(concurring):
I concur with the majority that the findings and sentence are correct in law and in fact and that no error materially prejudicial to the appellant’s substantial rights occurred. I "write separately to emphasize my understanding of the statutory scheme and the role of the military judge in carrying out the effect of the statute.
It was proper for the military judge to instruct on the affirmative defense of consent because the record contains some evidence which the members could credit with respect to the defense. See Rule FOR Courts-MaRtial 920(e)(3), Manual for Courts-Martial, United States (2008 ed.). That is all that it takes to earn the instruction. See R.C.M. 920, Discussion; see generally United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F.2002).1 While Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920, is not a model of clarity, I believe that the problem in its construction is one purely of mechanics, and this belief is underscored by the quoted language from the majority’s opinion and by the rhetorical questions posed by Judge Maksym in his concurrence.2
I believe that the military judge’s instructions to the members, Record at 456-57, were erroneous and confusing. They were erroneous because they essentially added an *594element — lack of consent — that is not part of the statutory scheme. See United States v. Crotchett, 67 M.J. 713, 715 nn. 3 & 4 (N.M.Ct.Crim.App.2009)(noting that lack of consent has been removed as an element in most Article 120 prosecutions). They were confusing because they appear to require both proof of consent or mistake of fact as to consent by some unspecified level of evidence and then proof beyond a reasonable doubt that consent or mistake of fact as to consent did not exist. I concur with the majority that these erroneous instructions were harmless beyond a reasonable doubt given the overwhelming evidence of guilt, and further that any error in adding an element for the Government to prove beyond a reasonable doubt must have inured to the appellant’s benefit.
The military judge’s instructions to the members, and the pattern instruction in the Military Judges’ Benchbook,3 both erroneously require the Government to prove that consent did not exist in order to overcome the affirmative defense of “consent” or “mistake of fact as to consent”. In fact, the statute requires that the Government prove, beyond a reasonable doubt, that the affirmative defense did not exist. This is a distinction with a difference. To put it in its simplest terms, I believe that the defenses require a showing of apparent consent, while the Government’s burden in the face of such a showing is to prove lack of lawful consent. See Crotchett, 67 M.J. at 715.
The instructional challenge is daunting but not insurmountable. I respectfully offer the following for the consideration of the Trial Judiciary and other appellate courts as a means for instructing on consent as an affirmative defense. With some adaptations, it can also be used to instruct on mistake of fact as to consent:
The evidence has raised a question of whether [victim] consented to the sexual conduct at issue.
Consent is an affirmative defense to the allegation in the Specification of the Charge. The defense must prove consent by a preponderance of the evidence.
“Consent” means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person.
In determining whether the accused has demonstrated consent by a preponderance of the evidence, you are further advised that the following do not constitute consent:
An expressed lack of consent through words or actions.
Submission resulting from the accused’s use of force; threat of use of force; or placing another person in fear.
Lack of physical or verbal resistance resulting from the accused’s use of force; threat of use of force; or placing another person in fear.
A current or previous dating relationship, by itself, between the person involved in the sexual conduct and the accused.
The manner of dress of the person involved in the sexual conduct.
If the defense establishes by a preponderance of the evidence that the person involved in the sexual conduct consented, then unless the Government proves beyond a reasonable doubt that the affirmative defense does not exist, you must find the accused not guilty.
The Government will succeed in proving that the affirmative defense does not exist if it proves beyond a reasonable doubt that the consent was not freely given or that it was given by an incompetent person. More specifically, the Government must prove, beyond a reasonable doubt, that the person engaged in the sexual conduct could not consent because that person:
1. Was under the age of 16;
2. Was substantially incapable of appraising the nature of the sexual conduct at issue due to mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise; or
3. Was substantially incapable of appraising the nature of the sexual conduct *595at issue due to mental disease or defect that renders the person unable to understand the nature of the sexual conduct at issue;
4. Was substantially incapable of physically declining participation in the sexual conduct at issue; or
5. Was substantially incapable of physically communicating unwillingness to engage in the sexual conduct at issue.
This instruction could properly, and might ideally, be given after the elements of the charged offense, and certainly would have to be tailored to the facts offered to the members. Constructing the charge to the members in this fashion gives the statute the effect Congress intended — shift the focus from the victim to the accused — and at the same time preserves the accused member’s presumption of innocence by requiring the Government to prove all elements beyond a reasonable doubt and, when raised, to disprove the existence of an affirmative defense beyond a reasonable doubt.
I do join the majority’s conclusion that none of the victim’s words or actions constituted, in the minds of the members, consent. I join the majority’s conclusion that the appellant’s mistaken belief as to consent, if in fact he held such a belief, was not reasonable in the eyes of the members. I am independently satisfied of the correctness in law and fact of all the findings of guilt and of the sentence. I therefore join in affirming the findings and the approved sentence.
. The militaiy judge, sitting as a judge and not as a finder of fact, need not, perhaps must not, determine the credibility of the evidence nor the amount of the evidence when deciding whether to give the instruction. It is up to the finder of fact to determine credibility and weight issues as with any other disputed issue.
. In response to Judge Maksym’s rhetorical question of how the Government can be expected to rejoinder by legal and competent evidence beyond any reasonable doubt the proof by the defense of the affirmative defense of consent already established by a preponderance of all known evidence, I make two comments. First, the Government and defense are proving two different things: on the part of the defense, it is that the victim consented; on the part of the Government, it is that the affirmative defense does not exist. Second, I expect that, because of our robust discovery practice, the parties will be conversant with both their own evidence and their opponent’s evidence before trial. In such a case, it should be a simple matter to direct witness examination in such a way as to establish elements beyond a reasonable doubt (or cast a cloud over such evidence); set out an affirmative defense; and then disprove the existence of the defense beyond a reasonable doubt, all during the course of the parties' cases in chief.
. Military Judges' Benchbook, Dept, of the Army Pamphlet 27-9 (15 Sep 2002), Approved Interim Update "Article 120”, 3-45-5 "Aggravated Sexual Assault,” Note 9.