The Navy-Marine Corps Court of Criminal Appeals released today its en banc decision in United States v. Medina, No. 200900053, __ M.J. __ (N-M. Ct. Crim. App. Dec. 17, 2009).  The main portion of the opinion focuses on Art. 120.  The majority finds Art. 120 facially constitutional, citing United States v. Crotchett, __ M.J. ___, No. NMCCA 200800770 (N-M. Ct. Crim. App. May 12, 2009) (en banc), the court’s prior decision on Art. 120.  On the as applied challenge, the court reviews the military judges instruction to the members on the issue of consent, which read:

The evidence has raised the issue of whether [the victim] consented to the sexual acts concerning the offense of aggravated sexual assault . . . .

Consent is a defense to that charged offense . . . .

 . . . .

The prosecution has the burden to prove beyond a reasonable doubt that consent did not exist.  Therefore, to find the accused guilty of the offense of aggravated sexual assault . . .  you must be convinced beyond a reasonable doubt that, at the time of the sexual acts alleged, [the victim] did not consent.

You probably read that and said, hey, isn’t that the Benchbook instruction pre-Art. 120 amendment?  If you did, you’re right, because that’s what the judge probably read from.  Obviously the court finds no constitutional infirmity, though all the judges point out that the instruction doesn’t articulate the standard in revised Art. 120. 

Judge Booker, in a concurring opinion proposes an unconstitutional amended instruction for the issue of consent:

The evidence has raised a question of whether [victim] consented to the sexual conduct at issue.

 Consent is an affirmative defense to the allegation in the Specification of the Charge.  The defense must prove consent by a preponderance of the evidence.

 “Consent” means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person.

 In determining whether the accused has demonstrated consent by a preponderance of the evidence, you are further advised that the following do not constitute consent:

An expressed lack of consent through words or actions.

Submission resulting from the accused’s use of force; threat of use of force; or placing another person in fear. 

Lack of physical or verbal resistance resulting from the accused’s use of force; threat of use of force; or placing another person in fear. 

A current or previous dating relationship, by itself, between the person involved in the sexual conduct and the accused. 

 The manner of dress of the person involved in the sexual conduct.

If the defense establishes by a preponderance of the evidence that the person involved in the sexual conduct consented, then unless the Government proves beyond a reasonable doubt that the affirmative defense does not exist, you must find the accused not guilty.

The Government will succeed in proving that the affirmative defense does not exist if it proves beyond a reasonable doubt that the consent was not freely given or that it was given by an incompetent person.  More specifically, the Government must prove, beyond a reasonable doubt, that the person engaged in the sexual conduct could not consent because that person:

      1.  Was under the age of 16;

      2.  Was substantially incapable of appraising the nature of the sexual conduct at issue due to mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise; or  

      3.  Was substantially incapable of appraising the nature of the sexual conduct at issue due to mental disease or defect that renders the person unable to understand the nature of the sexual conduct at issue.

      4.  Was substantially incapable of physically declining participation in the sexual conduct at issue; or

      5.  Was substantially incapable of physically communicating unwillingness to engage in the sexual conduct at issue.

Judge Beal (who contributed to this whole Art. 120 mess by finding the amended statute unconstitutional when he was a trial judge, see here and here) takes issue in a lengthy dissent with the facial constitutionality holding in United States v. Neal, 67 M.J. 675 (N.M.Ct.Crim.App. 2009), certificate of review filed, __ M.J. __ (C.A.A.F. 15 May 2009) and United States v. Crotchett, 67 M.J. 713 (N.M.Ct.Crim.App. 2009), rev. denied, __ M.J. __ (C.A.A.F. Oct. 6, 2009). 

Judge Maksym applauds the trial judge, LtCol Sanzi, for saving the statute from itself, which he calls a “poorly written, confusing and arguably absurdly structured and articulated act of Congress,” by using the pre-existing instruction regarding consent.

10 Responses to “Medina – NMCCA’s Odd Twist on Art. 120”

  1. wow says:

    People who know more than me, has CAAF ever affirmed a CCA finding a law unconstitutional? If not, why would they even bother? En banc at the CCA sounds like an awful waste of tax dollars to me.

  2. Anonymous says:

    Do taxpayers pay us more for filing en banc? If not it seems like the taxpayers are saved.

    Even as I admit that like most I find the CCAs speed bumps on the way to CAAF from the defense side, I still think you do what you can on the big issues to give them every chance to do the right thing (from your perspective).

    I don’t think you are representing your client by saying, ah, ACCA will never rule in our favor here, so what’s the point, just wait for CAAF.

  3. Late Bloomer says:

    Wait, so an admittedly “poorly written, confusing, and arguably absurd” statute IS constitutional, but the military judge nevertheless did the right thing by NOT applying it as written? What am I missing?

  4. Anonymous says:

    You are missing a service court that knows it is unconstitutional if they don’t allow the judge to do something which is also unconstitutional and change how it is apply by using prior definitions.

    Tough needle to thread but you know the Service Courts are up to it! ;)

  5. John O'Connor says:

    How did the words “Funky Cold Medina” not make it into this post?

  6. Anonymous says:

    The defense went with the theory that the MJ made an interlocutory decision that the defenses of consent and mistake of fact as to consent were raised, and the court rejected that argument. One of the main issues with a constitutional challenge to 120 is that when MJs simply do things the old way in regard to these defenses, you run into the argument that even if this method constitutes error, there is no prejudice to the accused since it lightens his burden. The court in this case held this way and I’ve had a trial judge do the same thing. The only argument I’ve thought of is this: Since the statute calls for the defense to prove affirmative defenses by a preponderance of the evidence, then the jury must make that determination. And so at the close of evidence the defense should get to present argument first and last on the issue of the affirmative defense. By denying the defense this opportunity to speak before the prosecution and to have rebuttal, the accused is prejudiced. I seriously doubt this argument would ever fly, you’d have to first convince a judge that the question of whether the affirmative defense is proved by a preponderance of the evidence is for the jury, and I’m sure there are many other hurdles, but I’d like to see someone try it.

  7. John O'Connor says:

    Does an accused asserting lack of mental responsibility (an issue on which he bears the burden) have a constitutional or procedural right to argue first and last on the issue? I imagine that would be quite unwieldy given that the Government has the burden on the ultimate issue and, therefore, goes first and last on the merits.

  8. ksf says:

    Is the accused’s mistake of fact as to the level of the victim’s intoxication relevant?

    Would it be relevant under Judge Booker’s instruction for the new Article 120?

  9. Article16 says:

    With a lack of mental responsibility defense it could make sense for the defense to ask for bifurcated closing arguments–I think that’s happened before. It doesn’t seem too unwieldy to me…it’s logical because unless I’m mistaken the panel has to vote separately on that issue.
    I don’t think they do that in any other context.

  10. Anon says:

    Can anyone explain in coherent and simple English what that proposed instruction says? I’m not bright enough to get it. I’m no Einstein, but my guess is that expecting a jury to understand it would be the functional equivalent of spinning them around 10 times to the point of nausea and asking them to pin the tail on the donkey.