False Accusations / False Allegations of Sexual Assault in the Military

You could be blacked-out drunk and still consent to sex. Why are there so many false accusations (false allegations) of sexual assault in the military? Well, I'll tell you why. One, it starts with the training. Now, if you're a SARC, if you are a SHARP rep, you're going to say, oh, we don't teach this anymore. But you do, and you know it.

And it hasn’t been put out, hasn't been fixed that you can drink and still consent. The scare tactic of having one drink means you can't consent has created a culture where people think they are victims simply because they had alcohol in their system the night before. It's created a system where even young junior soldiers think that they, in fact, are perpetrators because their counterparts had alcohol in their system the night before.

Then, when they are brought in the CID, they are told to look at it from the viewpoint of the alleged victim: “She drank. She couldn't consent. Maybe you want to write an apology letter. Don't you want to say you're sorry?” Young, impressionable soldiers are likely to say, “Yeah, I am sorry.” They simply feel bad because of a misunderstanding.

And that's what it all comes down to: a terrible misunderstanding of what it means to be a perpetrator and to be a victim. The allegations of military sexual assault have gone up over the years despite Congress trying to crack down and make the military take care of military sexual assault. The number of military sexual assault allegations has increased through the years.

Why is this? It’s because the system and the training that's been put in place is incorrectly teaching Soldiers, Airmen, Sailors, and Marines that simply having alcohol in their system makes them a victim because they couldn't consent. Unfortunately, under the law, regret doesn't equal a non-consensual activity. Alcohol does not negate consent. However, if one is so intoxicated that they are incapacitated, that is different. e.g., passed out.

And surprise, there's a difference between being passed out and being blacked out. Yes, you can be blacked-out drunk and freely, voluntarily, make your own decisions. You could be blacked out drunk and still consent to sex, and then wake up the next day completely regretting it, having no memory of consenting. But that doesn't change the fact that the night before, you said yes, that you were the one freely engaging in it.

It's my job as a defense attorney to bring a forensic psychologist into the courtroom and explain to the panel that someone in a blacked-out state is still making choices; they're just not recording memories. I've given this example before, and I'll give it again:

When I was in college, I always went to a place called "Taco Shell." And I would go there mostly after the bars, and I would be so drunk that I would be blacked out, but I would order the biggest chalupa, all of the tacos, all of the quesadillas, and I'd eat them and regret it the next day. But that did not change the fact that I walked up to the counter, looked at the menu, pointed at what I wanted, ordered it, paid for it, and then freely ingested it. Just because I wake up the next morning regretting it and have no memory of eating it does not mean I didn't consent to eating it.

So, it starts with the training. If we keep trying to scare our service members into practicing abstinence when drunk, we're going to lose the battle.

Teach them the actual law. And if you do that, you will have fewer accusations and fewer false allegations. Stop treating our service members like children and start teaching them the correct and right laws. Like, share, comment, or follow for more information on military law, and in the meantime: I'll be defending those who defend America.™