United States v. Crotchett

I dissent. While I concur with the procedural remedy adopted by the majority, I disassociate myself entirely from the substantive rationale for its decision to remand. I conclude that it is premature for this court to determine, within the four corners of the litigation before us whether or not, pursuant to Article 120(c)(2)(C), Uniform Code of Military Justice, 10 U.S.C. § 820(c)(2)(C), an accused service member, in asserting an affirmative defense of consent or mistake of fact as to consent, must disprove whether a victim is “substantially incapable of communicating unwillingness to engage…