Law & order

US military court addresses 'incapable of consent' to sex issue

How drunk is too drunk to consent to sex?

According to military training aimed at preventing sexual harassment and assault, the answer has been: barely tipsy.

For years, Sexual Harassment and Assault Response and Prevention training informed troops that even one drink made a person incapable of giving consent.

In legal terms, that wasn’t true.

The issue has been at the heart of many cases in military courtrooms over the past decade. How many drinks an alleged victim consumed and how much alcohol rendered him or her “incapable of consenting” is frequently disputed at trial.

Now, for the first time, a military court decision has defined the term “incapable of consenting” while overturning a sailor’s conviction for sexually assaulting two subordinates under the influence of “significant amounts of alcohol.”

The U.S. Court of Appeals for the Armed Forces agreed in a March decision that a person is incapable of consenting when he or she lacks “the cognitive ability to appreciate the sexual conduct in question or the physical or mental ability to make or to communicate a decision about whether they agree to the conduct.” In rendering its decision, the court upheld a 2015 decision by the Navy-Marine appellate court.