The current Article 120 became law on October 1, 2007. Congress completely re¬ wrote the UCMJ provisions on sexual crimes. One goal of the new statute was to shift the focus of sexual crimes from the victim to the accused. The old Art. 120, a traditional force/consent statute, presumed that sex was consensual unless shown to be otherwise. The government’s proof required evidence of resistance by the victim as a prerequisite to meeting its burden to prove beyond a reasonable doubt that the victim did not consent.
The new (current) Article 120 eliminated consent as an element of the most serious sexual offenses, making the perpetrator’s force the principal element of proof. Congress retained consent and mistake of fact as to consent as affirmative defenses rather than elements. At. 120(r), (t)(14), (t)(15), (t)(16). Article 120(t)(16) states that the accused irst “has the burden of proving [either] defense by a preponderance of the evidence. After the accused meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the defense did not exist.” This arrangement, which by 2007 was contained in no other sexual crimes statute in the nation, was legally confusing, and ultimately fatal to the affirmative defense scheme of At. 120. THIS “DOUBLE BURDEN-SHIFTING” PROVISION IS NO LONGER GOOD LAW. (See below).
The role of consent under the new (current) statute was disputed even before its effective date. Three cases decided this term address the interplay between consent and proof of a sexual crime. The end result of those cases is continuing confusion about consent in relation to Congressional intent. The Army Trial Judiciary has amended the Military Judges‘ Benchbook to include an instruction that consent (when raised by “some evidence”) must be disproven by the government beyond a reasonable doubt. This instruction, which effectively re-inserts “lack of consent” as an element of the crime, will govern trials under the current At. 120 unless Trial Counsel persuade trial judges to substitute a different instruction more in line with the original intent of Congress.