United States v. Medina.
While this case, like Prather, involves the “substantially incapacitated” element of aggravated sexual assault under Article 120(c)(2), UCMJ, under the unique circumstances of this case the instructions provided by the military judge did not employ the statutory provision regarding the defense’s burden of proof on the affirmative defense of consent. We therefore affirm the lower court’s decision.
Initial reaction is that unless and until there is some statutory fix, military judges should erroneously instruct the members. This is what Judge Baker’s concurring opinion “decides.” While the instructions would arguably be erroneous, the error would benefit the accused and potentially remove the constitutional infirmity.