Court-Martial Trial Practice Blog
United States v. Prather.
We granted review to address the burden shifts found in Article 120(t)(16), UCMJ, when an accused raises the affirmative defense of consent to a charge of aggravated sexual assault by engaging in sexual intercourse with a person who was substantially incapacitated. We conclude that the statutory interplay between the relevant provisions of Article 120, UCMJ, under these circumstances, results in an unconstitutional burden shift to the accused. In addition, we conclude that the second burden shift in Article 120(t)(16), UCMJ, which purports to shift the burden to the government once an accused proves an affirmative defense by a preponderance of the evidence, constitutes a legal impossibility.