## Facts

- The United States prosecuted Cartwright, an enlisted member of the U.S. Air Force, at a general court-martial for abusive sexual contact with a substantially incapacitated person, in violation of Article 120(h), UCMJ.
- After an evening of socializing and heavy drinking, AL (a female airman) and DL (a male airman) stayed overnight at Cartwright’s off-base house.
- During the night, while AL slept, Cartwright repeatedly touched AL sexually.
- When AL woke up during these episodes, Cartwright stopped the contact; when AL asked what he was doing, Cartwright reassured her, and AL went back to sleep.
- The next morning, AL told DL about what had happened overnight.
- DL testified that AL did not appear hung over or visibly upset the next morning; AL made breakfast and drove DL and Cartwright to the airbase.
- About a week later, DL raised the incidents with Cartwright, and Cartwright said he did not remember what happened because he had been drunk.
- AL’s supervisor learned of the incidents and reported Cartwright to Air Force investigators.
- At trial, the defense requested an instruction defining “substantial incapacitation” as a complete inability to be aware of, or respond in any way to, external circumstances or stimuli.
- The military judge denied that request and instead instructed the panel that substantial incapacitation may be caused by intoxication, sleep, unconsciousness, or other conditions that render a person unable to appraise the nature of the sexual conduct or physically communicate non-consent or other competent decisions regarding that conduct.
- The panel found Cartwright guilty, and he appealed to the Air Force Court of Criminal Appeals (AFCCA).

## Issues

1. Whether the military judge erred by refusing the defense-requested instruction that “substantial incapacitation” requires a complete inability to be aware of, or respond to, external stimuli, and by giving a broader, functional instruction.
2. Whether the evidence was legally and factually sufficient to prove AL was substantially incapacitated at the time of the sexual contact, given that AL intermittently awoke and questioned Cartwright.
3. Whether, once raised by some evidence, a consent-related affirmative defense (including mistake of fact as to consent) must be disproved by the government beyond a reasonable doubt in an Article 120(h) prosecution, and whether the instructions and verdict complied with that burden.

## Decision

- The AFCCA affirmed the conviction.
- The AFCCA upheld the military judge’s refusal to define substantial incapacitation as total inability to perceive or respond, and approved the functional instruction focusing on the complainant’s ability to appraise the conduct or physically communicate non-consent or other competent decisions.
- The AFCCA found the evidence sufficient to support the finding that AL was substantially incapacitated during the charged sexual contact, despite AL’s intermittent waking and her composed conduct the following morning.
- The AFCCA treated the government as bearing the burden to disprove a properly raised affirmative defense beyond a reasonable doubt and found no basis for relief on the defense theory presented.

## Legal Principles

- “Substantial incapacitation” under Article 120(h), UCMJ, is assessed by a functional standard: whether, due to intoxication, sleep, unconsciousness, or similar impairment, the person cannot appraise the nature of the sexual conduct or physically communicate non-consent (or other competent decisions) about that conduct.
- The term does not require total unconsciousness or a complete inability to perceive or respond to any external stimuli; an instruction imposing that requirement improperly narrows the concept of incapacitation.
- In evaluating sufficiency, the focus is the complainant’s condition at the time of the sexual contact; later behavior (such as appearing calm, making breakfast, or driving) does not, by itself, negate incapacitation during the incident.
- When an affirmative defense is placed in issue by some evidence in an Article 120 prosecution, the government must disprove that defense beyond a reasonable doubt, and a conviction may be sustained if the factfinder could rationally reject the defense under that standard.

## Conclusion

United States v. Cartright, 2013 WL 4734520 (A.F. Ct. Crim. App. Aug. 15, 2013) (unpublished), affirmed a court-martial conviction for abusive sexual contact with a substantially incapacitated person, holding that “substantial incapacitation” is properly explained through a functional instruction tied to the complainant’s ability to appraise the sexual conduct or physically communicate non-consent, that the evidence supported incapacitation during the nighttime touching even though the complainant intermittently awoke and appeared composed the next morning, and that the government’s burden to defeat any properly raised affirmative defense did not warrant reversal on the record presented.


United States v. Cartright, 2013 WL 4734520 (2013)