(dissenting in part and concurring in the result).
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 in the sexual act in order to be acquitted.” Likewise, I cannot join my brethren in concluding that the appropriate way forward is to consider the constitutional challenge before us as facial in nature. The military judge ruled that the provision in question was unconstitutional “as applied” to the facts of this case, and the pleadings before us similarly aver that this is an “as applied” challenge. As an appeal under Article 62, the majority need go no further than answering the narrow question presented in finding that the military judge erred as a matter of law in concluding, without evidence, that this statute was unconstitutional “as applied.” Our rationale for granting the Government’s appeal should be based on the absence of a record below, and nothing else.
In contrast to the extremely limited manner in which we addressed this uniquely drafted statute in United States v. Neal, 67 M.J. 675 (N.M.Ct.Crim.App.2009), the detail and dicta encompassed within the majority opinion causes this court to run the risk of unintentionally misinforming practitioners that this statute is constitutionally efficacious “as applied.” The military judge took the most unusual step of determining, based upon an undeveloped record pretrial, that the statute in question was unconstitutional as applied to those undeveloped facts. This court ought not follow suit and review a statute’s constitutionality without the aid of *717evidence in the ease before it. My concern is that, given the procedural posture of this case, any decision we render — either as an “as applied” or a “facial” challenge — , is nothing more than an advisory opinion at this juncture, and we should “adhere to the prohibition on advisory opinions as a prudential matter.” United States v. Chisholm, 59 M.J. 151, 152 (C.A.A.F.2003).
Confirming its advisory nature, the majority opinion relies upon an abstract analysis in its effort to discern the allocation of the burden of persuasion between the parties in its treatment of Article 120(t)(14), UCMJ. Majority Opinion at 715-16. By apparently reading the statute to mean that the accused need not prove actual agreement or actual capacity, the majority suggests that the consent defense and the mistake of fact defense might be construed as one and the same, even though the latter is separately defined within the statute under Article 120(t)(15), UCMJ. Due to the lack of factual development in the record, this logic fails to harmonize the two parts of the statute. Montclair v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 27 L.Ed. 431 (1983)(it is a court’s duty “to give effect, if possible, to every clause and word of a statute”).
My primary concern with the constitutional efficacy of this statute rests with the troubling construct of Article 120(t)(16) that allows the Government a chance to rebut an accused’s affirmative defense of consent, after the accused has met his burden by a preponderance of the evidence. As in Neal, it is the language of this section which requires future constitutional interpretation but is not properly before us under the constraints of this Government appeal. Neal, 67 M.J. at 678. I fear that the premature and overbroad action taken by the majority might be misinterpreted as an unintended message to the fleet and Marine Corps that all stands well with this statute even before we have passed constitutional muster over outstanding issues related to Article 120(t)(16). The reality is that only the deployment of the statutory scheme at issue within a contested general court martial, and review under Article 66 will ripen the questions presented for constitutional analysis by this court. Only then will we be in a position to determine if Article 120(t)(16) constitutes a due process violation. United States v. Wright, 53 M.J. 476, 481 (C.A.A.F.2000).
Our analysis of this matter as a facial challenge is both premature and overly broad. I respectfully dissent.
Senior Judge COUCH joining.