United States v. Prather
69 M.J. 338, 2011 WL 468790, 2011 CAAF LEXIS 95 (2011)
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Rule of Law:
A statute violates the Due Process Clause if it requires an accused to prove an affirmative defense by a preponderance of the evidence when proving that defense necessarily negates an essential element of the crime that the prosecution is required to prove beyond a reasonable doubt.
Facts:
- On October 30, 2007, Airman Stephen A. Prather hosted a party at his house on Travis Air Force Base, which a woman, SH, attended.
- Prior to the party, SH asked Prather if she could sleep on his couch because she planned to become intoxicated, and Prather agreed.
- During the party, Prather, SH, and other guests participated in drinking games.
- SH became intoxicated and eventually ended up on the couch.
- After the other guests left in the early morning, Prather and his wife went upstairs to their bedroom.
- Prather later went downstairs and engaged in sexual intercourse with SH.
- Prather testified that SH was awake, initiated kissing, removed her own pants, and consented to the intercourse.
- SH testified that she had passed out on the couch and awoke to find Prather already penetrating her, after which she passed out again.
Procedural Posture:
- Airman Stephen A. Prather was charged with aggravated sexual assault and tried by a general court-martial.
- At trial, the defense counsel argued that the statutory scheme for the affirmative defense of consent created an unconstitutional burden shift, but the military judge instructed the members consistent with the statute.
- The court-martial convicted Prather, and the convening authority approved the sentence.
- Prather (appellant) appealed to the United States Air Force Court of Criminal Appeals (intermediate appellate court).
- The Air Force Court of Criminal Appeals affirmed the conviction and sentence, finding no violation of Prather's due process rights.
- Prather (appellant) then petitioned the United States Court of Appeals for the Armed Forces (highest military court), which granted review to address the constitutionality of the burden shift.
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Issue:
Does a provision of the Uniform Code of Military Justice violate the Due Process Clause by requiring a defendant, charged with sexual assault of a substantially incapacitated person, to prove the affirmative defense of consent by a preponderance of the evidence?
Opinions:
Majority - Judge Erdmann
Yes, the provision violates the Due Process Clause. An affirmative defense may not shift the burden to the accused to disprove an element of the charged offense. Here, the prosecution was required to prove beyond a reasonable doubt that the victim, SH, was 'substantially incapacitated.' Under the UCMJ's definition, a person who is substantially incapacitated cannot consent. Therefore, by requiring Prather to prove consent by a preponderance of the evidence, the statute unconstitutionally forced him to disprove the element of substantial incapacity. The judge's standard instructions that the government retains the ultimate burden of proof were insufficient to cure this constitutional error, especially since the instruction on using consent evidence was permissive ('may consider') rather than mandatory ('must consider'). Furthermore, the statute's second burden shift, which required the prosecution to disprove consent beyond a reasonable doubt after the defense had already proven it by a preponderance, is a 'legal impossibility.'
Concurring-in-part-and-dissenting-in-part - Judge Baker
No, the initial requirement for the accused to prove the affirmative defense does not, in itself, create an unconstitutional burden shift. The constitutional problem arises only if the law relieves the government of its duty to independently prove every element of the offense, which this statute does not do on its face. An overlap between evidence for an affirmative defense and evidence negating an element of the crime is permissible as long as the jury is properly instructed that the government always bears the ultimate burden of proof beyond a reasonable doubt. However, I concur in the result because the statute's second burden shift is unconstitutional on its face. It is a 'legal impossibility' to require the government to disprove a defense beyond a reasonable doubt after the fact-finder has already determined the defense was proven by a preponderance of the evidence. This flawed statutory structure renders the process unconstitutional.
Analysis:
This decision reinforces the fundamental due process principle that the prosecution must prove every element of a crime beyond a reasonable doubt. It establishes that a legislature cannot create an affirmative defense that is merely the mirror image of a criminal element and then shift the burden of proving that defense to the accused. The ruling invalidated a key provision of the UCMJ's then-new sexual assault statute, forcing military courts to adjust jury instructions to ensure the burden of proof regarding a victim's capacity to consent remains entirely with the government. This case serves as a critical check on legislative attempts to redefine criminal statutes in ways that might inadvertently undermine the presumption of innocence.
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