On August 12, Marine Corps Lieutenant Colonel Raymond Beal ruled that the new Article 120, UCMJ violated an accused’s Fifth Amendment right to due process of law.

Machinist’s Mate Second Class William Fairley, USN, is charged under with aggravated sexual assault under Article 120(c) for allegedly engaging in a sexual act with another person while that person was substantially incapable of declining participation in the sexual act. Under the new Article 120, which became effective on October 1, 2007, the question of consent on the part of the alleged victim is not an issue in this case unless the accused can affirmatively prove that the alleged victim consented.

The issue facing the court-martial was whether making the accused prove that the victim consented is tantamount to making him disprove the second element of the offense–that the other person was incapable of consenting. The military judge ruled that since an accused “cannot logically assert the affirmative defense of consent without denying the second element of the offense,” imposing the requirement on the accused to prove consent shifted the burden of proof to the accused in violation of due process.

The military judge’s ruling is available here.

16 Responses to “Military Judge rules new Article 120 unconstitutional”

  1. John O'Connor says:

    What if you’re like me and women are incapable of declining consent because you are so good looking? Is that a crime?

  2. CAAFlog says:

    To state the obvious, this is an incredibly important post by the Kabul Klipper. It raises a thought about legal practice in an Internet age. Presumably as a result of the Kabul Klipper posting this with a link to Judge Beal’s actual ruling, the issue will be raised more quickly throughout the services. Even if CAAFlog’s readership is fairly small, the inkspot effect will probably apply — defense counsel who do read the Kabul Klipper’s post are likely to forward it to colleagues who are litigating Article 120 cases and knowledge of the ruling will disperse fairly (pun intended) quickly.

    It seems likely that the government will file an Article 62 appeal and it seems likely that the ruling on that Article 62 appeal will ultimately be published. But that process will take several months. In the old days, it might not have been until West’s Military Justice Reporter published NMCCA’s ruling on the Article 62 appeal that Judge Beal’s ruling would have become widely known. I’m curious to see how long it will take in the Internet age for counsel from all of the services to file motions in Article 120 cases with a copy of Judge Beal’s ruling attached.

  3. DB Cooper says:

    CAAFlog – The answer to your question is “not long.” First, most military appellate counsel regard CAAFlog as an indispensable resource. Second, the new ART 120 has been marked for a long time as having several constitutional infirmities. I’m actually surprised it took this long for the issue to finally come up.

  4. CAAFlog says:


    Thanks for the kind words. It seems to me that the issue here is how many trial defense counsel will see the Kabul Klipper’s post. And I assume that CAAFlog’s market penetration is far more shallow among trial defense counsel than among appellate defense counsel.

  5. Phil Cave says:

    I’ve put it on my blog and my distribution list.
    This use of the internet is exactly why and how the information age can help trial defense counsel.
    What would also help is to have copies of the trial counsel and defense motions at the relevant trial(s).

  6. Anonymous says:

    jo’c – I’m told there is more to life than being ridiculously good looking.

  7. Anonymous says:

    And here I thought Judge Beal was a Government HACK since he was at Code 46 in a previous life.

  8. Anonymous says:

    The decision has been circulated pretty widely already within the services. The likely result in the short term is the approach the army has taken: http://ucmjdefense.blogspot.com/2007/10/article-120-ucmj-rape-and-sexual.html

  9. Anonymous says:

    Judge Beal is a seasoned litigator, a reasoned jurist and a true gentleman. His ruling is, predictably, fair and right down the middle.

  10. Anonymous says:

    The post about Judge Beal being a hack was in jest if you read any of the prior postings or those lamenting how anyone who was ever associated with the government is a fascist.

  11. Jeffrey says:

    The last anonymous comment is a good argument against allowing anonymous postings on this blog. It does nothing to further the discussion of legal issues and, frankly, it’s frightening to think that these kinds of comments might come from an actual military lawyer.

  12. No Man says:

    Anon 1107, 18 Aug 08:

    I removed your comment based upon one particular portion of the comment, not for its entire content. We don’t want to get in the business of editing comments, so I removed the entire comment. If you would like to re-post without the objectionable portion, please feel free to do so.

  13. Anonymous says:

    No Man: What part was objectionable? Althoughm the particular defense counsel queried does not have the best reputation, the comment seemed pointed at the perception that defense counsel have the “us vs them” mentality and that they “need to help each other get acquittals” rather than being a personal comment. (I did not write the comment)

  14. No Man says:

    Anon 1448, 18 Aug 08:

    I won’t repeat the objectionable portion, it was sufficiently ad hominem to warrant removal. I am having the same thoughts about Susan Crawford bashing on another post, but it appears the commentariat has worked out those “attacks.”

  15. Anonymous says:

    I wonder if Congresswoman Sanchez knows about this. She was the one pushing the change in military law.

    While there are some facets of the law I liked, the part shifting the burden of what the very essence of what rape is (intercourse without consent) to the defense is just patently wrong.

    In its simpliest form, rape has always been sex without consent. Yes, I know there are a few exceptions, like minors, but lets just keep it simple here.

    Now, that is not the case. Rape is just sexual intercourse until the defendant proves he had consent. (And yes I am using only he as the defendant. Lets face it, how many women do you see charged with rape? And I AM NOT TAKING ABOUT THOSE HOT FEMALE TEACHERS WHO HAD SEX WITH THEIR STUDENTS. THAT IS NOT RAPE, IT’S A FANTASY COME TRUE).

  16. Anonymous says:

    I’m doing some research on this Article for a paper… Does anyone know where, if anywhere, I might be able to find the Air Force and Navy equivalents to the Army’s benchbook? I have access to the Army’s JAGCNet, so I’ve got the updates mentioned on the UCMJ Blog Spot, but I can’t find the other services to compare how they address it (if at all). Thanks!