(concurring):
I concur.
I do not believe the defense in this case abandoned the defense of intoxication to win or lose on an all-or-nothing proposition. Neither can I accept the Government’s refined premise that facts concerning intoxication which will raise a doubt about an accused’s capacity to entertain a specific intent to rape are not sufficient to raise an issue about his inability to form a specific intent to satisfy his sexual desires. While that point might possibly be debated from a physiological or philosophical point of view, I suggest that any difference is too refined for instructional guidance.
The law in this area is clear for we have previously held that this form of indecent assault requires a specific intent, and that evidence of intoxication may raise an issue which will reduce the offense if the testimony is of the quality and quantity which would raise a reasonable doubt about an accused’s capacity to form the intent required by law. United States v Burgess, 2 USCMA 542, 10 CMR 40; United *153States v Burden, 2 USCMA 547, 10 CMR 45; United States v Wycliff, 3 USCMA 38, 11 CMR 38; United States v Hobbs, 7 USCMA 693, 23 CMR 157. In the instant case, I am not influenced to find the issue was raised because the law officer gave an instruction on intoxication as it might affect the specific intent to rape requisite to the offense charged, for it could be that he did so out of a spirit of commendable caution. United States v Christensen, 4 USCMA 22, 15 CMR 22; United States v Sharp, 5 USCMA 580, 18 CMR 204. The evidence which does compel me to conclude the issue was raised reasonably finds its root in the testimony of third parties, particularly the medical expert.
While I have no way of ascertaining the reason prompting the law officer to limit the effect of 'ntoxication to the principal offense, I suspect he may have overlooked the legal proposition that the intermediate offense upon which he instructed included specific intent as an element. In that connection, a law officer ought to make certain that when intoxication is raised reasonably as a defense, his charge is tailored to cover all specific intent offenses which he mentions in his instructions.