Voluntary lntoxication as a Cnminal Defense Under Mihtary Law

Author:by Major Eugene R. Milhizer

    The substantial impact of alcohol and illegal drugj upon military society 1s undeniable About one out of three Army soldiers who were tned by general or bad-conduct discharge special courts-martial have been convicted of cnmes involving illegal drugs? The Army has establuhed special programs for preventing and treatm&2 reprimand-

    'Judge Advocate General's Coips Currrnfly anaimed kr Instructor, Criminal Law

    Dnliion The Judge Advocate General's School Formerly assigned a Senior lhal Counsel and Chief. Mmirnafrafiie and lnfernafi~nal Law, 25th lnfantn Di\lilon (Light) 1984-1987, Trral Defense Counsel, Camp Humphreys Korea 1983 1984, Appellate Attorney. Goiernment Appellate Divislan 1980 1983 B A (hgh dl~t1ncImn), Knrrerssy of Michigan. 1976. .ID , Univenlty of Michigan. 1978, LL M ( F m Honor Graduate) TheJudge AddmeateGenera~~Sehool.

    IS88 Author of over40anlelesand notes concerning ~ ~ n ~ n f u t ~ ~ n a i and cnminal Ian ~eauei including ircsssrty ond tht.Mtlttary JwliceSysiem A Pmposed Spend Wmse 121 Mil L Rei 95 (19881. Tha.Mzlzlmry Dpafh Femlty adiha Comlztuizon Tham %s Lzlr A/& Funnan, 97 \I11L Re\ 35 (1982) (coauthor), Iniolunlory Warnlaughto and a U g ODerdaSe Deaths A Pmmed Mefhodolag~ The Amy lawyer, Mar 1989 at 10 IagaltLy offhe ' Sue-.% ' order fo Soldtan Haling AIDS The Army Lawyer Dec I888 at 4. &7..ectne Dab SiForftrums tn Copal C-8 Recmmng .%y on -0th Fni The Army Lawler. Feb 1983. at 27 (coauthor) He 1s B member of the ban of the United States Supreme Coun fheUrutedStatesCounafClaims. United SiafeiDiitricrCounfortheEanrern Dmrief of Miehrgan. the Urnfed States Coun of Mihtaly Appeals. the United States Army Coun of Militan Rev~w,and the Stare of Mlchlgan,Fmm 1864-Lg87 the percentage of general couns-maninl mvakmg drug offenses ranged from 41 percent Lo 34 percent muall) During the same period, 37 percent to 25 percent of special mum-martid empowered to audge a bad-canduct discharge meanured annuall) hale mnvolwd drug offelvr Drug offenses alsa accounted for about 14 percent of the emel before other special and summa" counr-mania1 and far about 16 pemenl of lmfancei where nogudicial punishment wan imposed during the same period Statistics pm\ided by Clerk of Coun. United States Army Coun of Military Remew In addillon. &bout 8 WO ialdlen were admimsrraflr~ly separated m bOlh 1986 and 1086 for alcohol or drug related mlsconducf or abur Sfafmcrtaken fmm Repon. DESPER-48-11, pubhrhed monthl) These figures undoubtedly undererrmate the scopeof the drug and alcohol problem nn the militan ai man> offenses and other miicon duet caused by the use of I~~XICLOISare not counted as a drug OT alcohol offenses for StBflSLICd purpoJeJ

    'Amy Reg 600.85, Alcoholand Drug PrevenfianandConlrol Propam(3 Dec 18861 [hereinafter AR 600 861

    MILITARY L.4W REVIEN' [Yo1 127

    ~ n g , ~

    and administranvely separatmgi soldiers who abuse mtoxicants. Alcohol has been deglamonzed,5 and military law enforcement has targeted drug offenses ar a top priorityB

    The military justice system has responded to the pervasive impact of alcohol and drugs in a rariety of ways This response. however, has sometimes seemed nxonmtent- and motivated by practical con


    siderations rather than coherent theory8

    At the heart of this response 1s the military's appllcatlon of the defense of "voluntary intoxsaoon." In some respects, voluntary in-



    [Tlhe defense of m\oluntan I ~ T ~ X I C B ~ ~ O O reflects the societal vie- that

    m e should nor be held cnmnally responsible for a e f i o ~ over ahleh m e

    has no rariond conrrol Indeed. the mvdunfanly IntoxIcated defendant 11 ~rually a far more sympathetic figureabrdmg, mentally balanced citizen who. through no fault of h s or her oln, har been rendered 'temparanly insane ' through the fraud, con-tnvanee. durms. or mistab ~ .'

    Kaezynski. lDul w7int~''IhelApr 1983 at 1. 2-3

    [He] is the normally I_

    'p"y1"g text.,judlc!al disinclination to apply the voluntar/ rnfoucalian defeme may be ex,d, in uart b, the fact that those entitled Io the defense ~~lunfanlv emate the

    d""t*nof those

    toxication under mihtarg- law is a unique amalgam of theory and ex-pedienq. The defense has been shaped by both analytical principles and practical farces into a C U ~ O U S hybrid that sometimes diminishes but rarely precludes criminal culpability.8

    Despite the imporLance and unique character of the roluntarr in^

    toxication defense in military practice the subject has recently at traeted httiejudiaaPo and mrtualiy no scholarly attention!' This lack of interest IS probably a consequence of military trial practimnen-military judges, tnai counsel, and trial defense counsel-having a shared undentanding of the legal theory and application of voluntary intoxication defense and a mutual wiilingzess to abide by that undentanding.lz This consensus has helped create an ethos where militam trial participants rarely challenge the underlying principles of Voluntary intoxication and instead typically contest factual questions pertaining to its application in a given case?3

    *hlCM 1984 K C II Y16l11(2) probldes

    Vduntory mloncalim Voluntary mfoxleanon. ahefher caused b)

    alcohol or drug, IS not B defense Hoieier eiidence of an) degree ofvolunfar?. lntaxlesnon may be lnfmduced far the PYrpme of rauslng a rewnable doubt m Io the existence of actual knowledge. epeclfic in-rem wilfulness or a pmmeditaied design to kill. if actual knauledgespecific intent u~llfulners. 01premednaied derrgn to kill IS an elementof the offense'ORerparch m prepararlon of thlr artlcle har rerealed a marked decreare of reponed canes addressing ISSU~S ~n\ol,ing in~~xiestmnor drunkennerr The reiulfs of the research have been summarized I" the following table



    volume \umber \umk


    l C M K 10CMR 2 l C M R BOCMKB l C M K 4 O C M K 4 l C M R 5 O C M K 1 M J 1OMJ l l M J 20MJ20 \I J present

    U C M R Z O C M R

    &pored Cmes

    18 6

    IO 8


    This article will critically re-examine selected aspects of this shared understanding of voluntary intoxication. Specifically, some of the applications of the voluntary intoxication defense-or, more accurately, the fsiiure to aliaw the defense for certain specific intent crimes such as unpremeditated murder, maiming, and indecent assault-will be criticized as being unsound or in need of reconsideration. In support of this theas, the term ''v~i~ntaryintoxication" will initially be dissected and its camponents-voiuntarlnes5 and intoxcatlon-will be defined and analyzed. An overview of cnminal defenses will then be briefly set forth so that voluntary intoxication can be conridered in a proper context. Next, the origins of voluntary mtoxlcation as a failure of pmof defense under mhtary law will be examined. The proper application of the defense to cmes in the militaryjustice System will also ue reviewed Finally, the failure to allow voluntary intoxication as a defense for selected speclfic intent crimes will be considered and, in some instances, cnticmed


    The term "voluntary mtoxication" combines two dlstinct concepts -"voiuntariness" and "mtoxication." Each component must be clearly defined in order to undemtand the meaning of the larger tern.


    Civilian courts "generally have mterpreted the voluntary intoxication requirement to mean that the Intoxicant has been mtroduced into the actor's system with his knowledge and without farce or fraud."14 The Model Penal Code uses the term "self-induced" intoxication instead of "voluntary" intoxication and defines the tern to mean "mtoxicatmn caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime."'h

    Accordingly, voluntary intoxication "is not lmited to those in-stances m which drunkenness WBS definitely desued or intended but includes all mstances of culpable intoxiCation."lB Intoxication is,

    "1 P Robison. Cnminal Law Defenses 302-03


    '$Model Penal Code 5 2 OS(S)(bI (propared ofiicral draft 18621 [hereinafter Model Penal Code]

    "R Perkms, Cnmlnal Law 1001 (I8821 (footnote omitted) See rd at 1001 18 far B comprehensive dracumon of uohnlary lnl~x~eafionunder civilian law, imm which much of the following dixeussion of vdunfanness m this article 18 drawn

    therefore. deemed voluntary even though the drinking was :nduced by the persuasion or the example af another?' Moreover merely because someone else prorided the intoxicant does not necessarilv render the resuiting intoxication mvoluntary18

    ClTilian authorities hate recognized a variety af circumstances inwhich intoxication IS considered to be acquired mvoluntariiy. These cLrcumstances can be grouped into several distinct theories of m-voluntary mtaxicatmn. Under one theory. intoxication IS deemed to be involuntary "If 11 is the resuit of a genuine mistake a5 to the nature or character of the liquor or drug or If It has resulted from tak-ing something not known to be capable af producing such a resuit. as through the fraud or contriiance of another"1g Put another way, 'intoxication 1s not voluntary if brought about by the fraud artifice, or stratagem of

    Far example, in State i dliezl an ~nnocent victim unknowingly consumed "knock-out" drops supplied by another to help facilitate a robbery In Wople 1 Wi~man~~an innocent \ ictim unknowmgly con sumed cocaine tablets prmided by a fnend, who desclibed the tablets as being "breath perfumers" In each case, the tictim later commit ted a homicide while under the influence of the drug that was previously taken. In both instances the court found that the victim would be innocent of homicide If the claimed facts were true, as the slayings mould hare occurred as a resuit of involuntary Lntoxation


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