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Military Sexual Assault trainers continue to put out false official statements.

"One drink and a person cannot consent to sex."

It's false the Department of Defense recognized that long ago and had to put out training materials to counter the myth.

Let me ask you a simple question to prove the lie.

  • You and the love of your life get married.
  • You have a wonderful wedding and invite friends and family to the wedding "breakfast" afterward.
  • Your new wife has one glass of champagne with the toast--yep, one drink.
  • You and she slip off to get ready for the honeymoon but decide to have a quickie in the hotel room first.
  • You just raped her--if you believe one drink means no consent--what a way to start a marriage.

That's how false--and frankly stupid--the training is. Think about it for just a moment.

More recently the Department of the Army has started to acknowledge the error. It took United States v. Newlan to bring that home.

Ever since this false training began, military defense lawyers such as myself have been arguing the falsity of the statement, to little avail. As this recent story in the Army Times reports.

The bottom line from United States v. Newlan and similar cases is:

Article 120(b)(3)(A), UCMJ, does not prohibit engaging in sexual acts with a person who is drunk or impaired by alcohol. Put more plainly, mere impairment is no more the standard under Article 120(b)(3)(A), UCMJ, than the SAPR-perpetuated “one drink and you can’t consent” axiom is the standard. And litigants and military judges who fixate solely on the term “impairment” do so at their peril.

Instead, the statute establishes a required level of impairment. In other words, sexual acts are prohibited only when the person’s impairment rises to the level of rendering him or her “incapable of consenting to the sexual act.” Art. 120(b)(3)(A), UCMJ.

We also emphasize here that the definition of impairment was not nearly as important as informing the members that the impairment must rise to the level of rendering LCpl H “incapable of consenting”—meaning that she was deprived of “the cognitive ability to appreciate the sexual conduct in question or the physical or mental ability to make [or] to communicate a decision” regarding that conduct to another person. Pease, 74 M.J. at 770.

One of the ways to stop this false information is to hold the "trainers" accountable through removal from the training position and disciplinary action. That's unlikely to happen--it's military sexual assault politics.

Another military sexual assault myth is that a complaining witness doesn't lie.

Alleged victims lie for secondary gain--that is a known and documented fact. What we don't know is how many times that happens. What you should know is a secondary gain can lead to a false accusation: protect a current relationship with a spouse, fiancee, boyfriend, gain military benefits such as money or a transfer, anger and revenge, and to get out of trouble. Compared to non-military related cases, there is much more incentive for a false allegation: primarily a civilian is not going to get out of trouble by accusing her supervisor as can happen in the military, for example.

Your military defense lawyer should be looking for the secondary gain and how to prove it--that's the motive to lie.

In United States v. Williams, a CAAF case from 1993, proves the point.

There, the court said it was error not to allow cross-examination of a CW about her married and having an extramarital affair with the accused. This would be a valid motive to lie--to protect the marriage. This is a secondary gain as mentioned above. The same can be said about a CW who is in a relationship with another--to protect that relationship.

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