The NMCCA has heard oral argument and has a case pending which challenges the constitutionality of the "new" Article 120, UCMJ. All the other Service CCA's or MJ's to consider this issue have found the statute constitutional. The MJ's have taken varying approaches in the court-room though. One MJ I had ended up basically using the "old" BB instruction for a sexual assault case, another believed that if the defense showed consent by a preponderance the Members must acquit (this case got dismissed just before trial, and before I had a chance to change forum to MJA. We had lots of consent evidence.).
LT Keith B. Lofland, JAGC, USN, Article, Essay, & Note: The Neglected Debate Over Sexual Assault Policy in the Department of Defense, 55 Naval L. Rev. 311 (2008) is of interest and is online, at the NJS website.
Volume 56 seems to be out, but I can't seem to access it — anyone?