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

鈥淥ne drink and a person cannot consent to sex.鈥�

It鈥檚 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 鈥渂reakfast鈥� afterward.
• Your new wife has one glass of champagne with the toast鈥搚ep, 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鈥搃f you believe one drink means no consent鈥搘hat a way to start a marriage.

That鈥檚 how false鈥揳nd frankly stupid鈥搕he 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 reports.

The bottom line from 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 鈥渙ne drink and you can鈥檛 consent鈥� axiom is the standard. And litigants and military judges who fixate solely on the term 鈥渋mpairment鈥� 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鈥檚 impairment rises to the level of rendering him or her 鈥渋ncapable of consenting to the sexual act.鈥� 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 鈥渋ncapable of consenting鈥濃�攎eaning that she was deprived of 鈥渢he cognitive ability to appreciate the sexual conduct in question or the physical or mental ability to make [or] to communicate a decision鈥� 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 鈥渢rainers鈥� accountable through removal from the training position and disciplinary action. That鈥檚 unlikely to happen鈥搃t鈥檚 military sexual assault politics.

Another military sexual assault myth is that a complaining witness doesn鈥檛 lie.

Alleged victims lie for secondary gain鈥搕hat is a known and documented fact. What we don鈥檛 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鈥搕hat鈥檚 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鈥搕o 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鈥搕o protect that relationship.