*1 STATES, Appellee, UNITED Airman, PRATHER,
Stephen A. Force, Appellant. Air
U.S.
No. 10-0345.
Crim.App. No. 37329. Appeals for Court of
U.S. Forces. Armed Sept. 2010.
Argued Feb.
Decided
339 Appellant: For Major David P. Bennett (argued); Eklund, Colonel N. Eric Lieuten- Crawford, Major ant Colonel Gail E. Mi- Bumat, Bennett, Major chael A. Shannon A. (on brief). Dwight H. Sullivan Appellee: Captain For Naomi N. Porter- (argued); Captain Charles G. Warren field (on brief); and Gerald R. Bruce Colonel Don M. Christensen.
Judge ERDMANN opinion delivered the of the court. Stephen
Airman A. pleaded Prather guilty charges aggravated sexual as adultery sault and in violation of Article 120(c)(2) 134, and Article Uniform Code of Military (UCMJ), Justice 10 U.S.C. 920(c)(2) §§ and 934. He was convicted of charges by general both court-martial com posed of members and was sentenced to a E-l, reduction to pay forfeiture of all allowances, years confinement for two months, six and a discharge. dishonorable convening authority approved the sen tence the United Air States Force Court Appeals of Criminal findings affirmed the Prather, and sentence. United States v. No. 37329, 149, ACM 2010 CCA LEXIS 2010 WL 25, 2010). (A.F.Ct.Crim.App. 4068932 Jan. Strictly speaking, proof, the burden of those words are understood criminal law, upon is never the accused to establish his innocence or to the facts nec- essary to establish the crime for which he is indicted. It is on beginning ap- end of trial and plies every necessary to consti- tute the crime. States,
Davis United
160 U.S.
16
(1895).
40 L.Ed.
granted
S.Ct.
We
ERDMANN, J.,
opinion
delivered the
review to address the burden shifts found in
Court,
EFFRON, C.J.,
120(t)(16), UCMJ,
and Article
when
RYAN, J., joined. BAKER, J.,
sepa-
filed a
raises the affirmative defense of consent to a
opinion dissenting
part
rate
charge
as to
A and
aggravated
sexual assault
en-
result,
concurring
STUCKY,
in the
in which
gaging
person
in sexual intercourse with a
J., joined.
substantially incapacitated.1
who was
We
granted
following
1. We
allegedly engaged
review of the
issue:
lant
in sexual intercourse
substantially incapaci-
with
tated,
Whether the
who
elimination
the element of lack
Appellant's right
shifting
of consent
is a violation
combined
to due
by preponderance
process
burden to
under the
Amendment of the U.S.
5th
in order to raise
Constitution.
Prather,
(C.A.A.F.
an affirmative defense to
United States v.
ponderance of evidence. After the defense burden, meets prosecution shall (2) engages in a sexual act with another have the proving beyond a rea- person any age if that person other is sonable doubt that the affirmative defense substantially incapacitated substantially or did not exist. incapable of— (A) appraising the nature of the sexu- act;
al A. An prove accused’s burden to the affir (B) mative prepon consent a declining participation in the sex- defense of act; derance ual the evidence under Article 120(c)(2), 120(r), Article Article (C) communicating unwillingness to 120(t)(16) and Article engage act; in the sexual guilty aggravated sexual assault and shall be argues Prather “[b]y placing punished as a court martial direct.4 prove burden on the accused to consent when 120(r), UCMJ, provides Article pertinent in raising defense, an [Congress] part: shifted the burden to the accused to implied what is an element or a fact that is
Consent and mistake of fact as to consent essential to the aggravated offense of issue, sexual defense, are not an or an affirmative view, assault.” In Prather’s “substantial in in any a under other subsec- capacity,” and tion, “consent” are “two sides of the except they are an affirmative de- same coin” because the definition fense for the sexual conduct in issue in a provides person that “[a] cannot consent to (c) prosecution under ... (ag- subsection activity substantially sexual if ... incapable assault).... gravated sexual of ... appraising the nature of the sexual 120(t)(14), UCMJ, provides perti- in conduct at issue impair due to ... mental part: nent ment or resulting unconsciousness from con The term “consent” means words or overt sumption alcohol....” indicating freely given acts agreement to 120(t)(14)(B)(i)(I), according sexual conduct at competent issue Prather, an accused cannot the affir person.... A cannot consent to mative defense activity if— evidence without disproving also an essential element of the offense of (B) substantially incapable of— argues assault. Prather also that the mili (i) appraising the tary judge nature of the sexual panel failed to instruct conduct they at issue due to— “must” consider evidence of charged act, 4. Prather specifica- engage course, follows in a sexual to wit: sexual inter- Charge tion of I: "In that AIRMAN [SH], STEPHEN A. who was inca- did, PRATHER ... at or near Travis Air Force pacitated." Base, California, on or about 30 October 342 York, defendant); 432 v. New Patterson proved the Government considering 197, 207, L.Ed.2d 281 53 U.S. beyond a reason- of the offense each shifting of (1977) (finding unconstitutional no doubt. able defendant, Supreme the burden the consti- responds that statutory affirma- concluded 120(c)(2), con- tutionality Article nega- “does not serve to tive defense States v. of United the rationale sistent crime which State any tive facts (C.A.A.F.2010), arguing
Neal, M.J. 289 68 murder”); to convict order is not that “consent makes it clear that Neal 233-34, Ohio, 480 U.S. Martin element, of Article explicit implied or (1987) (although L.Ed.2d 267 S.Ct. however, is distin- 120(c), UCMJ.”5 may not “shift noting that statute it addressed ease guishable disproving ele- the burden defendant 120(e), context of in the “consent” case,” [prosecution’s] ment of contact) and did (aggravated sexual UCMJ support “evidence offered cluding that the the victim’s where a situation not involve killing may negate purposeful at issue.6 give consent was capacity to Su- design,” the by prior calculation *5 that the Due It is well established had held there preme Court nonetheless against “protects the accused Process Clause the the burden because shifting of been no beyond a rea except upon proof convey to the “adequate conviction to were instructions necessary to con every including the of fact doubt jury sonable that all of the charged.” self-defense, he is with going the crime which be stitute evidence 364, 358, 90 was a rea- deciding S.Ct. whether there Winship, 397 U.S. in In re sidered (1970). However, sufficiency of the it 1068, is doubt L.Ed.2d 368 sonable about 25 crime”). elements of exactly proof a when statute State’s as to settled less of impermissibly relieves the mind we principles in examine these With a shifting defense burden by in this statutory framework overlaps in with prove a defense Article charged under Prather ease: was charged Over the offense. an element of UCMJ, 120(c)(2), as- with sexual wrestled with Supreme years, the in intercourse by engaging sexual sault 790, U.S. Oregon, v. 343 Leland issue. substantially incapacitated. person a who was (1952) 1002, L.Ed. 1302 (1) 72 S.Ct. 96 are this offense The essential elements prove accused to on an (placing the burden engaged in a act that the accused not, itself, in and of (2) an affirmative is person person; and another unconstitutional); 120(r), Dixon v. also United see incapacitated. Article substantially 1, 7-8, States, 165 not an UCMJ, U.S. “consent” is provides 548 Wilbur, (2006); offense, Mullaney 421 but is affirma- 299 of this L.Ed.2d element by 684, 702, 44 L.Ed.2d ac- S.Ct. 508 be raised defense that tive U.S. UCMJ, 120(t)(16), provides (1975) murder (concluding state stat Article that the cused. de- carry an affirmative accused raises defendant “to that if an ute at issue fense, byit he must fact afore proving [malice the burden of UCMJ, 120(t)(14), the evidence.7 culpability” to criminal thought] so critical provides that a defines “consent” shift an unconstitutional to create component, while the third M.J. at 297-98. It consent an affirmative Neal treated case. central to this in that is not at issue independent of force noted pre- dispositive issues might While Neal is not pertinent consent also be facts that pertinent case, force, general law discus- case in this sented and therefore it the element III, B, are instruc- Part of Neal Section military judge sions in necessary to make for the presented here. analysis of the issues tive to the facts could such be in instructions that clear Id. at 298-300. at 299. purposes. 68 M.J. for both considered 120(t)(16), goes provide 7.Article components of the statuto- three 6. Neal identified defense, proves the affirmative that if an UCMJ: ry definition of consent under disprove consent; government to the burden shifts component second defines first beyond a reasonable the affirmative defense the defi- excluded from circumstances identifies nition; is addressed burden shift doubt. This second circumstances in the third identified opinion. B of this give Section consent. 68 an individual cannot substantially This, who incapable appraising however, does not end in our the nature of the sexual conduct to im- quiry due goes as the Government argue on to pairment resulting or unconsciousness provided military instructions consumption of alcohol cannot consent. judge any cured infirmity constitutional scheme, citing Martin. The argues Government “proof military judge provided a series of instruc substantially incapacitated victim was tions to the members on proof. the burden of the time of the sexual act preclude does not During preliminary prior an affirmative defense of consent.” ar- This dire, voir judge advised the based, gument part, at least in upon the members that “The Government has the bur given Government’s assertion that consent den guilt by legal accused’s before a victim became incapa- competent ble continues to be valid throughout peri- During doubt.” final instructions on the incapacity. assertion, however, od of That merits, military judge advised the mem runs counter to the definition of bers as on their use follows requires Consent of consent: freely given agreement competent person. The provides legal no If did by prepon- Defense support proposition for the that such advance derance of the evidence that [SH] consent- consent is not vitiated the victim’s subse- ed to the alleged, act gov- then the quent incapacity condition that at a mini- —a ernment bears no burden precludes mum the victim’s ability to with- affirmative defense of and consent *6 prior draw consent. as an affirmative defense is not an issue your may, further consideration. You case, the Under facts of this Prather however, consider pre- still evidence could not consent without proving first sented on you the issue of consent if find capacity part consent on the of the such your evidence is relevant for consid- 120(t)(14), victim UCMJ, Article provides eration of whether the that “[a] cannot consent to sexual proven the beyond elements the offense activity substantially if ... incapable_” a reasonable doubt. (Emphasis supplied.) Although may there exist an abstract distinction between Shortly instruction, “sub- after this military the stantially incapacitated” “substantially and judge the reminded members that “the bur- incapable,” in the context here we proof den of guilt to establish the meaningful see no constitutional distinction beyond a reasonable doubt is on the analyzing the burden shift. If an accused government. The burden never shifts the proves consented, that the victim he has accused to establish innocence or to disprove necessarily proven that the victim had the necessary the facts to establish each element capacity to logically which results in Finally, of each shortly offense.” the before having disproven the accused an element of trial closing argument, military counsel’s the the offense sexual assault— stated, judge “As the has the that the victim incapacitat- proof, may open trial counsel nuances, ed. In area of law an with many close.” principle one remains constant —an affirma- argues The Government that these instruc- tive defense not shift the sufficiently panel tions informed the the that disproving any element of the offense Government had the burden of Martin, defense. See 480 U.S. 107 at elements of the offense 1098; Patterson, S.Ct. 432 U.S. 97 doubt findings that its also should be S.Ct. interplay of sections 120(c)(2), UCMJ, regardless based on all of their 120(t)(16),UCMJ, determination as to whether and Article results in an proved unconstitutional burden shift to the affirmative defense a prepon- accused. derance of evidence. There are re- two
344 the defen- only option is conclude raised issues distinct instructional lated but subject concerning the evidence dants’ bur- “ultimate standard here: whether is to be defense” “affirmative matter military judge by the given den” instructions persua- it jury only if the finds considered shift unconstitutional cured sought to be i.e., facts sive, finds disprove the element Prather not true. likely true than more proved are so, if whether incapacity; substantial is consti- that this Martin It clear of the affirmative the evidence instruction tutionally impermissible. they must panel informed the deliberations in their evidence consider 440-41. Id. at proved the Government whether the as to judge to the instruction As beyond a incapacity of substantial treat panel should on how provided doubt. reasonable defense, we note the affirmative evidence panel that military judge instructed agree with the We they “if the evidence they “may” consider “in the instructions we must evaluate permissive instruc- it This found relevant.” conveyed message of the overall the context both Martin tion inconsistent Beyer, 871 F.2d jury.” Humanik an Neal, where there held that Cir.1989). noted, (3d mili As pertinent to overlap between the on the bur panel tary judge instructed negating defense and affirmative text of consistent with scheme den shift case, pro- due is no there prosecution’s bur regard standard 120.8 “convey to when instructions: cess violation military judge, by the given den instructions evidence, including all of the jury that where the is our view that de- going [the the burden has shifted scheme deciding fense], wheth- be considered disprove an element negate or about the doubt there was er instructed, stan so panel is and the the ele- State’s sufficiency of the in are burden” dard “ultimate at 299 68 M.J. the crime.” ments of issue.9 the constitutional to resolve sufficient Martin, (brackets (quoting original) Humanik: noted in Third Circuit As the *7 1098) sup- (emphasis at U.S. situation, the kind of constitutional In this plied). including by an is not eliminated problem Prath- shift to burden The unconstitutional charge that state in the instruction not cured statutory scheme under this er every ele burden the ultimate judge’s military instructions. by the beyond of the offense ment instruction a standard When such doubt. Article in burden B. The second shift on the placing a coupled is one 120(t)(16), the burden which shifts by pre his defense defendant disprove an evidence, predicta ponderance beyond a reasonable doubt merely confusion. than is more ble result initially significance some to attribute order any affirma- proof for burden, juror’s assigns the a rational the defendants’ language plain ignore the judge have to in this case would statutory at issue scheme 8. The position, impossible military judges in an places primary judge re- military must bear the "[T]he separate opinion criticizes Judge Baker’s While 9. properly assuring jury is sponsibility for indicating what in- majority opinion not for raised on the elements offenses instructed this constitutional have cured would struction potential defenses and by as well as any instruction deficiency, that we do not believe Graves, questions of law.” United States other members error where the cured the could have (C.M.A.1975). military Here the 1 M.J. consis- already in manner been instructed had unreasonably judge followed plausible No the text Article tent with crafting on the affir- by his instructions scheme the Govern- has been identified instruction However, provide order mative defense. resolve constitutional ment would that panel having prove an affirma- accurately informed textual instruction difficulties require- (as incorporates the core tive recommended the Government’s the offense. Benchbook), an element of ments of Military Judges’ provides tive defense to the accused. It then burden, “[a]fter meets this sexual assault. find guilty To the accused prosecution shall have the burden of offense, you this by legal must be convinced proving beyond a reasonable doubt that the competent beyond affirmative defense did not exist.” As we elements, following doubt of the and there have found that the initial burden shift in are two elements: 120(t)(16), UCMJ, to be unconstitu- First, that on or about 30 October tional under the circumstances Base, California, or near Air Travis Force ease, involving the issue the second bur- act, engaged the accused in a sexual to wit: den shift becomes moot. Even if this were intercourse, [SH]; and, case, however, agree not the we with Prather Two, that the accused did so when [SH] legal the second burden shift impos- is incapacitated. sibility.10 problem provision with the
structural. If the trier of fact has found that going I am couple to define a of terms for proven the defense has an affirmative de- First, you. “sexual act.” Sexual act means fense penetration, slight, however of the vulva legally impossible penis. then affirmative defense Second, “substantially incapacitated.” a reasonable doubt and there must be a Substantially incapacitated means that level finding guilty. of not simply There are no physical impairment of mental or due to alco- guide could members hol, otherwise, drugs, or that rendered the through quagmire, save an instruction alleged victim appraise unable to the nature disregards provision. issue, of the sexual conduct at unable to participation
decline in the sexual conduct at issue, physically unable to communicate un- CONCLUSION willingness participate in the sexual con- The decision of the United Air States issue, duct at or otherwise unable to make or Force Court Appeals of Criminal is reversed competent communicate decisions. Charge as to I and specification. its The evidence has raised the issue of aside; finding as to that offense is set [SH] consented to the sexual act finding Charge specification II and its concerning the offense of affirmed; the sentence is set aside. The assault, alleged specification in the record of trial Judge is returned to the Advo- Charge I. Consent is an affirmative defense cate General of Air Force who order *8 charged to that offense. “Consent” means rehearing. Alternatively, a a sentence re- words or overt indicating freely given acts a hearing may regard be ordered with agreement by to the sexual compe- conduct a finding. affirmed person. tent An expression of lack of con- through
sent words or conduct means there is no consent. physical Lack of verbal or Appendix resistance or resulting submission from the Prather, United States v. No. 10-0345 force, force, accused’s use of threat of
placing person another in fear does not con- Record Extract of Instructions stitute consent. I, specification
In the
Charge
of
the accused
person
A
activity
cannot consent to sexual
charged
is
with the
aggravated
offense of
if
person
incapacitated.
Medina,
Medina,
pend
government
We note that United States v.
a
in
in consultation with the
ing
arising
Navy-
Department
case
from the United States
of Defense Office of General Coun-
sel,
Corps
Appeals,
position
Marine
Court of Criminal
was
took
that the second burden shift
argued
day
presented
logical impossibility
same
as this case and
legal
was a
and therefore a
validity
nullity.
na,
the same issue as
Clarify,
to
of the second
Motion to
United States v. Medi-
(C.A.A.F.2010).
burden shift in Article
UCMJ. The
As sented. charge aggravated of mative defense However, for con- order in assault. sexual mistake can- ignorance or Additionally, the an issue to be defense an affirmative sent as negligent failure to not be based deliberations, prove must the defense your in Negligence is the facts. the true discover that [SH] of the evidence
by preponderance
a
care is what a
care. Due
of
absence
due
alleged.
act
Proof
the sexual
do under
consented
reasonably
would
careful
the evidence is
of
You
by
a
circumstances.
or similar
the same
not true.
likely
experi-
than
age
more
true
a fact is
the accused’s
consider
should
on this
ence,
the other
along
evidence
met
defense has
you
that the
If
find
issue.
prove
burden,
prosecution has
then
indicated,
of fact
mistake
as
previously
As
consent did
doubt
beyond a
defense
an affirmative
to consent is
Therefore,
you
if
find
exist.
not
How-
sexual assault.
charge
aggravated
of
by
preponder-
a
proven
has
consent
defense
ever,
fact as to con-
of
in
for mistake
order
evidence,
in order to find the
then
ance
to be
defense
sent as an affirmative
aggravated
the offense of
guilty of
accused
deliberations,
prove
must
the defense
your
assault,
specification
alleged in the
as
sexual
evidence that
by preponderance
a
beyond
I, you
be
a
Charge
must
convinced
of
mistakenly
[SH]
believed that
accused
that,
of
at
time
reasonable doubt
by
Proof
alleged.
act
a
sexual
sented
consent.
alleged,
did not
[SH]
act
sexual
proof that a
preponderance of
evidence
prepon-
prove
a
did not
If the defense
you
true.
If
likely true than not
more
fact is
consented
[SH]
derance
burden,
defense has met
find that the
govern-
alleged, then
act
to the sexual
the burden to
prosecution has
then the
disprove the affir-
ment bears no
that mistake of
beyond
reasonable doubt
consent as an
defense
Therefore,
mative
did
exist.
fact as to consent
your
issue for
is not an
affirmative
proven mistake
you find
has
your
deliberations.
consideration
further
preponderance of
of fact as to
however,
any evi-
still consider
may,
You
the ac-
to find
then
order
of consent if
on the issue
aggravated
dence
guilty of the offense
cused
your
assault,
specification
evidence is relevant
you
alleged
find such
in the
as
sexual
beyond
I,
you
of whether the
be convinced
Charge
consideration
that,
time
elements of
proven the
reasonable doubt
mistake
alleged, the
act
accused’s
reasonable doubt.
unreasonable.
addition,
has raised the
prepon-
did not
If the defense
mistakenly be-
issue whether
derance
the sexual act
consented to
[SH]
lieved that
had consented
[SH]
to whether
mistaken as
concerning
offense of
act,
then the
bears
the sexual
assault,
specification of
alleged in the
disprove the
no burden
fact
to consent is an
Charge I.
Mistake
*9
consent, and
mistake
fact as
of mistake of
charged offense.
to that
de-
as an affirmative
consent
of fact
means the
fact as to consent
Mistake of
your further consid-
is not
fense
an
held,
ignorance or
as a result of
accused
eration.
mistake,
the other
belief
an incorrect
concerning
conduct con-
in the sexual
has been some
person engaging
There
time
must have
state of intoxication
ignorance
or mistake
the accused’s
sented.
question
of
alleged
On
and must
offense.
in
mind of the accused
of
existed
reasonable,
belief
circum-
the accused’s
under all the
have been reasonable
intoxi-
the accused’s
reasonable,
you may
consider
ignorance or
To be
stances.
cation,
belief is
any,
because
on informa-
have been based
mistake must
sober adult
ordinary prudent
it,
one
an
tion,
indicate
lack of which would
negating
difference between
an element and
shifting the burden
proof
to the accused.
would
under
have
the circumstances of this
If
retains the burden to
Voluntary
case.
permit
intoxication does not
offense,
each element
regardless
what would be an unreasonable belief in the
whether the accused demonstrates an
af-
person
mind
aof
sober
to be considered
defense, then the burden
proof
firmative
person
reasonable because the
is intoxicated.
not in
does
fact shift to the accused as the
however,
may,
You
still
consider
evi-
majority
definition,
By
contends.
an affirma-
presented
dence
on the issue of mistake of
negates
tive defense
culpability.
one’s
fact as to
you
consent if
such
find
evidence is
The constitutional problem arises when the
your
relevant to
consideration whether the
only
law not
establishes a
requiring
proven
has
the elements of the
disprove
an accused to
an element of the
a reasonable doubt.
offense, but then
govern-
also relieves the
Those are the
specifi-
instructions for the
duty
ment of its
to independently prove that
Charge
cation
I.
element if the defense falls short. That is
not what happened in this case. Article
BAKER, Judge,
STUCKY,
with whom
120(t)(14), UCMJ, does not relieve the Gov-
Judge, joins (dissenting as to Part A and
ernment of
each element of the of-
result):
concurring in the
fense, and
military judge
in this case
specifically
Introduction
instructed the members that the
burden remained with the Government re-
This case raises two
ques-
constitutional
gardless of what Appellant demonstrated or
regarding
tions
the affirmative defense of
failed to demonstrate.
the context of
Therefore, because I read the relevant Su-
120(e)(2),
assault under Article
Uniform Code
preme
precedents
differently than the
Military
(UCMJ),
Justice
§
10 U.S.C.
majority, I respectfully dissent from its con-
(2006). First,
light
statutory
of a
scheme
statutory
clusion that this
scheme has result-
where
element
government’s
an
of the
case is
in an
ed
unconstitutional burden shift to the
“[t]hat
the other
disprove
accused to
an element of the Gov-
incapacitated,” and the affirmative defense is
ernment’s case notwithstanding the fact that
way
defined in
requires
the accused to
the members
properly
were
adequately
prove capacity to
consent: does the
instructed
contrary.
requirement that the
accused
the affir-
In addition
reaching
mative defense
what I
believe is
wrong
regarding
conclusion
unconstitutionally
shift the
affirma-
defense,
majority
tive
to the accused
taken an
essen-
erro-
path
First,
tial
neous
element of the
to that conclusion.
Government’s ease?
majority does not
why
indicate
United States
majority
concludes that:
(C.A.A.F.2010),
348
120(c)(2),
particular,
In
der
that the
majority indicate
does the
neither
affir-
of the
application
challenges
Appellant
on its
is unconstitutional
defense
affirmative
of
in the context
of consent
defense
establish- mative
statutory language
that the
face or
face.
offense.
on its
is unconstitutional
ing the offense
guidance
are without
practitioners
majority,
Appellant and
According to
UCMJ,
120(e)(2),
apply
to
to how
de-
affirmative
prove the
an accused cannot
in Article
contained
defense
affirmative
of
fense
UCMJ,
leaves
120(t)(16),
That
in the future.
element of
the second
disproving
without also
pres-
past,
government
and the
Le-
assault.
aggravated sexual
the offense
ent,
legal limbo.
and future
1002,
790, 72 S.Ct.
Oregon, 343 U.S.
v.
land
asks
this case
question in
The second
eases,
(1952), among other
L.Ed. 1302
96
UCMJ,
120(t)(16),
violates a
placing
proposition
for the
stands
right by shift-
process
due
military accused’s
prove an affirmative
to
on an accused
burden
government to
back to
ing the burden
itself,
not,
unconstitution-
defense is
beyond a
of consent
(“We
there-
799,
are
It is also settled
that a statute
“not
Finally:
defense.
shift to the defendant the
disprov-
burden of
overlap between
perti-
[a]n
the evidence
ing any
[prosecution’s]
element of the
case.”
nent to the affirmative defense and evi-
Id.
In Mullaney,
example,
the Court
negating
prosecution’s
dence
case does
concluded that
the state murder statute at
not violate the Due Process Clause when
required
issue
carry
the defendant “to
“convey
jury
that all of
a fact so critical to crimi-
including
going
culpability”
nal
as to create an unconstitu-
defense],
to [the affirmative
must be con-
tional burden shift to the defendant. 421
sidered in deciding whether there was a
U.S. at
particular,
charged,” it does acts, defense the affirmative question which of those on the responsibility for criminal may indepen- to guilt that of similar presumption a also as evidence create and not could Mullaney. That government encountered the has dently the situation on whether bear free to although Appellant was say, beyond to ultimate burden met its so, conduct, did and the act of admit However, statutory text itself the doubt. the victim that required admit was he not these results. compel of not either does Further, “substantially incapacitated.” the members the risk that does raise scheme t(16), 120(c)(2),t(14), do and Articles carefully that will do so absent evi- that expressly or otherwise not indicate principles identi- three past the guide them on the be considered cannot dence of consent above. fied guilt prove ultimate government’s that the to the fact majority points these rea- doubt. For beyond a reasonable members the that military judge instructed here does sons, at issue scheme the of the affir- “may” they consider face, not, presumption create on its “must,” defense, they opposed mative ele- disproving an burdens the consideration” as “to [their] it relevant found 120(c)(2),UCMJ. ment of proven the had the Government to whether Neal, force of the element of In beyond a reasonable the of offense elements overlapped but of consent language in the the doubt. To extent facts and ultimately addressed distinct imply that such can be read to instruction contrast, of substantial the element In duct.1 it would optional, fall then consideration argu- of consent the definition incapacity and the instruc- direction that of Martin’s short coin. On of the same ably present two sides all of “convey jury the the tions case, not Appellant could of this the facts evidence, going [the including the evidence capaci- a consent without also defense], be considered in affirmative After part of the victim. ty to consent on was a reasonable deciding there whether states, 120(t)(14), UCMJ, per- “A all, Article sufficiency [prosecu- of doubt about ... activity if consent son cannot the crime.” of elements of tion’s] appraising ... substantially incapable of 232-36, Martin, 1098. 480 U.S. due to at issue of sexual conduct nature hand, it is read to to the extent or unconsciousness the other impairment ... On mental consumption of alcohol.2 must consider all the resulting imply members may assign to it presented, but risks, then, are twofold. The constitutional then weight they appropriate, deem whatever First, if the might assume members in- constitutionally A clearer sound. it is tries, fails, evi- to offer some but have advised point might on this struction to establish fails dence all the evi- simply consider the members whether determining dence will nec- have the elements prosecution proven has persuasion on the essarily its burden met doubt. Addi- reasonable Second, beyond a reasonable doubt. could be instructed tionally, the members related, ae- may treat the the members sense, (1) that different situation 2. In a distinguished fact on between we respect persua- bears the burden what one encounters than (2) subsidiary (consent) that is a matter sanity sion defense of lack the affirmative prosecution which the bears to a fact on argued might responsibility. It be mental (force). at 299. It persuasion 68 M.J. burden would insanity are also given and intent two case that military judge, of this aware seem However, it is clear that coin. of the same sides distinction, obviating instruction could craft an does not at issue there affirmative defense by informing that evi- the members the concern impermissible to the accused shift in an result deter- relevant to their be dence of consent government of its burden to relieves proven mination of of intent. the element beyond a the offense elements of Id. instruction doubt. Such given in case. *13 they may weight, determine any, what if persuaded will not have the members of the assign to the evidence. guilt beyond doubt, accused’s a reasonable point they finding should reach a ease, In respect this with Appellant’s guilty. point, not At relationship the burden to the affirmative defense of between the definition of consent and the military judge the instructed the element of substantial incapacity could work members consistent the statute. As a appellant’s constitutional favor. result, the constitutional principles embedded However Mullaney in the this second burden line of eases shift back to implicat- were Here, government, effect, ed. judge’s serves as an unau- instructions thorized finding addressed reconsideration of a these concerns. not majority As the out, guilty.3 Alternatively, correctly points prospect it raises the during preliminary instructions, that the members will convict an military judge accused on advised the something the basis of members that “The less than has the bur- beyond den of a reasonable proving the doubt. In either guilt by legal ease accused’s effect competent constitutionally flawed. The point is illustrated comparison pro- doubt.” He also reminded them that 921(c)(4) cedure set forth in It, regard- burden never shifts to the R.C.M. accused. therefore, ing the affirmative why defense of lack of remains unclear mental these “stan- responsibility: dard ultimate burden instructions” were in- adequate, provisions unless the are unconsti- When the defense lack of mental re- tutional on their face. inAs whether sponsibility ..., is in issue the members not statutory provisions or at issue are shall first vote on prosecution whether the applied unconstitutional as given in a case proven the elements of the offense depend will given, on the per- or beyond a reasonable doubt. If at least haps point, more to given. not two-thirds of the present ... members finding
vote for a guilty, then the mem- bers shall vote on whether the accused has B. Article UCMJ: The Second proven lack of responsibility. mental aIf Burden Back Government to Shift majority present members concur that Disprove the Affirmative Defense proven accused has lack of mental 120(t)(16), UCMJ, assigns the bur- responsibility by convincing clear and evi- den of for the affirmative defense to dence, finding guilty only by not states, the accused. It then “After the de- reason responsibility of lack of mental re- burden, fense meets this prosecution sults. shall have the proving beyond Emphasis contrast, added. reasonable doubt that the affirmative defense 120(t)(16),UCMJ, 120, UCMJ, of Article did not I agree majority’s exist.” with the language; tains no such compel nor does it characterization of this second burden shift instructions to the members on how deal legal said, impossibility. That I con- competing with the persuasion. burdens of presents process clude that it a due violation Moreover, 120(t)(16),UCMJ, includes thus, and is unconstitutional on its face. prosecution second shift allowing it problem is in the structure of the the defense whereas R.C.M. 921 If statute. 120(t)(16), UCMJ, meets its burden of does not. Neither Article proof, (2008 that it likely ed.), is more than not that the provide any guid- nor MCM consented, victim has necessarily then re- navigate ance to how the members could prosecution’s buts the effort to meet its bur- competing persua- between these burdens of den, thereby excusing from crim- I have sion. serious that the members doubt definition, liability. By inal here could have and addressed understood {MCM), (R.C.M.) states, Manual "Any finding Courts-Martial of Martial of not course, process has a for reconsideration of guilty majority shall be [of reconsidered findings guilty members’ bers are still in of not while the mem- members] vote for reconsideration.” Rule for Courts- deliberations. beyond a reason- of the offense element each persuasion without burdens shifting accused is doubt, consistent able clarifying instructions further Finally, highlighted his defense. principles successful constitutional unenforceable, related, alone bears this section above. followed, is unconstitutional.4 of the offense literally
and if each doubt, beyond a reasonable Conclusion *14 to the accused. may never move presume members Court-martial I dissent from stated for the reasons met an element A in Part reached the conclusion failure an accused’s account of the offense However, I would re- since opinion. Court’s evidence, including All prove a defense. problem process the due because of defense, verse to an affirmative evidence addressed above, in the result I concur identified deciding must be considered reached. has met its 27-9, Legal Army, Dep’t Pam. However, adopt- fense. Services, not recommend I would also para. Military Judges' ch. version of Benchbook the current ing approach taken in places 10). Judges’ 3-45-5, (20 approach, al Military Benchbook Such an Note 9 disprove the affir- Government to on the clearly the statute. though helpful, contravenes the de- raises some evidence mative