In what may be one of the most significant CAAF cases of the term, five judges agreed that Article 120 violates due process. The court split 3-2 over why.
I say that it may be one of the most significant cases of the term; the majority seems uncertain of the scope of their own holding. If they mean what they say in the broadest portions of the opinion, “new” Article 120 is no longer a viable statute in sexual assault cases involving substantially incapacitated victims.
The facts of the case cover familiar terrain. The complaining witness comes to Prather’s house for a party, plays drinking games, becomes intoxicated, and falls asleep on his couch. Prather comes downstairs in the middle of the night and has sex with her. At trial, he says they engaged in consensual sex. She says she awoke during the act and passed out again, and that she had been unable to consent. The offense occurred within a month of the effective date of the revised Article 120.
At trial, defense counsel argued that in substantial incapacitation cases an accused should not be required to prove consent by a preponderance of evidence, claiming that since the government is required to prove that a victim is incapable of consenting, requiring an accused to prove consent amounts to a shifting of the government’s burden to the accused. Defense counsel asked that the military judge use the Army Benchbook instruction, which instructs members that if the issue of consent is raised by some evidence, the government must prove beyond a reasonable doubt that consent did not exist. The military judge declined to use the Army Benchbook, finding that it was inconsistent with the statutory scheme found in Article 120.
Prather is essentially the “substantial incapacity” version of Neal. In Neal, Article 120 survived an unconstitutional-burden-shifting challenge in the context of sexual assaults involving force. CAAF found that, although evidence supporting the affirmative defense of consent will frequently tend to negate the element of force, consent and force remain distinct concepts, and that as long as military judges allow evidence of consent whenever it is relevant for that purpose, due process is not offended by maintaining consent itself as an affirmative defense. The first question for CAAF was whether to apply the “Neal fix” to incapacity cases. It didn’t.
CAAF found that under the facts of Prather, there is no meaningful constitutional distinction between the government’s burden to prove incapacity to consent and the accused’s burden to affirmatively prove capacity to consent. Further, the court held that the military judge’s instructions, patterned on the text of Article 120, failed to cure the constitutional defect. Last, the majority took up the now-moot issue of the “second burden shift,” in which, after an accused carries his burden of proving consent by a preponderance of the evidence, the government must prove lack of consent beyond a reasonable doubt. The majority pronounced this second burden shift to be a “legal impossibility,” a conclusion that has suggested itself to most practitioners since 2006.
Judges Baker and Stucky dissented, stating in essence that they would have applied the Neal fix to substantial incapacity cases. They found that the instructions given by the judge properly left the burden of proving incapacitation on the government. Both Baker and Stucky, however, found that the second burden shift was not only a legal impossibility, but a violation of due process. Interestingly, the dissenters counseled against “repairing” this portion of the statute as is done in the Army Benchbook.
As soon as I realized that CAAF was finding one and maybe two constitutional infirmities in Article 120, I started reading with a view toward learning how broad the opinion is. Is this just “as applied” in a case where a judge declined to join in the Benchbook’s evisceration of the more patently absurd portions of the statute? Is it facially infirm? Here the majority is cagey. They frame the opinion in restrictive terms (under these circumstances and under the facts of this case). But there doesn’t seem to be any fact-based limit to the logic of the opinion. And the court’s language is occasionally sweeping:
“we do not believe that any instruction could have cured the error where the members already had been instructed in a manner consistent with the text of Article 120. No plausible instruction has been identified by the Government that would resolve the constitutional and textual difficulties of having to prove an affirmative defense that incorporates the core requirements of an element of the offense.”
So a judge could save the statute by instructing inconsistently with Article 120? Maybe Sir Cloudesley is right, and the court will announce another judicial fix in Medina that will make Prather a narrow, insignificant case. But the court didn’t seem concerned with leaving room for that in Prather. And an instruction-based fix seems less likely when you consider that all five judges seem to agree that the Army Benchbook solution, while getting the due process question right, is inconsistent with the statute.
Dew Process says this case is headed for SCOTUS. I hope not. Even though the government has an obligation to defend the constitutionality of its statutes, this one is just too embarrassing to defend to SCOTUS. I think the fix is legislative. Article 120 is an incubus wrapped in a paradox. The military justice system deserves better.