Thursday, January 08, 2009

NMCCA to hold another en banc oral argument on Article 120's constitutionality

Yesterday, NMCCA ordered another en banc oral argument on the topic of the new Article 120's constitutionality. United States v. Neal, NMCCA NO. 200800746 (N-M. Ct. Crim. App. Jan. 7, 2009) (order). The argument will be held on 23 January 2009 at 1000. The issue to be argued is: "WHETHER THE MILITARY JUDGE ERRED BY GRANTING THE DEFENSE MOTION TO DISMISS THE SOLE CHARGE ALLEGING A VIOLATION OF ARTICLE 120(e), UCMJ, AS UNCONSTITUTIONAL." The order also included this interesting footnote: "Counsel should be prepared to discuss the applicable due process framework for analyzing the respective burdens of proof under Article 120(t)(16), UCMJ. See Medina v. California, 505 U.S. 437 (1992); Cooper v. Oklahoma, 517 U.S. 348 (1996); Weiss v. United States, 510 U.S. 163 (1994)."


Anonymous said...

I'm guessing this means trouble for the statute as they've held up ruling on the other cases in order to get to this case. As I understand it, the big difference with this case is the defense had presented evidence on the merits raising consent. This may be the fact pattern needed to address the concern that the issue of consent is merely speculative. While on this topic - what does the term "substantially incapacitated" mean -- this has got to mean more than merely drunk.

Anonymous said...

I’m guessing “substantially incapacitated” means that you are an avid reader of this blog, like me.

Actually it probably means what case law determined in the previous Art 120 was when someone was intoxicated to the degree that they were unable to form consent or appreciate the nature of the act. That appears to be a fact driven determination, initially made by the members, and reviewed for factual sufficiency by the CCA.

Anonymous said...

I believe Neal may also differ from the other cases as it is a prosecution of aggravated sexual contact by force, as opposed to substantial incapacitation of the victim.

I'll also be interested to see how the NMCCA rules regarding the appropriate time to decide these issues - in this case I believe the MJ did not beleive he could rule during motions practice but was required to wait until the presentation of evidence on the merits was complete, possibly creating a double jeopardy catch-22for the government.

Anonymous said...

I've also wondered about the "substantially incapacitated" language. One wonders why in re-writing a sexual assault statute Congress decided to use a key phrase that doesn't appear in any other federal statute - and then not define it in the rewrite.

But, the most sensible reading of the statute leads to the conclusion that a "substantially incapacitated" person is more intoxicated than a person who is merely substantially incapable of appraising, declining, or communicating.

Notice, however, that unlike the "substnatially incapable" victim, a "substantially incapacitated" person can consent.

Doesn't anyone proof read this stuff?

Anonymous said...

On 4 Dec the Chief Judge of the Army approved this definition for addition in the Army Bench Book for Art 120 Agg Sexual Assault and Abusive Sexual Contact.

("Substantially incapacitated") (and) ("Substantially incapable") mean(s) that level of mental impairment due to consumption of alcohol, drugs, or similar substance; while asleep or unconscious; or for other reasons; which rendered the alleged victim unable to appraise the nature of the sexual conduct at issue, unable to physically communicate unwillingness to engage in the sexual conduct at issue, or otherwise unable to make or communicate competent decisions.