Gonzalez & Waddington – Attorneys at Law

The Role of Affirmative Defenses

Burden of Proof and Production Shifts

Affirmative defenses are subject to a burden-shifting process under the Article 120 revised Code that has been controversial. The accused must prove affirmative defenses by a preponderance of the evidence. Upon such proof, the burden shifts to the prosecution to prove that the affirmative defense does not exist beyond a reasonable doubt. Some have called this an “overshift” and an improper division of the burden of proof between different parties. Major Howard H. Hoege, III, Overshift: The Unconstitutional Double Burden-Shift on Affirmative Defenses in the New Article120, ARMY LAW., May 2007.

In United States v. Prather, (Feb. 2011) the U.S. Court of Appeals for the Armed Forces held the double burden-shift unconstitutional on the facts therein.

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Approach of Military Judges

Whatever the language of Article 120, military judges have treated affirmative defenses under this article the same way they are treated elsewhere in the U.C.M.J. The accused need only raise “some evidence” of an affirmative defense and the prosecution must then show beyond a reasonable doubt that it does not exist.   MJ Benchbook (DA Pam 27-9)

Affirmative Defenses

Article 120 specifically outlines several affirmative defenses or disallows them.

  • Marriage is an affirmative defense in a prosecution for aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual abuse of a child, abusive contact with a child, indecent liberty with a child, wrongful sexual contact and indecent exposure, unless the accused’s intent was to abuse, humiliate or degrade.
  • Mistake of fact as to consent is an affirmative defense in a prosecution for rape, aggravated sexual assault, aggravated sexual contact and abusive sexual contact.
  • Mistake of fact as to consent means the accused had a reasonable but incorrect belief that the other person had consented. Negligent failure to discover the truth negates the reasonableness of the belief. If the accused was intoxicated, he or she cannot argue that they believed they had consent because of the intoxication. The test is whether a reasonably careful and sober adult would have had the belief under all the circumstances at the time.
  • A child under 16 cannot consent to a sexual activity nor can a person under certain mental impairments.
  • Mistake of fact as to age is an affirmative defense. The accused presents some evidence that he or she held an incorrect belief that the other person was at least 16. The ignorance or mistake has to be reasonable and based on information that would lead a reasonable person to the same conclusion. It cannot be the result of negligence or lack of due care.

Other affirmative defenses.

Other affirmative defenses may also be available. An affirmative defense is basically one that does not deny the objective acts but claims that the accused has no criminal responsibility for the acts. Under Article 50a, for example, lack of mental responsibility is an affirmative defense which the accused must prove by a clear preponderance of the evidence. The advocate must determine how this inconsistency in burden of proof with other parts of Article 120 will be treated by the particular tribunal involved.

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