If you are charged with aggravated sexual assault while the alleged victim was substantially incapacitated due to alcohol consumption and you contend that the victim consented, then at the time of trial, the military judge (MJ) may consider two issues:
- Whether the Military Judges’ Benchbook at Note 10 and Note 11 of the new Article 120, UCMJ instructions provides an appropriate or lawful remedy for what the judiciary perceives as the illogical problem raised by Article 120, UCMJ (hint: the answer is no),
- in cases involving forcible sodomy, the fact that consent is an element of the offense.
For the first issue, an experienced court-martial defense lawyer should consider filing a pretrial motion for dismissal of the aggravated sexual assault specifications based on its Constitutional defects and object to the use of the Benchbook’s “new” procedures for Article 120,UCMJ cases (again, this is Note 10 and Note 11 of the instructions) during the trial and – most significantly – ensure you preserve the issue for appeal by objecting on the record to the relevant instructions (in a panel case) or prior to the close of the trial for findings (in a judge-alone trial).
Congress has superseded the prior Article 120, UCMJ with a new but unconstitutional statute, and while we believe that a military judge is duty-bound to dismiss the aggravated sexual assault specifications due to the statute’s fatal defects, there is no lawful mechanism for the judge to “fix” the current statute. The new Benchbook procedures either unlawfully attempt to “resurrect” the now dead prior version of Article 120, UCMJ (after it was expressly superseded by Congressional legislation) or, even worse, are judicially creating a statute in opposition to the express will of Congress. There is no reasonable means of statutory interpretation that permits a judge to apply the new Benchbook instructions.
If a military trial judge expressly finds unconstitutional that portion of the statute pertaining to the affirmative defense of consent and strikes only that provision while leaving the remainder of the statute intact, the judge could possibly cure these issues.
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