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Uniform Code of Military Justice Article 120
Article 120 of the Uniform Code of Military Justice (UCMJ) covers sex crimes, including aggravated sexual assault and rape.
April 10, 2009 /Marriage - Relationships PR News/ -- Uniform Code of Military Justice Article 120
Article provided by National Military Justice Group, please visit us at http://www.nmjg.com
Article 120 of the Uniform Code of Military Justice (UCMJ) covers sex crimes, including aggravated sexual assault and rape. In 2006 -- under the National Defense Authorization Act -- Congress drastically amended the language of Article 120 and changed the elements of the crimes of rape and sexual assault, as well as the burden of proof. The amended Article 120 came into effect for all crimes charged under the UCMJ on or after October 1, 2007.
The 2006 changes to Article 120 included:
* The language "without consent" was removed as an element of some of the listed crimes, including rape and aggravated sexual assault. This means that the government does not have to prove that the defendant committed the act without the victim's consent.
* "Without consent" and "mistake of fact" were made into affirmative defenses. This means that the defendant must not only assert the defense, but prove its existence by a preponderance of the evidence (i.e. just enough evidence to make it more likely than not). This is known as "burden-shifting."
* Once the defendant proves the existence of an affirmative defense, the burden of proof then shifts back to the government. The government then has the burden to disprove the affirmative defense beyond a reasonable doubt.
The double-burden shifting scheme created by Article 120 is a brand new creature. No jurisdiction, civilian or military, in the entire country allows the government an opportunity to disprove an affirmative defense after the defendant has successfully pleaded one in a criminal case.
Legislative history reveals that Congress' decision to amend Article 120 stemmed from its desire to make it easier to deter and punish the occurrence of rape and sexual assault in the military -- particularly instances of date rape, which may have been difficult to prove under the old standard. However, no matter how noble Congress' cause, these changes raise serious questions about the constitutionality of Article 120.
Due Process Rights
The 5th Amendment of the US Constitution states that no citizen will be deprived life, liberty or property without due process of the law. The 5th Amendment does that by requiring the government to follow certain procedural rules when attempting to prove and convict someone of a crime. For example, the government is required to prove beyond a reasonable doubt that a defendant committed every element of the crime.
This is important relative to Article 120 because the government cannot shift this burden to the defendant. The defendant can be required to prove the existence of an affirmative defense, but not if the affirmative defense requires disproving any element of the crime.
With the double-burden shifting standard under Article 120, defendants could be required to disprove an element of one of the charged crimes. This has been the central constitutional dispute in recent military cases, including United States v Fairley and Untied States v Crotchett, discussed below.
United States v Fairley
In US v Fairley, the defendant was charged with aggravated sexual assault under Article 120, among other charges. The defendant asserted the affirmative defense of consent and then successfully challenged the constitutionality of Article 120.
Aggravated sexual assault is defined under Article 120 as: "...engag[ing] in a sexual act with another person of any age if that person is substantially incapable of ... communicating unwillingness to engage in the sexual act..."
Thus, the government had the burden to prove beyond a reasonable doubt that the defendant 1) engaged in a sexual act with the victim and 2) that the victim was substantially incapable of communicating unwillingness to engage in the act.
The court reasoned that requiring the defendant to prove the alleged victim consented to participation in the sexual act was substantially the same as requiring the defendant to disprove an element of the crime, which violates the defendant's due process rights. According to the court's opinion, "... before an accused can even attempt to assert the affirmative defense of consent, an accused would be burdened to present evidence tending to disprove the second element of the offense i.e., that the alleged victim was substantially capable of physically declining participation in the sexual conduct."
Thus, the court dismissed the aggravated sexual assault charge against the defendant and found the burden shifting violated the defendant's due process rights.
United States v Crotchett
United States v Crotchett also concerns a charge of aggravated sexual assault in which the alleged victim was substantially unable to communicate consent. Dale Saran, Of Counsel attorney with the National Military Justice Group, identified the constitutional issue in Crotchett and litigated the case both at trial court and before the Court of Appeals for the Armed Forces.
As in Fairley, the Crotchett court ruled in favor of the defendant, stating, "[A]n accused cannot logically assert the affirmative defense of consent without denying the second element of the offense." The court continued, "Because the second element of the offense alleges a factual scenario in which an accused cannot present evidence that would excuse him from criminal liability under the affirmative defense of consent, he is burdened with disproving that element."
The government appealed the case to the Navy-Marine Corps Court of Criminal Appeals NMCMA, which heard oral arguments in December 2008, but has not yet issued its opinion.
The question of the constitutionality of Article 120 is unlikely to end with the NMCMA's decision in Crotchett. Whether the court agrees with the lower court's decision and affirms Article 120 violates a defendant's constitutional right to due process of the law, the issue is of such importance it is likely to be appealed to the US Supreme Court for the final decision.
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