A #military #appeals court has overturned the sexual assault conviction of a Navy enlisted man, citing problems with how the judge allowed the burden of proof to shift.
This is a recurring issue in military justice, following the botched job Congress did in rewriting Article 120 of the Uniform Code of Military Justice. Article 120 deals with sexual assault.
In a 14-page decision, issued Tuesday afternoon, the U.S. Navy-Marine Corps Court of Criminal Appeals ordered a rehearing in the case of Ronnie G. Oakley, Jr. Oakley, an E-4 Information Systems Technician Third Class, was convicted last year of aggravated sexual assault following an incident with his intoxicated, 19-year-old stepsister.
Oakley's appellate attorney, Marine Corps Col. Dwight Sullivan, argued successfully that the trial judge's instructions to the court martial panel failed to adequately cure the burden-shifting problem created by the rewritten Article 120. The issue relates to consent as a defense:
If the accused proves the victim consented, he has necessarily proven the victim had the capacity to consent. This, in turn, means he has disproven one of the elements of aggravated sexual assault, which is that the victim was substantially incapacitated from offering consent.
The appellate court stated:
"We find that (the judge's) instructions failed to properly convey to the members that any evidence of consent, including evidence pertinent to the affirmative defense, must also be considered in deciding whether the prosecution carried its burden of proving each element of the offense beyond a reasonable doubt."