# Opposition Brief — Neal v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2007%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 832

## Text

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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

COON

| {
Nouwuid

eat joe lition fora

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