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The Federal Practice Group Wins Appeal Before United States Court of Appeals

Written by: Federal Practice Group
Written by: Federal Practice Group

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United States v. Pease, __ M.J. __, No. 16-0014/NA Landmark Article 120 Case

The Military’s highest court finds personal responsibility with regard to self-intoxication in ruling

Washington, D.C. – April 12, 2016 – In the case of United States v. Pease the Court of Appeals for the Armed Forces (CAAF) affirmed the Navy-Marine Corps Court of Criminal Appeals’ (NMCCA) definition for the element incapable of consenting, as codified in 10 U.S.C. § 920, Article 120, Uniform Code of Military Justice (2012).

Prior to United States v. Pease, no formal legal definition for incapable of consenting was providedThe lack of guidance for the fact finder produced wide ranging results. The fact finders were left to their own devices to determine the essential question “how much of an intoxicant would render an alleged victim unable to consent?” In United States v. Pease the Court found that the threshold lies within the “… physical and mental capacity to make and communicate a decision.” As outlined in the case the idea that an alleged victim cannot consent if he or she is intoxicated is no longer tied to the level of intoxication but to the actions and cognitive ability of the person engaging in sexual activity. This framework holds the alleged victim properly accountable for his/ her actions and conduct.

“The failure of the legislature on this issue has been pervasive and deprived both victims and the accused of fair proceedings which the court has finally remedied. I pray that moving forward a more considerate review of changes to the UCMJ occurs in order to minimize the uncertainty on such an important topic – we must get this right” said the Federal Worldwide Practice Worldwide Service Founding Partner Eric S. Montalvo.

Read the full Judgement

Read the Opinion of the Court

About the firm: The Federal Practice Group is dedicated to providing a wide breadth of legal services globally to include international dispute resolution. The firm maintains a website at with additional information about its attorneys, achievements, and news stories involving the firm’s work. Montalvo is a frequent contributor for his insight on military justice matters by the media and is also a highly sought after speaker and panelist.

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