U.S. v. Medina, 69 M.J. 462

Military Justice Personnel: Military Judge: Instructions

1. under the aggravated sexual assault statute in Article 120(c)(2), UCMJ, the burden was on the accused to prove the affirmative defense of consent by a preponderance of the evidence, and the military judge erred in instructing the members that the evidence raised the defense of consent and that the government had the burden of disproving the defense beyond a reasonable doubt
2. even though the military judge erred in not instructing the members under the statutory scheme of the aggravated sexual assault offense under Article 120(c)(2), UCMJ, that the burden was on the accused to prove the affirmative defense of consent by a preponderance of the evidence, the error was harmless beyond a reasonable doubt where the military judge clearly and correctly instructed the members that the evidence raised the defense of consent and that the government had the burden of disproving the defense beyond a reasonable doubt

Core Criminal Law Subjects: Crimes: Article 120 - Rape, Sexual Assault, and Other Sexual Misconduct Pre-2019 offenses › (c) Aggravated Sexual Assault

1. the statutory interplay among the relevant provisions of Article 120, UCMJ, when an accused raises the affirmative defense of consent to a charge of aggravated sexual assault by engaging in a sexual act with a person who was substantially incapacitated under Article 120(c)(2), UCMJ, results in an unconstitutional burden shift to the accused, where the accused is required to prove the affirmative defense of consent by a preponderance of the evidence and the burden thus shifts to the defense to disprove an essential element of the offense
2. under the aggravated sexual assault statute in Article 120(c)(2), UCMJ, the burden was on the accused to prove the affirmative defense of consent by a preponderance of the evidence, and the military judge erred in instructing the members that the evidence raised the defense of consent and that the government had the burden of disproving the defense beyond a reasonable doubt
3. even though the military judge erred in not instructing the members under the statutory scheme of the aggravated sexual assault offense under Article 120(c)(2), UCMJ, that the burden was on the accused to prove the affirmative defense of consent by a preponderance of the evidence, the error was harmless beyond a reasonable doubt where the military judge clearly and correctly instructed the members that the evidence raised the defense of consent and that the government had the burden of disproving the defense beyond a reasonable doubt

Trial Stages: Appeals: Harmless / Prejudicial Error

1. if instructional error is found, because there are constitutional dimensions at play, the error must be tested for prejudice under the standard of harmless beyond a reasonable doubt
2. even though the military judge erred in not instructing the members under the statutory scheme of the aggravated sexual assault offense under Article 120(c)(2), UCMJ, that the burden was on the accused to prove the affirmative defense of consent by a preponderance of the evidence, the error was harmless beyond a reasonable doubt where the military judge clearly and correctly instructed the members that the evidence raised the defense of consent and that the government had the burden of disproving the defense beyond a reasonable doubt

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the constitutionality of a statute is a question of law that an appellate court reviews de novo
2. whether a court-martial panel was properly instructed is a question of law reviewed by an appellate court de novo
3. if instructional error is found, because there are constitutional dimensions at play, the error must be tested for prejudice under the standard of harmless beyond a reasonable doubt

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. the responsibility clearly rests with Congress to revise a statute to remedy an unconstitutional statutory scheme; although an appellate court will give a constitutional saving construction when possible, it is not the province of the court to rewrite a statute to conform to the Constitution, as that would invade the legislative domain