U.S. v. Ignacio, 71 M.J. 125

Military Justice Personnel: Military Judge: Instructions

1. if evidence of consent is presented in a trial for abusive sexual contact, the judge must ensure that the factfinder is instructed to consider all of the evidence, including the evidence raised by the accused that is pertinent to the affirmative defense, when determining whether the prosecution established guilt beyond a reasonable doubt
2. where appellant was charged with abusive sexual contact in violation of Article 120(h), UCMJ, and the military judge explained on the record why he would instruct the panel pursuant to the Military Judges’ Benchbook rather than the statutory language and the military judge’s instructions included the statement that evidence of consent is relevant to whether the prosecution has proven the elements of the offense beyond a reasonable doubt and that the prosecution has the burden to prove beyond a reasonable doubt that consent did not exist, the military judge did not err in so instructing the panel; the instructions correctly conveyed the government’s burden to the members

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

1. if evidence of consent is presented in a trial for abusive sexual contact, the judge must ensure that the factfinder is instructed to consider all of the evidence, including the evidence raised by the accused that is pertinent to the affirmative defense, when determining whether the prosecution established guilt beyond a reasonable doubt
2. where appellant was charged with abusive sexual contact in violation of Article 120(h), UCMJ, and the military judge explained on the record why he would instruct the panel pursuant to the Military Judges’ Benchbook rather than the statutory language and the military judge’s instructions included the statement that evidence of consent is relevant to whether the prosecution has proven the elements of the offense beyond a reasonable doubt and that the prosecution has the burden to prove beyond a reasonable doubt that consent did not exist, the military judge did not err in so instructing the panel; the instructions correctly conveyed the government’s burden to the members

Core Criminal Law Subjects: Defenses: Affirmative Defenses

1. if evidence of consent is presented in a trial for abusive sexual contact, the judge must ensure that the factfinder is instructed to consider all of the evidence, including the evidence raised by the accused that is pertinent to the affirmative defense, when determining whether the prosecution established guilt beyond a reasonable doubt
2. where appellant was charged with abusive sexual contact in violation of Article 120(h), UCMJ, and the military judge explained on the record why he would instruct the panel pursuant to the Military Judges’ Benchbook rather than the statutory language and the military judge’s instructions included the statement that evidence of consent is relevant to whether the prosecution has proven the elements of the offense beyond a reasonable doubt and that the prosecution has the burden to prove beyond a reasonable doubt that consent did not exist, the military judge did not err in so instructing the panel; the instructions correctly conveyed the government’s burden to the members

Trial Stages: Merits: Instructions › Affirmative defenses

1. if evidence of consent is presented in a trial for abusive sexual contact, the judge must ensure that the factfinder is instructed to consider all of the evidence, including the evidence raised by the accused that is pertinent to the affirmative defense, when determining whether the prosecution established guilt beyond a reasonable doubt
2. where appellant was charged with abusive sexual contact in violation of Article 120(h), UCMJ, and the military judge explained on the record why he would instruct the panel pursuant to the Military Judges’ Benchbook rather than the statutory language and the military judge’s instructions included the statement that evidence of consent is relevant to whether the prosecution has proven the elements of the offense beyond a reasonable doubt and that the prosecution has the burden to prove beyond a reasonable doubt that consent did not exist, the military judge did not err in so instructing the panel; the instructions correctly conveyed the government’s burden to the members

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

1. whether a panel was properly instructed is a question of law reviewed de novo