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
2
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).
3
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.
5
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.”
7
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
8
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
9
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
11
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
14
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.
15
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).
16
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
19
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.
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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.
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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.
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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
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would reverse because of the due process problem identified
above, I concur in the result reached.
16
