(concurring):
I write separately to outline some of my reasons for concern that justice was not done in this case.
Pasetti’s extrajudicial statement to Gomez was admitted by the military judge on the theory that it qualified under Mil.R. Evid. 801(d)(2)(E) as “a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy” and, in the alternative, under Mil.R.Evid. 804(b)(3) as a declaration against penal interest. Of course, the burden was on the Government as the proponent to establish that despite the hearsay prohibition the statement was admissible under these rules. In my view, this burden was not carried because the Government failed to demonstrate (a) that a conspiracy existed, and (b) if it did exist, that Pasetti’s statement to Gomez was “in furtherance of the conspiracy.”
Admissibility of a statement against penal interest requires as a predicate that the declarant be unavailable. As Judge Canellos observed in his dissent in the Court of Military Review, trial counsel failed to establish Pasetti’s unavailability. 19 M.J. 595, 603 n. I am puzzled by trial defense counsel’s apparent concession that Pasetti was unavailable because, if called to testify, he would assert his privilege under Article 31, Uniform Code of Military Justice, 10 U.S.C. § 831, and refuse to do so. Pasetti had already been tried; accordingly, it would appear that his testimony could have been made available through use of testimonial immunity. Cf. United States v. Valente, 17 M.J. 1087 (A.F.C.M.R.1984). Sometimes a grant of testimonial immunity can create problems for the Government, cf. United States v. Gardner, 22 M.J. 28 (C.M.A. 1986); but after the person to be immunized has already been tried, those problems should be minimal. Thus, a “reasonable means” existed to obtain Pasetti’s testimony. See Mil.R.Evid. 804(a)(5).
More important, I fully agree with Judge Canellos that this was not a statement against penal interest within the contemplation of Mil.R.Evid. 804(b)(3). 19 M.J. at 603-04. Cf. United States v. Dillon, 18 M.J. 340 (C.M.A.1984). For a statement to be admissible under this hearsay exception, the proponent must establish “that a reasonable person in the position of the declarant would not have made the statement unless the person believed it to be true.” The rationale for this exception is that under these circumstances, a guarantee of trustworthiness exists because someone usually does not make a statement that may send him to jail or cost him money unless he believes it to be true.
To be fully consistent with this rationale, Mil.R.Evid. 804(b)(3) might better have discarded an objective standard — concerned with the belief of a reasonable person — in favor of a subjective standard — focusing on the belief of the particular declarant.1 In that event, the issue would be whether Pasetti believed that his statement was against his penal interest; and the belief of a reasonable person in his position would have been important only in showing circumstantially what Pasetti himself believed. However, whether a subjective or objective standard is used makes no difference in this case. Because simple fornication is not recognized as a crime under military law and does not itself create any civil liability, the evidence was insufficient to establish that Pasetti or anyone in his position would have believed that his comments subjected him to any liability.
*269In United States v. Dillon, supra, we concluded that “[a] person so intimate with drugs would scarcely have believed that he was making a declaration against penal interest when he mentioned to a friend that he had drugs for sale.” 18 M.J. at 345. Likewise, neither Pasetti nor anyone else would have thought that he was making a declaration against penal interest when he invited others to join in sexual intercourse with the alleged victim. Indeed, Gomez— the very person to whom the statement was made — testified as a government witness on direct examination that he had no idea from Pasetti’s remarks that any crime had been committed. I shall not go further in making this point, for Judge Canellos did so quite effectively in his dissent.
I would be reluctant to uphold admissibility of Pasetti’s statement on a theory of “present sense impression” under Mil.R. Evid. 803(1) or “excited utterance” under Mil.R.Evid. 803(2) because these theories were not relied on at trial; were not mentioned in the Court of Military Review’s opinion; and were never raised by counsel. Moreover, it appears that some of Pasetti’s rambling, drunken comments to Gomez do not fit within these exceptions. Finally, there is little occasion to try to justify admissibility of Pasetti’s statement on some ground not argued by counsel and thereby salvage the conviction because the case has many other disturbing features.
One of these concerns a possible lack of the effective assistance of counsel. As noted earlier, trial defense counsel gratuitously conceded the unavailability of Pasetti2. Moreover, it seems strange that appellant testified at Pasetti’s trial without obtaining a grant of testimonial immunity, so that the Government could not have used his own testimony to prove an essential element of rape — namely, penetration. Inasmuch as the alleged victim did not recall having intercourse with Baran, apparently the Government could not have demonstrated his guilt without introducing his own version of the events.
Second, I have doubts that the evidence here is sufficient to establish guilt within the standard prescribed by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The alleged victim and another female airman had been drinking at a club. They joined appellant, Pasetti, and another airman, Otis Hawks, to play a drinking game in the barracks room of appellant and Pasetti. According to the victim’s testimony, she drank extensively— more than ever before in her life — and did not remember anything until she awakened on a bed while someone other than appellant was having sexual intercourse with her. She described the experience as follows on direct examination:
So when I woke up, I didn’t know who it was; but they were kissing me. And I kissed him back. And then they asked me, “Do you love it? Do you love it?” And I responded, “Yes, I do. I love it. I love it.” And then I asked — then I realized it was Airman Hawks, and I was crying. I asked him to please stop because I was trying — I don’t know. It was like I couldn’t get control of myself. I couldn’t think straight enough to stop him, to really, you know, not respond to what he was doing. I asked him to stop and he pulled out, and he stopped. And then he tried to re-enter my anus. And then I asked him to stop again, and he had stopped.
In other portions of her testimony, she conceded that she had engaged in “French kissing” with the individual with whom she was having intercourse and that she may have placed his penis in her vagina.
From her testimony it appears that some of her claimed aversion to intercourse with Hawks arose because he was a black man, and she never dated black persons. In view of this reason for terminating inter*270course, it would appear quite likely that before this she had been willing to have intercourse with Baran, who was not subject to what she perceived as an ethnic disqualification applicable to Hawks.
At all times appellant has insisted that the alleged victim gave her consent to intercourse. This claim fails if at the time she was unable to give consent. However, later inability to recall what happened does not signify that at the time of intercourse she was unable to give consent. As this Court recognized long ago, alcohol may affect a person’s memory and inhibitions without depriving him of volition; and proof of amnesia does not conclusively establish that someone was unconscious or lacked mental responsibility at the time of the events they have forgotten. United States v. Olvera, 4 U.S.C.M.A. 134, 15 C.M.R. 134 (1954).
Not only is it questionable that the Government has met its burden of establishing that the intercourse took place without the victim’s consent, but also it would appear that, if she did not consent, Baran reasonably believed that she did, and the Government’s evidence failed to disprove the mistake-of-fact defense which he asserted. See generally United States v. Carr, 18 M.J. 297 (C.M.A.1984) (honest and reasonable mistake of fact as to the victim’s consent is available as a defense to a rape charge).
In light of the disposition directed in the principal opinion, the Court of Military Review will have a full opportunity to exercise its factfinding and other powers to rectify any injustice that has occurred.
. If the declarant believed — however, unreasonably — that the statement benefited him, there is no assurance of trustworthiness, regardless of what a reasonable person would have believed.
. Perhaps, trial defense counsel decided on tactical grounds that it would be better to allow Pasetti’s extrajudicial statement to be proved by Gomez than to insist that the Government immunize Pasetti. He may have concluded that Pasetti would be hostile to Baran because the latter had testified at Pasetti’s trial.