UNITED STATES, Appellee v. Stephen A. Prather, Airman U.S. Air Force, Appellant No. 10-0345 Crim. App. No. 37329 United States Court of Appeals for the Armed Forces Argued September 28, 2010 Decided February 8, 2011 ERDMANN, J., delivered the opinion of the court, in which EFFRON, C.J., and RYAN, J., joined. BAKER, J., filed a separate opinion dissenting as to part A and concurring in the result, in which STUCKY, J., joined. Counsel For Appellant: Major David P. Bennett (argued); Colonel Eric N. Eklund, Lieutenant Colonel Gail E. Crawford, Major Michael A. Burnat, Major Shannon A. Bennett, and Dwight H. Sullivan, Esq. (on brief). For Appellee: Captain Naomi N. Porterfield (argued); Captain Charles G. Warren and Gerald R. Bruce, Esq. (on brief); Colonel Don M. Christensen. Military Judge: Thomas Dukes This opinion is subject to revision before final publication. United States v. Prather, No. 10-0345/AF Judge ERDMANN delivered the opinion of the court. Airman Stephen A. Prather pleaded not guilty to charges of aggravated sexual assault and adultery in violation of Article 120(c)(2) and Article 134, Uniform Code of Military Justice (UCMJ). He was convicted of both charges by a general court- martial composed of members and was sentenced to a reduction to E-1, forfeiture of all pay and allowances, confinement for two years and six months, and a dishonorable discharge. The convening authority approved the sentence and the United States Air Force Court of Criminal Appeals affirmed the findings and sentence. United States v. Prather, No. ACM 37329, 2010 CCA LEXIS 149, 2010 WL 4068932 (A.F. Ct. Crim. App. Jan. 25, 2010). Strictly speaking, the burden of proof, as those words are understood in criminal law, is never upon the accused to establish his innocence or to disprove the facts necessary to establish the crime for which he is indicted. It is on the prosecution from the beginning to the end of trial and applies to every element necessary to constitute the crime. Davis v. United States, 160 U.S. 469, 487 (1895). We granted review to address the burden shifts found in Article 120(t)(16), UCMJ, when an accused raises the affirmative defense of consent to a charge of aggravated sexual assault by engaging in sexual 2 United States v. Prather, No. 10-0345/AF intercourse with a person who was substantially incapacitated.1 We conclude that the statutory interplay between the relevant provisions of Article 120, UCMJ, under these circumstances, results in an unconstitutional burden shift to the accused. In addition, we conclude that the second burden shift in Article 120(t)(16), UCMJ, which purports to shift the burden to the government once an accused proves an affirmative defense by a preponderance of the evidence, constitutes a legal impossibility. BACKGROUND On October 30, 2007, Prather invited SH to a party that he and his wife were hosting at their house on Travis Air Force Base, California. Prior to arriving at the party, SH asked Prather if she could spend the night on his couch because she planned on becoming intoxicated. Prather agreed. During the party, Prather, SH, and others played drinking games. At some 1 We granted review of the following issue: Whether the elimination of the element of lack of consent combined with the shifting of the burden to prove consent, by a preponderance of the evidence, to the accused in order to raise an affirmative defense to aggravated sexual assault under Article 120, UCMJ, where Appellant allegedly engaged in sexual intercourse with a person who was substantially incapacitated, is a violation of Appellant’s right to due process under the 5th Amendment of the U.S. Constitution. United States v. Prather, 69 M.J. 168 (C.A.A.F. 2010) (order granting review). 3 United States v. Prather, No. 10-0345/AF point during the party, SH made her way to the couch. There was conflicting testimony about exactly how she got to the couch and how intoxicated she was during this time period. The other guests departed in the early morning hours and Prather and his wife retired to their upstairs bedroom. Prather testified that at 2:30 a.m. he went downstairs to get a glass of water and found SH awake. He testified that SH talked to him, kissed him, and took off her pants and underwear. According to Prather, they then engaged in consensual intercourse. SH testified that after passing out on the couch she awoke to find Prather on top of her already penetrating her. She testified that she passed out again and when she awoke to prepare for work, she found semen inside her and on her underwear. After the presentation of evidence, the military judge engaged counsel in a lengthy discussion concerning the instructions he intended to give the members for the aggravated sexual assault charge. The military judge noted that the offense occurred within a month of the effective date of the new Article 120, UCMJ, so the charges had been filed under the new statutory structure for which there was little guidance. The military judge explained that he intended to provide instructions that tracked the language of the new Article 120, UCMJ. 4 United States v. Prather, No. 10-0345/AF In response, the defense counsel noted that the new Article 120, UCMJ, purported to remove “consent” as an element of the offense and required an accused to raise “consent” as an affirmative defense and prove it by a preponderance of the evidence. The defense counsel argued that since the Government was required to prove that the victim was substantially incapacitated, consent was still an element of the statute as a victim who is “substantially incapacitated” cannot give consent. The defense counsel argued that by requiring Prather to prove consent by a preponderance of the evidence, the burden shifted to him to negate or disprove the element of substantially incapacitated. The defense counsel requested that the military judge follow the advice of the Military Judges’ Benchbook, which suggested treating “consent” as a traditional affirmative defense under these circumstances.2 The military judge acknowledged the defense concerns, but nonetheless rejected the 2 Dep’t of the Army Pamphlet 27-9, Legal Services, Military Judges’ Benchbook, ch. 3, Instruction 3-45-5, NOTE 9 (2010) (instruction on aggravated sexual assault, Article 120, UCMJ), states: Because this burden shifting appears illogical, it raises issues ascertaining Congressional intent. The Army Trial Judiciary is taking the approach that consent is treated like many existing affirmative defenses; if raised by some evidence, the military judge must advise the members that the prosecution has the burden of proving beyond a reasonable doubt that consent did not exist. 5 United States v. Prather, No. 10-0345/AF request. The military judge’s relevant instructions generally tracked the statutory scheme, including the shifting burdens consistent with Article 120(t)(16), UCMJ, with respect to the affirmative defenses.3 Prather appealed to the Air Force Court of Criminal Appeals, challenging the constitutionality of Article 120, UCMJ. The lower court found no violation of Prather’s due process rights. DISCUSSION Before this court, Prather again raises constitutional challenges to the statutory scheme involving the affirmative defense of consent in the context of Article 120(c)(2), UCMJ. The constitutionality of a statute is a question of law we review de novo. United States v. Disney, 62 M.J. 46, 48 (C.A.A.F. 2005). The pertinent statutory text of Article 120(c)(2), UCMJ, provides: (c) Aggravated sexual assault. Any person subject to this chapter who –- . . . . (2) engages in a sexual act with another person of any age if that other person is substantially incapacitated or substantially incapable of –- (A) appraising the nature of the sexual act; 3 Attached as an appendix is the military judge’s instructions to the members on these issues. 6 United States v. Prather, No. 10-0345/AF (B) declining participation in the sexual act; or (C) communicating unwillingness to engage in the sexual act; is guilty of aggravated sexual assault and shall be punished as a court martial may direct.4 Article 120(r), UCMJ, provides in pertinent part: Consent and mistake of fact as to consent are not an issue, or an affirmative defense, in a prosecution under any other subsection, except they are an affirmative defense for the sexual conduct in issue in a prosecution under . . . subsection (c) (aggravated sexual assault) . . . . Article 120(t)(14), UCMJ, provides in pertinent part: The term “consent” means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. . . . A person cannot consent to sexual activity if –- . . . . (B) substantially incapable of –- (i) appraising the nature of the sexual conduct at issue due to –- (I) mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise . . . . Article 120(t)(16), UCMJ, provides: Affirmative defense. The term “affirmative defense” means any special defense that, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly, or 4 Prather was charged as follows in the specification of Charge I: “In that AIRMAN STEPHEN A. PRATHER . . . did, at or near Travis Air Force Base, California, on or about 30 October 2007, engage in a sexual act, to wit: sexual intercourse, with [SH], who was substantially incapacitated.” 7 United States v. Prather, No. 10-0345/AF partially, criminal responsibility for those acts. The accused has the burden of proving the affirmative defense by a preponderance of evidence. After the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist. A. An accused’s burden to prove the affirmative defense of consent by a preponderance of the evidence under Article 120(c)(2), Article 120(r), Article 120(t)(14), and Article 120(t)(16) Prather argues that “[b]y placing the burden on the accused to prove consent when raising an affirmative defense, [Congress] shifted the burden to the accused to disprove what is an implied element or a fact that is essential to the offense of aggravated sexual assault.” In Prather’s view, “substantial incapacity,” and “consent” are “two sides of the same coin” because the statutory definition provides that “[a] person cannot consent to sexual activity if . . . substantially incapable of . . . appraising the nature of the sexual conduct at issue due to . . . mental impairment or unconsciousness resulting from consumption of alcohol . . . .” Article 120(t)(14)(B)(i)(I), UCMJ. Thus, according to Prather, an accused cannot prove the affirmative defense by a preponderance of the evidence without also disproving an essential element of the offense of aggravated sexual assault. Prather also argues that the military judge failed to instruct the panel that they “must” consider evidence of consent in considering whether the 8 United States v. Prather, No. 10-0345/AF Government proved each element of the offense beyond a reasonable doubt. The Government responds that the constitutionality of Article 120(c)(2), UCMJ, is consistent with the rationale of United States v. Neal, 68 M.J. 289 (C.A.A.F 2010), arguing that Neal makes it clear that “consent is not an element, implied or explicit of Article 120(c), UCMJ.”5 Neal, however, is distinguishable from this case as it addressed “consent” in the context of Article 120(e), UCMJ (aggravated sexual contact) and did not involve a situation where the victim’s capacity to give consent was at issue.6 It is well established that the Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). However, it is less settled as to exactly when 5 Neal treated consent as an affirmative defense independent of the element of force and noted that facts pertinent to consent might also be pertinent to the element of force, and therefore it was necessary for the military judge to make clear in instructions that such facts could be considered for both purposes. 68 M.J. at 299. 6 Neal identified three components of the statutory definition of consent under Article 120, UCMJ: the first component defines consent; the second identifies circumstances excluded from the definition; and the third identified circumstances in which an individual cannot give consent. 68 M.J. at 297-98. It is the third component, while not at issue in Neal, that is central to this case. While Neal is not dispositive of the issues presented in this case, the general case law discussions in 9 United States v. Prather, No. 10-0345/AF a statute impermissibly relieves the prosecution of this burden by shifting to the defense a burden to prove a defense that overlaps in proof with an element of the charged offense. Over the years, the Supreme Court has wrestled with this issue. Leland v. Oregon, 343 U.S. 790, 793 (1952) (placing the burden on an accused to prove an affirmative defense is not, in and of itself, unconstitutional); see also Dixon v. United States, 548 U.S. 1, 7-8 (2006); Mullaney v. Wilbur, 421 U.S. 684, 702 (1975) (concluding that the state murder statute at issue required the defendant “to carry the burden of proving a fact [malice aforethought] so critical to criminal culpability” as to create an unconstitutional burden shift to the defendant); Patterson v. New York, 432 U.S. 197, 207 (1977) (finding no unconstitutional shifting of the burden to the defendant, the Supreme Court concluded that the statutory affirmative defense at issue “does not serve to negative any facts of the crime which the State is to prove in order to convict of murder”); Martin v. Ohio, 480 U.S. 228, 233-34 (1987) (although noting that a statute may not “shift to the defendant the burden of disproving any element of the [prosecution’s] case,” and concluding that the “evidence offered to support the defense may negate a purposeful killing by prior calculation and design,” the Supreme Court nonetheless held that there had been no shifting of the burden because the Section III, Part B, of Neal are instructive to the analysis of 10