Here is a link to NMCCA’s unanimous, en banc opinion in United States v. Neal, __ M.J. ___, No. NMCCA 200800746 (N-M. Ct. Crim. App. March 31, 2009) (en banc). Judge Eric Price, writing for a unanimous court, in BLUF format, tells us, “[W]e conclude that in this aggravated sexual contact prosecution, proof of the element of force does not require proof of ‘lack of consent,’ and that the affirmative defense of consent does not unconstitutionally shift the burden of proof to the defense. . . . Accordingly, we grant the Government’s interlocutory appeal.”

Amazingly the opinion is only 13 pages long and the constitutional analysis doesn’t start until page 9. In those 4 short pages, the Court, reversing my friend CDR DeOliveira, finds Art. 120 constitutional, holding that (1) because the “Government is not required to prove ‘lack of consent’ as an identified or implied element of aggravated sexual contact,” there is no burden shifting violation of the Due Process Clause and (2) a saving construction of the statute is in order to avoid the constitutional question of excluding evidence to negate an element of the offense. To avoid the constitutional question raised by interpreting Art. 120 as excluding evidence of lack of consent to negate the element of force in Art. 120, Judge Price writes,

We interpret the words “consent [is] not an issue” as highlighting Congress’ removal of “lack of consent” as an element that must be proven by the Government. Art. 120(r), UCMJ. We also interpret the language “except [it is] an affirmative defense for the sexual conduct in issue in a prosecution under subsection [(e) aggravated sexual contact]” as reflecting establishment of the affirmative defense of consent to identified offenses including “aggravated sexual contact.” Art. 120(r), UCMJ. To be clear, this construction is necessary to ensure the accused due process of law, as the finder of fact must be free to consider relevant, admissible evidence, including evidence going to the affirmative defense of consent, in determining whether there is a reasonable doubt about the sufficiency of the Government’s proof as to the elements of the offense.

I will leave additional editorial and synopsis to CAAFlog tonight.

11 Responses to “Amended Art. 120 Constitutional Says Unanimous, En Banc NMCCA”

  1. Anonymous says:

    No big surprise, just a big disappointment.

  2. Dew_Process says:

    But, where is the “case or controversy” here? Proof on the merits ended, jeopardy had long attached, and it does not appear from the opinion that the Government gave notice of it’s intent to appeal prior to the MJ dismissing the charges and discharging the members.

    Constitutional double jeopardy [a la Watada versus Art. 44 jeopardy] precludes a retrial.

  3. Anonymous says:

    I guess I have a lower threshold for absurdity than NMCCA. To me, the new Article 120 is akin to a law saying that jaywalking is crossing a street at any place other than an intersection, when we all know that there are plenty of lawfully designated crosswalks at places other than intersections. The government should have to prove that the accused didn’t cross the street lawfully, rather than telling the accused “well, if you have some evidence that there was a crosswalk there, feel free to introduce it.” The law should contemplate the existence of crosswalks.

  4. NBM3 says:

    My contacts on the Hill say that the issue and cases (not just U.S. v. Neal) are being followed very closely by the Armed Services Committees.

  5. Anonymous says:

    Dew -riddle me this – how can the government give notice that it intends to appeal the dismissal of a charge before the charge is dismissed? As I understand the opinion – the MJ reserved ruling until both sides had rested and then immediately excused the members. Where in time should the notice have been given?

  6. Anonymous says:

    The judge behaved like a rookie in this case. Dismissing the members and allowing them to speak with counsel immediately after the ruling. Need to vette our judges a little bit closer, I would say.

  7. Anonymous says:

    Interesting to read the House opinion addressing the old 120 and that lack of consent was an part of the 2d element and then read Neal. I’m a total defense hack, but given the change in the law, I think NMCCA got it right — I also believe that in our bread and butter cases – alcohol and buyer’s remorse, the requirement for the government to prove “substantial incapacity” is harder than the old 120 because the members will want to hear expert testimony on the issue, I also think it’s IAC for a DC not make the government give them a consultant to assist in determining capacity.

  8. Dew_Process says:

    Timing! Anytime you’re a TC and the MJ “reserves” you need to be on your toes. First, at the end of the Gov’ts case, the gov’t should have requested a decision. Waiting until after the Defense “rests” would have been the next logical time to raise the issue. Clearly by that point “consent” was at issue, and thus the issue was “ripe.”

    Second, the sequence – the MJ “dismissed” because he had first found the Statute unconstitutional. At that point, TC should have moved to adjourn to file the 62 Notice and opposed the dismissal on the basis of not triggering double jeopardy. It was at that point a pure question of law and an adjournment versus dismissal would have avoided the now inevitable double jeopardy issues.

    Too many inexperienced TC get lulled by the language of Art. 44 into not thinking or forgetting about Constitutional double jeopardy – that’s what Watada’s all about.

  9. Anonymous says:

    Anon 0835 makes a good observation. DP, unfortunately your comments miss the mark this time.

  10. Anonymous says:

    According to the opinion, the MJ “deferred ruling until after consideration of the evidence necessary to determine if consent was an issue.”

    That certainly was (or should have been) apparent after the Defense rested – and that’s when the TC should have requested a ruling on the facial constitutionality of Art. 120.

  11. Dale Saran says:

    Hey, boys – don’t read this decision too broadly. This was a 120(e) case, which is a charge regarding “force”. I can see how NMCCA can say that the govt need not prove “without consent” in a force case (imagine simple assault, the govt need not prove “without consent” but it does have the definition of what “unlawful force” is). Force and the aff.def. of consent are not necessarily exact opposites. But “substantial incapacity” (under 120(c)) and consent are.