The Navy-Marine Corps Court of Criminal Appeals released today its en banc decision in United States v. Medina, No. 200900053, __ M.J. __ (N-M. Ct. Crim. App. Dec. 17, 2009). The main portion of the opinion focuses on Art. 120. The majority finds Art. 120 facially constitutional, citing United States v. Crotchett, __ M.J. ___, No. NMCCA 200800770 (N-M. Ct. Crim. App. May 12, 2009) (en banc), the court’s prior decision on Art. 120. On the as applied challenge, the court reviews the military judges instruction to the members on the issue of consent, which read:
The evidence has raised the issue of whether [the victim] consented to the sexual acts concerning the offense of aggravated sexual assault . . . .
Consent is a defense to that charged offense . . . .
. . . .
The prosecution has the burden to prove beyond a reasonable doubt that consent did not exist. Therefore, to find the accused guilty of the offense of aggravated sexual assault . . . you must be convinced beyond a reasonable doubt that, at the time of the sexual acts alleged, [the victim] did not consent.
You probably read that and said, hey, isn’t that the Benchbook instruction pre-Art. 120 amendment? If you did, you’re right, because that’s what the judge probably read from. Obviously the court finds no constitutional infirmity, though all the judges point out that the instruction doesn’t articulate the standard in revised Art. 120.
Judge Booker, in a concurring opinion proposes an unconstitutional amended instruction for the issue of consent:
The evidence has raised a question of whether [victim] consented to the sexual conduct at issue.
Consent is an affirmative defense to the allegation in the Specification of the Charge. The defense must prove consent by a preponderance of the evidence.
“Consent” means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person.
In determining whether the accused has demonstrated consent by a preponderance of the evidence, you are further advised that the following do not constitute consent:
An expressed lack of consent through words or actions.
Submission resulting from the accused’s use of force; threat of use of force; or placing another person in fear.
Lack of physical or verbal resistance resulting from the accused’s use of force; threat of use of force; or placing another person in fear.
A current or previous dating relationship, by itself, between the person involved in the sexual conduct and the accused.
The manner of dress of the person involved in the sexual conduct.
If the defense establishes by a preponderance of the evidence that the person involved in the sexual conduct consented, then unless the Government proves beyond a reasonable doubt that the affirmative defense does not exist, you must find the accused not guilty.
The Government will succeed in proving that the affirmative defense does not exist if it proves beyond a reasonable doubt that the consent was not freely given or that it was given by an incompetent person. More specifically, the Government must prove, beyond a reasonable doubt, that the person engaged in the sexual conduct could not consent because that person:
1. Was under the age of 16;
2. Was substantially incapable of appraising the nature of the sexual conduct at issue due to mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise; or
3. Was substantially incapable of appraising the nature of the sexual conduct at issue due to mental disease or defect that renders the person unable to understand the nature of the sexual conduct at issue.
4. Was substantially incapable of physically declining participation in the sexual conduct at issue; or
5. Was substantially incapable of physically communicating unwillingness to engage in the sexual conduct at issue.
Judge Beal (who contributed to this whole Art. 120 mess by finding the amended statute unconstitutional when he was a trial judge, see here and here) takes issue in a lengthy dissent with the facial constitutionality holding in United States v. Neal, 67 M.J. 675 (N.M.Ct.Crim.App. 2009), certificate of review filed, __ M.J. __ (C.A.A.F. 15 May 2009) and United States v. Crotchett, 67 M.J. 713 (N.M.Ct.Crim.App. 2009), rev. denied, __ M.J. __ (C.A.A.F. Oct. 6, 2009).
Judge Maksym applauds the trial judge, LtCol Sanzi, for saving the statute from itself, which he calls a “poorly written, confusing and arguably absurdly structured and articulated act of Congress,” by using the pre-existing instruction regarding consent.