to prove:

• The alleged victims were incapable of consenting, and
• The accused knew or reasonably should have known of that incapacity

The court defined incapacity as lacking:

• The cognitive ability to appreciate the conduct, or
• The mental or physical ability to make or communicate a decision

United States v. Bailey / Clugston / Long / Newlan

Taken together, these cases stand for a consistent principle:

Proving intoxication is not enough.

The government must prove incapacity—and knowledge of that incapacity—beyond a reasonable doubt.

Drunk people can consent.

Impaired people can consent.

Memory loss alone does not equal incapacity.

Alcohol, Memory Gaps, and Consent

One of the most dangerous misconceptions in Article 120 cases is equating lack of memory with lack of consent.

As military appellate courts have long recognized:

• Alcohol can affect memory and inhibition without eliminating volition
• Amnesia does not prove unconsciousness
• Inability to recall events later does not establish incapacity at the time

The legal focus must remain on capacity during the encounter, not recollection afterward.

Why Overreliance on BAC Evidence Is Dangerous

“Drunk” is a continuum, not a legal conclusion.

Fixating on BAC or labels like “very drunk” risks replacing the legal standard with shorthand thinking. Courts that do so risk reversible error—and unfair convictions.

Panels must be reminded:

• Numbers do not decide consent
• Behavior does
• Capacity does

How the Defense Wins Alcohol-Based Article 120 Cases

Successful defenses focus on:

• Challenging speculative BAC calculations
• Emphasizing observed behavior and communication
• Exposing overreach in expert testimony and using our own top experts
• Educating the court on the difference between impairment and incapacity
• Preserving these issues through motions, instructions, and objections

These cases are won by discipline and precision, not slogans.

Winning MRE 412 Motions

What to Do If Alcohol Is Central to Your Case

If alcohol plays a role in your investigation:

• Do not try to explain drinking patterns to investigators
• Do not assume “everyone knows we were both drunk” helps you
• Do not consent to searches of your phone or devices

Early legal framing is critical.

Your Rights Under the UCMJ

Speak With a Defense Lawyer Experienced in Alcohol-Based Article 120 Cases

Alcohol and intoxication cases are among the most misunderstood and aggressively prosecuted sexual assault cases in the military.

You need counsel who understands:

• The medicine
• The law
• The appellate landscape
• And how to dismantle misleading narratives

Contact Cave & Freeburg for a confidential consultation with experienced military sexual assault defense attorneys.

Alcohol & Intoxication Under Article 120 – FAQs

Does drinking automatically eliminate consent under military law?

No. Intoxication alone does not negate consent.

Is there a BAC level that means someone cannot consent?

No. There is no fixed BAC threshold for incapacity.

Can someone consent while drunk?

Yes, if they retain the cognitive and physical ability to understand and communicate consent.

Does memory loss mean there was no consent?

No. Memory gaps do not establish incapacity at the time of the encounter.

What must the government prove in alcohol-based cases?

That the alleged victim was incapable of consenting and that the accused knew or reasonably should have known.

By PhilIp Cave and Nathan Freeburg at www.court-martial.com