United States Air Force Court of Criminal Appeals Affirms Sexual Assault Conviction

Above: U.S. Air Force Court of Criminal Appeals Seal. (Penn State Law)

On December 23, 2020, the U.S. Air Force Court of Criminal Appeals denied the appeal of Jonathan Painter and affirmed the finding that he was guilty of sexual assault.

Painter was found guilty of the 2016 sexual assault of his co-worker after a party. He appealed, arguing in part that the victim “was not asleep, but actually experiencing a blackout.”

During trial, a criminal forensic psychologist specializing in memory testified regarding alcohol blackouts and their effect on the brain. He “clarified that an individual experiencing fragmentary blackout can talk and engage in sexual conduct but not record memory” and explained that “women are far more likely to experience fragmentary blackouts due to women’s smaller body mass and lower water content as compared to men.”

The forensic psychologist continued to explain what goes on in the brain during a blackout, saying, “during an alcohol blackout a person is conscious, they are conversant, they are engaged, but they are not laying down memories during the blackout phase. So in a nutshell, their hippocampus has been knocked off-line. It’s a very subtle, kind of, disruption within the brain, but once the hippocampus goes off-line an individual isn’t recording memory, but they are able to talk to, engage. Research shows folks … in blackout, are able to perform very complex behaviors.”

The victim testified that she had experienced several blackouts before but that “she had a memory of closing her eyes to fall asleep and had no ‘blank spots’ in her memory that she could not recall.” The forensic psychologist testified that “a specific memory of closing your eyes and laying down, and actually falling asleep, is not consistent with a blackout.”

The court rejected all of Painter’s arguments and affirmed his judgement and sentence, stating: “We have taken a fresh and impartial look at the evidence, and we are ourselves convinced, beyond a reasonable doubt, that Appellant is guilty.”

Citation: United States v. Painter, 2020 WL 7690551

Keywords: Air Force, sexual assault, military, alcohol blackout

This post is the 66th post as part of an ongoing Center for Law, Brain & Behavior (CLBB) series tracking the latest developments in law and neuroscience cases. To see previous posts about recent cases, see the full case archive on the CLBB website. To see updates on legal scholarship, see the Neurolaw News, hosted by the MacArthur Foundation Research Network on Law and Neuroscience. This project is made possible through support of the Dana Foundation.

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at Mass General Hospital, Harvard Medical School

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Center for Law, Brain & Behavior

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at Mass General Hospital, Harvard Medical School

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