'Overshift' The Unconstitutional Double Burden-Shift on Affirmative Defenses in the New Article 120

摘要

The Fiscal Year (FY) 2006 National Defense Authorization Act employed an unprecedented strategy to combat the threatening problem of sexual assault in the military. Congress completely overhauled Article 120 of the Uniform Code of Military Justice (UCMJ), removing "without consent" as an element of rape and other sexual assaults and opting instead to make consent and mistake of fact as to consent affirmative defenses. As an added measure, Congress took the rare step of shifting the burden of proof to the accused to prove the existence of all affirmative defenses by a preponderance of the evidence. In a final, unprecedented step, Congress shifted the burden back to the government to disprove, beyond a reasonable doubt, the existence of a defense after the accused meets his burden on the initial burden shift.