Barbaric: It is 'worth the risk' to punish innocent college men in order to nab more sex offenders

Community of the Wrongly Accused: Barbaric: It is 'worth the risk' to punish innocen...: (May 2012)

I am not going to comment (I am literally sick to my stomach) 

What the hell are we teaching in our homes, and in universities and colleges, that students would say something like this?

Just read this and ask yourself what you would do if falsely accused? 


The University of Maryland's student newspaper is running a story today about how the university lowered its standards for finding students guilty of sexual misconduct earlier this semester, in compliance with new federal "Dear Colleague" mandate. The story includes this stunning quotation: "[F]reshman electrical engineering major Steph Winter said letting someone guilty of a serious crime go unpunished would be more harmful than finding an innocent person guilty. It’s obviously one of the big side effects, if it could result in an innocent person being found guilty,” she said. “But I think sexual assault is such a big issue that it’s worth the risk.”

This sentiment flips on its head a long-settled principle of law famously expressed by the celebrated English jurist William Blackstone: it is "better that ten guilty persons escape than that one innocent suffer." (Commentaries on the Laws of England, 1765.)

In fact, the debate about whether it is just to punish the innocent in order to insure that the guilty are punished has been settled since the time of the Book of Genesis. The Bible recounts that when God was deciding what to do about the evil in Sodom and Gomorrah, Abraham put this question to him: "Are you really going to sweep away the innocent with the guilty?" After repeated probing by Abraham, God made it clear he would not destroy the guilty if it meant destroying the innocent with them.

In modern times, "Blackstone's formulation," or as it is sometimes called "The Blackstone ratio," has been imprinted on the DNA of our jurisprudence. Our Supreme Court, in various ways, has underscored that it is one of the pillars undergirding our jurisprudence.

Justice William O. Douglas, a liberal icon for much of the 20th Century, stated: "It is better, so the Fourth Amendment teaches, that the guilty sometimes go free than that citizens be subject to easy arrest." Henry v. United States, 361 U.S. 98, 104, 80 S. Ct. 168, 172 (1959).

Justice Harlan once wrote: "I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)(Harlan, J. concurring).

Somehow, this formulation has been cavalierly turned on its head in the current debate over the "Dear Colleague" letter.

Is the pain of a rape survivor in seeing his or her rapist go free in any sense comparable to the injustice inflicted when the state deprives an innocent person of his liberty? The question scarcely survives its statement.

"Terrible as it is for a victim to see a rapist escape punishment, it is far, far worse for an innocent person to be convicted of a sex crime." Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, S. Taylor, K.C. Johnson (2007).

Take, for example, Dwayne Dail, who was convicted of a rape he did not commit as a teenager and spent the next 18 years in prison. While in prison Mr. Dail was repeatedly and brutally victimized by the same crime that he, himself, did not commit. His life was shattered, and it is fair to assume he will never be whole after his unspeakable ordeal. Can anyone seriously assert that the pain of the rape victim in Mr. Dail's case was in any sense lessened by having this innocent man destroyed?

Rape victims whose misidentification of their perpetrators lead to wrongful convictions often develop deep psychological trauma when they learn what they've done. Actual rape victims have no interest in punishing the innocent and are often among the most vocal critics of false rape accusers because they know that every rape lie diminishes the integrity of every legitimate rape claim. I have put the question to one of the nation's most prominent victims of clergy sex abuse, and his unhesitating answer was that he hates false accusers because of what they do to real victims.

While an individual is capable of doing terrible things to another individual, including rape, neither the state, nor an institution of higher learning acting at the behest of the state, should ever fall to the level of a criminal and reasonably risk doing a terrible thing to another human being. Convicting an innocent man of rape, or expelling an innocent man for rape, is not an acceptable risk in the name of nabbing more offenders.

Beyond that, punishing the innocent undermines public confidence in the way rape claims are prosecuted. This not only works an injustice to the wrongly accused, it does no favors for rape victims. When juries and the people who decide college disciplinary hearings believe that the system allows the innocent to be punished, they are all the more wary about punishing men and boys for rape charges, even those who deserve to be punished.

A wrongful acquittal is a terrible thing, of course. But a wrongful acquittal is never, ever the equivalent of a wrongful conviction, and to suggest otherwise is morally grotesque.

Dictators throughout history have justified the ruthless imprisonment, torture, and murder of the innocent to insure that the "guilty" (who always happen to be their enemies) are vanquished. It is a monstrously barbaric -- and, we might add, singularly un-American -- practice.

The reason Blackstone's formulation retains its validity is self-evident. It is the very hallmark of a civilized society.

When HIV turns into a Prison sentence

When HIV turns into a Prison sentence

 

Only one thing is true in my case...I am HIV positive...

That's why the Army prosecuted me...The Army even said "You are HIV positive so it must have been you..." There was NOTHING fair about the nearly 4+ years this went on before the bogus trial.

Members of Congress want to pay lip service and say they want to "protect" victims of sexual assault...Well so do I !!

I want to protect any real victim of any assault...especially in my Army...an Army I served for 26 years and still love, but I want those same Members of Congress to stand by me and the other REAL victims of a broken process and false allegations that could have and should have been investigated with the full resources and diligence of any crime.

 

Disclosure, non-disclosure, sex, no sex, true, false...It does not matter...this is PURE discrimination based on a VIRUS...a virus!

 

This Stigma and Wrongful prosecution MUST END!

The Armed Forces and civilian courts have turned their backs on the very justice they are supposed to defend.

When an Army Lieutenant can admit to lying, stealing, hacking, confess to years of risky sexual behavior, blackmail threats and admit to knowing my HIV status...All under oath...and be seen as a "victim"...What in God's name is wrong with our system?

No investigation was ever completed...
The defense had physical witnesses
No medical or physical evidence
Just a "story" that changed 4 times on the record

PLEASE stand with Nick, Sean, Robert, myself and so many others you will see mentioned in this video/story.

Our Nation and our Armed Forces are better then this...

 

The ignorance, fear and stigma that surrounds HIV is more deadly then then the virus itself

Film Showcase HIV Criminalization Laws...

Powerful steps to get the issue out in front of people...

One of the most shocking points to drive home is that a person can be prosecuted even if no actual transmission occurs..

I can personally confirm this is the practise of the United States Army...

I was not charged with infecting anyone, but rather they use a cowardice approach and charge myself and others with "exposure"  Regardless of HIV disclosure, viral load, physical witnesses for the defense and medical/physical evidence.

I need to repeat my position on this whole UCMJ Sexual Assault issue...
I have ZERO TOLERANCE for any proven assault..of any kind.  Our Armed Forces deserve equal and fair treatment under the Law as promised by the very Constitution we all swear to support and defend.

How any Commander's and Staff Judge Advocate can go forward with any prosecution without a full investigation is a crime in and of itself.

If a complaining witness, like the one in my case, admits to 12 pages of risky sexual activity on his CDC form...admits to lying to prosecution, lying to federal investigators, stealing passwords and Hacking into an email and website...under oath...How can you press charges against a person and How in God's name does a military judge say the words guilty...

I'll tell you...3-letters...HIV

New Study Show Statistical Factors Behind Wrongful Convictions…and how it relates to me

http://wrongfulconvictionsblog.org/2013/03/11/new-study-show-statistical-factors-behind-wrongful-convictions/

As I continue to tell my own story, I am amazed and appalled daily by the number of cases that I find about wrongful convictions destroying lives in this country all in the false name of "justice".

I have found the professionals with the "Wrongful Convictions Blog" are one of the best groups to put things into perspective in an academic and legal tone.

"From the quantitative and qualitative analysis, Gould and his team determined that prevention begins at the police station starting with the interrogation and investigation of alibis. This is followed by several opportunities along the way to identify the innocent before they are wrongfully convicted. For example, if forensic testing was conducted earlier and the results became available sooner to investigators innocent suspects could be freed. But faulty identifications, absence of early forensic test results, and inadequate investigation of alibis leads to what Gould characterizes as a “perfect storm” of errors made worse by collective tunnel vision."

10 Factors Identified in Wrongful Convictions - I can directly relate to a number of the factors this study lists and many others...

• State death penalty culture/state punitiveness-there is a terrible environment in the armed forces revolving around any sexual assault and a genertion of weak commanders not willing to stand up and stop cases in fear of Congessional oversight and the sake of their own career.  You are guilty until proven innocent under UCMJ...this is not a play on words...we are adminstratively "flagged" - think scarlet letter - everything is stopped in your career until you are proven innocent.

• Strength of prosecution’s case - actually the Army's case was very weak (over a dozen attorney's have reviewed the Record of Trial)

• Prosecution withheld evidence (Brady violation) - One of the most disgusting acts by uniformed Army JAG officers.  They withheld evidence about an immunity deal, physical evidence, medical evidence and evidence that the complaining witness was having risky anonymous bareback sex via his own admission, a witness and his personal CDC form.

• Forensic evidence errors - there was ZERO, literally ZERO, forensic evidence in my case...the Army CID unit at Fort Myer, VA did not complete the investigation...they did not investigate my home and the most remarkable act..they did not investigate the complaining witness.  They "believed" him.

• Strength of defendant’s case - even with many denied motions by the military judge, we had physical witnesses, medical and physical evidence.  We even had the under oath testimony of the complaining witness admitting to stealing passwords from my home, "hacking" into my email and a website, lying to federal investigators, lying to the prosecution and lying to federal agency officials...All at the Article 32 hearing!

• Age of defendant - 45 years old

• Criminal history of defendant - ZERO

• Intentional misidentification-complaining witness admits to Identity theft "hacking" and presenting false information to the prosecution

• Lying by non-eyewitness - witnesses testified truthfully in my case!  They testified that the complaining witness knew months before meeting the first of only two times-ever...the he knew I was HIV+.  This fact alone is huge, he even tells CID in the initial statement that he knew I was HIV+ before being introduced to him as a mentor.  Yet, the military judge believes that he drives 800 plus miles overnight from Alabama to Virginia to have unprotected sex with my whole family in the house!  Are you serious?

• Family witness testified on behalf of defendant-This is just sad, but in my case the complaining witness testifies that my entire family was in the house!  My mother was "the" lead witness because she was there!  Sad that your family is seen as a negative in our justice system.

It makes my skin crawl every time I write about this, but I will continue to tell the story

The facts, both presented and not presented, tell the story...I am Innocent!

The UCMJ system is BROKEN
Sexual Assault allegations MUST be investigated fully
False Allegations are REAL
HIV is NOT a crime

We continue to pray and hope that the appeal process will right this wrong.

AN ANALYSIS OF THE HISTORY, CHALLENGES, AND SUGGESTED CHANGES TO THE "NEW" ARTICLE 120

http://www.afjag.af.mil/shared/media/document/AFD-111121-039.pdf

Page 269-291

I believe its very important to anyone who is following my case and the other cases of False Allegations of sexual assault under UCMJ, to have as much information as possible.

BG Nevin is a retired US Army JAG officer and as a General Officer offers a perspective unique to his career and experience. 

From my point of view, as an officer who was falsely accused and literally railroaded by the broken UCMJ system specifically surrounding Article 120 and the terrible environment of personal interpretations of the Military Rules of Evidence by rogue military trial judges, this legal review is a must read for all parties.

"As this issue exemplifies the tension between an accused’s right to a fair trial and the military necessity of combating a corrosive internal threat, expect the issue of Article 120 to receive continued attention from the military’s appellate courts."

So with regards to my case:

1. None of the required elements of an assault were ever presented
2. The complaining witness testifies multiple times that "everything" was consensual (even though I maintain NOTHING happened and had FACTS and WITNESSES to support)
3. Direct Evidence of years of risky sex by the complaining witness was denied by the military judge

With just these 3 FACTS alone, How could a judge find a person guilty?

 
NEITHER A MODEL OF CLARITY NOR A MODEL STATUTE: AN ANALYSIS OF THE HISTORY, CHALLENGES, AND SUGGESTED CHANGES TO THE "NEW" ARTICLE 120

BrIGADIER GENERAL (RET.) JACK NEVIN

 
Brigadier General (Ret.) Jack Nevin (B.A., Washington State University; J.D., M.S., M.B.A., Gonzaga University) Pierce County, Washington, District Court Judge, 1997-present; Adjunct Professor, Comprehensive Trial Advocacy and Military Law, Seattle University School of Law; Adjunct Professor, Kessler Edison Trial Techniques Program, Emory University School of Law; Lecturer, U.S. Department of State, U.S. Department of Justice; Lecturer, Humanitarian Law, Catholic University of Lublin, Lublin, Poland; Brigadier General (Ret.) U.S. Army Reserve Judge Advocate General’s Corps.

♣Lieutenant Joshua R. Lorenz, USN (B.A., Gustavus Adolphus College; J.D., magna cum laude, Seattle University School of Law) serves as a trial counsel at Region Legal Service Office Mid-Atlantic, Norfolk, Virginia.

This article is based upon a paper submitted by LT Lorenz in satisfaction of the requirements of the Seattle University School of Law seminar, Military Law, taught by Judge Nevin. LT Lorenz deserves credit for the thesis and content of this article.

L
IEUTENANT JOSHUA R. LORENZ♣

I. INTRODUCTION.................................................................................... 270

II. SEXUAL ASSAULT IN THE U.S.MILITARY........................................... 271

A. Women in the Military.................................................................. 272

B. Statistics on Instances of Military Sexual Assault ........................ 273

C. Effects of Sexual Assault in the Military...................................... 275

III. CONGRESSIONAL RESPONSE: THE "NEW" ARTICLE 120..................... 277

A. Congressional Request for Options .............................................. 277

B. The "New" Article 120 ................................................................. 279

IV. APPELLATE CHALLENGES AND JUDICIAL INTERPRETATIONS ............. 280

A. United States v. Crotchett ............................................................. 281

B. United States v. Neal..................................................................... 282

C. United States v. Prather................................................................ 283

V. SUGGESTED CHANGES......................................................................... 287

A. Redefine the Use of Consent in Article 120(r) ............................. 287

B. Amend the Affirmative Defense Procedures in

Article 120(t)(16).......................................................................... 288

VI. CONCLUSION ....................................................................................... 291

270 The Air Force Law Review • Volume 67

I. INTRODUCTION

Consider the following scenario: John is 21 years old and enlisted in the military after three years of post-high school unemployment. Sarah is 18 and enlisted immediately after graduating from high school to earn money for college. Both are assigned to the same unit. Both live in the same dormitory-style barracks on a base in the U.S. The base and the nearby small town lack many outlets for entertainment. Most young servicemembers assigned to the base spend their free time drinking while watching movies or playing videos games in their barracks rooms.

John, Sarah, and a group of their friends often hang out in the barracks on weekends. One Saturday night, a group has been drinking for several hours in John’s room. Their friends depart, leaving John and Sarah alone together for the first time. Both are drunk, but Sarah is almost incoherent after consuming nearly half of a bottle of vodka herself. She lies down on John’s bed. John follows shortly after.

The next day, something is wrong. Sarah texts her friend that she cannot remember what happened, but that she thinks she might have been raped. She cannot remember the details, but does recall brief images from last night: images of John on top of her of him having sex with her. She woke up in the morning unsure of what to do or whom to contact. Her friend suggests talking to the sexual assault response coordinator on base. Sarah does, and feels she remembers enough to conclude that she did not consent to sex with John. She reports the incident.

A criminal investigation is initiated. Sarah provides a statement to investigators, and John is questioned under rights advisement. There are no other witnesses to the incident in question, although several servicemembers tell investigators that both John and Sarah had been drinking heavily. The investigators present their findings to John and Sarah’s chain of command. After several previous instances involving allegations of sexual misconduct in the unit that went unpunished for various reasons, the commander feels pressure from his superiors to correct a perceived climate of tolerance of such behavior within his command.

The commander brings criminal charges against John and the case is referred to a court-martial. The charges allege that John either had sex with Sarah by force or threat of harm, or while she was unable to consent because she was severely intoxicated. Prior to trial, John provides notice that he intends to claim that either Sarah agreed to the sex, or that even if she did not, he incorrectly but reasonably believed that she had. No other witnesses or evidence corroborates either party’s story: the trial will turn on the court’s assessment of the credibility of either Sarah’s or John’s version of events.The "New" Article 120 271 Sexual assault is a particularly malicious and tragic crime, intentionally inflicted on a victim who often suffers lasting physical and psychological wounds. As Justice White observed in Coker v. Georgia, "[s]hort of homicide, [rape] is the "‘ultimate violation of self.’"272 The Air Force Law Review • Volume 67

military society and effectiveness as an additional reason for changing the criminal legislative scheme in an effort to more effectively address the problem.

A. Women in the Military

An analysis of military sexual assault and associated military justice responses should start with understanding the gender demographics of the U.S. military. The active-duty military population in the Department of Defense totals approximately 1.4 million members,7 of which 14 percent are women.8 Despite this relatively small proportion as compared to the general U.S. population, the numbers of women in the military have consistently increased over the last 40 years. After World War II, legal limitations on the roles of women in the military returned after years of women filling crucial roles supporting the war effort.9 In the 1950s and 1960s, women comprised just over one percent of the active duty population, eventually reaching two percent by the end of Vietnam.10 The end of mandatory conscription in 1973 required a diversification and increase in the roles of female servicemembers in the all-volunteer force, as the military faced a shortage of qualified men to fill previously male-only positions.11 However, despite the slow but steady increase in their numbers, by 2003 women were still prohibited from working in 30 percent of available positions in the U.S. Army.12

7 See Armed Forces Strength Figures for April 30, 2011, available at http://siadapp.dmdc.osd.mil/personnel/MILITARY/ms0.pdf.

8 See Department of Defense Female Active Duty Military Personnel by Rank/Grade, Sept. 30, 2010, available at http://siadapp.dmdc.osd.mil/personnel/MILITARY/rg1009f.pdf.

9 See David R. Segal & Mady Wechsler Segal, Population Reference Bureau, America's Military Population, POPULATION BULL., Dec. 2004, at 27.

10 See id.

11 See id.

12 See id.

13 Jessica L. Cornett, Note, The U.S. Military Responds to Rape: Will Recent Changes be Enough?, 29 WOMEN’S RTS. L. REP. 99, 100 (2008).

14 Id. at 102-103.

As a result of the historical overrepresentation of men in its ranks, the U.S. military may be, according to one sociologist, "the most prototypically masculine of all social institutions."13 However, this male dominance does not necessarily directly correlate with a prevalence for sexual assault. One author has postulated that the "inherent implication of inequality" due to grossly unequal representation of the sexes in the military population, could provide some explanation for the "disproportionate rates of unwanted sexual behavior experienced by women in the military" as compared to civilian society.14 While this imbalance and women’s inability to participate fully in all military occupational fields likely contributes to a culture that may increase their experience of unwanted sexual conduct, a The "New" Article 120 273 274 The Air Force Law Review • Volume 67 The "New" Article 120 275 Therefore, the rate of sexual assaults per thousand servicemembers in these locations is approximately 0.94, less than half of the 2.0 rate per thousand reported for the overall DoD. This lower rate is likely due to the "arduous conditions" that make "data collection very difficult" in theater, and is at odds with well-documented reports of sexual assaults in Iraq and Afghanistan.276 The Air Force Law Review • Volume 67 The "New" Article 120 277 A proper examination of recent Congressional responses to the problem of military sexual assault must include an assessment of these competing interests. 278 The Air Force Law Review • Volume 67

recognizing that the provisions in the UCMJ that dealt with sexual assault required modification for improvement.

A subcommittee of DoD’s Joint Service Committee (JSC) for Military Justice took up the task of developing recommendations to go to Congress. The JSC is comprised of representatives of the major stakeholders in the DoD’s uniformed and civilian legal community, and is responsible, in part, for reviewing the Manual for Courts Martial (MCM) and proposing updates to the UCMJ.46 The subcommittee reviewed the then-current UCMJ, MCM, several federal criminal statutes, and the American Law Institute’s Model Penal Code, and, ultimately presented DoD’s recommendations to Congress in March 2005.47

46 U.S. DEPARTMENT OF DEFENSE, DOD DIR. 5500.17, ROLE AND RESPONSIBILITIES OF THE JOINT SERVICE COMMITTEE (JSC) ON MILITARY JUSTICE (2003), available at http://www.dtic.mil/whs/directives/corres/pdf/550017p.pdf.

47 Sex Crimes and the UCMJ: A Report for the Joint Service Committee on Military Justice at 1 (Feb. 2005) available at http://www.defenselink.mil/dodgc/php/docs/subcommittee_reportMarkHarvey1-13-05.doc, [hereinafter Sex Crimes and the UCMJ].

48 Id.

49 Id. at 2.

50 Id.

51 Id.

52 See id. at 85.

53 See Lieutenant Colonel Mark L. Johnson, Forks in the Road: Recent Developments in Substantive Criminal Law, ARMY LAW., Jun. 2006, at 27 (referencing discussions with a House Armed Services Committee attorney who served as a member of a drafting committee for the new sexual assault legislation).

The subcommittee unanimously recommended against any changes to the UCMJ. Its members could identify no military sexual misconduct that could not be effectively prosecuted under the existing UCMJ and MCM.48 Furthermore, the JSC subcommittee asserted that any "rationale for significant change [would be] outweighed by the confusion and disruption that such change would cause."49 Finally, the subcommittee emphasized that given the "well-developed, sophisticated jurisprudence" in the military justice system, changes in the UCMJ or other regulations would not likely result in any significant increase in prosecutions of sexual offenses.50

However, the subcommittee further stated that "if higher authorities direct a UCMJ change to substantially conform to [federal criminal law]," one of potential changes it had considered represented the option "that best takes into account unique military requirements."51 This option would divide sexual misconduct into degrees according to various aggravating factors.52 Despite the fact that the subcommittee explicitly advocated no change in existing law as necessary or prudent to deal with the problem of military sexual assault, this option soon formed the basis of the amendments to Article 120 that Congress later enacted.53 The "New" Article 120 279

B. The "New" Article 120

Contrary to the primary recommendation of the DoD subcommittee, the 2006 National Defense Authorization Act included a complete rewrite of Article 120.54Unfortunately for those seeking to understand Congress’ intent, the available legislative history provides little explanation of the specific reasons or purposes for the complete revision.

54 See National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, 119 Stat. 3137 (2006) [hereinafter 2006 NDAA].

55 See H.R. Rep. No. 109-089, § 555 (2005) (noting that the amended Article 120 would include both "a series of graded offenses relating to rape, sexual assault and other sexual misconduct" and "a precise description of each offense.").

56 See H.R. Rep. No. 109-360, § 552 (2005).

57 151 Cong. Rec. H3912-02, 3920 (2005).

58 Id.

59 See 2006 NDAA supra note, at 54.

60 See id.

61 See 10 U.S.C. § 920, (a) – (h) (2011).

62 10 U.S.C. § 920(t)(1).

63 10 U.S.C. § 920(t)(2).

For example, the report of the House Committee on Armed Services’ version of the NDAA included only one paragraph summarizing the rewrite of the article. 55 Furthermore, the Conference Report on the combined House and Senate bill noted that the Senate version of the NDAA bill did not include a revision to Article 120.56 Additionally, floor debate in Congress contains only a single apparent reference to the rewrite. Representative Loretta Sanchez of California noted that the rewritten Article 120 provided for a "modern complete sexual assault statute that protects victims [and] empowers commanders and prosecutors."57 Furthermore, she stated that the amended statute "affords increased protection for victims by emphasizing acts of the perpetrator rather than the reaction of the victim during the assault."58

The President signed the 2006 NDAA and its Article 120 rewrite into law on January 6, 2006.59 According to the statute, the new Article 120 would not go in to effect until October 1, 2007.60 The revised article now specifies 14 categories of sexual assault offenses, including rape, aggravated sexual assault, aggravated sexual contact, and abusive sexual contact.61

Understanding the categories of offenses under the revised article requires first examining the definitions of "sexual act" and "sexual contact." The statute defines a "sexual act" as contact between the penis and vulva or penetration of a genital opening of another by hand, finger, or other object with intent to abuse, humiliate, harass, or degrade, or to arouse or gratify sexual desire.62 It defines "sexual contact" as the intentional touching of another with the intent to abuse, humiliate, harass, or degrade, or to arouse or gratify sexual desire.63 After initially identifying the nature of the conduct between the perpetrator and the victim, determination of the 280 The Air Force Law Review • Volume 67 The "New" Article 120 281

Armed Forces, has now considered and decided several of these challenges. The resulting decisions have caused significant uncertainty and concern in the military justice system. Agreeing with the early critics, those decisions have concluded that in some (and perhaps most or even all) cases, the new statute impermissibly and unconstitutionally shifts part of the burden of proof to the accused.

According to challengers, the revised article’s definitions of force, "substantially incapacitated," and consent, combined with the removal of the previous element of lack of consent which the government had to prove, now unconstitutionally require an accused who raises the affirmative defense of consent to disprove an element of the alleged crime for which the government must satisfy the ultimate burden of proof beyond a reasonable doubt. Challenges such as this embody the aforementioned dangers of legislative overreach and have been addressed in United States v. Crotchett,70 United States v. Neal,71 and United States v. Prather.72

70 United States v. Crotchett, 67 M.J. 713 (N-M. Ct. Crim. App. 2009)), rev. denied, 68 M.J. 222 (C.A.A.F. 2009).

71 United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010), cert. denied, 131 S. Ct. 121 (2010).

72 United States v. Prather, 69 M.J. 338, reconsideration denied, 70 M.J. 30 (C.A.A.F. 2011).

73 See Crotchett, 67 M.J. at 714.

74 See id.

75 See id.

76 See id.

77 See id.

A. United States v. Crotchett

The Navy-Marine Corps Court of Criminal Appeals (N-M.C.C.A) tackled an iteration of the burden shifting challenge in Crotchett. In that case, the government charged a Sailor with aggravated sexual assault under Article 120(c), claiming that the alleged victim was substantially incapable of communicating her willingness to engage in sexual intercourse with the accused.73 At trial, the accused raised the affirmative defense of consent.74 After hearing arguments, the trial court dismissed the charge and specification against the accused, ruling that the prosecution would violate the accused’s Fifth Amendment right to due process by unconstitutionally shifting the burden of proof to the defense to disprove an essential element of the offense.75 Specifically, this essential element was the alleged victim’s substantial incapacity to communicate her unwillingness.76In short, the accused argued that in order to show that the alleged victim consented to intercourse, he would have to show that she did have the capacity to communicate her willingness, which is the logical opposite of the government’s element.

The appellate court reversed the ruling of the trial court. 77 In analyzing the lower court’s ruling, the appellate court acknowledged an "apparent overlap of defense and government burdens" when the affirmative 282 The Air Force Law Review • Volume 67 The appellate court distinguished these burdens by parsing what specifically the parties must prove in order to meet their respective burdens, either when raising an affirmative defense or when proving the elements of the offense. The "New" Article 120 283 The accused argued that for the government to prove the element of force, it must necessarily also prove lack of consent, because "[o]ne does not submit if willing, one need not be overcome if willing, and one does not resist that which one wants."Thus, the accused advocated that asserting an affirmative defense of consent required him to disprove lack of consent (i.e., by showing that there was consent), which thereby improperly shifted the burden of proof from the government to him. 284 The Air Force Law Review • Volume 67 During this discussion, defense counsel requested that the military judge instruct the members in accordance with the Military Judges’ Benchbook,which suggested treating consent as a traditional affirmative defense.The military judge denied the defense request and issued instructions that "generally tracked the statutory scheme, including the shifting burdens consistent with Article 120(t)(16)…with respect to the affirmative defenses."After the accused was convicted of aggravated sexual assault in violation of Article 120(c)(2), on review the Air Force Court of Criminal Appeals found no violation of the accused’s due process rights.The "New" Article 120 285 Similar to prior criticisms of the second burden shift scheme,the court noted that the problem is structural: if a trier of fact has found that an affirmative defense is proven by a preponderance of the evidence, it is legally impossible for the government to disprove that affirmative defense beyond a reasonable doubt.In a separate opinion, Judge Baker went further in his criticism of Article 120(t)(16), calling the second burden shift unenforceable and unconstitutional if literally followed.286 The Air Force Law Review • Volume 67 The trial judge ruled in the accused’s favor, and dismissed the abusive sexual contact charge as unconstitutional. In his ruling, the judge stated that C.A.A.F. in Prather had held the entire Article 120 to be constitutionally unenforceable, and that he lacked authority to sever (t)(16) or to provide curative instructions – because, he said C.A.A.F. in the subsequent case of United States v. Medina had prohibited such a remedy, and he held it would render the remainder of the statute incoherent and invade and contravene Congressional intent.The "New" Article 120 287

Air Force’s appellate court subsequently followed in a case with similar facts. Prather and Boore do much to clarify the legal landscape and map the course to constitutionally adjudicate Article 120 cases where the accused raises the affirmative defense – while preserving the remainder of the statute and legislative scheme. However, only Congressional action to clarify and enhance Article 120 will avert continuing difficulty and potential confusion in the military courts in this area.

V. SUGGESTED CHANGES

Article 120 requires amendments to ensure a constitutional application of the article and to reduce confusion during sexual assault prosecutions. Two such changes include (1) a redefinition of consent in Article 120(r) and (2) an amendment of the procedures used when raising the affirmative defense of consent under Article 120(t)(16).

A. Redefine the Use of Consent in Article 120(r)

One suggested change is a legislative redefinition of the use of consent in Article 120(r). This unnecessarily confusing provision provided the textual support for the burden shifting challenges in Crotchett, Neal, and Prather. According to the current statute, "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" for several offenses under Article 120, such as rape and aggravated sexual contact.122

122 10 U.S.C. § 920(r).

123 Neal, 68 M.J. at 301-02.

124 Id. at 304.

Refining what is meant by "consent" will clarify Congress’ intent regarding the treatment of evidence of an alleged victim’s permission, as introduced by either the accused or the government. In Neal, the court declined to broadly interpret the phrase, rejecting the interpretation that would never allow the use of consent evidence except when the accused meets his initial burden to establish an affirmative defense.123 According to the Neal court, although the government need not prove lack of consent, evidence regarding consent should be allowed in order to "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."124

Despite the court’s interpretation in Neal, Congress should undertake to clarify the evidentiary role of consent. If the revised article intends to emphasize the acts of the perpetrator rather than the reaction of the victim, restricting use of consent evidence would protect against investigating what a victim allegedly did or said during a sexual assault. 288 The Air Force Law Review • Volume 67

Such a limitation of consent would run counter to the Article 120(r) analysis in Neal, but would more effectively fulfill Congress’ apparent intentions.

Therefore, a simple legislative fix would better articulate Congress’ desire regarding the use of consent in Article 120(r). Congress may amend Article 120(r) to read "evidence of consent and mistake of fact as to consent is not to be admitted in a prosecution under any subsection, except for the purpose of an affirmative defense…." If enacted, this change would resolve the different interpretations presented in Neal and would protect victims from embarrassing revelations.

B. Amend the Affirmative Defense Procedures in Article 120(t)(16)

A second recommended refinement of the article involves the procedural aspects of the use of affirmative defenses under Article 120(t)(16). According to this section, raising an affirmative defense in a sexual assault prosecution triggers a two-step process. First, "[t]he accused has the burden of proving the affirmative defense by a preponderance of evidence."125 Second, "[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."126

125 10 U.S.C. § 920(t)(16).

126 10 U.S.C. § 920(t)(16).

127 See id.

128 See Hoege, supra note 69 at 12.

129 Id.

Specifically, Congress should clarify (1) who determines whether the accused has met his initial burden, and (2) when during the trial the accused must meet that first burden. However, the statute provides no guidance as to whether the military judge or the panel of members decides that question, or the timing of that decision. While the statute does require that the accused must prove consent existed by a preponderance of the evidence,127this choice of a burden of proof standard is a clear indication the determination is a question of fact for the fact-finder.

According to one author, neither C.A.A.F. nor any of the service appellate courts has endorsed splitting this fact-finding role between the military judge and panel. 128 Furthermore, if the members bear the responsibility to determine whether the accused met his burden, the second step of the process is nonsensical "as the fact-finder would be asked to consider whether or not reasonable doubt exists in the identical evidence the fact-finder just used to conclude that, more likely than not, the defense exists."129The illogical nature of Article 120(t)(16) formed the basis of the Prather court’s condemnation of the burden shifting scheme.

C.A.A.F. has yet to definitively endorse an instruction for the procedures provided in Article 120(t)(16). C.A.A.F. declined to address the Article 120(t)(16) instruction issue in Neal, noting that while the trial judge The "New" Article 120 289 However, in Prather the court noted that, at least in the circumstances presented, there existed no plausible instruction (presumably including those suggested in the Benchbook) that would cure the "constitutional and textual difficulties" found in applying the burden shifting scheme.Additionally, in United States v. Medina, C.A.A.F. held that it was harmless error for a military judge, without a legally sufficient explanation, to give an instruction consistent with the Benchbook’s instruction. 290 The Air Force Law Review • Volume 67

the change, when applying an affirmative defense to an Article 120 offense, military judges must now state on the record:

This court is aware of the Court of Appeals for the Armed Forces cases interpreting the statutory burden shift for Article 120, UCMJ, affirmative defenses. Although Article 120(t)(16) places an initial burden on the accused to raise these affirmative defenses, Congress also placed the ultimate burden on the Government to disprove them beyond a reasonable doubt. The CAAF has determined the Article 120(t)(16) burden shift to be a legal impossibility. Therefore, to constitutionally interpret Congressional intent while avoiding prejudicial error, and applying the rule of lenity, this court severs the language "The accused has the burden of proving the affirmative defense by a preponderance of the evidence. After the defense meets this burden," in Article 120(t)(16) and will apply the burden of proof in accordance with the recommended instructions in the Military Judges’ Benchbook, DA Pam 27-9.137

137 DA PAM 27-9, supra note 9796, Approved Change 11-02 (Article 120 Affirmative Defenses), available at http://www.caaflog.com/wp-content/uploads/BB-change.pdf.

138 Medina, 69 M.J. at 465, n.5.

Thus, the Benchbook approach simply disregards the first burden shift, in an effort to comply with both C.A.A.F.’s constitutional holdings and the statute Congress enacted. This highlights one obvious and simply solution: Congress can further modify Article 120(t)(16) to delete what the Benchbook instruction has severed.

Given this murky state of affirmative defense procedures and C.A.A.F.’s concession that a fix for the scheme "clearly rests with Congress,"138the statute should be amended to provide clarity and increased protections for both alleged victims and the accused. For example, rather than require that the accused prove an affirmative defense by a preponderance of the evidence, Congress should amend the statute to treat an affirmative defense under Article 120 as any other affirmative defense, thereby allowing its consideration by the trier of fact if the accused can show some evidence that would support the defense. Once the accused has met this "some evidence" initial burden, the government would then be required to disprove the affirmative defense, and prove the required elements of the offense, beyond a reasonable doubt.

This scheme, consistent with the long history of military justice affirmative defense procedures, is similar to course of action suggested by the Military Judges’ Benchbook. Congressional codification of those procedures in Article 120(t)(16), or at least legislative recognition that an affirmative defense under Article 120 should be employed consistent with The "New" Article 120 291

other areas of the UCMJ, should properly balance the due process rights of the accused against a desire to facilitate sexual assault prosecutions.

VI. CONCLUSION

The military justice system alone will not solve the problem of military sexual assault. The pervasiveness of the issue, evidenced by the increasing instances of sexual assault and the long history of gender inequity in the military, demonstrates the need for additional measures beyond a revised military sexual assault statute. Regardless, the 2007 rewrite of Article 120 represents a positive effort and first step towards improving the military legal system’s protection of victims, and mitigating the effect of sexual assault on unit cohesiveness, trust, and overall military readiness. The purposes for enacting the rewrite reflect Congress’ attitude towards the military sexual assault problem and should be at the forefront when considering additional revisions and interpretations as to the role of consent in sexual assault courts-martial. As this issue exemplifies the tension between an accused’s right to a fair trial and the military necessity of combating a corrosive internal threat, expect the issue of Article 120 to receive continued attention from the military’s appellate courts.