Marine cleared of rape because of military’s poor sex assault prevention training

Cpl. Joshua D. Newlan, an ordnance technician with Marine Heavy Helicopter Squadron 462 while deployed to Camp Bastion, Afghanistan, with the 2nd Marine Aircraft Wing in 2011. (Photo by Cpl. Brian Adam Jones)

A California-based Marine has been cleared of a sexual assault conviction, partly due to legal confusion caused by information provided by the US military’s anti-sexual assault classes.

The original case was brought about by a young female Lance Corporal who filed rape charges against Corporal Joshua D. Newlan at Marine Corps Naval Air Station Miramar in California. The dismissal stemmed from a false understanding of the law developed in the minds of military leaders during military sexual assault prevention training: “one drink means you can’t consent.”

The latest decision cleared Newlan of sexual assault, although his conviction of adultery still stands after the Afghanistan war veteran was found having sexual intercourse in a truck with the intoxicated female Lance Corporal. The female later determined that she did not remember giving consent, given her state.

Newlan was originally found guilty of engaging in the sexual intercourse with the LCpl while she was incapable of consenting due to alcohol impairment and that such condition was known or reasonably should have been known to him.

Newlan’s defense argued the case should be dismissed because the UCMJ definition of impairment is unconstitutionally vague.   For example, for a DUI, someone is determined to be “too impaired” to operate a vehicle if their blood alcohol is over .08%.

The judge did not find the defense counsel’s argument compelling enough and denied their request for dismissal.

During a preliminary examination, the defense counsel asked the court’s military panel how they interpreted “consent” and “impaired” as it related to sexual assault.

Many of the panel replied that they had been trained by Sexual Assault Prevention and Response (SAPR) personnel that if someone ingested any alcohol, that individual was no longer able to legally consent.

Most of the members on appellant’s court-martial replied with statements such as, “if there is alcohol involved, then there is no consent” and “once the victim has had one drink, there is no longer a legal consent.”

Not all of the members agreed with the information they received at SAPR training and the military judge concluded that the members’ remarks described training that was focused on prevention, e.g., “if there’s any amount of alcohol involved, it’s better safe than to be sorry. So just assume that you can’t give consent or receive consent if there’s alcohol.”

“While likely well-intentioned, these statements made during training generated a significant risk of skewing the panel’s understanding of legal consent,” wrote Navy Commander Aaron Rugh of the US Navy-Marine Corps Court of Criminal Appeals in the court’s 19-page decision.

The Commander’s guide for conducting SAPR training states, “Alcohol can impair a person’s ability to consent; alcohol use does not preclude the ability to give or receive consent, but having sexual contact or act with a person who has been drinking is legally risky.”

Despite the training’s definition for consent -that mirrors the vagueness of the definition under UCMJ article 120 and 111- the members on appellant’s court-martial mostly shared a wrong understanding.

The court determined, “A more tightly tailored and prompt statement of the law would have ameliorated any prejudicial impact generated by the legally-erroneous SAPR (sexual assault prevention) training.”

It was recommended that for future cases a more specific definition of consent be provided to the panel in their instructions. United States Appellee v. JOSHUA D. NEWLAN Corporal (E-4), U.S. Marine Corps appeal was decided on September 13th.

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