                         UNITED STATES, Appellee

                                         v.

     Raymond L. NEAL, Aviation Electronics Technician Airman
                       U.S Navy, Appellant

                                  No. 09-5004
                        Crim. App. No. 200800746

       United States Court of Appeals for the Armed Forces

                       Argued September 21, 2009

                        Decided January 22, 2010

EFFRON, C.J., delivered the opinion of the Court, in which BAKER
and STUCKY, JJ., joined. RYAN, J., filed a separate opinion
concurring in part and dissenting in part, in which ERDMANN, J.,
joined.

                                     Counsel


For Appellant:    Lieutenant Dillon J. Ambrose, JAGC, USN
(argued).

For Appellee: Major Elizabeth A. Harvey, USMC (argued); Colonel
Louis J. Puleo, USMC, and Brian K. Keller, Esq. (on brief).

Amicus Curiae for the United States Air Force Appellate
Government Division: Lieutenant Colonel Jeremy S. Weber,
Captain Naomi N. Porterfield, and Gerald R. Bruce, Esq. (on
brief).

Military Judge:    Mario H. De Oliveira



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Neal, No. 09-5004/NA


    Chief Judge EFFRON delivered the opinion of the Court.

    The present case concerns a decision by the military judge

to dismiss a charge in a pending court-martial.    Upon appeal by

the Government under Article 62, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 862 (2006), the United States Navy-

Marine Corps Court of Criminal Appeals reversed the military

judge and remanded the case to the Judge Advocate General of the

Navy for further proceedings before the court-martial.   United

States v. Neal, 67 M.J. 675, 680-82 (N-M. Ct. Crim. App. 2009).

The Judge Advocate General of the Navy certified the case for

our review under Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2)

(2006).

     The charge under appeal, aggravated sexual contact in

violation of Article 120(e), UCMJ, 10 U.S.C. § 920(e), involves

a new offense enacted by Congress in 2006 as part of a

comprehensive revision of Article 120.   See National Defense

Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163,

div. A, tit. V, § 552(a)(1), 119 Stat. 3136, 3257 (2006)

(codified as amended at 10 U.S.C. § 920 (2006)).   The 2006

legislation revised the description of rape under Article 120

and added thirteen other offenses to the statute, including

Article 120(e), aggravated sexual contact.

     In pertinent part, the new statute makes it an offense to

engage in sexual contact by use of force.    See infra Part III.A


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United States v. Neal, No. 09-5004/NA


(describing Article 120(e) and the related provisions of Article

120).    In contrast to prior law, which required the government

to prove lack of consent as an element of the offense, see infra

Part III.A.1, the new statute expressly states that consent is

“not an issue” in a prosecution for specified offenses under

Article 120, including the offense of aggravated sexual contact.

See infra Part III.A.3.b (describing Article 120(r) and the

related provisions of Article 120).

        At trial, the military judge interpreted Article 120(e) as

requiring the defense to disprove an implied element -- lack of

consent -- and dismissed the charge on the ground that the

statute unconstitutionally shifted the burden of proof on an

element from the Government to the defense.     On review under

Article 62, the Court of Criminal Appeals concluded that the

statute did not contain an implied element and did not relieve

the Government of its burden to prove all elements beyond a

reasonable doubt.    Neal, 67 M.J. at 680-82.   The Judge Advocate

General of the Navy certified the following issues for our

review:

        I. WHETHER THE NAVY-MARINE CORPS COURT OF
        CRIMINAL APPEALS ERRED IN FINDING IT HAD
        JURISDICTION OVER THIS ARTICLE 62, UCMJ, APPEAL,
        WHERE THE APPEAL WAS TAKEN AFTER THE CASE WAS
        ADJOURNED AND THE MEMBERS DISMISSED.

        II. DESPITE THE LANGUAGE OF ARTICLE 120(r),
        UCMJ, WHETHER THE NAVY-MARINE CORPS COURT OF
        CRIMINAL APPEALS CORRECTLY HELD THAT THE ARTICLE


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United States v. Neal, No. 09-5004/NA


     DOES NOT PROHIBIT THE ACCUSED FROM INTRODUCING
     EVIDENCE OF CONSENT IN ORDER TO NEGATE AN ELEMENT
     OF THE OFFENSE.

     III. CONCERNING THE AFFIRMATIVE DEFENSE SET
     FORTH IN ARTICLE 120(t)(16), WHETHER THE NAVY-
     MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY
     HELD THAT CONGRESS CONSTITUTIONALLY ALLOCATED, TO
     THE ACCUSED, THE BURDEN OF PROVING CONSENT BY A
     PREPONDERANCE OF THE EVIDENCE.

     IV. WHETHER THE NAVY-MARINE CORPS COURT OF
     CRIMINAL APPEALS CORRECTLY HELD THAT “LACK OF
     CONSENT” IS NOT AN IMPLICIT ELEMENT OF ARTICLE
     120 CRIMES, INCLUDING THE CHARGED OFFENSE, GIVEN
     THE DEFINITION OF “FORCE” IN ARTICLE 120(t)(5),
     AND THUS ARTICLE 120, UCMJ, DOES NOT
     UNCONSTITUTIONALLY SHIFT THE BURDEN TO THE
     ACCUSED TO “DISPROVE AN ELEMENT OF THE OFFENSE.”

     V. WHETHER THE NAVY-MARINE CORPS COURT OF
     CRIMINAL APPEALS CORRECTLY HELD THAT THE EVIDENCE
     TRIGGERED THE AFFIRMATIVE DEFENSE OF CONSENT AS
     DEFINED IN ARTICLE 120(t)(16), UCMJ, DESPITE THE
     FACT THAT THE APPELLANT FAILED TO ACKNOWLEDGE THE
     OBJECTIVE ACTS OF THE ALLEGED OFFENSE.

     VI. WHETHER THE FINAL TWO SENTENCES OF ARTICLE
     120(t)(16), UCMJ, WHICH ALLOWS FOR CONSIDERATION
     AS TO WHETHER THE GOVERNMENT HAS DISPROVED THE
     AFFIRMATIVE DEFENSE OF CONSENT BEYOND A
     REASONABLE DOUBT, AFTER THE ACCUSED HAS PROVED
     THE DEFENSE BY A PREPONDERANCE OF THE EVIDENCE,
     CREATE A LEGALLY IMPOSSIBLE BURDEN ALLOCATION.

     For the reasons set forth below, we affirm the decision of

the Court of Criminal Appeals.   Part I summarizes the trial and

intermediate appellate proceedings.   Part II addresses the first

certified issue, which concerns the jurisdiction of the Court of

Criminal Appeals.   Part III addresses the balance of the

certified issues in light of the pertinent constitutional and



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United States v. Neal, No. 09-5004/NA


statutory considerations regarding Article 120.     Part IV sets

forth our decision.

                            I.   BACKGROUND

                       A.    TRIAL PROCEEDINGS

1.   Appellant’s Motion to Dismiss the Charge

      The charge in the present case alleges that Appellant --

           engage[d] in sexual contact, to wit: by
           using his hands to fondle the breasts and
           vaginal area of Airman [_____] and by
           thrusting his penis against the buttocks of
           the said Airman [_____], by using physical
           strength sufficient that she could not
           escape the sexual contact.

      Following arraignment, Appellant moved to dismiss the

charge, challenging the constitutionality of the new Article 120

on a number of grounds, including the contention that the

affirmative defense provisions of the statute unconstitutionally

shifted the burden of proof from the Government to Appellant.

See Martin v. Ohio, 480 U.S. 228 (1987).      The military judge

stated that he would not address that question until he

determined whether the evidence raised the affirmative defense

of consent.

       After the parties completed presentation of evidence on

the merits, the military judge summarized the evidence pertinent

to the issue of consent.    He briefly noted that Airman [_____]

testified that Appellant had engaged in the charged conduct

without her permission.     The military judge provided a more


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United States v. Neal, No. 09-5004/NA


detailed summary, as follows, regarding Appellant’s testimony

concerning his physical interaction with Airman [_____]:

     1. Pg 852 (transcript). AN Neal indicated that
     the alleged victim consented to a back and neck
     rub due to a back injury she had previously
     sustained.

     2. Pg 854 After 20-30 minutes of rubbing the
     alleged victim’s back, she reached up with her
     right hand and interlocked her fingers with his
     left hand and pulled herself up onto him. After
     having her back against his chest, he asked if
     she still wanted him to continue massaging her
     back.

     3. She did not respond to his question, shook
     her head “no” and while biting her lip thrust her
     hips towards his pelvic area. As she continued
     to grind against him, he “got caught up in the
     moment” and reciprocated by grinding up against
     her.

     4. Pg 856 (transcript) He moved his right hand
     around the front of her stomach along her belt
     line and then moved it down against the inside of
     her thingh [sic] and started touching her around
     her vaginal area on the outside of her jeans.

     5.   At one point he unbuckled her belt, as he
     did this she pivoted her hips and raised them off
     the bed towards his hand. Her pantns [sic] and
     brazier [sic] were never unfastened.

     6.   Pg 857 (transcript) After unfastening her
     belt, he stuck his hand down until he touched the
     waistband of her underwear. As he started to
     insert his hand down in the front of her jeans,
     [another Airman in the room] woke up and began to
     sit up. Then AR [_____] leaned towards him and
     wispered [sic], “I think we should stop now.” He
     immediately withdrew his hand and leaned up
     against the headboard, she did the same and
     turned on the T.V.




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United States v. Neal, No. 09-5004/NA


      The military judge determined that the affirmative defense

of consent had been raised by Appellant’s description of the

physical contact and his description of the alleged victim’s

response.   The military judge interpreted the statute as

requiring the prosecution to prove lack of consent by the

victim.   In that light, the military judge viewed the

affirmative defense of consent under the statute as “element

based” and concluded that the statute unconstitutionally

required the defense to carry the burden of proof with respect

to an element of the offense.   On that basis, he dismissed the

charge and its specification.

2.   Proceedings Following Dismissal of the Charge

      The members of the court-martial panel remained outside the

courtroom during the proceedings on the motion to dismiss the

charge.   See Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000).

Immediately following the military judge’s ruling, he directed

the bailiff to recall the panel, and the members entered the

courtroom at 10:23 a.m.   After informing the members that he had

dismissed the charge and its specification, he said:

      You have now completed your duties, and are
      discharged with my sincerest thanks. Please
      leave all the exhibits behind, if you have any in
      your possession. You may take your own personal
      notes with you, or leave those behind, and they
      will be destroyed by the court reporter or
      bailiff.




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United States v. Neal, No. 09-5004/NA


With respect to discussing the case, the military

judge said:

     To assist you in determining what you may discuss
     about this case, now that it is over, the
     following guidance is provided. When you took
     your oath as members, you swore not to disclose
     or discover the vote or opinion of any particular
     member of this court, unless required to do so in
     the due course of law.

The military judge notified the members of the possibility that

he, or another military judge, might require them to state their

views in court:

     This means you may not tell anyone any way --
     well how you voted in this case wouldn’t be
     appropriate, but what your opinion is, unless I,
     or another judge, require you to do so in court.

He then discussed the opportunity to provide counsel with

feedback:

     You are each entitled to this privacy. Other
     than that, you are free to talk to anyone else in
     this case, including myself, the attorneys, or
     anyone else. And I’m sure counsel in this case
     would very much appreciate any feedback that you
     have on their advocacy and performance in court.
     That’s one of the great ways that we can have our
     counsel improve on their trial advocacy.

     You, however, can decline to participate in such
     discussions, if that is your choice.

The military judge concluded with the following:

     Members, once again, I want to thank you
     sincerely for your participation and patience in
     this case. You’ve been a very attentive panel.
     I appreciate your patience during all our 39(a)
     sessions, and you may depart the courtroom and
     resume your normal duties.


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United States v. Neal, No. 09-5004/NA


      Thank you very much.

The members withdrew from the courtroom, and at 10:27 a.m. the

military judge stated:   “This court-martial is adjourned.”

      A day later, the trial counsel filed notice that the

Government had elected to appeal the ruling dismissing the

charge.   See Article 62(a)(1)(A), UCMJ, 10 U.S.C. § 862(a)(1)(A)

(2006) (authorizing the Government to appeal an “order or ruling

of the military judge which terminates the proceedings with

respect to a charge or specification”).      Subsequently, the

Government filed its appeal of the military judge’s ruling at

the Court of Criminal Appeals.

3.   Review by the Court of Criminal Appeals

      The Court of Criminal Appeals conducted an en banc review

of the Government’s interlocutory appeal.      See Article 66(a),

UCMJ, 10 U.S.C. § 866(a) (2006).       Following briefing and oral

argument, the court granted the Government’s interlocutory

appeal.   Neal, 67 M.J. at 682.    At the outset of its opinion,

the court considered, and rejected, Appellant’s contention that

the Government waived the right to appeal by not requesting a

delay before the military judge took action to dismiss the

charge and discharge the members.      Id. at 677; see infra Part II

(discussing the jurisdiction of the Court of Criminal Appeals in

the present case).




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United States v. Neal, No. 09-5004/NA

     The lower court then addressed the merits of the military

judge’s ruling on the constitutionality of the statute,

concluding that the military judge erred by dismissing the

charge.    The court concluded that “in this aggravated sexual

contact prosecution, proof of the element of force does not

require proof of ‘lack of consent,’ and the affirmative defense

of consent does not unconstitutionally shift the burden of proof

to the defense.”     Neal, 67 M.J. at 682; see infra Part III

(discussing the merits of the decision by the military judge to

dismiss the charge of aggravated sexual contact).



          II.   JURISDICTION OF THE COURT OF CRIMINAL APPEALS
                           (Certified Issue I)

     The first certified issue concerns the lower court’s

jurisdiction over the Government’s appeal.      We review

jurisdictional questions de novo.       See United States v.

Henderson, 59 M.J. 350, 351-52 (C.A.A.F. 2004).       Appellant

asserts that the Government waived its right to appeal by not

requesting a delay in the proceedings under Rule for Courts-

Martial (R.C.M.) 908.     Appellant also argues that the court-

martial ceased to exist because the military judge adjourned the

court and discharged the members.       According to Appellant, the

military judge’s ruling is not subject to a Government appeal




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United States v. Neal, No. 09-5004/NA

under these circumstances because the case has become final,

thereby precluding interlocutory review.

      The Court of Criminal Appeals held that “[t]he military

judge’s statement to the members that they were ‘discharged’

following ‘termination of the proceedings’ does not deprive this

court of jurisdiction to determine this Government’s appeal.”

Neal, 67 M.J. at 677.    The court also “decline[d] to address the

legal efficacy of potential future proceedings as not ripe for

review.”   Id.    We agree.

             A.   THE NOTICE OF APPEAL UNDER ARTICLE 62

      Article 62(a)(1)(A) governs interlocutory government

appeals “[i]n a trial by court-martial in which a military judge

presides and in which a punitive discharge may be adjudged . . .

.”   The statute includes authority for the government to appeal

an “order or ruling of the military judge which terminates the

proceedings with respect to a charge or specification.”    Id.

      The statute contains a notice requirement accompanied by a

timing limitation:    “An appeal of an order or ruling may not be

taken unless the trial counsel provides the military judge with

written notice of appeal from the order or ruling within 72

hours of the order or ruling.”   Article 62(a)(2), UCMJ.

      R.C.M. 908(b)(1) provides additional authority for the

prosecution to request a delay in trial proceedings during the

seventy-two hour period for filing an appeal:


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United States v. Neal, No. 09-5004/NA

     After an order or ruling which may be subject to
     an appeal by the United States, the court-martial
     may not proceed, except as to matters unaffected
     by the ruling or order, if the trial counsel
     requests a delay to determine whether to file
     notice of appeal under this rule. Trial counsel
     is entitled to no more than 72 hours under this
     subsection.

     Appellant contends that R.C.M. 908(b)(1) reduces the

statutory seventy-two hour period provided under Article 62 for

the Government to file a notice of appeal.   Under Appellant’s

theory, R.C.M. 908(b)(1) requires the Government to request a

delay as soon as the military judge issues a ruling in order to

preserve the seventy-two hour period for filing a notice of

appeal.   According to Appellant, the prosecution waived the

statutory seventy-two hour period by not making a formal request

for delay during the few minutes that transpired between

issuance of the military judge’s ruling and the adjournment of

the court-martial.

     Neither the statute nor the rule requires the prosecution

to take any such action.   The statute provides the prosecution

with an unqualified seventy-two hour period in which to file a

notice of appeal.    R.C.M. 908(b)(1) does not diminish that time

period or otherwise condition the availability of the full

seventy-two hour period upon filing a request for delay.    The

rule, which addresses the flow of court-martial proceedings,

provides that certain aspects of the proceedings will be stayed



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United States v. Neal, No. 09-5004/NA

during the seventy-two hour period “if” trial counsel requests a

delay.   In the absence of such a request, the proceedings will

continue.   As such, the rule offers trial counsel an opportunity

to delay the proceedings during the seventy-two hour period if

the prosecution wishes to preserve the status quo with respect

to matters affected by the ruling or order.    As noted in the

Drafters’ Analysis, the rule “provides the trial counsel with a

mechanism to ensure that further proceedings do not make an

issue moot before the Government can file notice of appeal.”

Manual for Courts-Martial, United States, Analysis of the Rules

for Courts-Martial app. 21 at A21-58 (2008 ed.) (MCM).

     In the present case, the trial counsel filed a notice of

appeal within twenty-four hours of the military judge’s ruling.

The absence of a request for delay did not waive the

prosecution’s right to do so.

               B.   STATUS OF THE COURT-MARTIAL PANEL

     In a related argument, Appellant contends that the

prosecution’s failure to request a delay made it possible for

the military judge to discharge the members.   Appellant further

contends that once the military judge discharged the members,

the court-martial ceased to exist and the military judge’s

ruling on the charges became final.   In Appellant’s view, the

proceedings were thereby terminated, thus precluding an

interlocutory appeal under Article 62.


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United States v. Neal, No. 09-5004/NA

     We do not agree with Appellant’s view of the procedural

posture of this case.   In the military justice system, the

authority of the military judge in a court-martial does not

cease upon the discharge of the members.    The military judge

retains control over a court-martial until the record is

authenticated and forwarded to the convening authority for

review.   See R.C.M. 1104.   Until this point, even after

discharge of the members and adjournment of the court-martial,

the military judge may take actions such as:    reconsidering

rulings, R.C.M. 905(f); reconvening the court-martial to correct

an erroneous sentence announcement, R.C.M. 1007(b); calling a

session to clarify an ambiguous sentence imposed by either the

military judge or the members, R.C.M. 1009(c); and directing

post-trial sessions, R.C.M. 1102.     These authorities illustrate

that a court-martial does not cease to exist upon discharge of

the members, and a case remains in an interlocutory posture so

long as the military judge has the power to take action under

the UCMJ and Rules for Courts-Martial.

           C.   POTENTIAL DISQUALIFICATION OF THE MEMBERS

     Appellant also contends that the court-martial has become

final because the action of the military judge in permitting the

panel members to discuss the case with counsel precludes further

proceedings.    At this stage of the proceedings, a determination

as to the effect of the military judge’s actions upon the


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United States v. Neal, No. 09-5004/NA

proceedings would be premature.    The defense has filed an

affidavit regarding events following discharge of the members,

but there has been no authoritative factfinding proceeding to

ascertain what actually transpired.      The information regarding

discussions between counsel and members comes from an appellate

affidavit signed by trial defense counsel.      The members

themselves have not submitted affidavits, nor have they been

questioned.   On this record, it would be inappropriate at this

point of the proceedings to conclude that some or all of the

members have been disqualified.    Even assuming that one or all

of the members should be disqualified, the military judge would

then have the opportunity to consider whether such members may

be replaced under R.C.M. 505(c).       To the extent that excusal of

members might lead to motions raising mistrial or potential

former jeopardy concerns, those matters should be considered in

light of briefing by the parties before the military judge and

any factfinding that the military judge might find necessary.

Excusal of members is a standard procedure in a court-martial,

and the possibility of excusal and related concerns does not

transform the status of a court-martial from an interlocutory to

a final proceeding.   At the present time, the military judge has

not had the opportunity to engage in factfinding, or to consider

any related issues concerning replacement, mistrial, or former

jeopardy.   See R.C.M. 505, 905, 907(b)(2)(C).


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United States v. Neal, No. 09-5004/NA

     To the extent that Appellant relies on cases from civilian

trials in which a declaration of a mistrial followed by

discharge of a jury has been held to terminate the proceedings,

see, e.g., Camden v. Circuit Court of the Second Judicial

Circuit, 892 F.2d 610, 616 n.7 (7th Cir. 1989), we note that

there has been no declaration of a mistrial in the present case.

We further note that this case remains in an interlocutory

posture and that discharge of the panel members does not

necessarily preclude reassembly.      Accordingly, we conclude with

respect to the first certified issue that the Court of Criminal

Appeals had jurisdiction to review the Government’s appeal of

the military judge’s decision to dismiss the charge.     The

remaining certified issues, which we discuss in the next

section, involve matters of constitutional and statutory

interpretation pertaining to the burden of proof under the new

Article 120.


           III.   CONSTITUTIONAL AND STATUTORY CONSIDERATIONS

     The defense brief provides the following concise

description of the issue before us:     “Appellant alleges, and the

trial judge found, that the statutory scheme set forth in

Article 120, UCMJ, violates due process by necessarily placing a

burden on the defense to disprove an element of the Government’s

case.”   In this section, we assess the military judge’s ruling



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United States v. Neal, No. 09-5004/NA

in light of the statutory text and applicable constitutional

considerations.   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).

      Part A summarizes the statutory context of the new Article

120, focusing on the offense at issue in the present appeal --

aggravated sexual contact under Article 120(e).    Part B provides

background on the constitutional considerations applicable to

the relationship between the elements of an offense and

affirmative defenses.   Parts C, D, and E discuss these

considerations in light of the constitutional and statutory

interpretation issues regarding the new Article 120 raised by

the present appeal.

                        A.   STATUTORY CONTEXT

1.   Sexual Misconduct Under Prior Law

      Congress enacted the offense of aggravated sexual contact

in 2006 in the course of amending Article 120.    See infra Part

III.A.2.   Under prior law, the offense of rape required proof

that the accused committed “an act of sexual intercourse by

force and without consent.”    See Article 120, UCMJ, 10 U.S.C. §

920 (2000) (amended in 2006).    Many other forms of sexual

misconduct were charged under prior law as conduct prejudicial

to good order and discipline or as service discrediting conduct

under Article 134, UCMJ, 10 U.S.C. § 934 (2000).    For example,


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United States v. Neal, No. 09-5004/NA

the alleged misconduct in the present case might have been

charged under prior law as an indecent assault under Article

134.   MCM pt. IV, paras. 63 (2005 ed.).    With respect to the

assault element of that offense, the government would have been

required to prove that the accused acted “without the lawful

consent of the person affected.”      Id. paras. 63.b(1), 63.c.,

54.c(1)(a).

2.   Aggravated Sexual Contact Under the New Article 120

       Article 120(e) states:

       Any person subject to this chapter who engages in
       or causes sexual contact with or by another
       person, if to do so would violate subsection (a)
       (rape) had the sexual contact been a sexual act,
       is guilty of aggravated sexual contact, and may
       be punished as a court-martial may direct.

       By its terms, the offense of aggravated sexual contact

incorporates statutory provisions governing the offense of rape

under Article 120(a).   The definitions in Article 120(t) govern

the terms of Article 120(a) and the incorporated provisions of

Article 120(e).   Under the statute, the elements of rape, along

with the definitions of force and sexual contact, transform non-

criminal sexual contact into a criminal offense -- aggravated

sexual contact by force.   Taken as a whole, these provisions

require the government to prove the following in a prosecution

for aggravated sexual contact by force:




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United States v. Neal, No. 09-5004/NA

      (1)   The accused engaged in “sexual contact” with another

person by touching “the genitalia, anus, groin, breast, inner

thigh, or buttocks of the other person.”      Articles 120(e),

120(t)(2), UCMJ.

      (2)   The accused engaged in such contact “with an intent to

abuse, humiliate, or degrade any person or to arouse or gratify

the sexual desire of any person.”       Article 120(t)(2), UCMJ.

      (3)   The accused “caus[ed] another person of any age to

engage in” such contact by “using force against that other

person.” Articles 120(a)(1), 120(a)(2), UCMJ.

      (4)   The use of force consisted of “action to compel

submission of another” or “to overcome or prevent another’s

resistance,” and the use of force involved application of

“physical . . . strength . . . sufficient that the other person

could not avoid or escape the sexual conduct.”      Article

120(t)(5), UCMJ.

3.   Consent Under the New Article 120

      The amendment to Article 120 deleted the phrase “without

consent” from the statute.    The new Article 120 addresses the

subject of consent in several respects.

      a.    The definition of consent

      The definition of consent in Article 120(t)(14) contains

three components.    The first explains the meaning of “consent”

under Article 120:


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United States v. Neal, No. 09-5004/NA

        The term “consent” means words or overt acts
        indicating a freely given agreement to the sexual
        conduct at issue by a competent person.

The second component of the definition identifies several

circumstances excluded from the definition of consent:

        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 current or previous
        dating relationship by itself or the manner of
        dress of the person involved with the accused in
        the sexual conduct at issue shall not constitute
        consent.

The third component of the definition, which is not at issue in

the present appeal, identifies circumstances in which an

individual cannot give consent under Article 120, including

persons under sixteen years of age and persons “substantially

incapable” of “appraising the nature of the sexual conduct at

issue” because of specified mental or physical circumstances.

        The term “mistake of fact as to consent” also is a defined

term.    See Article 120(t)(15), UCMJ.    Mistake of fact is not at

issue in the present appeal.

        b.   Consent as an affirmative defense

        Article 120(r), entitled “Consent and Mistake of Fact as to

Consent,” sets forth three principles regarding consent.     First,

the provision states:     “Lack of permission is an element of the

offense in subsection (m) (wrongful sexual contact)” -- an



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United States v. Neal, No. 09-5004/NA

offense that is not at issue in the present appeal.    Second,

Article 120(r) sets forth the general proposition that

“[c]onsent and mistake of fact as to consent are not an issue,

or an affirmative defense, in a prosecution under any other

subsection . . . .”   Third, the provision contains an exception

pertinent to the present case, noting that consent and mistake

of fact as to consent “are an affirmative defense for the sexual

conduct in issue in a prosecution under subsection (a) (rape),

subsection (c) (aggravated sexual assault), subsection (e)

(aggravated sexual contact), and subsection (h) (abusive sexual

contact).”

     c.   The definition of “affirmative defense”

     The definition of “affirmative defense” in Article

120(t)(16) contains both descriptive and procedural components.

The descriptive portion states that an “affirmative defense” is

“any special defense which, although not denying that the

accused committed the objective acts constituting the offense

charged, denies, wholly, or partially, criminal responsibility

for those acts.”

     The procedural component contains two parts.     The first

states:   “The accused has the burden of proving the affirmative

defense by a preponderance of the evidence.”   The second states:

“After the defense meets this burden, the prosecution shall have




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United States v. Neal, No. 09-5004/NA

the burden of proving beyond a reasonable doubt that the

affirmative defense did not exist.”

 B.   THE ALLOCATION OF BURDENS OF PROOF WHEN EVIDENCE IMPLICATES
        AN ELEMENT OF THE OFFENSE AND AN AFFIRMATIVE DEFENSE

      The Due Process Clause of the Constitution, U.S. Const.

amend. V, protects a defendant from 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); see R.C.M. 920(e)(5).     The

Constitution precludes shifting the burden of proof from the

government to the defense “with respect to a fact which the

State deems so important that it must be either proved or

presumed” in order to constitute a crime.     Patterson v. New

York, 432 U.S. 197, 215 (1977).

      A legislature may redefine the elements of an offense and

require the defense to bear the burden of proving an affirmative

defense, subject to due process restrictions on impermissible

presumptions of guilt.   Id. at 205-06, 210, 215.    A statute may

place the burden on the accused to establish an affirmative

defense even when the evidence pertinent to an affirmative

defense also may raise a reasonable doubt about an element of

the offense.   See Martin, 480 U.S. at 234.

      In Martin, the Supreme Court observed that its review of

the statute took into account “the preeminent role of the States



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United States v. Neal, No. 09-5004/NA

in preventing and dealing with crime.”   Id. at 232.    Martin also

noted “the reluctance of the Court to disturb a State’s decision

with respect to the definition of criminal conduct and the

procedures by which the criminal laws are to be enforced in the

courts, including the burden of producing evidence and

allocating the burden of persuasion.”    Id.   An 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.”   Id. at 232-36.

     Appellate courts have addressed the overlap identified in

Martin with respect to statutes under which evidence at trial

potentially pertains to both (1) a fact on which the defense

bears the burden of persuasion, and (2) a matter that is

subsidiary to a fact on which the prosecution bears the burden

of persuasion.   In such a case, the instructions to the jury

must reflect “sensitivity to th[e] dependent relationship

between the two [distinct] factual issues.”    Humanik v. Beyer,

871 F.2d 432, 441 (3d Cir. 1989).

     In Humanik, the United States Court of Appeals for the

Third Circuit considered instructions under state law regarding


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United States v. Neal, No. 09-5004/NA

evidence of a mental disease or defect.   Id. at 433.     Under the

instructions, the evidence could be considered by the jury:     (1)

to determine whether the defense proved the existence of mental

disease or defect by a preponderance of the evidence for

purposes of establishing a defense; and (2) as subsidiary

evidence with respect to the element of intent, an issue on

which the prosecution bore the burden of proof beyond a

reasonable doubt.   Id. at 435.   The court found a due process

violation in the sequential structure of the instructions.     Id.

at 442.   The court noted the likelihood that the jury would

first determine the issue of whether the defendant established

the fact of mental disease or defect by a preponderance of the

evidence.   Id.   If the jury determined that the defendant failed

to establish this fact by a preponderance of the evidence, the

court concluded that the evidence would play no role in the

jury’s deliberations with respect to the issue of intent, a

matter on which the state had the burden of proof beyond a

reasonable doubt.   Id.   As such, the court viewed the

instructions as an unconstitutional filter upon consideration of

evidence pertinent to an element of the offense.   Id. at 443;

accord Kontakis v. Beyer, 19 F.3d 110, 115 (3d Cir. 1994)

(finding a due process violation in instructions that “failed to

allow for the possibility that [the defendant’s] mental disease

and defect evidence, although not rising to the level of being


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United States v. Neal, No. 09-5004/NA

more probable than not, created a reasonable doubt as to whether

he had the requisite intent to commit the offense”).

      In Russell v. United States, 698 A.2d 1007 (D.C. 1997), the

District of Columbia Court of Appeals considered a sexual

misconduct statute with an affirmative defense component.    Id.

at 1008.    In language similar to the statute under consideration

in the present appeal, the legislation under review in Russell

made it an offense for a person to engage in or cause another

person to engage in a sexual act through various means,

including the use of force.   See id. at 1009.   The legislation

also created an affirmative defense of consent, with the defense

bearing the burden of persuasion by a preponderance of the

evidence.   Id.   The court identified a critical change in the

focus of attention in sexual misconduct cases under the statute:

      The new sexual abuse statute . . . was intended
      to change the focus of the criminal process away
      from an inquiry into the state of mind or acts of
      the victim to an inquiry into the conduct of the
      accused. To this end, the new provisions do not
      include “lack of consent” as an element of the
      offense.
Id.

      The defendant in Russell objected at trial to the statutory

provision under which he bore the burden of proof on the

affirmative defense, and he also objected to the instructions

given by the trial judge regarding consent and the burden of

proof.   Id. at 1010.   On appeal, the District of Columbia Court



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United States v. Neal, No. 09-5004/NA

of Appeals held that the instruction was defective because the

jury was not “expressly instructed that it may consider the

affirmative defense evidence when it determines whether the

government has met its burden to prove all the elements of the

offense beyond a reasonable doubt.”   Id. at 1015-16 (citing

Humanik, 871 F.2d 432).

      Although the Court of Appeals found a constitutional

deficiency in the instruction, the court rejected a defense

challenge to the constitutionality of the statute and remanded

the case for retrial.   Id. at 1016-17.   The court concluded that

the statutory affirmative defense, which placed upon the defense

the burden of proving consent by a preponderance of the

evidence, did not offend the due process clause under Martin.

Id.   After noting that “the legislature did not exclude consent

evidence as relevant to the government’s burden of proof on the

elements of the offense,” id. at 1016, the court concluded that

the statute did not “preclude the jury from considering the

defendant’s consent evidence as relevant to the government’s

burden to prove the elements of the offense.”   Id. at 1017.    The

court also noted with approval “the fact that the affirmative

defense of consent focuses on something within the knowledge of

the accused that he may fairly be required to prove -- that the

words or overt actions of the complainant reasonably indicated

that the complainant freely agreed to engage in the sexual act.”


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United States v. Neal, No. 09-5004/NA

Id.; see also Hicks v. United States, 707 A.2d 1301, 1303-05

(D.C. 1998) (remanding a case for further proceedings in light

of an instructional error regarding the burden of proof); Mozee

v. United States, 963 A.2d 151, 161 (D.C. 2009) (affirming a

conviction under the statute on the grounds that an

instructional defect in the case with regard to the burden of

proof did not affect the appellant’s substantial rights under a

plain error analysis).

     Under Russell, the opportunity for a jury to consider

evidence that may raise a reasonable doubt about an element does

not shift the burden to the defense to disprove that element.

The burden of proof as to all elements remains on the

prosecution.   A properly instructed jury may consider evidence

of consent at two different levels:    (1) as raising a reasonable

doubt as to whether the prosecution has met its burden on the

element of force; and (2) as to whether the defense has

established an affirmative defense.    As such, the statute does

not offend the Due Process Clause under Martin.



                   C.    CONSENT UNDER ARTICLE 120

1.   The relationship between consent and the facts necessary to
     constitute a crime under Article 120(e)

     The 2006 amendment to Article 120 removed lack of consent

as an element of rape and its related offenses.      See supra Part



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United States v. Neal, No. 09-5004/NA

III.A.   The text of Article 120(e) and the incorporated

provisions of Articles 120(a) and 120(t) do not set forth lack

of consent as an element of the offense.   See id.   The Supreme

Court has “observed that ‘[t]he definition of the elements of

criminal offense is entrusted to the legislature, particularly

in the case of federal crimes, which are solely creatures of

statute.’”    Dixon v. United States, 548 U.S. 1, 7 (2006)

(alteration in original) (quoting Liparota v. United States, 471

U.S. 419, 424 (1985)).   Congress has broad authority to define

the elements of offenses under the constitutional power to make

rules for the government and regulation of the armed forces.

U.S. Const. art. 1, § 8, cl.14; see Parker v. Levy, 417 U.S.

733, 750 (1974); see also Weiss v. United States, 510 U.S. 163,

177 (1994).

     When sexual abuse by members of the armed forces occurs

within a military organization, it can have a devastating impact

on the good order and discipline essential to the conduct of

military operations.   When sexual abuse by deployed military

personnel involves civilians, it can undermine relationships

with the local population critical to our Nation’s military and

foreign policy objectives.   These factors illustrate the

importance of recognizing the broad authority of Congress to

regulate the conduct of military personnel.   That authority

includes the power to define rape and its related offenses in a


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United States v. Neal, No. 09-5004/NA

manner that does not require proof on the subject of consent,

notwithstanding the traditional requirement in military and

civilian law for such proof.

     Aside from any unique considerations applicable to

legislation governing the rights and responsibilities of

military personnel, we note that the statute before us reflects

similar legislation in the civilian sector.    As discussed in

Part III.B, supra, the District of Columbia has enacted a

similar statute.   With respect to that legislation, the District

of Columbia Court of Appeals observed that the statute “was

intended . . . to change the focus of the criminal process away

from an inquiry into the state of mind or acts of the victim to

an inquiry into the conduct of the accused.”    Russell, 698 A.2d

at 1009.

     Under Article 120(e), as under the District of Columbia

statute, the prosecution need not prove the absence of consent

in order to obtain a conviction.     If the court-martial panel,

like a civilian jury, is convinced beyond a reasonable doubt by

competent evidence -- such as the testimony of an eyewitness --

that the accused engaged in sexual contact by applying the

degree of force described in Article 120(e), then the panel may

return a finding of guilty as to aggravated sexual contact.      In

short, under the structure of the amended statute, the absence

of consent is not a fact necessary to prove the crime of


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United States v. Neal, No. 09-5004/NA

aggravated sexual contact under Article 120(e).   See Neal, 67

M.J. at 678.

2.   Consent as a potential subsidiary fact under Article 120(e)

     As the District of Columbia Court of Appeals observed in

Russell, 698 A.2d at 1013, evidence that the alleged victim

consented to the charged sexual contact is relevant to the

jury’s determination of whether the prosecution has proved the

element of force beyond a reasonable doubt.   The court further

held that failure to provide appropriate instructions on the

relevance of consent violates the Due Process Clause of the

Constitution.   Id. at 1016.

     In Article 120(r), Congress stated that consent is not “an

issue . . . in a prosecution under” designated provisions of

Article 120, including Article 120(e).   The phrase “an issue” in

Article 120(r) is susceptible to a number of interpretations,

including a broad and narrow view.   Read broadly, the phrase “an

issue” could be interpreted as providing that consent is never

“at issue” or “in issue” in a prosecution under Article 120

except when the defense meets its burden of persuasion to

establish an affirmative defense.    Such a reading would raise a

substantial conflict with the Supreme Court’s application of the

Due Process Clause in Martin because it would preclude

consideration of consent evidence as a potential subsidiary fact

with respect to an element of the offense.    See supra Part


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United States v. Neal, No. 09-5004/NA

III.B.    Read narrowly, however, the provision could be

interpreted as providing that consent is not “an issue” -- a

discrete matter -- that must be proved beyond a reasonable doubt

as an element of the offense.   In that regard, we note that the

statute refers to when consent is “an issue” and does not state

that consent is never “in issue” or “at issue” except as an

affirmative defense.   As such, the statement in the legislation

that consent is not “an issue” may be interpreted narrowly as

emphasizing that consent is not an element, thereby underscoring

and reinforcing the legislation’s deletion of the prior

requirement that the prosecution prove beyond a reasonable doubt

that the accused acted “without consent” from the alleged

victim.   Under the narrow interpretation, the provision would

not preclude treating evidence of consent as a subsidiary fact

potentially relevant to a broader issue in the case, such as the

element of force.   That interpretation, which would not conflict

with Martin, also would be consistent with Russell, under which

evidence of a subsidiary fact may be considered as bearing upon

the prosecution’s burden to prove the element of force.

     We decline to adopt a broad interpretation that would raise

a direct conflict with Martin, a Supreme Court decision

applicable to criminal proceedings, when a narrow interpretation

can avoid such a conflict.   See 2A Norman J. Singer & J. D.

Shambie Singer, Sutherland Statutes and Statutory Construction §


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United States v. Neal, No. 09-5004/NA

45:11 (7th ed. 2008).     We interpret Article 120(r) narrowly as

underscoring and reinforcing the effect of the 2006 legislation

in terms of deleting the prior requirement for the prosecution

to prove the absence of consent beyond a reasonable doubt.    We

do not interpret Article 120(r) as a prohibition against

considering evidence of consent, if introduced, as a subsidiary

fact pertinent to the prosecution’s burden to prove the element

of force beyond a reasonable doubt.

              D.   CONSIDERATION OF CERTIFIED ISSUES II-VI

        The issues certified by the Judge Advocate General refer to

the decision of the Court of Criminal Appeals, but in substance

the certified issues address the ruling of the military judge on

the constitutionality of Article 120.     In that light, we focus

on the ruling issued by the military judge.     See United States

v. Shelton, 64 M.J. 32, 37 (C.A.A.F. 2006).

1.   The limited scope of interlocutory review

        In considering the certified issues, we note the

limitations on the scope of our review imposed by the

interlocutory posture of the present appeal under Article 62,

UCMJ.    At the present stage of the proceedings, the parties have

not made closing arguments on the merits of the charged offense;

the military judge has not issued final instructions; the

parties have not waived any instructions; and the members have

not returned findings on the charged offense.     In that setting,


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United States v. Neal, No. 09-5004/NA

our review is limited to those matters necessary to assess the

military judge’s decision to dismiss the charge.   Other portions

of the military judge’s ruling, such as the military judge’s

rationale for rejecting various aspects of the defense motion to

dismiss, may provide useful context but are not before us for

decision during interlocutory review.

2.   The constitutionality of the affirmative defense (Certified
     Issue IV)

     Appellant contends that the military judge correctly

dismissed the charge because lack of consent is an “implicit

element” in the offense of aggravated sexual contact.    Appellant

bases this theory on the definition of force in Article

120(t)(5), which, in the context of the charge in the present

case, requires proof that the accused used “action to compel

submission of another or to overcome or prevent another’s

resistance” by “strength . . . applied to another person.”

According to Appellant:

     If someone is compelled to submit, by definition
     they are not willing participants in the action,
     and therefore a “lack of consent” is implicit.
     Likewise, the same can be said for someone whose
     resistance is overcome or prevented. Both of
     these concepts assume resistance, which is an
     active attempt to prevent something from
     happening. One does not submit if willing, one
     need not be overcome if willing, and one does not
     resist that which one wants. Proving the
     compelled submission, or the overcome or
     prevented resistance, the Government is thus
     burdened with showing these acts were not “freely



                               33
United States v. Neal, No. 09-5004/NA

     given agreement[s],” Article 120(t)(14), i.e., it
     was done with a “lack of consent.”

     Appellant’s contention suggests that Congress engaged in a

futile act in passing legislation that deleted the phrase

“without consent” from Article 120 and listed the offenses in

which consent is not “an issue.”       In Appellant’s view, these

actions had no effect because the statutory definition of force

reinserted “without consent” as an “implicit element” in the

statute.    From Appellant’s perspective, the primary focus of the

statute is not on the force applied by the accused but on the

mental state of the alleged victim, requiring the prosecution to

prove that the alleged victim was “someone” who was “not

willing.”

     We disagree.    Like the statute considered by the District

of Columbia Court of Appeals in Russell, Article 120 focuses on

the force applied by an accused, not on the mental state of the

alleged victim.   See supra Parts III.B-III.C.      The statute

describes the prohibited act in terms of the degree of force

applied to the alleged victim by the accused.      Although the

statute describes the degree of force in terms of the relative

actions of the accused and the alleged victim, the prosecution

is not required to prove whether the alleged victim was, in

fact, willing or “not willing.”    If the evidence demonstrates

that the degree of force applied by an accused constitutes



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United States v. Neal, No. 09-5004/NA

“action to compel” another person, the statute does not require

further proof that the alleged victim, in fact, did not consent.

See supra Part III.A.2.   Congress, in defining force from the

perspective of the action taken by the alleged perpetrator, did

not reinsert “without consent” as an “implicit element” in

Article 120.   The possibility that evidence pertinent to the

affirmative defense of consent could raise a reasonable doubt

about the element of force in a particular case does not render

the statute unconstitutional.   See Martin, 480 U.S. at 234.

With respect to Issue IV, as certified by the Judge Advocate

General of the Navy, we conclude that the military judge erred

in treating lack of consent as an element of the offense and in

concluding that Congress established an unconstitutional

element-based affirmative defense in Article 120.

3.   Consideration of consent evidence under Article 120(e)
     (Certified Issues II and III)

     Issues II and III raise questions about treatment of

consent evidence under Article 120, both with respect to the

prosecution’s burden of proving its case beyond a reasonable

doubt and the defense burden of proving an affirmative defense

by a preponderance of the evidence.   The military judge

considered both aspects of consent evidence in addressing the

motion to dismiss the charge.




                                35
United States v. Neal, No. 09-5004/NA

     As discussed in Part III.C, supra, the statute does not

preclude consideration of consent evidence by a court-martial

panel when determining whether the prosecution has proven the

elements of the offense beyond a reasonable doubt, and it

permits consideration of such evidence with respect to the

affirmative defense of consent.    If such evidence is introduced,

the military judge must instruct the members to consider all of

the evidence, including the evidence of consent, when

determining whether the government has proven guilt beyond a

reasonable doubt.   See Martin, 480 U.S. at 232-36.   In doing so,

the military judge must be mindful of both the content and

sequential structure of the instructions.   See Russell, 698 A.2d

1015-16; Humanik, 871 F.2d at 441-43.

     We note that the present appeal does not involve a

challenge to a ruling of the military judge regarding the

admissibility of consent evidence, nor does it involve a

challenge to the argument of counsel with respect to such

evidence.    In light of the interlocutory posture of this case,

no panel instructions regarding consent evidence have been given

or waived.   Until the military judge has addressed both the

content and sequence of instructions, a determination as to

whether the statute is unconstitutional as applied to Appellant

would be premature.




                                  36
United States v. Neal, No. 09-5004/NA

4.   Evidence concerning the affirmative defense of consent
     (Certified Issue V)

     Certified Issue V asks whether the lower court erred in

treating the evidence of record as sufficient to invoke the

affirmative defense under Article 120.   The military judge

treated the evidence of record as sufficient to invoke the

affirmative defense for purposes of ruling on the motion to

dismiss the charge.   We view treatment of the evidence by the

Court of Criminal Appeals in the same light.   None of the

decisions in the present case, including our own, constitute a

final decision regarding the evidence in this case, including

any evidence subject to consideration as evidence of consent.

At this stage in the proceedings, as noted earlier, no

instructions have been waived or given with respect to any

matter asserted to be evidence of consent.   As the content and

sequence of the military judge’s instructions are necessary to

determine the proper consideration of any consent evidence, see

Humanik, 871 F.2d at 441-43, it would be premature at this point

to address the manner in which the military judge should treat

any evidence of consent in the present case.

5.   The burdens of proof regarding affirmative defenses under
     Article 120(t)(16) (Certified Issue VI)

      Certified Issue VI concerns the procedural aspects of

Article 120(t)(16) in terms of the relationship between the

burdens of the prosecution and defense with respect to an


                                37
United States v. Neal, No. 09-5004/NA

affirmative defense.   In the course of denying that portion of

the defense motion concerning the relative burdens of the

parties, the military judge identified interpretative

considerations and concluded that those matters could be

addressed through appropriate instructions without dismissing

the charge.   He did not rely upon that ruling as a basis for his

separate decision to dismiss the charge.    The scope of our

review in the present case under Article 62 is limited to the

military judge’s ruling dismissing the charge.   We note that our

decision in the present case does not preclude the parties from

requesting that the military judge give fresh consideration to

the question of whether the relative procedural burdens under

Article 120(t)(16) raise interpretative issues that should be

addressed through instructions or other appropriate remedies.

                          E.   CONCLUSION

     In summary, the Constitution permits a legislature to place

the burden on the defendant to establish an affirmative defense,

even if the evidence necessary to prove the defense also may

raise a reasonable doubt about an element of the offense.      See

Martin, 480 U.S. at 234; supra Part III.B.    If such evidence is

presented, the judge must ensure that the factfinder is

instructed to consider all of the evidence, including the

evidence raised by the defendant that is pertinent to the

affirmative defense, when determining whether the prosecution


                                 38
United States v. Neal, No. 09-5004/NA

established guilt beyond a reasonable doubt.     See Martin, 480

U.S. at 232-36; Humanik, 871 F.2d at 441-43; Russell, 698 A.2d

at 1015-16; supra Part III.B.

     Congress has broad authority to regulate the conduct of

members of the armed forces, including the power to define the

elements of offenses committed by servicemembers.     Supra Part

III.C.1.   Under the statute before us, the element of force

establishes the crime of aggravated sexual contact without

including “lack of consent” as an additional element.     Supra

Parts III.C.1, D.2.    Under the statutory framework set up by

Congress, the prosecution may obtain a conviction upon a showing

that the accused applied a certain amount of force and need not

provide any evidence regarding the victim’s state of mind.

Supra Parts III.C.1., D.2.    If evidence of consent is

introduced, it may raise a reasonable doubt about the

government’s proof on the element of force.      As such, the

evidence of consent would be relevant to the determination of

whether the government has proven the required elements beyond a

reasonable doubt.     Supra Part III.C.2.

     The amended statute does not prohibit the consideration of

consent evidence for that purpose.     Supra Part III.C.2.      The

opportunity to consider evidence that may raise a reasonable

doubt about an element does not shift the burden to the defense

to disprove that element.    Supra Part III.B.    To the extent that


                                  39
United States v. Neal, No. 09-5004/NA

evidence of consent may raise a reasonable doubt as to the

element of force, the military judge has the authority to craft

an appropriate instruction ensuring that the burden of proof

remains with the government.      Supra Part III.B.    Consideration

by a properly instructed panel of two different matters -–

whether evidence of consent raises a reasonable doubt about the

element of force, as well as whether evidence of consent

establishes an affirmative defense –- does not render the

statute unconstitutional.   Id.

     The present case is in an interlocutory posture.

Consideration of the constitutional issues, as applied to

Appellant, may be affected by factors such as the content of

instructions, sequence of instructions, and waiver of

instructions.   Those matters have not been resolved at the trial

level.   At this point, it would be premature to conclude that

the statute, as applied to Appellant, is unconstitutional.

                            IV.    DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.        We remand the record of trial

to the Judge Advocate General of the Navy for return to the

military judge for further proceedings consistent with this

opinion.




                                   40
United States v. Neal, No. 09-5004/NA


     RYAN, J., with whom ERDMANN, J., joins (concurring in part

and dissenting in part):

     I agree with the majority that the procedural posture of

this case does not bar us from exercising jurisdiction under

Article 67(a)(2), Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 867(a)(2) (2006).   However, I have a fundamental

disagreement with how the majority chooses to interpret the

language of Article 120, UCMJ, 10 U.S.C. § 920 (2006), itself.

     The new Article 120, UCMJ, is neither a model of clarity

nor a model statute.   But while I agree that a potentially

unconstitutional statute may be construed in such a way that

renders it constitutional (if such construction is plausible),

United States v. Neal, __ M.J. __ (31-32) (C.A.A.F. 2010), this

judicial band-aid does not change my point of disagreement with

the majority because I do not believe their construction is

plausible.

     It is axiomatic that the government must prove all the

elements of a crime beyond a reasonable doubt.   In re Winship,

397 U.S. 358, 364 (1970).    In my view, given the statute’s

definition of the relevant terms, making consent an affirmative

defense under Article 120(r), UCMJ, relieves the government of

this burden and unconstitutionally requires the defendant to

disprove force -- at least where an accused is charged with

aggravated sexual contact using force (or any other offense
United States v. Neal, No. 09-5004/NA


under Article 120, UCMJ, alleging the use of force).   This

Congress may not do.

     “Force” and “consent,” as defined by Article 120, UCMJ, are

two sides of the same coin.   Compare Article 120(t)(5), UCMJ

(defining “force” as “action to compel submission of another or

to overcome or prevent another’s resistance”), with Article

120(t)(14), UCMJ (defining “consent” as “words or overt acts

indicating a freely given agreement to the sexual conduct”).     As

a matter of logic I would not have thought that anyone would

agree that a person can be “forced” to do something the person

has consented to or that “consent” can be compelled.   The

concepts are diametric opposites and, in my view, cannot coexist

with respect to the same action -- which is the problem with

holding that the burden to prove consent in this case is on

Appellant.

     While it is constitutionally permissible to allocate to a

defendant the burden of proving an affirmative defense, this is

true only so long as the allocation does not relieve the

government of its burden.   Martin v. Ohio, 480 U.S. 228, 234

(1987); Patterson v. New York, 432 U.S. 197, 215 (1977).      Merely

labeling something an affirmative defense does not automatically

give it the qualities necessary to pass constitutional muster.

United States v. Clemons, 843 F.2d 741, 752 (3d Cir. 1988); 1




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United States v. Neal, No. 09-5004/NA


Wayne R. LaFave, Substantive Criminal Law § 1.8(c), at 86 (2d

ed. 2003).

     Under Article 120, UCMJ, “aggravated sexual contact”

involves engaging in a sexual act by, among other things (and as

charged against Appellant), “using force against [another]

person.”

     The term ‘force’ means action to compel submission of
     another or to overcome or prevent another’s resistance
     by --
           (A) the use or display of a dangerous weapon or
           object;
           (B) the suggestion of possession of a dangerous
           weapon or object that is used in a manner to
           cause another to believe it is a dangerous weapon
           or object; or
           (C) physical violence, strength, power, or
           restraint applied to another person, sufficient
           that the other person could not avoid or escape
           the sexual conduct.

Article 120(t)(5), UCMJ.   If charged with this crime, an accused

is permitted to raise consent as an affirmative defense.

Article 120(r), UCMJ.   “The term ‘consent’ means words or overt

acts indicating a freely given agreement to the sexual conduct

at issue by a competent person.”       Article 120(t)(14), UCMJ.   The

majority lists the elements of aggravated sexual contact set

forth in the statute, notes that the word “consent” does not

appear as an element, and is satisfied.      __ M.J. at __ (18-20,

28, 30, 39).   But the majority fails to reconcile the statutory

text as a whole; “force” is more than just a particular type and

quantum of physical exertion.   But see id. at __ (29, 40).


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Rather, Congress has defined the term such that it requires a

compelling of submission, or an overcoming or preventing of

resistance by any of the means listed in Article 120(t)(5)(A)-

(C), UCMJ.

     Neither compelled submission nor resistance are defined in

the statute and therefore must be given their ordinary meanings.

To “compel” is “to drive or urge forcefully or irresistibly” or

“to cause to do or occur by overwhelming pressure.”     Merriam-

Webster’s Collegiate Dictionary 253 (11th ed. 2008).     To

“submit” is “to yield oneself to the authority or will of

another”; “surrender” is a synonym.     Id. at 1244.   To “resist”

is “to exert force in opposition” or “to exert oneself so as to

counteract or defeat.”   Id. at 1060.    Taken together, these

definitions imply an authority, will, or force that is imposed

on another and that is in opposition to the true will of the one

imposed upon.   Given the statute’s focus on submission and

resistance, then, evidence of consent presented by the defendant

-- i.e., evidence of “words or overt acts indicating a freely

given agreement to the sexual conduct at issue by a competent

person,” Article 120(t)(14), UCMJ -- necessarily and directly

disproves a required element of the crime.

     Article 120(t)(16), UCMJ, defines an “affirmative defense”

as “any special defense which, although not denying that the

accused committed the objective acts constituting the offense


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United States v. Neal, No. 09-5004/NA


charged, denies, wholly, or partially, criminal responsibility

for those acts.”   Accord Rule for Courts-Martial (R.C.M.)

916(a); R.C.M. 916(a) Discussion; United States v. Petty, 132

F.3d 373, 378 (7th Cir. 1997).   But the defense here is not an

ordinary affirmative defense.    See Martin, 480 U.S. at 235

(upholding affirmative defense of “self-defense” in murder

prosecution because state courts interpreted elements of murder

in way that made it possible for all elements of the crime to

coexist with self-defense); Patterson, 432 U.S. at 206-07

(upholding affirmative defense of “extreme emotional

disturbance” in murder prosecution because defense “[did] not

serve to negative any facts of the crime which the State is to

prove in order to convict”); Farrell v. Czarnetzky, 566 F.2d

381, 382 (2d Cir. 1977) (upholding unloaded-weapon defense in

robbery prosecution because “possession of a weapon actually

capable of causing death [was] not a necessary ingredient of the

offense”).   Rather than allowing a defendant to commit the

objective elements of the offense but nonetheless escape

liability, consent entirely negates an element of aggravated

sexual contact using force; there could be no force, as defined

in the statute, where the victim assented to the conduct.1

“[T]he sole significance of the defendants’ evidence concerning

1
  This does not encompass situations where the victim may give
some indication of assent but cannot legally “consent” under the
provisions of Article 120(t)(14), UCMJ.

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United States v. Neal, No. 09-5004/NA


the so-called ‘affirmative defense’ [of consent] is to create a

reasonable doubt about the existence of an element of the

offense,” Humanik v. Beyer, 871 F.2d 432, 440 (3d Cir. 1989) --

namely, force.

     A defendant may not be required to bear the burden of proof

on a defense that “‘negative[s] guilt by cancelling out the

existence of some required element of the crime.’”   Clemons, 843

F.2d at 752 (quoting 1 Wayne LaFave & Austin Scott, Substantive

Criminal Law § 1.8(c), at 71, 75 (1986)).   “Such shifting of the

burden of persuasion with respect to a fact which the State

deems so important that it must be either proved or presumed is

impermissible under the Due Process Clause.”   Patterson, 432

U.S. at 215.

     Burden allocation is of fundamental importance:   “[W]here

one party has at stake an interest of transcending value -- as a

criminal defendant his liberty -- th[e] margin of error is

reduced as to him by the process of placing on the [government]

the burden . . . of persuading the factfinder . . . of his guilt

beyond a reasonable doubt.”   Speiser v. Randall, 357 U.S. 513,

525-26 (1958).   But “where the defendant is required to prove

[or disprove a] critical fact in dispute” in a criminal

proceeding, “the likelihood of an erroneous . . . conviction,”

increases.   Mullaney v. Wilbur, 421 U.S. 684, 701 (1975).    This

is why the Supreme Court has reaffirmed the reasonable-doubt


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standard time and again and why courts must remain vigilant in

upholding the standard against legislative schemes that require

defendants to persuade the factfinder as to the elements of a

crime.   See Martin, 480 U.S. at 233-34; Patterson, 432 U.S. at

207, 210; Mullaney, 421 U.S. at 701.

     Article 120, UCMJ, unconstitutionally burdens the defendant

with disproving an element of the government’s case.   I

respectfully dissent.




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