                       UNITED STATES, Appellee

                                    v.

                     Stephen A. Prather, Airman
                      U.S. Air Force, Appellant

                              No. 10-0345

                         Crim. App. No. 37329

       United States Court of Appeals for the Armed Forces

                      Argued September 28, 2010

                       Decided February 8, 2011

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and RYAN, J., joined. BAKER, J., filed a separate
opinion dissenting as to part A and concurring in the result, in
which STUCKY, J., joined.

                                 Counsel


For Appellant: Major David P. Bennett (argued); Colonel Eric N.
Eklund, Lieutenant Colonel Gail E. Crawford, Major Michael A.
Burnat, Major Shannon A. Bennett, and Dwight H. Sullivan, Esq.
(on brief).

For Appellee: Captain Naomi N. Porterfield (argued); Captain
Charles G. Warren and Gerald R. Bruce, Esq. (on brief); Colonel
Don M. Christensen.

Military Judge:   Thomas Dukes


       This opinion is subject to revision before final publication.
United States v. Prather, No. 10-0345/AF

     Judge ERDMANN delivered the opinion of the court.

     Airman Stephen A. Prather pleaded not guilty to charges of

aggravated sexual assault and adultery in violation of Article

120(c)(2) and Article 134, Uniform Code of Military Justice

(UCMJ).   He was convicted of both charges by a general court-

martial composed of members and was sentenced to a reduction to

E-1, forfeiture of all pay and allowances, confinement for two

years and six months, and a dishonorable discharge.    The

convening authority approved the sentence and the United States

Air Force Court of Criminal Appeals affirmed the findings and

sentence.   United States v. Prather, No. ACM 37329, 2010 CCA

LEXIS 149, 2010 WL 4068932 (A.F. Ct. Crim. App. Jan. 25, 2010).

     Strictly speaking, the burden of proof, as those words
     are understood in criminal law, is never upon the
     accused to establish his innocence or to disprove the
     facts necessary to establish the crime for which he is
     indicted. It is on the prosecution from the beginning
     to the end of trial and applies to every element
     necessary to constitute the crime.

Davis v. United States, 160 U.S. 469, 487 (1895).     We granted

review to address the burden shifts found in Article 120(t)(16),

UCMJ, when an accused raises the affirmative defense of consent

to a charge of aggravated sexual assault by engaging in sexual




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United States v. Prather, No. 10-0345/AF

intercourse with a person who was substantially incapacitated.1

We conclude that the statutory interplay between the relevant

provisions of Article 120, UCMJ, under these circumstances,

results in an unconstitutional burden shift to the accused.       In

addition, we conclude that the second burden shift in Article

120(t)(16), UCMJ, which purports to shift the burden to the

government once an accused proves an affirmative defense by a

preponderance of the evidence, constitutes a legal

impossibility.

                             BACKGROUND

       On October 30, 2007, Prather invited SH to a party that he

and his wife were hosting at their house on Travis Air Force

Base, California.    Prior to arriving at the party, SH asked

Prather if she could spend the night on his couch because she

planned on becoming intoxicated.       Prather agreed.   During the

party, Prather, SH, and others played drinking games.       At some


1
    We granted review of the following issue:

       Whether the elimination of the element of lack of
       consent combined with the shifting of the burden to
       prove consent, by a preponderance of the evidence, to
       the accused in order to raise an affirmative defense
       to aggravated sexual assault under Article 120, UCMJ,
       where Appellant allegedly engaged in sexual
       intercourse with a person who was substantially
       incapacitated, is a violation of Appellant’s right to
       due process under the 5th Amendment of the U.S.
       Constitution.

United States v. Prather, 69 M.J. 168 (C.A.A.F. 2010) (order
granting review).

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United States v. Prather, No. 10-0345/AF

point during the party, SH made her way to the couch.    There was

conflicting testimony about exactly how she got to the couch and

how intoxicated she was during this time period.    The other

guests departed in the early morning hours and Prather and his

wife retired to their upstairs bedroom.

        Prather testified that at 2:30 a.m. he went downstairs to

get a glass of water and found SH awake.    He testified that SH

talked to him, kissed him, and took off her pants and underwear.

According to Prather, they then engaged in consensual

intercourse.    SH testified that after passing out on the couch

she awoke to find Prather on top of her already penetrating her.

She testified that she passed out again and when she awoke to

prepare for work, she found semen inside her and on her

underwear.

        After the presentation of evidence, the military judge

engaged counsel in a lengthy discussion concerning the

instructions he intended to give the members for the aggravated

sexual assault charge.    The military judge noted that the

offense occurred within a month of the effective date of the new

Article 120, UCMJ, so the charges had been filed under the new

statutory structure for which there was little guidance.      The

military judge explained that he intended to provide

instructions that tracked the language of the new Article 120,

UCMJ.



                                   4
United States v. Prather, No. 10-0345/AF

     In response, the defense counsel noted that the new Article

120, UCMJ, purported to remove “consent” as an element of the

offense and required an accused to raise “consent” as an

affirmative defense and prove it by a preponderance of the

evidence.   The defense counsel argued that since the Government

was required to prove that the victim was substantially

incapacitated, consent was still an element of the statute as a

victim who is “substantially incapacitated” cannot give consent.

The defense counsel argued that by requiring Prather to prove

consent by a preponderance of the evidence, the burden shifted

to him to negate or disprove the element of substantially

incapacitated.

     The defense counsel requested that the military judge

follow the advice of the Military Judges’ Benchbook, which

suggested treating “consent” as a traditional affirmative

defense under these circumstances.2   The military judge

acknowledged the defense concerns, but nonetheless rejected the


2
  Dep’t of the Army Pamphlet 27-9, Legal Services, Military
Judges’ Benchbook, ch. 3, Instruction 3-45-5, NOTE 9 (2010)
(instruction on aggravated sexual assault, Article 120, UCMJ),
states:

     Because this burden shifting appears illogical, it
     raises issues ascertaining Congressional intent. The
     Army Trial Judiciary is taking the approach that
     consent is treated like many existing affirmative
     defenses; if raised by some evidence, the military
     judge must advise the members that the prosecution has
     the burden of proving beyond a reasonable doubt that
     consent did not exist.

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United States v. Prather, No. 10-0345/AF

request.    The military judge’s relevant instructions generally

tracked the statutory scheme, including the shifting burdens

consistent with Article 120(t)(16), UCMJ, with respect to the

affirmative defenses.3     Prather appealed to the Air Force Court

of Criminal Appeals, challenging the constitutionality of

Article 120, UCMJ.      The lower court found no violation of

Prather’s due process rights.

                               DISCUSSION

     Before this court, Prather again raises constitutional

challenges to the statutory scheme involving the affirmative

defense of consent in the context of Article 120(c)(2), UCMJ.

The constitutionality of a statute is a question of law we

review de novo.    United States v. Disney, 62 M.J. 46, 48

(C.A.A.F. 2005).

     The pertinent statutory text of Article 120(c)(2), UCMJ,

provides:

     (c) Aggravated sexual assault.         Any person subject to
     this chapter who –-

            . . . .

         (2) engages in a sexual act with another person
     of any age if that other person is substantially
     incapacitated or substantially incapable of –-

                  (A)   appraising the nature of the sexual
     act;



3
  Attached as an appendix is the military judge’s instructions to
the members on these issues.

                                    6
United States v. Prather, No. 10-0345/AF

                (B)   declining participation in the sexual
     act; or

              (C) communicating unwillingness to engage
     in the sexual act; is guilty of aggravated sexual
     assault and shall be punished as a court martial may
     direct.4

Article 120(r), UCMJ, provides in pertinent part:

     Consent and mistake of fact as to consent are not an
     issue, or an affirmative defense, in a prosecution
     under any other subsection, except they are an
     affirmative defense for the sexual conduct in issue in
     a prosecution under . . . subsection (c) (aggravated
     sexual assault) . . . .

Article 120(t)(14), UCMJ, provides in pertinent part:

     The term “consent” means words or overt acts
     indicating a freely given agreement to the sexual
     conduct at issue by a competent person. . . . A person
     cannot consent to sexual activity if –-

          . . . .

          (B)   substantially incapable of –-

                (i) appraising the nature of the sexual
          conduct at issue due to –-

                    (I) mental impairment or
          unconsciousness resulting from consumption of
          alcohol, drugs, a similar substance, or otherwise
          . . . .

Article 120(t)(16), UCMJ, provides:

     Affirmative defense. The term “affirmative defense”
     means any special defense that, although not denying
     that the accused committed the objective acts
     constituting the offense charged, denies, wholly, or

4
  Prather was charged as follows in the specification of Charge
I: “In that AIRMAN STEPHEN A. PRATHER . . . did, at or near
Travis Air Force Base, California, on or about 30 October 2007,
engage in a sexual act, to wit: sexual intercourse, with [SH],
who was substantially incapacitated.”

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United States v. Prather, No. 10-0345/AF

        partially, criminal responsibility for those acts.
        The accused has the burden of proving the affirmative
        defense by a preponderance of evidence. After the
        defense meets this burden, the prosecution shall have
        the burden of proving beyond a reasonable doubt that
        the affirmative defense did not exist.

A. An accused’s burden to prove the affirmative defense of
consent by a preponderance of the evidence under Article
120(c)(2), Article 120(r), Article 120(t)(14), and Article
120(t)(16)

        Prather argues that “[b]y placing the burden on the accused

to prove consent when raising an affirmative defense, [Congress]

shifted the burden to the accused to disprove what is an implied

element or a fact that is essential to the offense of aggravated

sexual assault.”    In Prather’s view, “substantial incapacity,”

and “consent” are “two sides of the same coin” because the

statutory definition provides that “[a] person cannot consent to

sexual activity if . . . substantially incapable of . . .

appraising the nature of the sexual conduct at issue due to . .

. mental impairment or unconsciousness resulting from

consumption of alcohol . . . .”    Article 120(t)(14)(B)(i)(I),

UCMJ.    Thus, according to Prather, an accused cannot prove the

affirmative defense by a preponderance of the evidence without

also disproving an essential element of the offense of

aggravated sexual assault.    Prather also argues that the

military judge failed to instruct the panel that they “must”

consider evidence of consent in considering whether the




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United States v. Prather, No. 10-0345/AF

Government proved each element of the offense beyond a

reasonable doubt.

     The Government responds that the constitutionality of

Article 120(c)(2), UCMJ, is consistent with the rationale of

United States v. Neal, 68 M.J. 289 (C.A.A.F 2010), arguing that

Neal makes it clear that “consent is not an element, implied or

explicit of Article 120(c), UCMJ.”5    Neal, however, is

distinguishable from this case as it addressed “consent” in the

context of Article 120(e), UCMJ (aggravated sexual contact) and

did not involve a situation where the victim’s capacity to give

consent was at issue.6

     It is well established that the Due Process Clause

“protects the accused against conviction except upon proof

beyond a reasonable doubt of every fact necessary to constitute

the crime with which he is charged.”    In re Winship, 397 U.S.

358, 364 (1970).    However, it is less settled as to exactly when

5
  Neal treated consent as an affirmative defense independent of
the element of force and noted that facts pertinent to consent
might also be pertinent to the element of force, and therefore
it was necessary for the military judge to make clear in
instructions that such facts could be considered for both
purposes. 68 M.J. at 299.
6
  Neal identified three components of the statutory definition of
consent under Article 120, UCMJ: the first component defines
consent; the second identifies circumstances excluded from the
definition; and the third identified circumstances in which an
individual cannot give consent. 68 M.J. at 297-98. It is the
third component, while not at issue in Neal, that is central to
this case. While Neal is not dispositive of the issues
presented in this case, the general case law discussions in



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United States v. Prather, No. 10-0345/AF

a statute impermissibly relieves the prosecution of this burden

by shifting to the defense a burden to prove a defense that

overlaps in proof with an element of the charged offense.    Over

the years, the Supreme Court has wrestled with this issue.

Leland v. Oregon, 343 U.S. 790, 793 (1952) (placing the burden

on an accused to prove an affirmative defense is not, in and of

itself, unconstitutional); see also Dixon v. United States, 548

U.S. 1, 7-8 (2006); Mullaney v. Wilbur, 421 U.S. 684, 702 (1975)

(concluding that the state murder statute at issue required the

defendant “to carry the burden of proving a fact [malice

aforethought] so critical to criminal culpability” as to create

an unconstitutional burden shift to the defendant); Patterson v.

New York, 432 U.S. 197, 207 (1977) (finding no unconstitutional

shifting of the burden to the defendant, the Supreme Court

concluded that the statutory affirmative defense at issue “does

not serve to negative any facts of the crime which the State is

to prove in order to convict of murder”); Martin v. Ohio, 480

U.S. 228, 233-34 (1987) (although noting that a statute may not

“shift to the defendant the burden of disproving any element of

the [prosecution’s] case,” and concluding that the “evidence

offered to support the defense may negate a purposeful killing

by prior calculation and design,” the Supreme Court nonetheless

held that there had been no shifting of the burden because the


Section III, Part B, of Neal are instructive to the analysis of


                               10
United States v. Prather, No. 10-0345/AF

instructions were “adequate to convey to the jury that all of

the evidence, including the evidence going to self-defense, must

be considered in deciding whether there was a reasonable doubt

about the sufficiency of the State’s proof of the elements of

the crime”).

     With these principles in mind we examine the statutory

framework presented in this case:    Prather was charged under

Article 120(c)(2), UCMJ, with aggravated sexual assault by

engaging in sexual intercourse with a person who was

substantially incapacitated.   The essential elements of this

offense are (1) that the accused engaged in a sexual act with

another person; and (2) that person was substantially

incapacitated.   Article 120(r), UCMJ, provides that “consent” is

not an element of this offense, but it is an affirmative defense

that may be raised by the accused.   Article 120(t)(16), UCMJ,

provides that if an accused raises an affirmative defense, he

must prove it by a preponderance of the evidence.7   Article

120(t)(14), UCMJ, defines “consent” and provides that a person

who is substantially incapable of appraising the nature of the

sexual conduct due to impairment or unconsciousness resulting

from consumption of alcohol cannot consent.


the issues presented here. Id. at 298-300.
7
  Article 120(t)(16), UCMJ, goes on to provide that if an accused
proves the affirmative defense, the burden shifts to the
government to disprove the affirmative defense beyond a



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United States v. Prather, No. 10-0345/AF

     The Government argues that “proof that the victim was

substantially incapacitated at the time of the sexual act does

not preclude an affirmative defense of consent.”     This argument

is based, at least in part, upon the Government’s assertion that

consent given before a victim became substantially incapable

continues to be valid throughout the period of incapacity.       That

assertion, however, runs counter to the definition of consent in

Article 120(t)(14), UCMJ.   Consent requires a freely given

agreement by a competent person.      The Government provides no

legal support for the proposition that such advance consent is

not vitiated by the victim’s subsequent incapacity -- a

condition that at a minimum precludes the victim’s ability to

withdraw prior consent.

     Under the facts of this case, Prather could not prove

consent without first proving a capacity to consent on the part

of the victim as Article 120(t)(14), UCMJ, provides that “[a]

person cannot consent to sexual activity if . . . substantially

incapable . . . .” (Emphasis supplied.)     Although there may

exist an abstract distinction between “substantially

incapacitated” and “substantially incapable,” in the context

presented here we see no meaningful constitutional distinction

in analyzing the burden shift.   If an accused proves that the

victim consented, he has necessarily proven that the victim had


reasonable doubt.   This second burden shift is addressed in


                                 12
United States v. Prather, No. 10-0345/AF

the capacity to consent, which logically results in the accused

having disproven an element of the offense of aggravated sexual

assault -- that the victim was substantially incapacitated.      In

an area of law with many nuances, one principle remains constant

-- an affirmative defense may not shift the burden of disproving

any element of the offense to the defense.    See Martin, 480 U.S.

at 233; Patterson, 432 U.S. at 207.     Thus, the interplay of

sections Article 120(c)(2), UCMJ, Article 120(t)(14),UCMJ, and

Article 120(t)(16), UCMJ, results in an unconstitutional burden

shift to the accused.

     This, however, does not end our inquiry as the Government

goes on to argue that the instructions provided by the military

judge cured any constitutional infirmity in the statutory

scheme, citing Martin.   The military judge provided a series of

instructions to the members on the burden of proof.    During the

preliminary instructions prior to voir dire, the military judge

advised the members that “The Government has the burden of

proving the accused’s guilt by legal and competent evidence

beyond a reasonable doubt.”   During final instructions on the

merits, the military judge advised the members as follows on

their use of any evidence of consent:

     If the Defense did not prove by a preponderance of the
     evidence that [SH] consented to the sexual act
     alleged, then the government bears no burden to
     disprove the affirmative defense of consent, and


Section B of this opinion.

                                13
United States v. Prather, No. 10-0345/AF

     consent as an affirmative defense is not an issue for
     your further consideration. You may, however, still
     consider any evidence presented on the issue of
     consent if you find such evidence is relevant for your
     consideration of whether the prosecution has proven
     the elements of the offense beyond a reasonable doubt.

Shortly after this instruction, the military judge reminded the

members that “the burden of proof to establish the guilt of the

accused beyond a reasonable doubt is on the government.    The

burden never shifts to the accused to establish innocence or to

disprove the facts necessary to establish each element of each

offense.”   Finally, shortly before the trial counsel’s closing

argument, the military judge stated, “As the government has the

burden of proof, trial counsel may open and close.”

     The Government argues that these instructions sufficiently

informed the panel that the Government had the burden of proving

the elements of the offense beyond a reasonable doubt and also

that its findings should be based on all the evidence,

regardless of their determination as to whether the defense

proved the affirmative defense by a preponderance of the

evidence.   There are two related but distinct instructional

issues raised here:   whether the standard “ultimate burden”

instructions given by the military judge cured the

unconstitutional burden shift that required Prather to disprove

the element of substantial incapacity; and if so, whether the

instruction on the evidence of the affirmative defense informed

the panel that they must consider that evidence in their


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United States v. Prather, No. 10-0345/AF

deliberations as to whether the Government proved the element of

substantial incapacity beyond a reasonable doubt.

     We agree with the Government that we must evaluate the

instructions “in the context of the overall message conveyed to

the jury.”   Humanik v. Beyer, 871 F.2d 432, 441 (3d Cir. 1989).

As noted, the military judge instructed the panel on the burden

shift scheme consistent with the text of Article 120.8   In regard

to the standard burden instructions given by the military judge,

it is our view that where the statutory scheme has shifted the

burden to the accused to negate or disprove an element of the

offense and the panel is so instructed, standard “ultimate

burden” instructions are insufficient to resolve the

constitutional issue.9   As the Third Circuit noted in Humanik:


8
  The statutory scheme at issue in this case places military
judges in an impossible position. “[T]he military judge must
bear the primary responsibility for assuring that the jury
properly is instructed on the elements of the offenses raised by
the evidence as well as potential defenses and other questions
of law.” United States v. Graves, 1 M.J. 50, 53 (C.M.A. 1975).
Here the military judge not unreasonably followed the statutory
scheme in crafting his instructions on the affirmative defense.
However, in order to provide an instruction that accurately
informed the panel of the Government’s burden (as recommended by
the Military Judges’ Benchbook), the military judge would have
to ignore the plain language of Article 120, UCMJ.
9
  While Judge Baker’s separate opinion criticizes the majority
opinion for not indicating what instruction would have cured
this constitutional deficiency, we do not believe that any
instruction could have cured the error where the members already
had been instructed in a manner consistent with the text of
Article 120. No plausible instruction has been identified by the
Government that would resolve the constitutional and textual
difficulties of having to prove an affirmative defense that
incorporates the core requirements of an element of the offense.

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United States v. Prather, No. 10-0345/AF

     In this kind of situation, the constitutional problem
     is not eliminated by including an instruction in the
     charge that the state has the ultimate burden of
     proving every element of the offense beyond a
     reasonable doubt. When such a standard instruction is
     coupled with one placing a burden on the defendant to
     prove his defense by a preponderance of the evidence,
     the predictable result is more than merely confusion.
     In order to attribute some significance to the
     defendants’ burden, a rational juror’s only option is
     to conclude that the defendants’ evidence concerning
     the subject matter of the “affirmative defense” is to
     be considered only if the jury finds it persuasive,
     i.e., finds that the facts sought to be proved are
     more likely true than not true. It is clear from
     Martin that this is constitutionally impermissible.

Id. at 440-41.

     As to the instruction the military judge provided on how

the panel should treat the evidence of the affirmative defense,

we note that military judge instructed the panel that they “may”

consider the evidence “if they found it relevant.”   This

permissive instruction is inconsistent with both Martin and

Neal, which held that where there is an overlap between the

evidence pertinent to an affirmative defense and evidence

negating the prosecution’s case, there is no due process

violation when instructions:   “convey to the jury that all of

the evidence, including the evidence going to [the affirmative

defense], must be considered in deciding whether there was a

reasonable doubt about the sufficiency of the State’s proof of

the elements of the crime.”    Neal, 68 M.J. at 299 (brackets in

original) (quoting Martin, 480 U.S. at 234) (emphasis supplied).




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United States v. Prather, No. 10-0345/AF

     The unconstitutional burden shift to Prather under this

statutory scheme was not cured by the military judge’s

instructions.

B. The second burden shift in Article 120(t)(16), which shifts
the burden to the government to disprove an affirmative defense
beyond a reasonable doubt

     Article 120(t)(16), UCMJ, initially assigns the burden of

proof for any affirmative defense to the accused.    It then

provides that “[a]fter the defense meets this burden, the

prosecution shall have the burden of proving beyond a reasonable

doubt that the affirmative defense did not exist.”   As we have

found that the initial burden shift in Article 120(t)(16), UCMJ,

to be unconstitutional under the circumstances presented in this

case, the issue involving the second burden shift becomes moot.

Even if this were not the case, however, we agree with Prather

that the second burden shift is a legal impossibility.10    The

problem with the provision is structural.   If the trier of fact

has found that the defense has proven an affirmative defense by

a preponderance of the evidence, it is legally impossible for

the prosecution to then disprove the affirmative defense beyond

10
  We note that United States v. Medina, a pending case arising
from the United States Navy-Marine Corps Court of Criminal
Appeals, was argued the same day as this case and presented the
same issue as to the validity of the second burden shift in
Article 120(t)(16), UCMJ. The government in Medina, in
consultation with the Department of Defense Office of General
Counsel, took the position that the second burden shift was a
logical impossibility and therefore a legal nullity. Motion to



                               17
United States v. Prather, No. 10-0345/AF

a reasonable doubt and there must be a finding of not guilty.

There are simply no instructions that could guide members

through this quagmire, save an instruction that disregards the

provision.

                            CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is reversed as to Charge I and its

specification.   The finding as to that offense is set aside; the

finding as to Charge II and its specification is affirmed; the

sentence is set aside.   The record of trial is returned to the

Judge Advocate General of the Air Force who may order a

rehearing.   Alternatively, a sentence rehearing may be ordered

with regard to the affirmed finding.




Clarify, United States v. Medina, No. 10-0262 (C.A.A.F. Sept.
29, 2010).

                                18
United States v. Prather, No. 10-0345/AF

                            Appendix

              United States v. Prather, No. 10-0345
                  Record Extract of Instructions


In the specification of Charge I, the accused is charged with
the offense of aggravated sexual assault. To find the accused
guilty of this offense, you must be convinced by legal and
competent evidence beyond a reasonable doubt of the following
elements, and there are two elements:

     First, that on or about 30 October 2007, at or near Travis
     Air Force Base, California, the accused engaged in a sexual
     act, to wit: sexual intercourse, with [SH]; and,

     Two, that the accused did so when [SH] was substantially
     incapacitated.

     I am going to define a couple of terms for you. First,
“sexual act.” Sexual act means the penetration, however slight,
of the vulva by the penis.

     Second, “substantially incapacitated.” Substantially
incapacitated means that level of mental or physical impairment
due to alcohol, drugs, or otherwise, that rendered the alleged
victim unable to appraise the nature of the sexual conduct at
issue, unable to decline participation in the sexual conduct at
issue, unable to physically communicate unwillingness to
participate in the sexual conduct at issue, or otherwise unable
to make or communicate competent decisions.

     The evidence has raised the issue of whether [SH] consented
to the sexual act concerning the offense of aggravated sexual
assault, as alleged in the specification of Charge I. Consent
is an affirmative defense to that charged offense. “Consent”
means words or overt acts indicating a freely given agreement to
the sexual conduct by a competent person. An expression of lack
of consent through words or conduct means there is no consent.
Lack of verbal or physical resistance or submission resulting
from the accused’s use of force, threat of force, or placing
another person in fear does not constitute consent.

     A person cannot consent to sexual activity if that person
is substantially incapacitated. As previously indicated,
consent is an affirmative defense to the charge of aggravated
sexual assault. However, in order for consent as an affirmative
defense to be an issue in your deliberations, the defense must


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United States v. Prather, No. 10-0345/AF

prove by a preponderance of the evidence that [SH] consented to
the sexual act alleged. Proof by a preponderance of the
evidence is proof that a fact is more likely true than not true.

     If you find that the defense has met this burden, then the
prosecution has to prove beyond a reasonable doubt that consent
did not exist. Therefore, if you find that the defense has
proven consent by a preponderance of the evidence, then in order
to find the accused guilty of the offense of aggravated sexual
assault, as alleged in the specification of Charge I, you must
be convinced beyond a reasonable doubt that, at the time of the
sexual act alleged, [SH] did not consent.

     If the defense did not prove by a preponderance of the
evidence that [SH] consented to the sexual act alleged, then the
government bears no burden to disprove the affirmative defense
of consent, and consent as an affirmative defense is not an
issue for your further consideration in your deliberations. You
may, however, still consider any evidence presented on the issue
of consent if you find such evidence is relevant to your
consideration of whether the prosecution has proven the elements
of the offense beyond a reasonable doubt.

     In addition, the evidence has raised the issue of whether
the accused mistakenly believed that [SH] consented to the
sexual act concerning the offense of aggravated sexual assault,
as alleged in the specification of Charge I. Mistake of fact as
to consent is an affirmative defense to that charged offense.
Mistake of fact as to consent means the accused held, as a
result of ignorance or mistake, an incorrect belief that the
other person engaging in the sexual conduct consented. The
ignorance or mistake must have existed in the mind of the
accused and must have been reasonable under all the
circumstances. To be reasonable, the ignorance or mistake must
have been based on information, or lack of it, which would
indicate to a reasonable person that the other person consented.

     Additionally, the ignorance or mistake cannot be based on
the negligent failure to discover the true facts. Negligence is
the absence of due care. Due care is what a reasonably careful
person would do under the same or similar circumstances. You
should consider the accused’s age and experience, along with the
other evidence on this issue.

     As previously indicated, mistake of fact as to consent is
an affirmative defense to the charge of aggravated sexual
assault. However, in order for mistake of fact as to consent as
an affirmative defense to be an issue in your deliberations, the


                               20
United States v. Prather, No. 10-0345/AF

defense must prove by a preponderance of the evidence that the
accused mistakenly believed that [SH] consented to the sexual
act alleged. Proof by a preponderance of the evidence is proof
that a fact is more likely true than not true. If you find that
the defense has met this burden, then the prosecution has the
burden to prove beyond a reasonable doubt that mistake of fact
as to consent did not exist. Therefore, if you find that the
defense has proven mistake of fact as to consent by a
preponderance of the evidence, then in order to find the accused
guilty of the offense of aggravated sexual assault, as alleged
in the specification of Charge I, you must be convinced beyond a
reasonable doubt that, at the time of the sexual act alleged,
the accused’s mistake was unreasonable.

     If the defense did not prove by a preponderance of the
evidence that the accused was mistaken as to whether [SH] had
consented to the sexual act, then the government bears no burden
to disprove the affirmative defense of mistake of fact as to
consent, and mistake of fact as to consent as an affirmative
defense is not an issue for your further consideration.

     There has been some evidence concerning the accused’s state
of intoxication at the time of the alleged offense. On the
question of whether the accused’s belief was reasonable, you may
not consider the accused’s intoxication, if any, because a
reasonable belief is one that an ordinary prudent sober adult
would have under the circumstances of this case. Voluntary
intoxication does not permit what would be an unreasonable
belief in the mind of a sober person to be considered reasonable
because the person is intoxicated. You may, however, still
consider any evidence presented on the issue of mistake of fact
as to consent if you find such evidence is relevant to your
consideration of whether the prosecution has proven the elements
of the offense beyond a reasonable doubt.

     Those are the instructions for the specification of
Charge I.




                               21
United States v. Prather, No. 10-0345/AF


     BAKER, Judge, with whom STUCKY, Judge, joins (dissenting as

to Part A and concurring in the result):

                            Introduction

     This case raises two constitutional questions regarding the

affirmative defense of consent in the context of aggravated

sexual assault under Article 120(c)(2), Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 920 (2006).     First, in light of a

statutory scheme where an element of the government’s case is

“[t]hat the other person was substantially incapacitated,” and

the affirmative defense is defined in a way that requires the

accused to prove capacity to consent:      does the statutory

requirement that the accused prove the affirmative defense by a

preponderance of the evidence unconstitutionally shift the

burden of proof to the accused to disprove an essential element

of the Government’s case?

     The majority concludes that:

     If an accused proves that the victim consented,
     he has necessarily proven that the victim had the
     capacity to consent, which logically results in
     the accused having disproven an element of the
     offense of aggravated assault . . . an
     affirmative defense may not shift the burden of
     disproving any element of the offense to the
     defense. Thus, the interplay of [the] sections .
     . . results in an unconstitutional burden shift
     to the accused.

United States v. Prather, __ M.J. __ (12-13) (C.A.A.F. 2011)

(citations omitted).   The problem with this analysis is that
United States v. Prather, No. 10-0345/AF


there is a difference between negating an element and shifting

the burden of proof to the accused.   If the government retains

the burden to prove each element of the offense, regardless of

whether the accused demonstrates an affirmative defense, then

the burden of proof does not in fact shift to the accused as the

majority contends.   By definition, an affirmative defense

negates one’s culpability.

     The constitutional problem arises when the law not only

establishes a defense requiring an accused to disprove an

element of the offense, but then also relieves the government of

its duty to independently prove that element if the defense

falls short.   That is not what happened in this case.   Article

120(t)(14), UCMJ, does not relieve the Government of proving

each element of the offense, and the military judge in this case

specifically instructed the members that the burden remained

with the Government regardless of what Appellant demonstrated or

failed to demonstrate.

     Therefore, because I read the relevant Supreme Court

precedents differently than the majority, I respectfully dissent

from its conclusion that this statutory scheme has resulted in

an unconstitutional burden shift to the accused to disprove an

element of the Government’s case notwithstanding the fact that

the members were properly and adequately instructed to the

contrary.


                                 2
United States v. Prather, No. 10-0345/AF


     In addition to reaching what I believe is the wrong

conclusion regarding the affirmative defense, the majority has

taken an erroneous path to that conclusion.   First, the majority

does not indicate why United States v. Neal, 68 M.J. 289

(C.A.A.F. 2010), does not fit within the analysis now presented

in this case.   In Neal, just as in this case, the defense at

issue negated an element of the offense.

     More importantly, the majority determines that the military

judge’s instructions were insufficient to resolve the

constitutional issue presented.   However, the majority does not

indicate what instructions would have cured the asserted

problem.   Indeed, the majority “does not believe that any

instruction could have cured the error where the members already

had been instructed in a manner consistent with the text of

Article 120.”   But neither does the majority indicate that the

affirmative defense is unconstitutional on its face or that the

statutory language establishing the offense is unconstitutional

on its face.    Thus, practitioners are without guidance as to how

to apply Article 120(c)(2), UCMJ, and the affirmative defense

contained in Article 120(t)(16), UCMJ, in the future.   That

leaves the accused and the government past, present, and future

in legal limbo.

     The second question in this case asks whether Article

120(t)(16), UCMJ, violates a military accused’s due process


                                  3
United States v. Prather, No. 10-0345/AF


right by shifting the burden back to the government to disprove

the defense of consent beyond a reasonable doubt after the

defense has proven the affirmative defense by a preponderance of

the evidence.   Restated, if a preponderance of the evidence

necessarily raises a reasonable doubt, as a matter of due

process can the government logically prove its case beyond a

reasonable doubt once the affirmative defense is proved?    Here,

I agree with the majority that the burden shifting creates a

legal impossibility.   However, there is another word for what

the statute does here and that is “unconstitutional.”   On this

question of law, the Court should not shy away from stating so.

     In summary, for the reasons stated below, I conclude that

the statutory language contained in Article 120(t)(16), UCMJ,

assigning to the accused the burden of proving the affirmative

defense is not unconstitutional on its face, and when properly

instructed upon, can be applied in a constitutional manner.

However, with respect to the second burden shift contained in

Article 120(t)(16), UCMJ, purporting to shift the burden back to

the government once the affirmative defenses at issue are proved

by a preponderance, I conclude that provision is

unconstitutional on its face.




                                 4
United States v. Prather, No. 10-0345/AF


                             Discussion

A. Articles 120(c)(2), (t)(14), and (t)(16), UCMJ: The First
Burden Shift Requiring the Accused to Prove the Affirmative
Defense of Consent

     Before this Court, Appellant raises facial and as applied

constitutional challenges to the offense of aggravated sexual

assault under Article 120(c)(2), UCMJ.    In particular, Appellant

challenges application of the affirmative defense of consent in

the context of this offense.

     According to Appellant and the majority, an accused cannot

prove the affirmative defense by a preponderance of the evidence

without also disproving the second element of the offense of

aggravated sexual assault.   Leland v. Oregon, 343 U.S. 790

(1952), among other cases, stands for the proposition that

placing the burden on an accused to prove an affirmative defense

is not, in and of itself, unconstitutional.   Id. at 799 (“We are

therefore reluctant to interfere with [the State’s]

determination of its policy with respect to the burden of proof

on the issue of sanity since we cannot say that policy violates

generally accepted concepts of basic standards of justice.”).

     While we are asked to interpret a provision of the UCMJ,

the constitutional question of law, hinges on interpretation of

a handful of Supreme Court cases addressing affirmative defenses

as well as the burden of proof.   Over the years, the Supreme

Court has wrestled with this issue.   Dixon v. United States, 548


                                  5
United States v. Prather, No. 10-0345/AF


U.S. 1 (2006); Martin v. Ohio, 480 U.S. 228 (1987); Patterson v.

New York, 432 U.S. 197 (1977); Mullaney v. Wilbur, 421 U.S. 684

(1975); Leland, 343 U.S. 790.   As the division on this Court in

Neal suggests, the case law distinguishing between that which

offends due process and that which does not is opaque.     In

Patterson, 432 U.S. at 207, where the Supreme Court found no

unconstitutional shifting of the burden to the defendant, the

Court concluded that the statutory affirmative defense at issue

“does not serve to negative any facts of the crime which the

State is to prove in order to convict of murder.”     In Martin,

the Court considered a state law providing an affirmative

defense of self-defense to murder, which the defendant was

required to prove.   480 U.S. at 230.    The Court concluded that

“evidence offered to support the defense may negate a purposeful

killing by prior calculation and design, but [the State] does

not shift to the defendant the burden of disproving any element

of the state’s case.”   Id. at 234.     In reaching this conclusion,

the Court also noted that the instructions “are adequate to

convey to the jury that all of the evidence, including the

evidence going to self-defense, must be considered in deciding

whether there was a reasonable doubt about the sufficiency of

the State’s proof of the elements of the crime.”     Id.

     It is also settled that a statute may “not shift to the

defendant the burden of disproving any element of the


                                 6
United States v. Prather, No. 10-0345/AF


[prosecution’s] case.”    Id.     In Mullaney, for example, the Court

concluded that the state murder statute at issue required the

defendant “to carry the burden of proving a fact so critical to

criminal culpability” as to create an unconstitutional burden

shift to the defendant.    421 U.S. at 702.    In particular, the

state statute there defined murder as the unlawful killing of a

human being “with malice aforethought, either express or

implied.”   Id. at 686.    Malice, the Court concluded, was an

element of the offense without which a charge of murder would be

reduced to manslaughter.    Id.     Based on the statutory language,

state law at the time required that the jury be instructed that

if the prosecution established that the homicide was both

intentional and unlawful, “malice aforethought was to be

conclusively implied unless the defendant proved by a fair

preponderance of the evidence that he acted in the heat of

passion on sudden provocation.”       Id. (emphasis added).   The

problem, the Court concluded, was that the statutory language

allowed a presumption on an element of the crime of murder under

the statute, i.e., malice aforethought.      Thus, the statute both

relieved the prosecution of any duty to produce any evidence on

this element, and at the same time, imposed the burden on the

accused to disprove it by a fair preponderance since sudden

provocation was the converse of malice aforethought.      Id. at

687.   That is a burden shift.     As the Court in Patterson later


                                     7
United States v. Prather, No. 10-0345/AF


summarized the holding in Mullaney:    “[A] State must prove every

ingredient of an offense beyond a reasonable doubt, and . . . it

may not shift the burden of proof to the defendant by presuming

that ingredient upon proof of the other elements of the

offense.”    432 U.S. at 215 (emphasis added).

     As I read these cases several principles are evident.

First, the burden to prove the elements of an offense must

always remain with the prosecution.    Second, a statute may not

presume that an element of the offense is met in the absence of

the accused disproving that element by carrying his burden on an

affirmative defense.    Finally:

     [a]n overlap between the evidence pertinent to
     the affirmative defense and evidence negating the
     prosecution’s case does not violate the Due
     Process Clause when instructions “convey to the
     jury that all of the evidence, including the
     evidence going to [the affirmative defense], must
     be considered in deciding whether there was a
     reasonable doubt about the sufficiency of the
     State’s proof of the elements of the crime.”


Neal, 68 M.J. at 299.    This last principle applies whether or

not the defense carries its burden to prove the defense or

merely provides some evidence warranting instruction on the

defense.    It is this last principle that is most evident in the

case before us and which is not distinguished by the majority in

a meaningful manner since the analysis presented would apply to

both this case and Neal.



                                   8
United States v. Prather, No. 10-0345/AF


     The offense at issue here, aggravated sexual assault under

Article 120(c)(2), UCMJ, does not expressly include lack of

consent as an element.   In fact, Congress expressly excluded

consent as an issue (or element) of the government’s case.

“Consent and mistake of fact as to consent are not an issue or

an affirmative defense in a prosecution under any other

subsection, except they are an affirmative defense for the

sexual conduct in issue . . . under . . . subsection (c)

(aggravated sexual assault) . . . .”    Article 120(r), UCMJ.

Although Article 120(t)(16), UCMJ, describes an affirmative

defense as one in which the accused need not deny commission of

“the objective acts, constituting the offense charged,” it does

not require him to admit criminal responsibility for those acts,

which could create a presumption of guilt similar to the

situation encountered in Mullaney.     That is to say, although

Appellant was free to admit the act of sexual conduct, and did

so, he was not required to admit that the victim was

“substantially incapacitated.”   Further, Articles 120(c)(2),

t(14), and t(16), UCMJ, do not indicate expressly or otherwise

that evidence of consent cannot be considered on the

government’s ultimate burden to prove guilt beyond a reasonable

doubt.   For these reasons, the statutory scheme at issue here

does not, on its face, create any presumption that burdens the

accused with disproving an element of Article 120(c)(2), UCMJ.


                                 9
United States v. Prather, No. 10-0345/AF

     In Neal, evidence of the element of force and the defense

of consent overlapped but ultimately addressed distinct facts

and conduct.1    In contrast, the element of substantial incapacity

and the definition of consent arguably present two sides of the

same coin.   On the facts of this case, Appellant could not prove

consent without also proving a capacity to consent on the part

of the victim.    After all, Article 120(t)(14), UCMJ, states, “A

person cannot consent to sexual activity if . . . substantially

incapable of . . . appraising the nature of the sexual conduct

at issue due to . . . mental impairment or unconsciousness

resulting from consumption of alcohol. . . .”2

     The constitutional risks, then, are twofold.    First, the

members might assume that if the accused tries, but fails, to

offer some evidence of consent or fails to establish the

1
  In Neal, we distinguished between (1) a fact on which the
defense bears the burden of persuasion (consent) and (2) a
matter that is subsidiary to a fact on which the prosecution
bears the burden of persuasion (force). 68 M.J. at 299. It
would seem that a military judge, aware of this distinction,
could craft an instruction obviating the concern by informing
the members that evidence of consent may be relevant to their
determination of whether the prosecution has proven the required
elements of the offense beyond a reasonable doubt. Id. Such an
instruction was given in this case.
2
  In a sense, the situation is not that different than what one
encounters with respect to the issue of sanity and the
affirmative defense of lack of mental responsibility. It might
be argued in a given case that insanity and intent are also two
sides of the same coin. However, it is clear that the
affirmative defense at issue there does not result in an
impermissible shift to the accused that relieves the government
of its burden to prove the element of intent.

                                 10
United States v. Prather, No. 10-0345/AF

affirmative defense by a preponderance of the evidence, the

government will have necessarily met its burden of persuasion on

the element beyond a reasonable doubt.    Second, and related, the

members may treat the accused’s evidence of consent as bearing

only on the question of the affirmative defense and not also as

evidence that may independently bear on whether the government

has met its ultimate burden beyond a reasonable doubt.

However, the statutory text itself does not compel either of

these results.   The scheme does raise the risk that the members

will do so absent instructions that carefully guide them past

the three principles identified above.

     The majority points to the fact that the military judge

instructed the members that they “may” consider the evidence of

the affirmative defense, as opposed to “must,” if they found it

relevant “to [their] consideration” as to whether the Government

had proven the elements of the offense beyond a reasonable

doubt.    To the extent this language in the instruction can be

read to imply that such consideration is optional, then it would

fall short of Martin’s direction that the instructions “convey

to the jury that all of the evidence, including the evidence

going to [the affirmative defense], must be considered in

deciding whether there was a reasonable doubt about the

sufficiency of the [prosecution’s] proof of the elements of the

crime.”   Martin, 480 U.S. at 232-36.    On the other hand, to the


                                 11
United States v. Prather, No. 10-0345/AF

extent it is read to imply that the members must consider all

the evidence presented, but may assign to it whatever weight

they deem appropriate, then it is constitutionally sound.      A

clearer instruction on this point might have advised the members

to simply consider all the evidence presented in determining

whether the prosecution has proven the elements of the offense

beyond a reasonable doubt.    Additionally, the members could be

instructed that they may determine what weight, if any, to

assign to the evidence.

        In this case, with respect to Appellant’s burden to prove

the affirmative defense of consent, the military judge

instructed the members consistent with the statute.    As a

result, the constitutional principles embedded in the Mullaney

line of cases were implicated.    Here, the military judge’s

instructions addressed these concerns.    As the majority

correctly points out, during the preliminary instructions, the

military judge advised the members that “The Government has the

burden of proving the accused’s guilt by legal and competent

evidence beyond a reasonable doubt.”    He also reminded them that

this burden never shifts to the accused.    It, therefore, remains

unclear why these “standard ultimate burden instructions” were

inadequate, unless the provisions are unconstitutional on their

face.    As in Neal, whether or not the statutory provisions at

issue are unconstitutional as applied in a given case will


                                  12
United States v. Prather, No. 10-0345/AF

depend on the instructions given, or perhaps more to the point,

not given.

B. Article 120(t)(16), UCMJ: The Second Burden Shift Back to
the Government to Disprove the Affirmative Defense

     Article 120(t)(16), UCMJ, assigns the burden of proof for

the affirmative defense to the accused.    It then states, “After

the defense meets this burden, the prosecution shall have the

burden of proving beyond a reasonable doubt that the affirmative

defense did not exist.”   I agree with the majority’s

characterization of this second burden shift as a legal

impossibility.   That said, I conclude that it presents a due

process violation and is thus, unconstitutional on its face.

     The problem is in the structure of the statute.    If the

defense meets its burden of proof, that it is more likely than

not that the victim has consented, then it necessarily rebuts

the prosecution’s effort to meet its burden, thereby excusing

the accused from criminal liability.   By definition, the

government will not have persuaded the members of the accused’s

guilt beyond a reasonable doubt, at which point they should

reach a finding of not guilty.   At this point, the relationship

between the definition of consent and the element of substantial

incapacity could work in the appellant’s constitutional favor.

     However this second burden shift back to the government, in

effect, serves as an unauthorized reconsideration of a finding



                                 13
United States v. Prather, No. 10-0345/AF

of not guilty.3   Alternatively, it raises the prospect that the

members will convict an accused on the basis of something less

than evidence beyond a reasonable doubt.   In either case the

effect is constitutionally flawed.   The point is illustrated by

comparison to the procedure set forth in R.C.M. 921(c)(4)

regarding the affirmative defense of lack of mental

responsibility:

     When the defense of lack of mental responsibility is
     in issue . . . , the members shall first vote on
     whether the prosecution has proven the elements of the
     offense beyond a reasonable doubt. If at least two-
     thirds of the members present . . . vote for a finding
     of guilty, then the members shall vote on whether the
     accused has proven lack of mental responsibility. If
     a majority of members present concur that the accused
     has proven lack of mental responsibility by clear and
     convincing evidence, a finding of not guilty only by
     reason of lack of mental responsibility results.

Emphasis added.   In contrast, Article 120(t)(16), UCMJ, of

Article 120, UCMJ, contains no such language; nor does it compel

instructions to the members on how to deal with the competing

burdens of persuasion.   Moreover, Article 120(t)(16), UCMJ,

includes a second shift to the prosecution allowing it to

disprove the defense whereas R.C.M. 921 does not.   Neither

Article 120(t)(16), UCMJ, nor the MCM (2008 ed.), provide any


3
  The Manual for Courts-Martial (MCM), of course, has a process
for reconsideration of members’ findings of not guilty while the
members are still in deliberations. Rule for Courts-Martial
(R.C.M.) 924 states, “Any finding of not guilty shall be
reconsidered if a majority [of the members] vote for
reconsideration.”

                                14
United States v. Prather, No. 10-0345/AF

guidance as to how the members could navigate between these

competing burdens of persuasion.       I have serious doubt that the

members here could have understood and addressed the shifting

burdens of persuasion without further clarifying instructions

consistent with the constitutional principles highlighted above.

Thus, this section is unenforceable, and if literally followed,

is unconstitutional.4

                              Conclusion

     Court-martial members may not presume that the Government

has met an element of the offense on account of an accused’s

failure to prove a defense.    All evidence, including evidence

addressed to an affirmative defense, must be considered in

deciding whether the government has met its burden of proving

each element of the offense beyond a reasonable doubt, whether

or not the accused is successful in proving his defense.

Finally, and related, the prosecution alone bears the burden to

prove each element of the offense beyond a reasonable doubt, and

that burden may never move to the accused.

     Thus, for the reasons stated I dissent from the conclusion

reached in Part A of the Court’s opinion.      However, since I

4
  However, I would also not recommend adopting the approach taken
in the current version of the Military Judges’ Benchbook that
places the burden on the Government to disprove the affirmative
defense if some evidence raises the defense. Dep’t of the Army,
Pam. 27-9, Legal Services, Military Judges’ Benchbook ch. 3,
para. 3-45-5, Note 9 (2010). Such an approach, although
helpful, clearly contravenes the statute.

                                  15
United States v. Prather, No. 10-0345/AF

would reverse because of the due process problem identified

above, I concur in the result reached.




                               16
