The New Article 120, UCMJ

In the National Defense Authorization Act for Fiscal Year 2006, Congress enacted sweeping changes to Article 120, UCMJ. Pub. L. No. 109-163, sec. 552 (2006). The changes become effective 1 October 2007 and represent an attempt to consolidate into one statute most of the sexual offenses currently prosecuted under the UCMJ.

There are several interesting aspects to the new rules:

(1) The statute looks more like federal criminal statutes contained in Title 18 of the United States Code than of other offenses listed in the UCMJ -- the definitions are contained in the statute itself, not left for definition by the President.

(2) Consent is no longer an element of the offense of rape. "An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused's use of force, threat of force, or placing another person in fear does not constitute consent." Article 120(t)(14), UCMJ.

(3) Currently, if the child with whom the accused had sexual intercourse was at least 12 years old, it is an affirmative defense to the offense of carnal knowledge that the accused believed the person was at least 16 years of age. The new Article 120 extends the defense to aggravated sexual assault of a child, abusive sexual contact with a child, and indecent liberty with a child. Article 120(o)(2), UCMJ.

(4) Mistake of fact as to consent is an affirmative defense. Article 120(t)(15), UCMJ. "The accused has the burden of proving the affirmative defense by a preponderance of evidence." Article 120(t)(16), UCMJ.

(a) It is unclear whether the President will amend R.C.M. 701(b)(2) to require that the defense give notice of intent to raise mistake of fact as to consent, but I would bet he will.

(b) Article 120(t)(16) also states that: "After the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist." This makes no sense. If the evidence does not raise the issue of mistake of fact as to consent, the military judge should instruct on the elements of the offense. If mistake of fact as to consent is raised, the judge should first instruct that on the elements of the offense and that the members must be convinced beyond a reasonable doubt of each and every element of the offense before they can convict. The judge should further instruct that if they find the accused guilty beyond a reasonable doubt, they should then consider whether the accused has proven by a preponderance of the evidence that he had an honest and reasonable mistake as to the consent of the victim. If they find he did have such a mistake of fact, then they must acquit.