United States v. Prather, 2011 CAAF LEXIS 95

Prather was charged with aggravated sexual assault (Article 120(c)(2)) and adultery (Article 134) UCMJ after a party at Travis Air Force Base on 30 Oct 2007; conviction by a general court-martial led to specific penalties and appellate review.
The key legal issue centered on consent and incapacitation where the victim was alleged to be substantially incapacitated; consent was not an element for the offense, but an affirmative defense that the accused must prove by a preponderance of the evidence.
The defense argued that requiring proof of consent converts an element or effectively negates substantial incapacity, shifting the burden to Prather in violation of due process; the government argued Neal (consent in a related offense) supports the framework.
The military judge instructed the panel consistent with the statutory burden shifts and noted that consent could be considered if relevant to proving elements beyond a reasonable doubt.
The Air Force Court of Criminal Appeals affirmed the findings and sentence, and the Court of Appeals granted review to address the constitutionality of the consent burden-shift structure.
The court ultimately held that the interplay of Article 120(c)(2), Article 120(t)(14), and Article 120(t)(16) creates an unconstitutional burden shift; the decision reversed as to Charge I, set aside that finding and its specification, while affirming Charge II; the record was returned for possible rehearing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does Article 120(c)(2) with consent as an affirmative defense unconstitutional shift the burden to prove consent?	Prather argues consent is an essential element or inseparable from incapacity; burden on accused violates due process.	Government argues consent is not an element and the burden-shift is permissible per Neal.	Unconstitutional burden shift.
Is the second burden shift under Article 120(t)(16) constitutional?	Burden shift back to government after defense proved consent is a legal impossibility.	Government may argue that the instruction preserves the ultimate burden of proof on the Government.	Second shift is unconstitutional on its face.
Did the trial instructions cure the constitutional defects?	The standard ultimate burden instructions do not cure the unconstitutional shifts.	Instructions considered all evidence, including affirmative defense, when determining guilt beyond a reasonable doubt.	Instructions did not cure the defect.
Should the jury be permitted to consider consent evidence in evaluating the elements beyond reasonable doubt?	Consent evidence should be considered as part of determining whether the government proved the elements beyond a reasonable doubt.	Consent evidence may be considered only as it relates to the affirmative defense.	The court found the instructions inadequate to resolve the issue; the burden shifts invalid.

Neal, 68 M.J. 289 (C.A.A.F.2010) (consent treated as an affirmative defense; overlap with elements possible)
Martin, 480 U.S. 230 (U.S. 1987) (no shift of element burden; instructions must convey all evidence considered)
Mullaney v. Wilbur, 421 U.S. 684 (U.S. 1975) (cannot impose burden on defendant for critical element without justification)
Patterson v. New York, 432 U.S. 197 (U.S. 1977) (affirmative defense cannot negate facts of the crime; due process limits)
Leland v. Oregon, 343 U.S. 790 (U.S. 1952) (affirmative defense burdens not unconstitutional by themselves)
Dixon v. United States, 548 U.S. 1 (U.S. 2006) (burden placement in modern due process context)
In re Winship, 397 U.S. 358 (U.S. 1970) (beyond a reasonable doubt standard applies to every element)