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).
The NMCCA rejected this argument, finding that “the instructions given obviated any burden on the appellant and there was no instructional advantage or benefit which the appellant was denied by the omission of the dual-use language.” United States v. Ignacio, No. 201100062, slip op. at 5-6 (N-M Ct. Crim. App., Nov. 8, 2011). CAAF granted review of the following issue:
In an Article 120(h), UCMJ, case, the military judge failed to instruct the members to consider all of the evidence, including the evidence of consent, when determining whether the government proved guilt beyond a reasonable doubt. In light of United States v. Prather, and United States v. Cheeseman, does the application of the affirmative defense provided by Article 120 without the aforementioned instruction violate appellant’s right to due process?
The appellant’s argument is that an explicit dual-use instruction was required in this case, because it serves two vital purposes with respect to the evidence of consent: “(1) it may establish an affirmative defense; or (2) it may cast reasonable doubt upon the Government’s case.” Appellant’s br. at 6. He argues that only a precise instruction satisfies the due process requirement for properly-instructed members.
The government’s response is that “the Military Judge instructed that lack of consent was an element to be proved by the Government, thus consent was no longer an affirmative defense to be proved by the accused.” Gov’t br. at 8. Because the appellant had no burden, no dual-use instruction was required and the assignment of error is moot. The government also argues that the court should use the plain-error standard of review, because the defense did not ultimately object to the instruction given by the military judge and therefore forfeited any instructional error. Because the law of consent as a defense under Article 120 was unsettled at the time of trial, the government argues that any error was not plain or obvious. Moreover, the government argues that any error only increased the burden on the government, obviating any prejudice to the appellant.
In a reply brief the appellant argues that the proper standard for reviewing members instructions is de novo, citing United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002).