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Published by Jennifer Norris
UNITED STATES, Appellee v.Stephen A. Prather, Airman U.S. Air Force, Appellant
UNITED STATES, Appellee v.Stephen A. Prather, Airman U.S. Air Force, Appellant

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Published by: Jennifer Norris on Jan 23, 2012
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 UNITED STATES, Appelleev.Stephen A. Prather, AirmanU.S. Air Force, AppellantNo. 10-0345Crim. App. No. 37329United States Court of Appeals for the Armed ForcesArgued September 28, 2010Decided February 8, 2011ERDMANN, J., delivered the opinion of the court, in whichEFFRON, C.J., and RYAN, J., joined. BAKER, J., filed a separateopinion dissenting as to part A and concurring in the result, inwhich STUCKY, J., joined.CounselFor Appellant: Major David P. Bennett (argued); Colonel Eric N.Eklund, Lieutenant Colonel Gail E. Crawford, Major Michael A.Burnat, Major Shannon A. Bennett, and Dwight H. Sullivan, Esq.(on brief).For Appellee: Captain Naomi N. Porterfield (argued); CaptainCharles G. Warren and Gerald R. Bruce, Esq. (on brief); ColonelDon M. Christensen.Military Judge: Thomas Dukes
This opinion is subject to revision before final publication.
United States v. Prather, No. 10-0345/AF2Judge ERDMANN delivered the opinion of the court.Airman Stephen A. Prather pleaded not guilty to charges ofaggravated sexual assault and adultery in violation of Article120(c)(2) and Article 134, Uniform Code of Military Justice(UCMJ). He was convicted of both charges by a general court-martial composed of members and was sentenced to a reduction toE-1, forfeiture of all pay and allowances, confinement for twoyears and six months, and a dishonorable discharge. Theconvening authority approved the sentence and the United StatesAir Force Court of Criminal Appeals affirmed the findings andsentence. United States v. Prather, No. ACM 37329, 2010 CCALEXIS 149, 2010 WL 4068932 (A.F. Ct. Crim. App. Jan. 25, 2010).Strictly speaking, the burden of proof, as those wordsare understood in criminal law, is never upon theaccused to establish his innocence or to disprove thefacts necessary to establish the crime for which he isindicted. It is on the prosecution from the beginningto the end of trial and applies to every elementnecessary to constitute the crime.Davis v. United States, 160 U.S. 469, 487 (1895). We grantedreview to address the burden shifts found in Article 120(t)(16),UCMJ, when an accused raises the affirmative defense of consentto a charge of aggravated sexual assault by engaging in sexual
United States v. Prather, No. 10-0345/AF3intercourse with a person who was substantially incapacitated.
 We conclude that the statutory interplay between the relevantprovisions of Article 120, UCMJ, under these circumstances,results in an unconstitutional burden shift to the accused. Inaddition, we conclude that the second burden shift in Article120(t)(16), UCMJ, which purports to shift the burden to thegovernment once an accused proves an affirmative defense by apreponderance of the evidence, constitutes a legalimpossibility.BACKGROUNDOn October 30, 2007, Prather invited SH to a party that heand his wife were hosting at their house on Travis Air ForceBase, California. Prior to arriving at the party, SH askedPrather if she could spend the night on his couch because sheplanned on becoming intoxicated. Prather agreed. During theparty, Prather, SH, and others played drinking games. At some
We granted review of the following issue:Whether the elimination of the element of lack ofconsent combined with the shifting of the burden toprove consent, by a preponderance of the evidence, tothe accused in order to raise an affirmative defenseto aggravated sexual assault under Article 120, UCMJ,where Appellant allegedly engaged in sexualintercourse with a person who was substantiallyincapacitated, is a violation of Appellant’s right todue process under the 5th Amendment of the U.S.Constitution.United States v. Prather, 69 M.J. 168 (C.A.A.F. 2010) (ordergranting review).

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