“We Just Can’t Prove Our Burden Under These Circumstances”: Judge Advocate Perspectives on Consent and Alcohol-Involved Sexual Assault Cases

Alcohol-involved sexual assault remains a persistent issue within the U.S. military despite significant institutional reform. To understand how alcohol-involved sexual assault cases are interpreted within the military justice system, this article draws on 23 qualitative interviews with 11 members of the Judge Advocate General’s Corps. Lawyers engaged in discursive strategies that highlighted the alleged victim’s intoxication as lowering inhibitions while simultaneously silencing the role alcohol has in diminishing capacity to consent and the accused’s responsibility to assess that capacity. Lawyers narrowed consent to momentary assent while also broadening their interpretation of consent to suggest that the presence of regret implied assent at the time to place doubt on whether these cases constituted sexual assault. Some prosecutors attempted to disrupt these silences and strategies at court-martial by re-centering the accused’s responsibility to recognize visible impairment and by emphasizing how coercive or excessive alcohol consumption could be encouraged by someone to facilitate sexual assault.