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.