Opposition Brief — Neal v. United States

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Mn the Supreme Court of the Cnited States

ON PETITION FOR A WRIT OF CLELRTIORARI

LOTHAR UNITERSTAT! COURT OF APPEHAT

FOR THHEARMED FORC!I

Bik FOR THE UNTETEDSTATES IN OPPOSTEPION

NEAL KUMAR KATYAI

lehiwg Solicitor General

ped) sel of Lee Ord

YA. BREUFI

| fant Attorney General

Pye partie rl of Justice

Wa hangton Ji¢ 5 5SO-000]

pre meCtbrief YOuUSAOD GO

Geo) MEAL

QUESTION PRESENTED

Whether Article 12Z00r) of Uh Uinilorm Code of

Military Ju lice, 10 ULS.G. 920") G upp 1) ZOO VhACH

Species that “consent is an allirmative deten > Lhe

offense of aypvravated sexual contact by fore holate

due proce 1) \ hitting thie Dura nm oo prool

element of the offense to the detendant

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Jn the Supreme Court of the Cuted States

No. O9-1414

RAYMOND L.. NEAI

ON PETITION FOR A WRIT OF CERTIORARI

LOTHE UNITED STATES COURT OF APIEA!

FOR THE ARMED FORCE:

BRikr FOR THE UNTITEDSTATES IN OPPOSTTION

OPINIONS BELOW

The opinion of the United States Court of Appeal:

for the Armed Forces (Pet. App. la-46a) is reported at

68 M.J. 289. ‘The opinion of the Navy-Marine Corp

Court of Criminal Appeals (Pet. App. 44a-6la) is repor

ted at 67 M.J. 675

JURISDICTION

The judgment of the Court of Appeal: for the Armed

reconsideration was denied on February 22, 2010 (Pet

App. 62a). The petition for a writ of certiorari was filed

on May 2], 2010. ‘The jurisdiction of this Court is in

voked under 28 U.S.C. 1259(2)

Phe petition appendix (Pet. App. la) does not accurately reproduc

thie date ol the court dees LOT)

STATEMENT

Petitioner, a member of the United States Navy, wa:

tried before a general court-martial on the charge of

agyravated sexual contact, in violation of Article 120(e)

of the Uniform Code of Military Justice, 10 U.S.C. 920(e)

(Supp. 11 2008). A military judge dismissed the charge

mid-trial. On interlocutory appeal, the Navy-Marine

{ Ory Court of Criminal Appeal: (NMCCA) reversed

and remanded. Pet. App. 44a-61a. ‘The Court of Appeal

for the Armed fforces (CAAI ) affirmed and remanded

the case for further proceedings. /d. at la-4déa.

|. Congress enacted the Uniform Code of Military

Justice (UCM), 10 U.S.C. 801 ef seq., with provisions

that define military offenses for members of the United

States Armed Forces. See 10 USC. SO2Z(a)C1), 877-954

As relevant here, Article 120 of the UCMJ, 10 ULS.¢

920. defines several offenses involving: sexual miscon

duct, including “rape” and “apyravated sexual contact

10 U.S.C. 920(a) and (e) Gsupp. I 2008)

a. Before 2006, Article 120 defined rape to be

“anact of sexual intercourse, by foree and without con

sent.” 10 ULS.C. 920 (2006). Other types of sexual a:

>

sault were separately charged under Article 134 as con

duct prejudicial to “good order and discipline” or con

duct “bringling| discredit upon the armed forces.” 10

CC. 984: see Manual for Courts-Martial, United

States Pt. TV 99 60.c(), 63.b(3) (2005 ed.). Like rape,

those offenses punished acts of “unlawful force or vio

lence” taken “without the lawful consent of the person

affected.” Jd. 4 54.cC))(a) (defining “assault”); see ud

1 63.501), .¢ Gndecent assault). The separate clement:

{ ride otherwi e specified all Citation to 10 |

brief are to the 2008 uppleme nt to the { (lode

of “force” and the absence of “consent” reflected a tradi

tional definition of criminal sex offenses. See, e.g., Wil

liams v. United States, 827 U.S. 711, 715 (1946) (dicta

discussing federal crimes of rape and assault with intent

to rape); H.R. Rep. No. 594, 99th Cong., 2d Sess. 7-8, 11

(1986) (1986 Hlouse Report).

b. In 2006, Congress substantially revised Article

120 to “align | the statutory languape of sexual assault

law under the UCMJ with federal law under sections

2241 through 2247 of tithe 18, United States Code.” HR.

Rep. No. &9, 109th Cong., Ist Sess. 882 (2005). The 2006

amendments to Article 120 thus built upon the Sexual

Abuse Act of 1986, Pub. lL. No. 99-646, § 87, 100 Stat.

0620 (enacting 18 U.S.C. 2241-2245), which had “mod

ernize[d] and reformed] Iederal rape provisions” by,

inter alia, abandoning the portion of the Common-law

definition of rape that required proof of the absence of

“consent.” 1986 House Report 7, 10-11. The 1986 Act

defined aggravated sexual abuse and similar federal

crimes such that the “[lack of consent by the victim is

not an element of the offense” in order to focus trials

“upon the conduct of the defendant, instead of upon the

conduct or state of mind of the victim.” /d. at 10, 14-16,

1X (the prosecution need not introduce evidence of lack

of consent”); see id. at 13 (explaining that it would be

“inappropriate” to require “the prosecution to show that

the vietim did not ¢onsent”).”

Congress's 2006 revision of Article 120 followed that

modern approach to sex offenses. Article 120 defines

Where Conpress found “ilappropriate to the offense to require the

prosecution to show that the conduct was engayed in without the

victim’s permission,’ the Sexual Abuse Act of 1986 “explicitly” set forth

“such a requirement in the statutory text. 1986 llouse Report 1s &

n.63 (discussing requirement in 1S USC. 2244(b)

“consent” to mean “words or overt acts indicating: a

freely piven apreementl vo the sexual conduct at issue by

a competent person,” 10 U.S.C. 920(0)(14), and estab

lishes that “|efonsent and mistake of fact as to consent

are not an issue, or an affirmative defense, in ahy prose

cution” under Article 120 eXcepl a otherwise pron ded

by the statute. 10 U.S.C. 92007). lor the offenses of

rape under Article 120(a) and agyravated sexual contact

under Article 120(e), Congress specified that “[¢lonsent

and mistake of faet as to consent are an affirma

live defense,” chrd., that permit the aceused to “denly|

criminal responsibility” without “denying that the

accused committed the objective acts constituting: the

offense charged.” 10 ULS.C. 920(U6) (defining: “affir

mative defense”); ef. 10 U.S.C. 92000015) (defining: “mis

take of fact as to consent”).

Article 120(a) provides that a person subject to the

UCM is guilty of “rape? if he or she causes another

person lo engaye ina “sexual act”-—ve., contact between

the penis and vulva or a specified act involving penetra

tion of the genital opening—in one of five prohibited

ways. 10 ULS.C. 920(a); see 10 U.S.C, 920001) (defining

“sexual act”). As relevant here, Article 120(a) prohibit:

causing another to engage in asexual act by “using force

apalnst that other per: Oli 1Q U.S cy 920(a)(1)

Article 120(e), in turn, provides that a person 1

yuilty of “agyravated sexual contact” if he or she en

rages in or causes “sexual contact” with or by another

person with the “intent to abuse, humiliate, or deprade

any person or to arouse or gratify the sexual desire of

Congress made its 2006 amendment to Article 120 applicable with

respect lo offenses committed on or after October 1, 2007. See National

Defense Authorization Act for Ij cal Year ZOOG6. Pub. Ll. No. 109-166

Ac) and (DP), IY Stat. 62605

any person, “iH to do so would violate [Article 120(a) |

(rape) had the sexual conduct been a sexual act.” 10

U.S.C. 9200e) and (t)(2).") Article 120(e) thus require:

proof that the accused engaped in or caused sexual con

tact in one of the five ways proseribed in Article 120(a),

including by the use of “force” against the other person

(10 ULS.C. 920Ca)(1))

(Inder Article 120, “|t}he term ‘force’ means action to

compel submission of another or to overcome or prevent

another's resistance by” (A) the use or display of a dan

rerous weapon or object; (B) the suppestion of posses

sion of such a weapon or object; or (C) “physical vio

lence, strength, power, or restraint applied to another

Person, sulficient that the other Person could not avoid

or eseape the sexual conduct.” LO ULS.C. 920(00)(5). Tt

foree or the threat of force is established, Article 120

specifies that the affirmative defense of “consent” can

nol be established simply by the “[]Jack of verbal or

physical resistance or submission resulting from the ac

cused’s use of force, threat of force, or placing another

person in fear.” 10 U.S.C. 920(0)(14) (defining: “con

sent’)

2. a. Petiioner was charged in this case with appra

vated sexual contact under Article 120(e). ‘The charging

document alleges that, on or about December &, 2007,

petitioner enpgaped in “sexual contact” by “using: his

hands to fondle the breasts and vaginal area of Airman

[redacted], and by thrusting his penis against the but

tocks of the said Airman [redacted], by using physical

“sexual contact means “the intentional touching a Ol the

genitalia, anus, proin, breast, inner thich, or buttocks of another

person’ or “intentionally causing another person to touch) those area

“with anintent to abuse, humiliate, or deprade any person or to arouse

or yrauify the sexual desire of any person 1O U.S.C. 920002)

trenpth suffimient that she could not escape the sexual

conduct.” CLA. JA. 84; see Pet. App. 6a. Petitiones

moved to dismiss the charge and, after the parties com

pleted them presentation of the ev dence on the merit

the military judge granted the motion. /Jbid. The judge

held Article 1200e@) unconstitutional on the vround that

Iimnpermiss Ibyly “required the defense to Carry the bur

den of prool with re: pect lo an clement of the offense’

by making “consent) an affirmative defense. /d. at

(A. J.-A. 12-29 (ruling)

b. ‘The government appealed to the NMCOCA, which

took the case en bane and unanimously reversed and

remanded for further proceedings Pet. App. 44a-61a

As relevant here, the court concluded that “prool ol the

Clement of force” in an aypravated-sexual-contact prose

cution under Article 120(e) “does not require proot of

)

Yack of consent’ ” and that “the affirmative defense of

consent does not uncon Litutionally shift the burden of

proof to the defense.” /d. at 45a; see id. at 52a-60a. ‘The

court explained that “|t}he burden of proving force be

yond a reasonable doubt is, and always remains, with the

Government.” /d. at 60a. And although Congress made

“consent an affirmative defense in Article 120, the ex)

tence of that defense does not preclude the finder of faet

Prom “Con iderting | evidence relevant to the affirmative

defense of consent’ in the course of “determining

whether there is reasonable doubt about the sullicieney

of the Government's proof on the element of force

lhid

¢. The Judge Advocate General certified the case for

review by the CAAEF, see 10 U.S.C. &67(a)(2), which af

firmed. Pet. App. la-46a. As relevant here, the court

rejected petitioner’s claim that Article 120(Ce) offend:

Gdue proce bv forcing the aceused to di prove an el

ment of the offense. /d. at 17a-Ska

The CAAK coneluded that Article 120(@) does not

Include “the absence of consent) as an element of thi

offense of agpyravated sexual contact Vet \pp LOA

The prosecution, it explained must prove that olfense

by establising beyond a reasonable doubt that “the a

cused engaged in sexual contact by applying the degree

of force deseribed”’ by statute, but that “the absence ol

consent is not a fact necessary to prove the crime.” bid

The court rejected petitioner's contention that “consent”

neverthel remamed “an implicit element’ in the of

fense” under Article 1Z0’s “definition of force fd. at

d2a-dda. The court explained that Conpress specifically

“deleted the phrase ‘without consent” from the pre

Z006 version of the statute, 7d. at lSa-2)a, and that Arti

cle 120 now “focuses on the force applied by an accused

not on the mental state of the alleged victim.” /d. at 33a

“Although the statute describes the degree of force in

terms of the relative actions of the accused and the al

leped victim, the prosecution is not required to prove

whether the alleged victim was, in fact, willing or ‘not

Willing.” /orid. The court explained that Congress sim

ply “definfed] force from the perspective of the action

taken 1) Lhe allepyed perpetrato) and it required that

such force “constitute] | ‘action to compel another pet

son regardless whether a particular victim consented

or not. Tbid

fhe CAAI CxXplamed that Article 1200 delinition of iyravaled

exualassaull departed from traditional use of the lack of “consent” a

an Clement of a ses nse, but it concluded that Conger broad

constitutional authority to define military crimes fully authorized it to

redehne military offenses in that manner. Pet App.2@a sa. Phe court

added that sexual misconduct in the military involve pec ibharms that

With re pect to petitioner § due process ¢laim, the

court observed that the lkutth Amendment requires the

yovernment to prove all Clements of an offense beyond

a reasonable doubt. Pet. App. 22a. But it explained that

a Statute like Article 120 may permissibly require the

accused to prove “an affirmative defense even when the

evidence pertinent to an allirmative defense also may

raise a reasonable doubt about an element of the of

lense al 2Za-25a. As long as the jury is permitted

to “consider evidence that may raise a reasonable doubt

about {such} an element,” the court reasoned, the “bur

den of proof as to all elements remains on the prosecu

lion’ and the defendant’s burden of proving an affirma

Live defense will not Improperly “shift the burden’ to

him of disproving an clement of the offense. ld. at 26a

Given those principles, the CAAT® stated that “lal prop

erly instructed jury may consider evidence of consent

under Article 120 both in determining “whether the

prosecution has metits burden on the clement of force”

with prool bye vond a Cd: onable doubt and, ; eparately, 1)

evaluating “whether the defense has established [the |

affirmative defense” of consent. /d. at 26a-274a; §

al 60a (Article 1200r) does not prohibit “considering: evi

dence of consent, if introduced, as a subsidiary fact per

tinent to the prosecution's burden to prove the element

of force beyond area onable doubt.”)

The CAAEF accordingly held that Article 120 does not

sell create an “unconstitutional clement-based affirma

live defense” of consent. Pet. App. 63a. ‘The court, how

irrant special treatment. such misconadu Vmilitary personnel “ean

havea devastating impact on the good order and discipline essential bo

the conduct of mulitary operations” and can undermine “relationship

With the local population’ that are lical toour Nation's railitary and

foreign policy obye Live bid

ever. jeftt other issues unresolved. It declined to deter

mine whether Article 120 was “unconstitutional as ap

pled LO [petitioner |” In this case because a decision on

that question would be “premature” in this interlocutor

appeal piven that, ater alia, no “instructions reparding

consent evidence” have yet been piven to the member

of the court-martial panel /d. at 344-354. The court

hkewise declined to address the respective burdens of

the prosecution and the defense regarding an affirma

tive defense under Article 120, and it declined to decid

whether the evidence presented was sufficient to raise

the affirmative defense of consent. Jd. at $5a-864a

Judges Ryan and fcrdmann concurred in part and

dissented in part. Pel. App. 58a 43a. Un thei view, Con

gress unconstitutionally shifted the burden to prove

“force” from the government to the defense by making

“consent” an affirmative defense under Article 120. /d

aL 398-4350

AKGIUMEN'T

Petitioner contends (Pet. 6-25) that Article 120 vio

lates due process > Shifting Lhe burden of dh Proving

the element of “force” to the defense. The interlocutor

decision of the CAA ts correct and does not conflict

with any decision of this Court or any other court of final

appeal. lurther review is unwarranted

lL. dn civilian contexts, the Due Proc Clause rr

quires the government to prove each element of a crim

nal offense beyond a reasonable doubt hire Wen Mp

397 U.S. 358, 861-4564 (1970), 1t follows that a legislature

may not direct an ingredient of an offense found in “the

definition of thle] crime” to be “presumed” by the finder

Of fact “upon prool ol the other elements of the offense

and force the defendant to “rebut{]” that presumption

Ona |

lature from

Nn oallirn

Pattee ())

bility hol

force under Articie 1Z0, Pet. 15 Cemphasi added), and

distinguishes this Court's decision in Martin as limited

to contexts in which an alfirmative defense “olten” will

nevate an element of the offense Pet. 12-19 Pets

Lioness arvument suller: Prom multiple detect

karst. if premise | Incorrect keorce” and con

sent’ are lopie«ally distinet and they focus on different

bac i the delendant acllon and the victim

state of mind manifested in “words or overt acts” indi

eating voluntary agreement to the conduct. 10 ULS.~(

920(0)(14). “korce™ can thus be eparately established

even when “consent exist see p. 12, supra (providing

CXample) Cl] Z2 Wayne at ual AVE Sab LaLreh eve ( rionuanal

Law § 17.4, at 637-63% & n.& (2d ed. 2003) (explaining

that where “force and lack of consent” are both element

olf an olfense that must be eparately proven, TE 1 POSSI

ble that the force element May He proven Without pros

Ing non Consent) Indeed, Conpre emphasized the

distinetion between the “force” required as an element

of the offense, 10 ULS.C. 920(a)(1), and (e), and the aff

mative defense of “consent lO USC. 92007) and (t)(14)

by\ empha izing that the allirmative delense does not

require a defendant to den “the objective acts consti

Luling the offense charyed, 10 U.S.C. 920(0)116), which

include the defendant's use of “Tlorce

econd, petitioner proifers an unduly narrow reading

of Martin. Martin construed the due process right ree

ognized in Winship that protects the accused against

COnVICLION ~exceptl Upon proot beyond a reasonable

doubt of every fact necessary to constitute the crime

Martin, 480 US. at 241-252 (quoting Winship, 397 U

al 364). ‘That right, the Court recoynized, would be vio

lated i the jury s “determinfation| whether there was a

reasonable doubl about the |vovernment s}| ¢ase” wa

14

constrained by foreing the jury to ignore evidence of an

affirmative defense relevant to the state’s case “unles:

[the defense] satisfied the preponderance standard.” /d

al 235-234. Lut nothing in Martin suggests that the

povernment 1 lnproperly excused from its obligation LO

prove every element beyond a reasonable doubt if the

jury can properly evaluate that burden based on “all of

the evidence.” /d. at 234. Indeed, outside the context of

nnpermissible evidentiary presumptions of the type at

issue In Mullaney (see pp. 9-10, supra), the due proces:

requirement of proof beyond a reasonable doubt is one

thatas largely controlled through jury instructions allo

cating the burden of proof among the parties. And be

cause no jury instructions have been given in this case,

that question is not before the Court

2. ‘The decisions of courts of final appeal in analo

yous contexts are consistent with the judgment below.

In State v. Camara, 7&1 P.2d 483 CWash. 1989), for in

Stance, the Washington Supreme Court examined a

modern rape statute that included “forcible compul: ion”

as an element of the offense and treated “consent” as an

affirmative defense. /d. at 48%5-486. The court held that

the offense did not offend due proces; principle: eVen

though there was “conceptual overlap between the con

sent defense to rape and the rape crime’s element of

forcible compulsion” because the defense could “‘ne

rate| Pan clement of [the] crime.” /d. at 4&7. Camara

cmphasized that Jury instructions should ensure that the

yovernment is not relieved of its burden of proving each

element by addressing that overlap and explaining that

the State has an “unalterable burden of proving beyond

a reasonable doubt every element of the crime charged,”

mcluding foretble Compulston. /bcd

In feussell v. U/nited States, 69% A.2d 1007, 1016-1017

(10.0. 1997), the D.C. Court of Appeal: ee Imularly upheld

a “modernize|d]° sexual abuse statute that apphed to

conduct that “causes another person to engage in or sub

mit toasexualact * * * [bly using force against that

other person " fd. at 1009 & n.4 (quoting predeces or to

1d.C2. Code §& 22-3002 (2010)). Like Article 120, the stat

ute was “intended to change the focus of the eriminal

process away from an inquiry into the state of mind or

acts of the victim into an inquiry into the conduct of the

accused” by climinating “‘lack of consent’ as an clement

of the offense.” /d. at 1009. The ftussell court recog

nized that evidence of consent was “relevant to the go,

ernment § burden ol proof” reparding force, hut if COn

cluded that the legislation “did not require the defen

dant to disprove any clement of the offense as defined in

the statute” even though evidence of the defense could

“nepate’” the government's proof of the element of

force. See 7d. at 1016-1017 (citation omitted)

Petitioner him: elf acknowledge: (Pet. 15-18) that the

decisions that have considered analogous sexual offense

Statutes are consistent with the decision below. Pet

Lioner nonetheless contends (Pet. 18-14) that Humanzs

v. Beyer, 871 F.2d 482 (4d Cir.), cert. denied, 4938 U.S

%12 (1989), Supports his cause. That is incorrect. [lu

manik concluded that a murder defendant's due proces:

rights were violated by jury instructions because there

was a4 “reasonable likelihood” that a juror would have

concluded that “the defendant’s evidence [regarding hi:

Reussell concluded that the jury instructions before it did not

ulhcently advise the jury thatit could consider evidence of the consent

»when “considering the force element of the offense,” 69% A.2d

al 1014-1016, but, because no instructions are at issue here, that portion

lione! present challengt

mental-defect defense] should be considered on the Jele

ment off intent’ to kill “only if the juror finds [the de

fense|to be more likely true than not true Id. at 44)

442 Hlumantl simply holds that “a jury may not he

fold’ that the defendant’s “‘evidence must be put aside

unless it satishe|s| the preponderance standard”

because, the court reasoned, such evidence of an affir

mative defense “cannot constitutionally be ignored” if it

Can raise a rea oOnable doubt about existence ol

element of the offense |.” /d. at 448. The members of

the court-martial in this case ve yet to be instructed

by the court and, as the CAA held, nothing in Article

120 prohibits the members from “considering: evidence

ol consent, Ho introduced, as a subsidiary fact pertinent

to the Prose Mion burden to prove the element of force

beyond a reasonable doubt Pet. App. 50a

6. binally, this case would be a poor candidate fot

review because of its interlocutory posture. Any review

by this Court on the (uesvlion pore ented should involve

acase in which jury instructions have been given to de

fine how the finder of fact should evaluate proof of thi

elements of the offense and any affirmative defense

uch evidentiary tnstructions would be particularly im

portant to this Court's plenary review because the due

proce: right at issue here is ultimately a right against

“conviction except upon proof heyond a reasonable

“64

doubt of every fact necessary to constitute” the offense

Martin, 480 US. at 241-2352 (quoting Winship, 897

at 564). Indeed, the relevant decisions involving due

proce. challenge In Similar context hea Parisen alte}

Criminal Conviction were obtained based on jury Of

tructions that reviewing courts have examined in light

ol that due proce requirement. See g., Martin, 480

at 240: Patterson, 432 U.S. : ZOO: Hlamantk,

09% A.2Zd at 1O1lS-1OIG:

Camara 2d at 487-488. Any review should thu:

await a ¢nse that provide this Court with a complet

trial record, including: jury instructions, to allow the

( gurl LO CAPLOre fully war COP (| mat due Proce puro

Lecbion that the } > tition invoke

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