Military Judge rules new Article 120 unconstitutional

On August 12, Marine Corps Lieutenant Colonel Raymond Beal ruled that the new Article 120, UCMJ violated an accused's Fifth Amendment right to due process of law.

Machinist's Mate Second Class William Fairley, USN, is charged under with aggravated sexual assault under Article 120(c) for allegedly engaging in a sexual act with another person while that person was substantially incapable of declining participation in the sexual act. Under the new Article 120, which became effective on October 1, 2007, the question of consent on the part of the alleged victim is not an issue in this case unless the accused can affirmatively prove that the alleged victim consented.

The issue facing the court-martial was whether making the accused prove that the victim consented is tantamount to making him disprove the second element of the offense--that the other person was incapable of consenting. The military judge ruled that since an accused "cannot logically assert the affirmative defense of consent without denying the second element of the offense," imposing the requirement on the accused to prove consent shifted the burden of proof to the accused in violation of due process.

The military judge's ruling is available here.