Court-Martial Trial Practice Blog
Yes, it is. In dissenting to the Coast Guard Court of Criminal Appeals majority opinion in United States v. Decker, the dissenting judge says:
This is a vexing case; the kind that sexual assault prevention training seeks to avoid. I agree with the majority’s resolution of Assignment of Error III, and I agree that the evidence presented in this case is legally sufficient to support findings of guilty to the specifications of Charge I and to Charge I. I would disapprove the findings of guilty to the specifications of Charge I and to Charge I, because I have a reasonable doubt that CG was incapable of consenting to the sexual act due to impairment by alcohol or any other substance; or unconscious, or otherwise unaware that the alleged sexual act was occurring. Considering all of the evidence presented, it is just as likely that CG was conscious, aware, and capable of consenting, but does not remember because of an alcohol-induced blackout.
Exactly! I would suggest that 90% of military sexual assault cases involve both parties having drunk alcohol and claiming a lack of memory or ‘I was too drunk.’ The effects of an alcohol blackout on memory are well known and scientifically established. What is also well known is that people in an alcohol blackout can still act and talk “normally” as perceived by others. The dissenting judge’s discussion is a little more complex because of the way the offense was charged and the approach taken by the prosecution.