CAAF-United States v. Casillas.

BLUF: Does Casillas harmonize Mendoza with fact patterns where a sexual act straddles incapacity → capacity (capability): if the Government proves a capable-but-non-consenting window, a (b)(2)(A) conviction can stand; intoxication evidence may be considered as context, not as a back-door incapacity theory.

He was convicted of one specification of sexual assault “without consent” under Art. 120(b)(2)(A), UCMJ (2018).

In Mendoza, CAAF rejected the “umbrella offense” theory, holding that 120(b)(2)(A) is the distinct offense of sexually assaulting a person capable of consenting who does not consent.

Casillas tells us that Art. 120(g)(7) does not bar the Government from introducing intoxication as surrounding circumstances to show absence of consent under (b)(2)(A). Mendoza forbids the Government from proving absence of consent by incapacity alone when prosecuting under (b)(2)(A), but it does not forbid jurors from considering intoxication at all.

However, this still does not present a bright-line "rule." Instead, it requires a very detailed factual analysis of the testimony, the tone, tenor, and perceived intent of the prosecution's direct or re-direct, their voir dire, their opening statement, and what emphasis they put on facts during the closing argument. We say that because the prosecution's "intent" to pursue an umbrella theory may not be obvious, especially if they are careful, but cannot intent be inferred on the totality of how the prosecution presents and argues its case?

We suss Casillas might be what could be termed a "window" case where the issue is "she was asleep." The alleged victim was asleep, but woke, and while awake was capable of consenting--and did not. Thus the window. The next question would be whether upon realizing the person was awake and not consenting, how quickly did the accused stop. Here we have an issue of actual and perceived time. It seems common knowledge that people do not always have an accurate sense of how much time has passed or how long an event happened. I suspect plenty of police officers have had the experience of a witness saying it was about 29 seconds, but then they look at the CCTV and find it was much shorter in reality, or perhaps longer. Some years ago, I had an expert testify about reaction times and memory. His testimony was based on studies, primarily of police officers on the firing range, that has been otherwise validated. How long does it take for a trained police officer in controlled circumstances to draw her weapon and pull the trigger--several seconds. The police officer knows in advance a target  will pop-up and be a threat--that's what I mean by controlled tests. Now add in real life. In other words, a startling event lengthens the reaction time because the messages take longer to bounce around the brain from immediately seeing to pulling the trigger. The brain first has to identify and decide there is a threat, then decide how to respond, and then transmit the needed action in order to act on that decision. (It's a bit more complicated than that and you definitely need an expert to explain the process.) Overlaying this is the memory of what happened and its recall, as I noted above. We've all heard the expression time slows down--it doesn't in reality, but why is that. See, e.g., Stetson, et. al., Does Time Really Slow Down During a Frightening Event? One of my techniques in trial when these issues arise is to stop talking, and then, having watched the second hand, said, well that was 10 seconds of silence-I'm hoping the pause and effect is helpful.

See, e.g. Blair, et. al., Reasonableness and Reaction Time. 14 Police Quarterly 323 (2011); Fayolle, et. al., Fear and Time Fear speeds up the internal clock. 120 Behav. Processes 35 (2015); Choice Reaction Time, Science Direct; Encyclopedia.com.

If you want to try some of the theory out with a friend. Do a Stroop Effect test; (ISEE); (Wiki)  and gauge their reaction time. The Stroop test is defined as an assessment that measures recognition reaction times to color stimuli, evaluating psychomotor speed and cognitive flexibility, with performance influenced by factors such as age, sex, and education.

While Casillas does not bring a reconsideration of Mendoza (probably unlikely) it shows how complicated 120 cases are and how careful the prosecution has to be about their evidence and arguments. A throw it at the wall strategy is unlikely to be productive.

Take a look at Mendoza, Slip op. 14-15, and you can see several common approaches the government has been taking to prove a non-consent specification. In Casillas, the Appellant also argued that the judge erred in not giving an instruction related to the alcohol effects. The MJ denied the following instruction because it was not an accurate statement of the law.

​You have heard evidence that [SF] consumed alcohol on the night in question and she may have been in some state of intoxication during the alleged sexual events at issue. You may have previously attended sexual assault training or briefings in which the topic of consumption of alcohol and sex was addressed. In this sexual training or briefings, you may have been informed that women who are drinking or intoxicated are not capable of consenting to sex. That is a misstatement of the law. You are only to follow the law as I instruct you, and not be influenced in any way by training or briefings you may have received outside this courtroom. That is particularly important as it is possible the sexual assault training or briefings you have attended were not consistent with the law. In this case, there is no allegation that [SF] was too intoxicated to consent to sex. You are not permitted to consider whether she was too intoxicated to consent to sex. That is not an issue before you.

CAAF says the MJ was right. But, should someone review the Benchbook to see if there is an instruction that could remastered to accurately state the law while ensuring the members' consideration of the alcohol or sleep is properly cabined the to purpose for which it is presented?