Blacking out versus passing out: they are not the same, especially regarding consent.
Hey there, I'm Cody Harnish, an experienced military defense attorney. Today, we are talking about the often misunderstood, complex issue of blacking out versus passing out as it relates to consent.
What is blacking out? Blacking out occurs when you're conscious and still making decisions, maybe even sexual ones, but your brain is not forming new memories. It's like being on autopilot: you're still walking, you're still talking, you're still active, you're still engaged, but you won't remember it later.
Passing out is different. It is when you lose consciousness altogether. In this state, you are not capable of engaging in activities, let alone giving consent.
Here's where it gets legally complex. A person who is blacked out may still be engaging in activities freely, including sexual ones, and they are giving consent in that moment because they're still able to walk, talk, and engage in their environment. Additionally, others who are talking with them likely will not know that they are even blacked out because there's no special warning sign that happens to a person when they blackout. So, this person is giving consent in the moment, but later they're not going to remember it.
And this is often where contentious legal battles occur at Courts-Martial.
Now, in my career as a military defense attorney, I have taken countless cases like these to court because it's not about he said versus she said (to use those two pronouns). It's about what was happening at the time. Was the person freely walking around, engaging in their environment, consenting to what was happening in the moment, and they just don't remember it? Maybe they regret it later? Or was that person unconscious and not able to interact with their environment at all, let alone give consent, because they were passed out, not blacked out? Consent is not just about saying yes or no; it's about the capacity to make those decisions.
Now, it is easy to make moral and value judgments on another by simply saying, “Oh, well, if they were drinking, you shouldn't have done it in the first place.” But that's not the law. Despite what you think of what integrity requires of you or your other service members when it comes to the law, there must be an equal application of the legal standards for all. And SHARP classes and SAPR classes are not the law.
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