BREAKING NEWS: NMCCA grants government's Crotchett appeal, rejecting new Article 120 challenge in published en banc ruling

In a published en banc decision released today, NMCCA rejected a challenge to the new Article 120.United States v. Crotchett, __ M.J. ___, No. NMCCA 200800770 (N-M. Ct. Crim. App. May 12, 2009) (en banc). Judge Booker wrote the opinion of the court.

The majority framed the issue as "whether an accused service member, in asserting an affirmative defense of consent, must disprove whether a victim is 'substantially incapable of communicating unwillingness to engage in the sexual act,' Article 120(c)(2)(C), in order to be acquitted." Id., slip op. at 2. The court held that "the statute does not require this of an accused." Id.

The majority notes an apparent "overlap of defense and Government burdens in prosecutions for aggravated sexual contact in a case where the defense wishes to present a defense of consent or mistake of fact as to consent." Id., slip op. at 4. But the court proceeds to analyze the statute in a manner that avoids a conflict. NMCCA offers this explanation of how the new Article 120 operates:

If the defense chooses to introduce the notion of consent into the trial, as is permitted (but not required), then the defense bears the burden of satisfying the finder of fact, by a preponderance of the evidence, that the victim used "words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person." Art. 120(t)(14). The plain language of this provision assigns to the defense only the burden of convincing the finder of fact by a preponderance of the evidence of two objective determinations: were the words uttered or the overt acts made? If so, could they indicate freely given agreement? If the answer to either question is "no," the statute additionally allows an honest and reasonable mistake of fact as to the objective determinations (in other words, did the accused honestly and reasonably believe that he heard the words or saw the overt acts, and did he hold an honest and reasonable belief that they indicated freely given agreement?).

The affirmative defense does not require the accused to prove the alleged victim's actual agreement, nor actual capacity to agree; rather, the accused need only show that the alleged victim objectively manifested consent. The defense bears no burden of demonstrating that the words actually constituted a "freely given agreement" or that they were made "by a competent person." To the contrary, the burden of proof as to the element of the victim's actual capacity is, and always remains, on the Government, and this burden is beyond a reasonable doubt.

We return to the point that, notwithstanding the advancement of any particular affirmative defense, the Government always bears the burden in a prosecution under this subsection of proving beyond a reasonable doubt that the sexual act occurred, and that the victim was substantially incapable of communicating unwillingness to participate in the act. If the Government fails in any respect -- to prove beyond a reasonable doubt any element, or to disprove beyond a reasonable doubt the existence of a defense -- the accused must be acquitted.

Id., slip op. at 5-6.

Judge Maksym, joined by Judge Couch, dissented in part, noting concern over the constitutionality of Article 120(t)(16)--an issue whose resolution they viewed as unnecessary for purposes of this appeal. Id., slip op. at 8. Article 120(t)(16) provides, in part: "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."