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.

78 Responses to “CAAF provides answers, raises questions in Prather”

  1. Phil Cave says:

    One of the judges at Norfolk took the position that he would instruct the members that if they found the affirmative defense by a preponderance, they must acquit. He’d leave of the “impossible” bit. He cited a couple of DC cases on which 120 is “modelled” after. Can’t seem to find those cases. Anyone remember them, ring a bell?

  2. Peanut Gallery says:

    3 questions:

    In the absence of any severability clause, what happens to the remainder of 120(c)(2)?

    How does a MJ instruct without error?

    Can part of a statute be structurally erroneous and the rest be okay?

  3. Ama Goste says:

    Phil, check out these cases:

    Hicks v. United States, 707 A.2d 1301 (D.C. App. 1998);

    Mozee v. United States, 963 A.2d 151 (D.C. App. 2009);

    Russell v. United States, 698 A.2d 1007 (D.C. App. 1997)

  4. Dew_Process says:

    According to Appendix 23, para. 45, MCM, “This new Article 120 … is generally based on the Sexual Abuse Act of 1986, 18 U.S.C. Sections 2241-2245. But, what the Code Committee did and what they said, are two different things. They in fact convinced Congress to “revise” Art. 120 in a substantially differing version than the federal counterparts that it was supposedly modeled after.

    While I agree that a Legislative fix is the preferable way to end this fiasco, unless the Solicitor General’s office affirmatively says that the majority was wrong, the AF is virtually certain to champion the dissent’s take on this before the Supremes.

  5. Cadwalader says:

    “An incubus wrapped in a paradox.” Very true WRT the quagmire that is Article 120. It also may be one of the finest legal turns of phrase that I have ever read.

  6. Dew_Process says:

    For practitioners in the trenches, pay attention to footnote 9, at 15: No instruction can cure the error once the members are instructed IAW Art. 120’s text.

    But see, footnote 4 of the dissent at 15: Don’t follow the Benchbook approach.


  7. SgtDad says:

    I assume SCOTUS will stick its guns & reiterate (yet again) that ALL facts essential to prove an element of the offense must be proved beyond a reasonable doubt by the gov’t. This has been clear since Winship. So where do we get the notion defendant must prove anything?

    And on these facts, just how does the prosecutrix get to be a percipient witness? She admitted she had drunk to insensibility.

    (By the way, I will have no truck with anyone who takes advantage of a drunk woman.)

  8. Jim Clark says:

    Query why majority cites other affirmative defense cases, but ignores their holding. E.g.: since Reagan shooting, almost everywhere, the accused/defendant must prove insanity by a preponderance. But insanity negates the intent element, by far the most basic element of most crimes. So, the defendant is required to dis-prove that element. Consent is not an element of Art. 120 a or c. It appears that the dissent has it right. Maybe USSC will take this one. The “impossibility” of the burden shift does, however, seem irrefutable, IMO.

  9. Stewie says:

    I think insanity is kind of a/the exception to the rule. We don’t really like it, and so we’ve kind of excised it out. Probably it’s insanity that’s inconsistent with the rest of the legal theory involved here, not the other way around.

    I can’t imagine how consent isn’t tied directly into a charge who’s main element is an inability to give consent. I personally never bought the argument that force and consent aren’t also tied together, but it makes some sense, and you can dance to it.

  10. W says:

    Quick legislative fix = eliminate the affirmative defense.

  11. Jim Clark says:

    The problem with eliminating the affirmative defense is that the purpose of the Art. 120 amendments was to focus on the offender, rather than on the victim. The affirmative defense, and the removal of a direct element of lack of consent, was to treat sexual assualt like every other crime: by looking at the behavior of the offender. If a well-dressed man in a Mercedes goes to an ATM in a sketchy part of town & gets robbed, we don’t require the government to prove that he did not give the money to the other person voluntarily. Requiring the government to disprove consent is exactly the same.

  12. Stewie says:

    I can’t agree with that at all. First, to prove a robbery you most certainly have to prove that the robbery was done without consent, and if there is no evidence presented that it was done so without consent not sure how you’d get a robbery conviction.

    Now if you are arguing as a society we are much more prone to believe the alleged robbery victim who says, I didn’t consent, versus the alleged rape victim who says that, there’s validity there.

    But from a purely legal point of view, the government’s burden in those two types of cases is not as disparate as you appear to be arguing.

  13. Dew_Process says:

    Mr. Clark: Your example plays out daily in courtrooms across the country: Well dressed man in a “sketchy part of town” gets robbed — by a scantily clad woman. He claims she robbed him; she says she took what was “owed” her. She may get dinged for prostitution; but not robbery because the government cannot disprove consent.

  14. W says:


    The previous problem arose from the fact that lack of victim consent was an element of proof for all rapes under Article 120. I’m not arguing that lack of victim consent ought to be re-added as an element. What I am saying is that the affirmative defense of consent ought to be eliminated from the current statute. Evidence of consent would then be treated the same as any other possible defense. That doesn’t shift the focus at all. Really, nothing is gained by the current affirmative defesne structure and the fix is pretty simple.

  15. Stewie says:

    But isn’t that the court’s point, consent isn’t merely another defense in these types of rapes, it’s actually an element that needs to be proved, i.e. two sides of the same coin?

    When the crime boils down to incapability to give consent, seems like consent is an element, unlike rape by force where there is at least some argument that consent isn’t an element, but can be a defense.

  16. k fischer says:


    That hypo, which was developed by the sexual grievance industry, is fallacious. Other crimes do not compare to sex with regards to consent. How many people consent to murder, battery, forgery, burglarly, arson, etc? Probably not many. But, how many people consent to sex every day? Billions? So, in the context of a jump out of the bushes rapist, consent is a ridiculous defense, and only idiots argue consent in that case. However, consent is applicable in most of the rape allegations in the military. For instance, a female with the intent on getting laid, injects herself with a little liquid courage, a.k.a. alcohol. She goes out and meets four guys, lets them run the train on her because that is the only way she can orgasm, then wakes up the next morning feeling like a harlot. Adding fuel to the fire, she hears giggles when she shows up for Monday formation. She goes to CID and cries rape in order to take away her accountability for her own actions, which CID buys hook line and sinker, despite the fact that she previously reported a rape that was unfounded under the same circumstances and her roommate tells the SVP that this “victim” says that she is into multiple men at once. The SVP doesn’t care because that info is inadmissible under MRE 412. Thankfully, one of the Soldiers had an I phone and recorded the act showing that she was a very willing participant, so now they are only facing an Article 15 indecent acts and the “victim” has nothing happen to her because we wouldn’t want to “victimize the victim.” That little scenario plays out quite often on military bases around the world and is what the consent defense is typically and most appropriately used for.

    Despite what the HQE’s say, studies show that 40% of rape allegations are false. Rather than flip the burden of proof to the Accused, why not do a better job at trying cases and prove the accused guilty beyond a reasonable doubt? But, whatever you do, don’t piss on my leg and tell me its raining by comparing your little robbery scenario with some skank who has regrets, needs an alibi, is extorting something from her paramour, or is seeking revenge.

  17. Pat Pflaum says:

    The federal analogue may inform the current debate and perhaps inform the inevitable revision. Check out 18 USC 2242 (Sexual Abuse), which contains almost identical language to Art 120(c): “engages in a sexual act with another person if that other person is–(A) incapable of appraising the nature of the conduct; or (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act…” Interestingly, the statute does not create an affirmative defense of consent. From the limited caselaw on the issue, it seems that evidence going to “consent” is simply treated like evidence that goes to “capacity.” It appears that there is no affirmative defense of consent for “aggravated sexual abuse” under 18 USC 2241 (a,b) either.

    The actual “affirmative defense” in these cases (to include those involving force) is mistake of fact. IMO, it’s not beyond the pale to put a burden on an accused to prove a mistake of fact. This has been done since the late 90s with mistake of fact as to age in carnal knowledge. Martin v. Ohio and the old carnal knowledge both provide boilerplate for instructing on an affirmative defense where the accused bears a burden. It will be interesting to watch whether the revisions abandon the burdens altogether. Do the same policy arguments that justify a mistake of fact burden in child cases justify a similar burden in adult sex cases?

  18. Jim Clark says:

    To K Fischer,

    Your post looked at first like an intellectual discussion of the analogy. When you then changed to words like “skank” and citing of a completely de-bunked study, suddenly you were showing a biased, anti-woman perspective that robbed your argument of any intellectual power. Better studies in the civilian world put the number of false rape allegations in the 6-10% range. My experience in 28 years of law enforcement is about the same, more on the lower side.

    There are no studies in the military, however, and a reasonable argument can be made that the collateral consequences for military women (who are out drinking or sleeping with a lower rank or a married person) MIGHT increase the number. Someone needs to fund and conduct a study to try to determine whether there is a difference between the civilian & military situations.

    By the way, there are 3 HQEs advising trial counsel, but also 2 advising defense counsel, and one, me, neutrally located at the JAG school.

    As to the robbery analogy, millions of people every day in the US give money to people who ask for it on the street. That’s consent to giving your money. Giving it if the same panhandler threatens bodily harm is a robbery. Like force in rape, the government has to prove threat in most robbery cases. The government does not have to prove lack of voluntary donation.

  19. W says:

    Pat – I agree completely. Can’t see why Congress added an affirmative defense of consent – especially if they used 2241 as a template. I suspect someone who doesn’t really understand crminal litigation had a “good idea” and now we are stuck with fixing it.

    Stewie – every defense attempts to negate the government’s proof of an element. The issue here relates only to statutory affirmative defenses.

    Jim – hear hear.

  20. k fischer says:


    Check yourself. LTC McDowell did a study in the Air Force back in the 80’s.…

    Jack, I am a criminal defense attorney who is neck deep in the defense of Soldiers falsely accused of sex crimes. I deal in reality. The facts of the case I described above involved a woman who I would refer to, as not only a “skank,” but a lying skank. You work in the ivory walls of the JAG school, where such terms, while completely accurate, are politically incorrect. I don’t think that I am anti-female, or at least my wife wouldn’t say that I am. I am anti-people who falsely accused others of crimes because it fits their agenda. If it makes any difference, I would also refer to the four men running the train on this lying skank as skanks, too. See? The term is gender neutral and describes one who engages in depraved sexual acts. So, there is no anti-female slant.

    As far as your robbery analogy, people who give money to panhandlers typically do not give them ALL of their money, wallet, credit cards, and drivers license, do they? Have you ever seen a case where somebody called 911 and said, “Mr. Pickles, the panhandler on Peachtree Street, just robbed me of $5.00, but did not take my wallet.” Seriously, how many pandhandler consent cases are you saying there are? Only in the mind of an academic could such a ridiculous analgoy be created. The two offenses are apples and oranges.

    I can understand why consent had to have been proved by the Government for how many years was it? Hundreds, if not thousands? Seemed to work pretty well because people are likely to lie about something that has the stigma sex has, even more so for homosexual sex. I don’t know why those in the sexual grievance industry had to screw it up. Where is Bridget to back me on this discussion?

    Jack, it doesn’t sound like you are all that neutral to me. Rather, you sound more like a shill for those who believe that a Barbie doll exemplifies “rape culture” in America. From one of your government hack HQE’s:…

  21. Jim Clark says:

    k fischer

    No more replies. You seem unable to address a point of view that disagrees with yours, without calling names. No fruitful discussion with that attitude is likely.

    FYI, I’ve been at the “ivory walls” of JAG for 5 months after 28 years practicing criminal law, at the felony level since 1988. I expect I have tried, investigated and resolved at least as many cases as you have. And I seem to be a lot less strident about the subject.

  22. Jim Clark says:


    Thanks for looking & apology.

    You obviously have experience which can add to the discussion, as long as it is a discussion. Art. 120 is not a good document, I agree. We may disagree on how it is to be fixed, but I welcome real world input, particularly from defense counsel about how the statute is or is not working. It is also helpful for my instruction to future DCs to know what works to counter both false and true allegations. So, keep it coming.

  23. SgtDad says:

    I would defer to y’all’s experience prosecuting and defending sexual assault cases. That said, I spent 25 years as a volunteer firefighter in a busy fire district (3K+ alarms/yr) & I was active (450 alarms/yr +/-). I responded on a lot of sexual assault alarms. The sexual assault unit at Sheriff’s office was very cyncial. On many occasions these deputies — all women — asserted that 60% of allegations were untrue & another 20% were grossly exaggerated. This reality took time from working up the legitimate claims, which offended them greatly.

    From my observation those statements ring true.

    The problem lies in the notion prosecutors will almost never take action against complainants who make false accusations.

  24. SgtDad says:

    By the way, gentlemen never refer to women as “skanks” or any other crude term — no matter how apt the word. And in my time, I never heard an officer speak that way.

    My nephew is a Marine option NROTC — I will give him some SNCO guidance.

  25. Dew_Process says:

    Here’s a real world example: Some years ago at Scott AFB, a young defense counsel guided his client through a Care inquiry that was at best, “difficult.” [I was sitting in the Courtroom as an observer]. The plea was to “rape” of an allegedly incapacitated fellow Airman. It was late in the day, so sentencing was adjourned until the following morning.

    The next morning, an irate commander was in my SJA’s office demanding an “explanation.” Both Airmen were in his Squadron and the female had come into his office about a month before and “confessed” that she had lied about the entire event, that it was consensual, that she had supplied the condoms [yes, plural], blah blah, and wasn’t really “that drunk.”

    The erstwhile commander, called AF OSI and told them what had just happened and that he and the First Sergeant were in the room when the young Airman recanted. Of course, AF OSI said that they “would take care of it.” The Commander then proceeded to give both Airmen formal Letters of Reprimand for drinking in the barracks, etc. and thought that was the end of it and that OSI would see that the charges (already referred to trial) were dismissed.

    The Commander then went TDY and returned days before the Accused’s trial oblivious to the fact that the trial was a “go,” and that there was a favorable PTA for the male Airman. That is until the Accused’s supervisor told the First Sergeant that he needed “time off” in the morning to go to the Accused’s court-martial, and the fun started.

    Aside from an irate Military Judge who had stretched Care to its outer limits, there were obvious problems and the proceedings were abated. Ultimately, with new counsel, the Accused was allowed to withdraw his guilty pleas and the government dismissed the charges against him.

    Political correctness being what it was/is and because the woman did timely come forth and admit her lies, she was given an Art. 15 for a FOS, and discharged.

    An anomaly? Maybe – especially where the defense waived the Art. 32 to get a more favorable PTA, even though the Accused had said all along, that the woman “consented.”

  26. Stewie says:

    Mr. Clark,

    While I certainly agree k fischer’s numbers and tone are both a little off, which he has graciously conceded and apologized for to his credit, I agree with him that your robbery analogy just doesn’t make sense to me.

    Robbery is but one of many theft crimes, in this case, a forcible theft crime, just like forcible rape. Perhaps a better analogy to lack of consent rape crimes would be things like theft by deception, or just plain theft, or other crimes where the primary issue isn’t force but simply taking something that allegedly doesn’t belong to you from someone who allegedly either wasn’t able to give consent or was unconscious or drunk, etc.

    At the end of the day, using the theft by deception example, the government kinda has to prove deception, just like in a rape by lack of or inability to give consent, the government should have to prove that central element.

    The reality is, are the rape conviction numbers up significantly? Has this shift in emphasis resulted in an appreciable increase in the conviction rate that is worth the mess we have now?

    I think a large chunk of us feel as though it wasn’t the legal/charging side that needed to be fixed. Education, ease of reporting, removing the stigma of reporting, etc, all of those things may very well have needed to be fixed, but the case law and the statutes (except for STILL not folding in child porn) were more or less understood and serving their role.

  27. Phil Cave says:

    1996. Rota Spain. Two Marines walk into the hospital and claim rape by two Marines in the barracks. Two Marines were put in the brig for PTC and NCIS went to work. One week later corpsman returns from leave and goes to work in the Emergency Room. Immediately he gets into the gossip of what he missed while he was away. OMG he says, I need to talk to someone. NCIS goes to work. “Yes, petty officer, how can you help us convict these scumbags?” Er, um, well, I saw them. That night. As I was coming off duty I saw these two girls in the parking lot. Seemed odd but I didn’t think too much about it. They were rubbing their fingers around each others wrists. I now realize they were creating marks for where they were tied up.” OMG say NCIS, and they go to work. Yes, sir we are very sorry we lied but it was wrong what they did.” Well, the idiot Marines had walked out of the barracks the next day after consensual group sex, seen the two Marines smoking. One of the women overhead one of the idiots say to the other, “Now you know what it’s like to have sex with a fat chick.” So, the Marines did get out of PTC. The two male Marines got Office Hours for the sex. NOTHING happened to the two female Marines because the command did not want to stop women reporting rapes. 2010. Two Marines being investigated for fraternization and drinking alcohol. Both admit to sex consensual sex. The woman even told her friends she enjoyed it and would do it again if she had the chance (said prior to any knowledge of a pending investigation for the fraternization). Things progress and the woman Marine goes to the command sponsored sexual assault training. Few days later she’s notified of her pending summary court-martial. She says, “But sir, I was raped.” Nothing happens to her, but the much more senior Idiot Marine is acquitted of rape, but not the adultery and fraternization. I have other examples. I suspect my colleagues have others.

    I disagree with Fischer’s word choice, and I appreciate he’s apologized to us. As he recognizes his language disguised an import issue to be discussed. Remember not too long ago the five or six falsely accused men up in New Jersey? Hauled over the coals in the press, lives ruined, and the DA did not want to prosecute the woman for fear of making in harder for women to report real rape. It’s an important issue that needs to be resolved and zealotry on both sides doesn’t help. While every is yelling at each other women are getting away with making false complaints and and at the same time men are potentially getting away with rapes they shouldn’t because we’ve all become so cynical. That to me is one of the greatest harms done on this important human issue by special interest groups, and as characterized by one military judge as overly zealous sexual assault training done in good faith.

  28. SgtDad says:

    … overly zealous sexual assault training done in good faith.

    My father (a lawyer for 40 years) often said:

    If you find yourself in hell just because you followed the road paved with good intentions, it’s still HELL that you are in — and you deserve to be there.

    And, apropos of “zealous” women’s rights “advocates,” my Mom often observed:

    Women who lie about sexual assault are the biggest enemies of feminine equality there are. Women will never be equal until they face the same consequences for misbehavior as men. You are not equal if you can demand and get indulgence because your are “vulnerable” or (worse) — a girl

    Mr. Cave* is correct but he misses another, more central issue. This is the Marine Corps, not a college campus. The women who lied are Marines and they betrayed their comrades and the Corps. I suspect they — by their selves — destroyed the cohesion of that company. Of course, when the stuff hits the fan and they are in a jam, they will demand their fellow Marines risk life & limb to extract them.

    Those prosecutors do the country and the Corps no favors when they let Marines betray other Marines — and the Corps — with no consequence.

    *I hope I have not insulted a field grade officer here.

  29. Phil Cave says:

    Nothing insulting in your comments that I saw. You raise an extraordinarily important and valid point.

  30. devilpup says:

    Affirmative Defense of Consent:

    It’s actually based on the DC Code. Congress borrowed heavily from it when they formulated this crazy concoction. § 22-3007 is the affirmative defense of consent, but start reading at § 22-3002 (First Degree Sexual Abuse). It has been upheld by the D.C. Cir.

    Affirmative Defense of Insanity:

    Insanity is by no means an exception to the rule. A lot of people believe it negates the intent element, but I don’t think that’s precise, and it’s an important distinction because it’s distinguishable from directly contradictory affirmative defenses like the one in Prather. Insanity explains how someone achieves the required mens rea without negating it. Take the classic premeditated murder. Mens rea would require deliberate, purposeful, pre-planned killing. An insane person can pre-plan, and be just as deliberate and purposeful as a sane person. Insanity defenses inquire into whether they understand that the mental state (and the correllated action) are wrongful.

  31. k fischer says:

    One of my frustrations is that when I was a trial counsel, my SJA was concerned about due process and the appearance that the UCMJ is a fair system. It starts with the trial counsel ensuring that the process in the very least appears fair. He was the best SJA I have ever worked for.

    Then, when I went TDS in 2005, and was up against a different SJA, there seemed to be a paradigm shift into Soldiers facing charges that were recommended dismissed at the Article 32, just so it would beef up the charge sheet, or we would go to the SJA in good faith to talk the SJA off the ledge of moving forward and witnesses would change their stories due to prompting by the Government. It was as if Trial Counsel starting acting like Defense Counsel.

    Now you have the Army JAG Corps creating senior positions for Special Victims Prosecutors and hiring HQE’s, for which there are more on the Prosecution side of the house than the Defense side. It’s funny. I have also seen an increase of TDS counsel who have never been Trial Counsel. You have this new Article 120, which creates confusion with the judges and the litigants, you have the irony of disallowing prior sexual conduct of an accuser IAW MRE 412, yet allowing prior sexual conduct of the accused under MRE 413. It just seems that the deck is stacked against the accused, instead of all the Constitutional protections one normally has had. Why? Why should a sexual offense create these special rules? Why isn’t 404 good enough? Why can’t a Senior trial counsel try a rape case?

    Right now abstinence and ensuring that you are never alone with a female is the only way to ensure that you are never falsely accused of sexual misconduct. Unrealistic. If I were a single Servicemember with a vibrant sex life, then I might strongly consider videotaping my sexcapades, solely for alibi purposes. Has that ever been an affirmative defense for an Article 134 offense of Indecent Acts because of videotaping? No sexual gratification here. Just want to make sure I can show the sex was consensual, Judge.

    Otherwise, you have to go with the 4 simple rules:

    Never have sex with a woman unless:

    1. She’s over 18;

    2. She’s sober and awake;

    3. She is not mentally challenged (Shouldn’t have to tell anyone that); AND

    4. She’s on top doing all the work.

    If you meet those criteria, you have the strongest chance of being acquitted at a court martial. You could still be falsely accused, but its hard for a woman to say that you forced her if she was on top. I did hear about one who did, but the Soldier was never charged. Oh yeah, and always lawyer up.

    I do like the new campaign to prevent sexual assault. It is a good step by the military. I think they should have put more of their money in that campaign, rather than hiring all these people to help with the conviction rate.

  32. Stewie says:

    W, well that is the difference between affirmative defenses and the government’s burden. Affirmative defenses in fact don’t negate an element, they take advantage of special rules that say, all the elements are true, but don’t punish me because…

    Here you have a statute that says consent is not at issue, so therefore it is not an element. That means it must be an affirmative defense (or it doesn’t matter at all–obviously not the answer).

    When you have an affirmative defense that goes right to an element of the crime, that’s unconstitutional and that’s what we have here.

    Evidence of consent in lack of consent rapes shouldn’t be treated as “any other possible defense” it should be treated as an element the government must prove beyond a reasonable doubt.

  33. SgtDad says:

    All this is the consequence of the Supremes holding that there is “no common law” of federal law. The notion, of course, is entirely antithetical to what the Framers intended. At common law, no one could be convicted of a crime unless & until the crown proved — beyond a reasonable doubt & to a moral certainty — that defendant acted both knowingly & with mens rea. So, conveniently, Congress just deletes consent from the definition and — voila! — it’s the defendant’s problem.

    The Supremes have begun to claw their way back to the Framers’ view. All facts material to the guilt or innocence of the accused must be proved beyond a reasonable doubt by the gov’t. But, so long as the Supremes allow Congress to traduce the Framers and adopt strict liability crimes, then all is lost.

    That said, if consent is material to guilt, the the gov’t has the burden (it’s a Washington case but I forget the cite right now).

  34. k fischer says:


    Great post @ 8:47. Aren’t affirmative defense supposed to be proven by a proponderance, whereas, a reasonable possibility of a mistake of fact regarding an element would require an acquittal?

    If you leave consent as an element, then you are requiring the accuser to voice their lack of consent, which many accusers say they do not do because they are afraid of the accused or what he might do. Yet, this version plays well into a mistake of fact defense because the testimony usually is, “Well, we were kissing, then I went to second base, then third, and then home, and she never said, “No. Stop.” If the accuser cannot articulate why she never voiced her lack of consent, then you have a good mistake of fact defense.

    When you have the same testimony with the new Article 120, then the question is, “Well, what did she say to make you think that she wanted you to engage in sexual intercourse?”

    “Well, she never said, ‘No’ or ‘Stop’ and she let me take her bra and panties off.”

    Then, after the accuser testifies that she was too afraid to make a peep because the Accused is so big and menacing, the HQE testifies that accusers don’t voice their lack of consent because they are afraid of violence against them and the accused becomes the convicted.

    The new Article 120 works great in those cases where accusers believe they were raped, while the accuseds have a reasonable mistake of fact because, on paper, it should encourage the potential accused to communicate about consent.

    That’s just not the way sex usually works, as that kind of discussion might kill the mood: Do you consent to me sticking my tongue in your ear? I would now like to penetrate your vagina with my penis, do you consent?

    SgtDad, I think that consent is immaterial to guilt because it is no longer an element under Article 120, and therefore, irrelevant. I think consent is always going to be relevant because the accuser is always the gatekeeper of what goes in and out of their bodies.

  35. SgtDad says:

    SgtDad, I think that consent is immaterial to guilt because it is no longer an element under Article 120, and therefore, irrelevant.

    My recollection of SCOTUS precedent* is that all facts affecting the guilt of the accused must be proven by the gov’t beyond a reasonable doubt. Again by recollection, that means whether the fact is an element of the crime is not dispositive. If consent or lack thereof decides guilt, then it is the gov’t’s burden.

    Moreover, must not the gov’t prove criminal intent? If the woman’s behavior evinces consent, then where is the criminal intent?

    Are we now at the stage where a man can be convicted of a crime for failing to read a woman’s mind?

    *???? v. Washington, I think.

  36. Stewie says:

    Well, where I think we are, or where we were intended to be placed, albeit perhaps not successfully after Prather, was effectively that if you don’t get affirmative consent, then it’s rape.

    No means no, but the absence of yes also means no.

  37. W says:

    For every annecdote there is a competing annecdote. They add little to the analysis. For example, from my own experience – 2009- female Sailor claims rape – then recants. NCIS gets both as sworn statements, in writing. Even advises her of her 31b rights. Command takes complainant to NJP for 107 – does nothing to the Sailor. Honestly, most commanders find themselves in a hard spot – they want to protect their people – both the accuser and the accused. Many see letting the system play out as the only effective way to do both. Can we really fault them?

    The real problem with some of these tough cases is that the “truth” is somewhere in the middle. A “victim” who doesn’t understand the legal nuances of rape and, for example, considers being degraded, abused, or humiliated as the equivalent. Or a “perpetrator” who doesn’t understand that someone who may have have been flirty on the dance floor hours earlier doesn’t necessarily mean they want to let the “perp” do whatever they want hours later. Then add in the abuse of alcohol by all involved and the imperfect recollections that result.

    It’s really quite easy to call anyone a liar. Or worse. But the reality is much messier than that. It’s why we have jobs.

    Stewie – I actually thought we were in agreement until: “Evidence of consent in lack of consent rapes shouldn’t be treated as ‘any other possible defense’ it should be treated as an element the government must prove beyond a reasonable doubt.”

    Why? I think evidence of lack of capacity to consent is enough. Why must the victim go on to further prove a negative? What do you do about the victim who is passed out, had to be fireman carried to bed, vomited all over herself, blew a .2 BAC hours later – and an accused who is seemingly caught in the act of penetrating her while she is still out of it? Must she then also affirmatively prove she didn’t consent? Or is that something we are willing to let members sort out by applying their common sense? The defense bar has had a field day blurring the line between passed out and blacked out – and under the old law that blurred out whether the acts of an accused were reasonable or not. What can an incapacitated victim say other than – “I don’t recall?” That alone is enough of an opening for many wily defense attorneys, and is a card that has been played effectively by more than a few commentators on this blog.

    K – I do not agree consent must remain as an element of proof in order to have a viable mistake of fact defense. I view that particular affirmative defense as largely unaffected by Prather (except for the ludicrous double burden shift). Why can your rationale for the viability of that defense not still survive? If it weren’t for the awful wording of 120 wrt consent, I doubt many defense counsel would seek to prove actual consent, as opposed to their clients subjectively held, yet perhaps mistaken assumptions. Again, I think it better to let the members sort that mess out. Was that mistake reasonable or not?

  38. k fischer says:


    I do not agree consent must remain as an element of proof in order to have a viable mistake of fact defense. I view that particular affirmative defense as largely unaffected by Prather (except for the ludicrous double burden shift).

    I get what you are saying there and it makes sense if you are accuser friendly. Place a proponderance burden on mistake of fact of consent, and forget about the confusing double burden shift. If the Accused proves by a proponderance of the evidence that they were reasonably and honestly mistaken that the Accuser was consenting to the sexual act, then the panel must acquit, period. That makes sense. I don’t agree with it, as I am more concerned about the rights of the Accused, but it is about as fair as it gets if we are giving rights to Accusers.

    I liked it better the old way because then a defense counsel could argue that she thought she was raped, but he did not know she was withdrawing her consent. You could say, well, she doesn’t know what rape really is. She wasn’t a bad person and he wasn’t a bad person. They just did not communicate very well. I don’t know if you can do that now.

    War story as a TC: Soldier goes down to take poly, makes statement in own handwriting stating:

    “After I orgasmed [through consensual intercourse], I mounted her for a second time. She said, ‘It’s really getting late. I really need to go. You really need to stop.’ I continued having sex with her until she started crying.”

    I thought that it was pretty clear that she said stop, yet he continued, so I took this case to Court Martial as an idealistic young TC. At trial, the Defense counsel explained that, despite the words written by the Accused in his own handwriting, the Accuser said these things over a period of minutes and further coitus, and was kind of waivering. “Hmmmmmmm, its getting really late…………I’m gonna have to be going soon……………etc.” The Senior Trial Counsel crossed the Accused, and he ended his cross when the Accused blurted out, “Look! I didn’t beat her, and I didn’t drug her, so I didn’t rape her!”

    I really believed that she thought she was raped especially when she started bawling after the Panel President announced, “Not Guity.”

    Of course, we around the office pontificated about the Accused’s “constitutational right to finish.” But, as Lt. Sam Weinburg would have said, it all boiled down to the difference between paper law and trial law. Paper lawyer said he was guilty because he did not immediately stop when she said stop as every man knows he is required under the law to do no matter what stage of coitus they are in; trial lawyer got him acquitted because she did not slam on the brakes hard enough after getting his engine revved up on the first consensual romp.

  39. Stewie says:

    W, I was using loose language, I just meant the issue of consent, not necessarily that the government had to prove affirmatively that she did not consent per se. Still, yes, I do think they have to prove more than simply lack of ability to consent simply because that’s almost always going to be something for which you have no objective measure. I think lack of consent is the issue.

    You aren’t going to have a BAC test at the time of the alleged sexual act, and you aren’t likely to have witnesses at the time of the alleged sexual act. It’s for the most part going to be mushy. But certainly a large part of proving lack of consent BRD can flow from proving lack of capacity to consent. So in really strong cases (say a BAC test within an hour of the allegation for example), it might very well be enough to cover lack of consent through lack of capacity.

    As for black outs, the science is pretty strong there that people can appear sober when they are not. The idea that an accused should nevertheless know that this person is drunk when they are by all appearances “sober enough” and the line there is blurry because it’s blurry, not because defense counsel have turned something bright line blurry.

    We all know that .08 doesn’t apply to everyone. Some people are drunk at .05, others at .12. We’ve picked a number that captures a good chunk of folks, and we came up with it primarily for driving, not rape.

    But the reality is, you’ve just hit the crux of Prather. If CAAF agreed with you that all that is required is lack of capacity to consent, then why have consent as an affirmative defense. If you prove BRD lack of capacity to consent, then how would you ever have an affirmative defense of consent.

    Look, I know you’ve proven she couldn’t possibly consented, but hey, let me put on this defense that says she did, even though, because this is an affirmative defense, I’ve admitted she couldn’t possibly have.

    The old system worked well enough. I will ask what I’ve not learned from anyone yet. Are we truly convicted more folks at a greater rate? I know we are prosecuting more folks, are we convicting them at a greater rate?

    Because this ate up change now could mean a whole lot of people who otherwise might have been convicted under the old law, go free, or don’t get charged for fear of Prather.

  40. Charles Gittins says:

    So, I choose to drink enough that I black out and have no memory after my 5th scotch. I can’t remember getting in my car, can’t remember navigating my car to my house from the bar, but the next morning my car is sitting out front undamaged in its regular parking place. Everything I did was voluntary and if I had been stopped and blown a .09, I would be convicted of DUI. I have never been able to understand how a woman can become voluntarily intoxicated, make a bad decision to have sex that she regrets the next day because she can’t remember what she did and is not held responsible for her bad decision. Is it simply because she is a woman who can’t think or decide for herself? unsatisfactorily paternalistic as a result of the feminist lobby, I am afraid. These are the cases I have done over and over in the military. I think it is the paradigm, frankly.

  41. k fischer says:


    The paternalistic feminist lobby would respond by saying that evil men are lurking in the shadows waiting to pounce on a weak female who has one too many. I agree that some are, but I would tend to agree with what you are saying, which is the vast majority aren’t.

    Your analogy reminds me of the Soldier I represented down at GTMO on a rape charge. Their rep from SAPRO was briefing the Servicemembers down there that if a woman has ONE (1) drink, then she is too drunk to consent. The TC told me that all of a sudden there was a slew of rape allegations that had to be investigated, my client included. His case mirrored the facts you showed above, but my client had no way of knowing she was too drunk to consent because she made a “booty call” (I apologize for my crass venacular, but I do not know a more modest term to use) to him at 2 a.m. and he came over, went up to her room where she was laying in bed waiting for him, and had what he thought was consensual sex. After it was explained to her that she was too drunk to consent by one of her friends, then we had a rape case on our hands. It was dismissed at the Article 32.

    I agree with you, that in most cases, women get drunk to get injected with the liquid courage to do the things they can blame on alcohol. They do it every weekend and perhaps many men do not take the bait, but some judges and most trial counsel believe MRE 412 prevents us from using that against the Accuser when our clients do. And considering that MRE 413 allows any uncharged allegations from his ex-girlfriends or wives to be heard by the panel, then perhaps others might feel our frustration.

    It is a ridiculous, inequitable system that we have where the Accuser has more rights than the Accused. I can’t recall anything about the rights of the Accuser in the 5th or 6th Amendment, or any Amendment for that matter, but I only managed a B+ in constitutional law, so perhaps I missed something that some of these A+ students didn’t.

    I think that deep down inside those involved with the feminist movement feel catharcism when an innocent man gets screwed because he was wrongfully convicted. To them, those guys are just collateral damage in the war to eradicate sexual assault in the military.

    This post is edgy because I am still steaming after watching Jim Mikla-alphabet’s report on the Today show about how Robert Gates says we aren’t doing enough to prevent sexual assault because there were 3,200 reports of sexual assault and ONLY 25% were prosecuted. If you are in the 2% false allegation camp, then you would believe that the military is turning a blind eye to 73% of these sex offenders.

    From the cases Mr. Gittens and every other defense counsel who represents Servicemembers in sexual assault cases, our opinions would probably be that half of those cases are false.

  42. W says:

    Charlie – your analogy escapes me. It presumes voluntariness – which is exactly the problem. Suppose a different anaolgy instead – your friends watch you vomit all over yourself, fall down and break your glasses, speak unintellgibly, pass in and out of consciousness – and then find you beaten to a pulp behind the bar. And you can’t remember any of it. Is it right for your friends to presume that you voluntarily engaged in a fist-fight? How do you prove you didn’t?

  43. Charles Gittins says:

    I was drunk, but the act of getting in the car was voluntary. The act of turning the key while drunk was voluntary. the act of driving the car was voluntary. The act of navigating the car was both voluntary and required use of my motor and mental skills. All voluntary, but I can’t remember doing it. The analogy is exactly on point. If a woman engages in sex while drunk that doesn’t make it involuntary; she could be convicted of DUI if she drove her car in that condition — the law provides no excuse for conduct engaged in while intoxicated, yet she is “not responsible” if she has sex? Puhlease! That is just silly and ridiculously paternalistic. Women can’t be trusted to make bad decisions because they are drunk? Silliness — I am still waiting to see my first actual military rape — and I have been doing this for over 25 years.

  44. W says:

    I understand. But you’re dodging my question. Your premise presumes the woman was actually an active participant. I don’t think the law is designed to preclude drunken hookups (and those that read it that way – a la the “one drink” rule are just as wrong). The question is – must a victim of a violent crime prove lack of voluntariness when all other indicators are that there could not have been?

    I understand how many tough cases are brought by the military. Many that wouldn’t have seen the light of day in town. But I find it hard to beleive that in all your 25 years you’ve never seen a rape in the military. How come I, with only a fraction of that time, have? Do you cherry pick, Charlie?

  45. Phil Cave says:

    I’m in general agreement with Charlie. However, I have seen “real” rapes in my 31 years, and I have seen some “real rape” he said-she said alcohol sexual assaults in my time. So I am not as sanguine that all military sexual assault allegations are false. But these likely legit cases are relatively few compared to those that fall in the what do I tell my husband, boyfried, fiancee, or what if he tells people and I get a reputation class of cases.

    BTW they STILLteach the one drink rule. Sure, it’s not in the HQ materials. That gets added at the unit level. The unit folks want to send a message and they do it by telling the guys, “one drink, no consent.” As a training technique that might be valid, but it becomes a wrong believe when people end up prosecuted. That’s all over the voir dire in the 2010 anecdote I gave above. In that case the MJ denied my challenge to the panel but granted a significant number of individual challenges based primarily on the training. Of course it kinda looked odd when a unit Victim Advocate showed up as a substitute member. She was ultimately pre-empted.

    As I have argued, the sexual assault training is a road map on how to make a “good” rape accusation. With the wrong motivations it is devastating when that is used to assist a false allegation for personal benefit.

    On the alcohol, if it is so accurate (belied by medical science on memory and the affects of alcohol on the body) how come there’s a paradox? The accused cannot get the benefit of being drunk, as instructions to members show. So that’s a socio-political decision and not a distinction with merit. The well known effects of alcohol on memory, as well as the body, should be pretty well institutionally known at this point. Yet, that is ignored in furtherance of the conviction oriented agenda.

    Please name the Special Victims Case Defense Counsel for the Army TDS?

    Please name the forensic toxicologist/psychology expert assigned to Army TDS for consultation and training purposes?

    With that I think I’ll go back to the beach. Hawai’i weather is pretty good this time of year.

  46. k fischer says:


    That is the second analogy you used regarding puking, and I will admit that if an accused witnesses an accuser throwing up prior to having sex, then that is pretty good evidence that the Accuser was too drunk to consent and any belief by an Accused that the Accuser was consenting, while perhaps subjectively honest, is objectively unreasonable. Yeah, there is nothing like the sweet smell of vomit that makes me want to have sex! (sarcasm)

    What if Mr. Gittens is a mean drunk and everytime he drinks he picks fights with people and he is found beat to a bloody pulp behind the bar? In fact, he has told many of his friends, “I am going to get drunk and fight this weekend.” Shouldn’t we be allowed to bring out those facts when our client says, “Yeah, I beat the crap out of him, but I was defending myself.” I know that the Government wouldn’t have to prove lack of consent, but there wouldn’t be any 412 in that situation, either. And, I wouldn’t have a problem with taking out the consent element, if we could do away with MRE 412 and 413.

    I would venture to say that most of the rape cases to which Mr. Gittens is referring do NOT involve puking, or broken glasses or women being beaten into a bloody pulp or any marks at all.

    But, you can’t have it both ways on these cases. You can’t say that we will allow these elements on a violent rape, yet, we will allow these elements on a non-violent rape. In a violent rape or FUBAR drunk rape, lack of consent SHOULD be pretty evident. In a non-violent rape allegation or a drunk sex situation, the evidence will be the same as the situation where the accuser is making a false allegation. Your analogy baits us with a description of a violent or FUBAR drunk rape case, then you switch it and say we shouldn’t require the Government to prove lack of consent in a case where she might or might not be lying because there is no physical evidence. Trust me, in a violent or FUBAR drunk rape case, a first year law student could prove lack of consent with the evidence in those cases.

    The issue is you want use that example to take out the lack of consent element on a case where the signals are mixed, if not fabricated. Classic bait and switch. We need one Article with the same elements for the act of rape because there are people who make false allegations and the Accused is innocent until proven guilty. The analogy between other crimes and sexual assault is analogizing apples and horseradish.

  47. Stewie says:

    Of course there have been these kind of rapes in the military. I think part of the problem is that we do not differentiate between different classes of rapes from forcible, to taking advantage, to date rape and drunk sex (which is at the very border of criminality IMO). If two folks are drunk and have sex, the man is facing a conviction and sex offender registration same as the out of the bushes rapist.

    W, you may think the law isn’t designed to preclude drunken sex but you are one of the few I know who believe that. Voluntary intoxication might save you from attempted rape, but not rape itself. And that’s part of the problem, few panels (or commanders) truly believe a mutual drunk rape case is one that is truly criminal, and thus you see more acquittals or failure to file charges in those type of cases.

    But IMO that’s as it should be, because unless you have proof BRD of lack of capacity to consent (and even then I think you also need evidence that she didn’t in fact consent whether because she was passed out, never said yes, etc) then it’s really a he said/she said issue, and even then, if both are drunk, you don’t have a situation where a sober guy is feeding a woman alcohol or otherwise taking advantage of a drunk woman.

    We see in the news today that the public perception is in fact that we don’t bring enough cases. Only one in five get referred the yahoo news article says. Of course, the unasked/unanswered question is, ok, how does that compare to the civilian world? What’s the “right” percentage that should go to trial? All? fifty percent?

    So somewhere there is a disconnect that doesn’t recognize that we bring cases that wouldn’t happen in the civilian world.

    I’d also like to see what other sector of society has the reporting requirements we do, or the dedicated rape victim assistance that we do. There’s just a real strong component of society thinking “something” is wrong, and then flailing at it without determining if it is in fact wrong and the best way to fix it (IMO through education, not the law).

  48. Dew_Process says:

    “So somewhere there is a disconnect that doesn’t recognize that we bring cases that wouldn’t happen in the civilian world.

    I’d also like to see what other sector of society has the reporting requirements we do, or the dedicated rape victim assistance that we do. There’s just a real strong component of society thinking “something” is wrong, and then flailing at it without determining if it is in fact wrong and the best way to fix it (IMO through education, not the law).”


    Stewie – your premise is fair, but in the civilian sector, the “system” screens out those cases. I spent 11 years in the Violent Felony Bureau of a large Public Defenders office. Rape, as a crime of violence, is largely corroborated by a competent forensic sexual assault examiner. “Rape,” as a drunken/drugged up encounter, is as this thread demonstrates, far more problematic, i.e., is it even a crime?

    Most States have similar reporting requirement to that of the DoD, because there’s a ton of federal funding involved. Every DA’s office, and most large police/sheriffs’ offices have dedicated rape “victim” advocates [a separate issue].

    One major difference is that if I had a client with a bona fide “consent” or “mistake of fact” defense, we would put those clients and witnesses/evidence that corroborated the defense’s version into the Grand Jury [I’m not talking about surrepticious drugging etc.] and the vast majority of them were “No Billed.” That ended the matter then and there – the Grand Jury had spoken.

    Whether it’s political correctness, implied command influence from the pontifications of the “Big Wigs,” or career-fear, IF you could get an Art. 32 I.O. to recommend dismissal of this type of allegation, many commanders won’t take the inevitable questions, either from the higher ups, or other “interested parties,” and refer the case to trial in spite of the IO’s recommendations. That’s where I see a major difference between the civilian process and that under the UCMJ.

    Now, if you really want to go crazy as a defense counsel, college disciplinary tribunals – at least the ones I’ve encountered – have never seen a false complaint, and perpetuate the 1 drink vitiates consent rule, to the max.

  49. W says:

    Phil – if that is the training – then I agree it is very wrong. On both the law and the realities of life.

    K – I think it clear we may never reach 100% agreement. But I have enjoyed the debate. I think we do agree that evidence of consent, or the mistaken perception of it, is always relevant. I suggest that requiring proof BRD of actual lack of consent in most cases presents one with having to prove a negative- a difficult task to begin with, and one made nigh impossible when the burden is to prove that negative beyond a reasonable doubt. I don’t think requiring such proof puts us any closer to the truth. I think it detracts from it. And there we seem to part ways. I see the defense bar as having made a lot of headway blurring the lines of what is reasonable when talking about consent in sexual cases. You know that 412 exists because the tried and true tactic was to simply paint a young woman as a skank who had it coming all along. Look at how she dressed, after all. Instead, the focus ought to be on whether or not she was victimized by the alleged perpetrator. Was what the accused did reasonable or not?

    Perhaps the dichotomy between that and a bar fight, as I analogized, is one that is irreconcilable. Except that barfights normally occur in public with plenty of witnesses – sexual assaults behind closed doors with only a perpetrator and a victim. I present the extreme (although not infrequent) factual scenario here however to show where the argument that requiring proof actual lack of consent fails to further societal interests. I don’t see that as a bait and switch – I see it as testing the theory. I have yet to be convinced that the change in the law puts accused in any worse position than previously. (Excepting the double burden shift, yada yada, see Prather). If there is evidence of consent, or that the mistake was reasonable, then bring it forward. The members are good at figuring that out. But I have had too many debriefs under the old regime where the response is “well, we thought she was raped, but the government just couldn’t prove beyond a reasonable doubt that she didn’t possibly do or say something else during her blackout period – sorry.” That, I view, is an injustice not grounded in evidence. Again – we will just have to disagree on that.

    Stewie – I think a study of on campus assaults would be the most enlightening and relevant to our demographic. But we should not assume that study would result in proof that we try too many sexual assaults in the military. I think the actual answer would be that we have been grossly neglecting many, many sexual assaults across the board. Just harken back to your frat house days – if you had any.

    Also, I think the law does actually differentiate in types of offenses. What we have all been calling “rape” here, perhaps based upon our previous experiences under the old code, is actually aggravated sexual assault. The penalties, while still high, are not as extreme.

    Again, I think it axiomatic that no victim should ever have to assert their rights in order to have them respected. Just as I don’t have to tell you not to slap me in the face (despite your desire), I ought not to have to tell you not to get your rocks off when I am barely able to stand. However, if I affirmatively tell you to do so – or do things that leads you to reasonably believe that I want you to – then you have a valid defense that ought to be presented.

    I have faith that our members can figure all of that out. The question is – why was proof of actual lack of consent ever required in the first place? Did it lead to greater fidelity in the “truth?” I say it did not. You disagree. And therein lies the beauty of the thing.

    And I’m spent.

  50. Dew_Process says:

    The question is – why was proof of actual lack of consent ever required in the first place?

    Because in the original version of Art. 120(a), first, one could not rape his wife; second the elements included “by force and without consent.”

  51. k fischer says:


    I do enjoy the debate, too, although we will never agree.

    I think that consent was required because it places the burden on the woman to resist in the context where the parties know each other, and if a woman resists against a rapist, then she will get beat or killed and you will have evidence of lack of consent. If a woman resists against a non-rapist, then he will stop. This burden protects women by discouraging them to place themselves into the position of being drunk or alone with men to whom they are not married. It also is the best method of protecting the innocent from being convicted when they are falsely accused.

    When you take the consent element out, then it is more difficult to have a reasonable doubt case, as the accused typically will have to take the stand to get the consent or mistake of fact instruction.

    You know what? I think that you have convinced me with your analogy. Rather than take the consent element out of rape, I think we should add a consent element to all other crimes.

  52. Stewie says:

    I ought not to have to tell you not to get your rocks off when I am barely able to stand. However, if I affirmatively tell you to do so – or do things that leads you to reasonably believe that I want you to – then you have a valid defense that ought to be presented.

    Here’s my issue with that, it ignores 1000 of years of human sexual relations. The coy no, which women do to appear not too eager but the whole “take me” aspect of human sexual relations. Most women NEVER say, Pete Johnson, I now give you permission to have sex with me.

    So the idea that you have to have that, or else rape, is difficult to agree to. I can agree to no means no. I can’t agree to unless you get a yes, it’s rape, because if that’s the case, almost every man in the world has raped someone at least once by that definition, they were just lucky the woman they were with didn’t have post-coital regrets.

  53. Stewie says:

    and to clarify my previous post, I don’t think it’s all that common that the cases are generally that clear (i.e. the woman couldn’t stand up barely or CLEARLY so drunk that everyone knows that they can’t consent).

    It’s rarely that black and white, at least from my experience in trials and on appeals.

  54. SgtDad says:

    OK, getting back to the nub of the issue: consent. I do not see how one can get around the fact that, constitutionally speaking, consent or lack thereof is a fact upon which the guilt of the accused depends. That being so, is it not the gov’t’s burden to prove that fact (lack of consent) beyond a reasonable doubt? Justice Scalia made some interesting quotes in Blakely v Washington:

    …“every fact which is legally essential to the punishment” must be charged in the indictment and proved to a jury. 1 J. Bishop, Criminal Procedure, ch. 6, pp. 50—56 (2d ed. 1872). …

    (FN5). And:

    … This rule reflects two longstanding tenets of common-law criminal jurisprudence: that the “truth of every accusation” against a defendant “should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours,” 4 W. Blackstone, Commentaries on the Laws of England 343 (1769), and that “an accusation which lacks any particular fact which the law makes essential to the punishment is … no accusation within the requirements of the common law, and it is no accusation in reason,” 1 J. Bishop, Criminal Procedure §87, p. 55 (2d ed. …

    So, it seems to me, it matters not whether the PC crowd get Congress to unwisely eliminate consent as an element of the crime. Since lack of consent is material to the issue of guilt, it is the government’s burden to prove it. Ambiguous or non-existent expressions of non-consent do not meet that burden.

    Not to mention the fact the whole notion infantilizes women and suggests they are incapable of assuming responsibility.

    And Charlie Gittins is spot on. (I presume to call him “Charlie” because we have acquaintances in common).

  55. k fischer says:


    I agree that the only difference between legal sex and illegal sex is consent, as a person is ultimately the gatekeeper to their private parts. Therefore, it should be an element and the lack of consent should be proven beyond a reasonable doubt by the Government.

    But, W would argue that no other crime requires the element of consent to be proven by the government beyond a reasonable doubt. In the analogy he used, we do not require the Government to prove beyond a reasonable doubt that Mr. Gittens did not consent to be bludgeoned. So, why should consent be an element in rape?

    Stewie does have a good point. Rarely have I seen someone say beat me to a bloody pulp, or torch my house, or kill me, or please take my wallet, credit cards, drivers license, and all of my cash.

    And rarely does a woman say beat me to a bloody pulp, rip my clothes off, and tear my vagina. But, its quite easy to prove that a person did not consent in that case. What is not as easy for prosecutors to show is when there is no evidence of lack of consent. And, if we require women to show lack of consent, then we are forcing them to place themselves in danger by resisting.

    So, if a woman coyly says, “No.” Then, a man must immediately stop or he risks being convicted of rape because she will say that she was afraid, and on cross the man will have to admit that he heard, “No,” but continued. This works GREAT on paper for someone who hasn’t been around the block. However, in the real world, people feed off of cues and sometimes there is not a clear discussion.

    I am just waiting for SAPRO to propose the Army Regulation for Sexual Relations between Servicemembers.

  56. W says:

    Dew – Thanks. I know the old code. My question was – why was it originally drafted that way? Is that rationale still valid?

    Stewie – Wow. The “coy” no coupled with the “take me” aspect of sexual relations? Therefore it’s ok unless she can prove, beyond a reasonable doubt, that she wasn’t being coy? That’s exactly the the problem with the old statute. I don’t think the law ought to ever support a notion that man meets woman, man takes woman – unless she can prove beyond a reasonable doubt she really meant no. Regardless of how many years that has been the prevailing practice.

    I do agree with you however, that verbal assent is not a prerequsite to sexual activity. I don’t think I have ever said so – and I don’t think Article 120 requires it either. My point it, verbal lack of assent ought not to be the rule either. All of life is a grey area. We have jobs, and members have a role to determine what is reasonable, for that very reason.

    Finally, we may get our comparison study after all – if the lawsuit filed today in the EDVA has any staying power. I think the notion that other jurisdictions handle such cases better is a “the grass is greener” notion that will be betrayed by the actual data. Many, many civilian jurisdictions turn down much better cases than we try every day. Perhaps that’s a different problem that ought to be addressed. But that is not a problem inherent in the statute – only it’s application.

    SgtDad – actual lack of consent and lack of capacity to consent are two utterly different concepts. I don’t see where one must prove lack of actual consent in order to prove lack of capacity to consent.

  57. Charles Gittins says:

    When young men ask me about military service or the service academies, I always close the discussion with the same advice: Never, never, never, become involved sexually with a military female or female academy student. Treat them like the third rail or as if they were radio active and only date civilian women. The system is rigged to permit immature females who feel used, abused, or sad about a breakup or a disagreement to ruin your life. The system doesn’t care about false allegations and rarely takes any action against them so don’t put yourself in a position where it is your word against hers.

    I give that advice because I have represented well over 100 young men in military sex assault cases over the years, none of whom did I believe committed an arguably non-consensual sexual offense, apart from a couple of child sex abuse cases with family or step-family members. But even in those cases, the girls were old enough to know better, even though they were not 18 and the conduct went on for a long time before discovery.

    My skepticism is bourn of experience.

  58. W says:

    K – I’m still stunned.

  59. stewie says:

    W, I don’t think I said the victim has to prove BRD “she really said no” but I do think she has to manifest some evidence of lack of consent.

    If you don’t believe affirmative verbalized yes is required then how is your position truly different from mine? If there is no affirmative yes, then we look to what, her actions. Did she resist? Did she say no? Was she able to say yes?

    That sounds a lot like looking to the victim’s conduct to determine whether or not she said no or yes or some nebulous in between.

    And you can say wow, but the reality is we have 1000s of years of human sexuality that put men in the role of aggressor and women in a more passive role and those roles are embraced by both men and women.

  60. W says:

    Stewie – I think we need to then understand what it means for the statute to require that the government, or by extension – the victim, must prove the victim’s lack of consent beyond a reasonable doubt. For that is what is required when lack of consent is an element of the offense. That is a heavy burden to prove any negative – and especially a concept as nebulous as consent. Victim says she said “no” – and a defense counsel, perhaps like you,says it was only a coy no or one that should be presumed to have been a coy “no” predicated upon ancient notions of sexual aggression. In a assault and battery context, that simple no – or inability to say no, is enough. But not when it comes to sex?

    And so, I remain stunned at your opinion that women just have to deal with it because, well, that’s the way it has been since man snatched his first mate and took her behind a rock to have his way with her. She must fight – and hard -despite any fear, or incapacity, before we will even begin to be willing to believe she may not have wanted it that way.

    And don’t pretend that isn’t what you, or K, are saying. Because I point you to K’s comment at 7:15 on 15 Feb, which remains utterly jaw dropping. The law ought to require that a woman suffer physical injury or death before we as a society are willing to accept the idea that she may not have consented to sex? And that’s for her own safety? Holy crap. I thought such notions landed on the ash heap of history long ago.

    And so yes, wow. Can’t believe you just said that.

  61. Dew_Process says:

    “Dew – Thanks. I know the old code. My question was – why was it originally drafted that way? Is that rationale still valid?”

    W – Much of the punitive portions of the UCMJ were literally “lifted” from the old DC Criminal Code when the UCMJ was originally drafted. My recollection (and it’s just that from having researched it about 10 years ago) was that the “by force and without consent” language came from there.

    As far as the rationale still being valid, I guess [as this thread is dramatically showing] it depends on one’s perspective. But, I might suggest as a good analytical starting point CAAF’s decision in U.S. v. Bright, 66 M.J. 359 (2008), won by Mr. Gittins and available here:…

    Bright discusses the “old” statute and corresponding MCM provisions and addresses many of the issues being debated on this thread. For those with a historical/philosophical interest on the issue/parameters of “consent,” Prof. Ed Harris’s Did Rape Exist in Classical Athens? is a good starting point and is available here:…

  62. Dew_Process says:

    Moderators – can you put the complete link in versus a truncated one that doesn’t do any good? Thx!

  63. Stewie says:

    First, I’m pretty sure K and I aren’t the same person, so despite your compunction to link us together in every word that is spoken, address me for what I say, not for what someone else says please.

    Second, the very situation you lament was the state of the law for 99% of the history of military jurisprudence and yet somehow guys were being convicted of rape all of the time. You engage in hyperbole when you attempt to make it seem as if it’s nearly impossible for a conviction when the burden is on the government to prove lack of consent.

    I ask again, is the conviction rate any higher under the new regime? If so, while it wouldn’t justify your fatalistic tones about the old law, it would at least suggest that the new law, ignoring the Constitution for the moment, was not as effective in getting convictions. If not, then the problem you lament had no effect on conviction rates at all.

    Third, you say that women shouldn’t have to prove something as nebulous as consent, but you are fine with placing that burden on the accused while simultaneously (since I believe you know such a position isn’t completely tenable) asserting that the accused isn’t required to get an affirmative yes.

    So, what IS the accused required to get? Seems to me there are three options in any sexual encounter, an affirmative no, an affirmative yes, and then the “nebulous” in between.

    Since the the first two are both easy cases either way, most of the issue/difficulty lays in that very nebulous regime you talk about. Apparently, given a choice of putting that burden on either the government or the accused, you’ve decided to pick placing it on the accused.

    I do not believe that’s constitutional, and the CAAF appears to agree.

    Fourth, I never said “women have to deal with it.” I don’t know where you get that from. I said it is a reality that both men AND women embrace, it is a reality, and to pretend it doesn’t exist because you think it shouldn’t exist is unrealistic. I personally prefer aggressive women who tell you exactly what they want when they want it myself, but unfortunately that doesn’t describe a lot of women I know or have dated.

    A defense counsel like me (not anymore but let’s go with it) would say, where is the evidence that she said no? That she was not ok with it? A defense counsel like me would say the accused is not legally required to get an affirmative yes, or to take a blood sample to determine BAC. Now if I had a client where there were witnesses that 30 minutes or an hour before the sex happened the alleged victim was passed out on the floor of the bar, or barely conscious and witnesses saw it, then I’d probably be talking deal with my client because the government is likely to meet their burden on lack of consent.

    But since most of the time in my limited experience it ain’t that clear-cut, and there are almost always ancillary elements like a boyfriend, husband, threeway, rumors in the unit, then yes I think in those cases it is even more important that the burden is on the government to prove lack of consent.

    Finally, I never said ANYTHING to suggest that physical injury or death is required. I think the reason you can’t believe I’ve said some things, is I actually don’t say them, you just assume all of us “one side” must all agree. I don’t agree with very much Mr. Gittins says on this issue, except where the burden ought to lie. So, again, address please what I actually say, not what you think I am secretly saying.

  64. W says:

    Thanks Dew. I appreciate the read.

    Stewie – I agree my examples have been extreme – to test the limits of your position wrt to the issue in Prather – which was a substantial incapacitation case. I’m confronting your assertion that actual lack of consent ought to be a required element of the offense.

    Please re-read my first post. Simply eliminate the affirmative defense and let’s have it out before the members. That, I think, is what CAAF was really saying the problem is with 120 now.

    As for painting you and K with the same brush- my apologies. But I view the notion of citing to 1000s of years of sexual history as sufficient justification for requiring a victim to vindicate herself as essentially the same thing as saying a woman must be injured fighting back in order to prove her actual lack of consent. Prove me wrong. What lesser proof would you be willing to accept?

  65. W says:

    Ooops – I guess passed out on the floor of the bar with witnesses. Ok then.

  66. Roger A. Canaff says:

    As one of the government hack HQE’s called out in this discussion, I am happy that others have represented my own views quite well and therefore will not be repetitive. But I’ll offer this: McDowell’s Air Force “study” that many (particularly in the military community) refer to as proof that 40% of rape allegations are false, was not a study in any strict sense of the word. It remains unpublished even though it was completed 25 years ago. There was no serious methodology to it. I’ve never seen it presented in an academic journal as a scientific product. McDowell came up with a checklist to judge which cases were false that has been largely discredited as producing few accurate results. The checklist was itself the product of myths surrounding dynamics involved with and responses to sexual assault that have proven misleading.

    Mr. Clark is correct that serious, methodological research puts rates of false reporting in sex assault cases at generally less than 10%. There simply is no (again, serious, methodological) research to the contrary. Anecdotes can be outrageous, and some should spark outrage. But they are not accurate measurements and should not be used when formulating policy.

  67. Stewie says:

    “Ooops – I guess passed out on the floor of the bar with witnesses. Ok then.”

    You do understand that’s AN example, right?

    I also said if she was clearly intoxicated with witnesses and sex occurred shortly thereafter.

    If you eliminate the affirmative defense then what? You still have to decide what to do with consent. Do you ignore it? Is it necessary to prove lack of consent or not? If there is evidence of consent, what does that go to? The government?

    I think you misread CAAF. Their whole point was consent can’t be an affirmative defense, why? Because it goes to an element the government has to prove, at least in lack of consent rapes.

    Mr. Canaff, I’d guess 40% is probably way too high. Then again, I’d also guess 10% is probably too low. Of course, how much of “false” reporting is actual lies, and how much of it is “You don’t remember having sex? Girlfriend you were just raped!” or something equivalent?

    I’m skeptical of research into false reporting on both sides to be honest. Regardless of the exact percentage, it happens enough to be a legitimate concern. And the problem with the argument that 10% is the correct number is the resulting argument that that must mean that 90 percent of reports are “not false” which means you’d need a 90 percent conviction rate for a crime that often has only two witnesses.

    I wonder if any other similar crime has such a high rate.

  68. Charles Gittins says:

    McDowell’s study was spot on. An allegation was not deemed false in the McDowell study unless the woman stated that it was false. It was a retrospective analysis of past rape cases where OSI went back and re-investigated and re-interviewed the females, usually with the aid of a polygraph. “I lied about the rape allegation” is pretty powerful proof of false allegations, IMO. The McDowell study was duplicated by Eugene Kanin in a retrospective re-investigation of campus allegations of rape in the midwest, with similar results and the same requirement — no allegation was determined to have been false absent a statement by the woman that it was false. These studies demonstrated the value of polygraphs and they also caused the feministas to fight to have “victim” polygraphs prohibited by most law enforcement agencies. They also provided powerful evidence of the typical motives that women use to justify making a false allegation.

    McDowell and Kanin are spot on IMO — I have seen it repeatedly with my own eyes and have asked McDowell to testify in the past about false allegations (although he declined).

  69. k fischer says:

    Because I point you to K’s comment at 7:15 on 15 Feb, which remains utterly jaw dropping. The law ought to require that a woman suffer physical injury or death before we as a society are willing to accept the idea that she may not have consented to sex? And that’s for her own safety? Holy crap. I thought such notions landed on the ash heap of history long ago.


    You asked why consent was ever required. I answered it. You’re right, that kind of thinking landed on the ash heap long ago. If there was an inference that I believed it good policy, then that was not my intent. I was merely answering your question, “Why?” If you asked why OJ killed his ex-wife, I would say because he felt like she was his property and believed she was hooking up with Ron Goldman, so he killed them both. Doesn’t mean that I believe women are my property.

    But, I do believe that the old 120 is good policy in that it better protects the accused from false allegations, which are easy to make in a case where there are only two witnesses and no physical evidence whatsoever.

    Unfortunately, as I realistically pointed out, it requires a woman unequivocally to say, “No” which will either lead to the attempt to have sex stop, or more force to complete the act. It would also save a lot off women from having sex that they would not want to have because most guys would stop. So, how do you protect women from the guy that doesn’t understand an unequivocal, “No!” Rather than flip the burden of proof onto the accused, what’s wrong with a campaign that discourages women from drinking themselves into acting on their impulses and flirting around with guys who will mistake their sexual overtures as consent? I believe that happens all the time because I was prior enlisted and I know what goes on in the barracks. I’ve seen it in my cases. I’ve seen women and men fabricate charges that are motivated by revenge, need for an alibi, need to feel less ashamed, or attempt to extort the accused.

    Seriously, would you not have felt the slightest urge to ask the accuser in the Mike Tyson case, “Why are you going up to his room at 2 a.m.? What did you think was going to happen?” So, did Mike Tyson show that he was a rapist? Perhaps. Should we feel sorry for this victim?

  70. k fischer says:

    Mr. Gittens,

    The studies by Kanin and McDowell are flawed because apparently if you ask a female to take a polygraph, they are so weak (particularly the ones who made it through military basic training), that they will think you don’t believe them and lie to the investigator by saying they made the whole thing up. (That was sarcasm, btw)

    I happen to agree with Mr. Gittens that women are a little stronger and would be willing to take the Poly challenge if they were really raped. Let’s see polygraph vs. rape kit? Hmmmmmmmmmmmm. I would imagine that if the female was going to fold on her story, she would do it when the SANE explains that she is going to pluck 25 public hairs.

    Speaking of pubic hair plucking, can someone explain to me why the SANE is required to pluck 25 pubic hairs from the accuser and accused? I understand hair combings or shaving, but plucking????? I’ve got an Article 13 motion I am working on for an 8th Amendment violation. USACIL does not test hairs, and they can get a DNA profile from a buccal swab, so why are we pulling out 50 short and curlies from the accuser and accused? It seems like a very unnecessary infliction of pain, and I have heard SANE’s in the past joke that they pull a lot more from the Accused than they do from the Accuser because they know how painful it is.

    My client’s kit was not done with his consent b/t/w.

  71. Dew_Process says:

    KF: How old is the SANE protocol in your case? Pre-DNA, pulled pubes with roots attached made hair comparisons easier. Post DNA, it’s fairly irrelevant. USACIL no longer tests hairs because of Daubert concerns.

    I have twice been successful in State Court getting protective orders precluding “Pube Pulls” on a client. First, make sure that you argue no “probable cause” – in one case they had zero hairs for comparison, so I argued it was just for purposes of torture and had an affidavit from the jail nurse who did the pulling as to how painful the “process” was.

    The other case, was sort of the reverse – they had male “negroid” pubic hairs from my client’s bedsheets and he was a Black male. The complainant, a white female with reddish-blonde hair, according to the SANE report, had no pubic hair – again, there was no basis for the pube pull.

    Most current SANE protocols do not advocate this procedure unless there’s some specific evidentiary reason for it and in NY, under our State Dept of Health SANE guidelines, they are told to just comb the pubic hair for foreign matter and NOT to pull any pubic hair for the SANE Kit.

  72. k fischer says:


    I imagine the protocol is pre-DNA because there is an envelope designated for hair pullings.

    There was no probable cause in my case because the accuser refused treatment, hence no hair combings to compare to. So, I think there is a good unnecessary argument.

    Unfortunately, I wasn’t representing my client before the plucking occurred. It will be an interesting motion to say the least. I will be asking for 25 months credit. 1 month for each unnecessary pluck. You should see this issue come up in a couple years if I lose the trial.

    And, this is the first case I’ve had where the Servicemember actually did not consent to the rape kit. I think the issue could be moot if the Servicemember consented.

  73. SgtDad says:

    … USACIL no longer tests hairs because of Daubert concerns.

    Daubert concerns? You mean to tell me the government was subjecting a troop to a painful examination in aid of a test that is not scientifically valid? And then sought to convict that troop on the basis of that test? And the government was represented by lawyers (“officers & gentlemen”) who have sworn at least twice* their allegiance to the US Constitution?

    Sorta like bite marks and tool signs. Just because some guy with a degree uses the vocabulary of science doesn’t mean what he’s saying has anything to do with science. I suspect we’ll witchcraft prosecutions next.

    I am reminded of the head of the newly-created “Sexual Assault Center” (with an MA in sociology) telling me she saw no reason why victims needed to testify in sexual assault cases. She & her “colleagues” had perfected a “scientifically valid” interview protocol that ascertained the truth. She was of the view that only she, the “expert,” need testify as to who did what to whom. She was very proud of her “discovery.” She had a number of lawyers & judges singing her praises.

    And the “discovery” was, … the leading question. When I mentioned that lawyers had some 800+ years experience with the leading question, she was contemptuous. Though a mother herself, it never occurred to her that a pre-school child might more than a bit suggestible.

    It is a said commentary on legal education that we must — yet again — re-learn these lessons. Sorta like the 9mm pistol & the 5.56mm rifle.


    * Once when commissioned and once again when admitted to the bar.

  74. k fischer says:


    Are you referring to the head of the SAPRO? If so, glad I’m out of the military.


  75. SgtDad says:

    k fischer: No. This occurred in the late 70’s in Seattle. Things only get worse from there.

  76. Dew_Process says:

    KF – if your client did not consent, then why isn’t it an assault X 25 on him by the illegal plucker?

    SgtDad: obviously those lawyers and Judges had never heard of the Confrontation Clause!

  77. k fischer says:


    1970’s–pre Crawford, a period in which I do not think the 6th Amendment existed.

    As for the punitive pubic plucker, a magistrate signed a search authorization, so I can’t get the nurse charged with assault. I will enjoy my direct examination of the magistrate, though. I doubt he will be able to explain the purpose of pulling hairs, when the accuser had no hairs found on her because she refused treatment. Where is the probable cause to pull hairs? What evidence of a crime was found on her? None? Even if there was, what was the purpose? Don’t know? Good.

  78. k fischer says:

    W/Mr. Clark/Mr. Canaff,

    A man gets out of his brand new Mercedes Benz down at the unemployment line. He’s wearing a crisp Valentino suit, Bally shoes, and a Rolex. He takes a wad of $100 bills out of his front chest pocket and starts waving the money around, going up and down the unemployment line saying, “Look at this money! Don’t you wish you had it? Hmmmmmm…smell it! It smells good, doesn’t it!”

    A mother of three who lost her job last week and hasn’t eaten a decent meal since, asks the man in line in front of her, “Who’s that?”

    He replies, “Oh, we call him ‘Daddy Warbucks’ because he is always down here giving money away. Shoot, he gave me $1,000 about a month ago.” The man behind her says, “He gave me $2,000.00 last week. He loves to give away money, especially when he’s had a few.”

    Warbucks, who appears to be a little inebriated, stumbles up to the mother of three and says, “Mmmmmm. Don’t you wish you had this money? Look at how big your pocketbook gets when I put it in there? I can tell you want it.”

    The mother of three says, “It’s been awhile since my checking account has seen any money. Why don’t we go back to my bank, and I’ll let you write a deposit?”

    Everybody in line sees Warbucks and the unemployed Mother of three leave the unemployment line together in Mr. Warbuck’s Mercedes.

    A week later, the Mother of three is approached by law enforcement, “Ma’am, you need to come with us. You are suspected of robbery. Mr. Warbucks says you forced him to give you $3,000.00. He says that you choked him until he almost passed out, threatened to kill his family if he didn’t give you the $3,000, and that he was too drunk to fight you off.”

    When the Mother of three says she wants an attorney, the officer replies, “Of course, you do. That proves to me that you are guilty because only guilty people request attorneys. Oh by the way, we checked with people who know you, and we learned that you forced your estranged husband to give you money, as well as some guy who you lived with for 5 months. Even though they never reported the robbery until we spoke to them and told them you are a serial robber and have robbed several people in the past, we are charging you for robbery against them, as well. Finally, we saw that you were accused of shoplifting from K-mart when you were in high school. While the officer investigating the charges believed you did not commit a crime because the clerk who accused you was a friend of yours and was mad that wouldn’t stop shopping at Target and that the statute of limitations has run, we found that clerk and he is going to testify under MRE 413 allowing evidence of similar robberies. Good luck! Hope you find a good attorney because you are going to need one.”

    The Mother of three goes to the public defender who takes one look at the charge sheet and says, “You’re screwed.” She calls an attorney who specializes in Robbery cases, works cheap, and will take monthly payments from the Mother of three’s unemployment even though he knows the payments will stop if she is convicted.

    At the Article 32……I mean……the grand jury, the Attorney decimates the 3 victims, and the grand jury recommends that the charges be dismissed because: Warbucks has no marks on him despite the description of a severe beating and choking. He had no explanation why he did not cry out to bank officials who were in the other room when he and the Mother of 3 were making the deposit. He also admits that he made the allegation after his wife started asking where the $3,000 she gave him went.

    The estranged husband, who just wants a divorce to marry a woman employed by the company that fired the Mother of three, lies about sending an e-mail to the Mother of three’s Father, which states, “If she does not sign the divorce papers, I’m going to have to start fighting dirty, and I do not want to because of all the trouble she is in.” When the Attorney confronts him with the e-mail at the grand jury, he admits that he sent the e-mail, then went down to the police station the next day to report the “Robbery.”

    The man she lived with for 5 months says that, even though he has lived in the town for 26 years, has friends in law enforcement, has a strong family presence in the town, and apparently had visible black eyes from when the Mother of three allegedly punched him, he was ashamed and afraid that those people would not believe that the Mother of three was robbing him on a daily basis. He also appears very angry that the Mother of three never contributed one dime to the apartment that he was paying for.

    However, the Assistant DA convinces the DA to go forward with all the charges. It appears that the Mayor and Police chief are being sued because Robbery is perceived as such a huge problem in their jurisdiction. The mayor appears before the City Council and explains that they have spent $2 million on hiring 15 special victim prosecutors and 3 highly qualified experts to assist them in being successful at getting convictions. Meanwhile, the Mayor has spent exactly jack squat on hiring experienced public defenders to ensure that the rights of those falsely accused of robbery are protected. Moreover, the Mayor touts that Robbery prosecutions have increased from 30% in 2007 to 52% in 2009.

    The Defense Attorney asks the DA why he moved forward on the charges against the unemployed Mother of three despite the grand jury’s recommendation, and he replies, “I don’t have to answer that question; in fact, I am not going to answer that question.”

    The case is set for April, which just happens to be “Robbery Awareness Month.” The judge denies the defense request for the witnesses who Warbucks gave money to in the unemployment line under the Robbery Shield Statute 412. The judge states that it does not matter what Warbucks did with those people, the only thing that matters is what Warbucks did with the Mother of three. The Judge lambasts the Defense attorney for “attempting to victimize the victim,” and states snarkily, “Perhaps, you should focus on your client’s conduct! And, if you call Mr. Warbucks a ‘philanthropist’ one more time, I will hold you in contempt!” Meanwhile, the judge allows the clerk from Kmart to testify under MRE 413.

    At trial, all of the accusers take the stand and cry while describing how the Mother of 3 ‘robbed’ them. The Defense attorney brings up all the issues he did during the grand jury, but the prosecution is armed with a Highly Qualified Expert who testifies about the counterintuitive behavior of Robbery victims and how delayed reporting is normal, victims lying about “ancillary issues” is normal, and it is possible that Warbucks would have no marks on his neck from being choked to the point of almost passing out. The Defense’s request for an expert who has testified in 100 trials is denied, and the DA hand selects a replacement who has testified in one (1) trial. The Defense expert is impeached because he wrote an article back in college stating that not most woman do not rob, but the one’s who do rob are ‘serial robbers.’

    The unemployed Mother of 3 is convicted and sentenced to 20 years in prison where she has to register as a Robbery offender for the rest of her life. When she gets out of prison, she cannot live within 500 yards of a church or financial institution. Her children are now in foster care in Georgia, and she will not be able to see them grow up because she has been sent to a prison in Kansas.

    Does this sound fair to you? It doesn’t to me, and a result like this in a robbery trial would make blood shoot out of my eyes. This is what Article 120, MRE 412, and MRE 413 does to the accused serving our country on a daily basis.

    Do Accusers have a tough row to hoe in rape prosecutions? Yes. Do I believe that there are different degrees of rape? Yes. Does the sympathy I feel for a victim decrease in correlation to the increase of their voluntary consumption of alcohol, flirtation, placing themselves into precarious positions, and style of dress? Yes.

    But, if we attempt to change our laws to guarantee convictions in sexual assaults, then where do we stop? The Confrontation Clause? Right to an Attorney? Proof beyond a reasonable doubt? My proposal is to stop shifting the burden to the accused and focus on prevention. I like the new SAPRO marketing campaign as it focuses on the accused’s conduct and hopefully will prevent instances of miscommunication.

    When I see the SecDef testifying to Congress saying “Courts martial have increased from 30% in 2007 to 52% in 2009,” I guess I should be happy because more cases mean more opportunities for me to represent Servicemembers and make a buck. But, I know that there will be mostly lower enlisted Servicemembers who are sitting in Leavenworth because they were wrongfully convicted and did not have as talented attorney as the accuser did.