How’s That For a Shifted Burden?

A few years ago, I represented a young man accused of “Aggravated Sexual Assault.” It was a pure case, with only one charge against this soldier. It was the first time I defended someone accused of this particular crime, as Article 120 (the military criminal statute regarding rape and most other sex-related crimes (except sodomy)) had recently been rewritten. Previously, all of my experience came from the “Old” Article 120 which was simply entitled “Rape and Carnal Knowledge.” Here’s the gist of the rape elements of old 120:

  1. The accused had sexual intercourse with another (sexual intercourse is penetration (penis to vagina), however slight).
  2. That the sexual intercourse occurred by force and without consent.

Typically, the first element was not contested and was easily proven by the prosecution. The second was not so easy. Force could be slight or constructive, but the consent piece was much more elusive. Most acquittals centered-around the defense showing, in some way, that the accused reasonably believed that consent existed or that the complaining witness engaged in some acts before, during, or after that tend to indicate consent.

Then, congress lowered the bar.


Now, Article 120 is much more thorough and complex (now with 14 different sub-flavors). The most significant change in practice is the addition of the crime of Aggravated Sexual Assault. It’s specifics are as follows:

By using threats or placing in fear:

    (i) That the accused caused another person, who is of any age, to engage in a sexual act; and 

    (ii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping).

By causing bodily harm:

    (i) That the accused caused another person, who is of any age, to engage in a sexual act; and 

    (ii) That the accused did so by causing bodily harm to another person.

Upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness:

    (i) That the accused engaged in a sexual act with another person, who is of any age; and (Note: add one of the following elements) 

    (ii) That the other person was substantially incapacitated;

    (iii) That the other person was substantially incapable of appraising the nature of the sexual act;

    (iv) That the other person was substantially incapable of declining participation in the sexual act; or

    (v) That the other person was substantially incapable of communicating unwillingness to engage in the sexual act.

Well, that’s certainly longer than the previous rules. Now, look at it again and search for the word “consent.” Go ahead. I’ll wait.

It’s not there. Remember how important it was in the old Article 120? Obviously, the new statute negates the significance of consent. In particular, we have the last caveat to the new 120 that outlines what do do if the complaining witness was drunk or high (known as “substantial incapacitation,” which is the basis of a vast majority of Aggravated Sexual Assault claims in the military).

Remember the guy I mentioned in the first paragraph? It was late 2008. His was one of these Aggravated Assault cases.  A party occurred. He attended. Met a female soldier. Both were drinking. They had sex. She later accused him of aggravated sexual assault by substantial incapacitation (via alcohol use).

Prior to trial, I filed a motion to dismiss based on the unconstitutionality of Article 120. Now, this motion was not completely my work. Frankly, there were a group of us on the Trial Defense Service side of the fence who collaborated to challenge the constitutionality of Article 120. The basis for our argument? The new Article 120 shifted burdens in an improper fashion.

In short, the government had to prove that sexual intercourse occurred and that the complaining witness was too drunk, too high, or some other reasons negating their ability to fully comprehend the sexual act. Then, the burden shifted, and we could raise the affirmative defense of consent (coupled with a preponderance of the evidence standard). If the defense successfully raised the issue, then the prosecution had the burden of proving that there was no consent. The biggest problem is that we defenders felt that the first shift required us to disprove essential elements of the crime. Considering the nature of our judicial system, it is never permissible to force the defense to disprove a portion of the crime.

Sound like a lot of moving parts? It is. Consider the confusion among members of the jury who have little or no legal training or experience. The collective trial judiciary attempted to rectify the problem by crafting instructions and rules to accommodate the new law, but it did little to make us defense folks feel better.

The judge heard my motion (basically a carbon copy of many before it at other military installations), the government response, and ruled against the defense argument.

My motion lost, and I did not file an extraordinary writ from the Army Court of Criminal Appeals (ACCA). Cases similar to mine had already been heard by ACCA, and they lost overwhelmingly. So, how did my case do when it went up for appeal? Well, that’s the rub. It never went to appeal because the case was a full acquittal. On appeal, it would have been helpful because it was a very pure, one-charge Aggravated Sexual Assault case. Of course, I didn’t complain.

Fast forward. Now, the Army has the new Article 120, Special Victim Investigators, and Special Victim Prosecutors. The deck is stacked overwhelmingly against the defense counsel and client who oppose a platoon of folks seeking conviction.

For the longest time, a case with a simple, specific fact pattern had not hit the Court of Appeals for the Armed Forces (CAAF (the last appeal before the Supreme Court))–until US v. Prather.

Finally, however, CAAF spoke of the burden shift, and their decision in US v. Prather is likely to result in earthquake-level impacts to the military justice system.

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. 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 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.

Now, where does Article 120 go? The court makes it clear that crafting an instruction to overcome the legal insufficiencies is not possible except for one that completely abolishes any requirement for a burden shift and forces the government to prove consent beyond a reasonable doubt as part of their case-in-chief.

What is my reaction? Well, I’m hardly a legal scholar, so I have no calculated legal analysis or prediction. I do look forward to seeing what happens with the many Article 120 cases currently awaiting their first appeal, and I’m curious to see what the Special Victims braintrust decides to do in order to regain some of their steam. Even more, I look forward to my next opportunity to face them on Article 120 issues.

But, let’s face it. I’m just a trial slob, and an immature trial slob at that. At age 79, my father exclaimed that he never intended to grow-up, and I subscribe 100% to his philosophy (as regular readers of this blog know).

So, what is my reaction? Right now, it’s about 20 degrees and snowing where I live. I plan to run around my house in only my boxers, both middle fingers in the air, sounding a yawp of the magnitude that Uncle Walt writes.

It’s my way of saying I’m happy as hell.

H/T to CAAFlog and Philip Cave

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