Here’s a link to CAAF’s per curiam opinion in Ignacio, No. 12-0202/NA, which was argued just 17 days ago. CAAF upheld the Navy-Marine Corps Court’s rejection of a challenge to Judge King’s consent instruction in an Article 120 case.
CAAF will hear a second oral argument on Monday, in the case of United States v. Ignacio, No. 12-0202/NA. The appellant, a male Petty Officer in the Navy, orally sodomized a junior male shipmate after a night of heavy drinking while on shore leave in Puerto Vallarta, Mexico. He was convicted by members of abusive sexual conduct with a person who was substantially incapacitated under Article 120(h) (since revised to 120(d)), and sentenced to confinement for 3 years, reduction to E-1, total forfeitures, and a bad-conduct discharge.
During the trial, the appellant presented an affirmative defense of consent. The defense then asked the military judge to provide a tailored instruction. The military judge rejected the language proposed by the defense, and instead presented an instruction that included the following:
Evidence of consent is relevant to whether the prosecution has proven the elements of the offense beyond a reasonable doubt. Additionally, consent is a defense to the charged offense. . . . A person cannot consent to sexual activity if that person is substantially incapable of physically declining participation in the sexual conduct at issue. The prosecution has the burden to prove beyond a reasonable doubt that consent did not exist. Therefore, to find the accused guilty of the offense of abusive sexual contact, as alleged in Specification 1 of the Charge, you must be convinced beyond a reasonable doubt that at the time of the sexual contact alleged, [SN JA] did not consent.
The appellant argues that this language does not satisfy the burden established in Martin v. Ohio, 480 U.S. 228, 234 (1987), that evidence used by an accused to prove an affirmative defense must also be considered by the factfinder when determining whether the government has met its burden on the elements themselves (the “dual-use” instruction).