(dissenting in part and concurring in part):
Notwithstanding this court’s recent precedent,1 I respectfully dissent from the majority’s handling of the facial and as-applied challenge to the aggravated sexual assault charge; as to the remaining assigned errors, I concur. I cannot in good conscience affirm a conviction of aggravated sexual assault under Article 120(c)(2), Uniform Code of Military Justice, 10 U.S.C. § 920(c)(2), because I am convinced that the statutory scheme of Article 120, in regard to that particular offense, is facially unconstitutional under the Due Process Clause of the Fifth Amendment. Under the express mandates of the statute, the affirmative defense of actual consent plainly burdens the accused with negating the second element of the offense, i.e. the alleged victim was substantially incapacitated.2 Based on the facts of this record, I would affirm a conviction for the lesser included offense of wrongful sexual contact under Article 120(m) which avoids this constitutional infirmity. I would reassess and affirm the approved sentence.
This Court first addressed the constitutionality of Article 120 in United States v. Neal, 67 M.J. 675 (N.M.Ct.Crim.App.2009), certificate of review filed, — M.J. - (C.A.A.F. 15 May 2009), in which the court unanimously upheld the constitutionality of the offense of aggravated sexual contact as set forth under Article 120(e), UCMJ. In its ruling, the court addressed whether or not lack of consent was an implied element of the offense.3 Id. at 678. In resolving that question, the court determined that lack of consent was not an explicit element of an alleged violation of Article 120(e), UCMJ, and concluded that force and consent were distinct terms that were potentially related, but not inextricably so. Id. at 679. In United States v. Crotchett, 67 M.J. 713 (N.M.Ct.Crim.App. 2009), rev. denied, 68 M.J. 222 (C.A.A.F. 2009), this court relied on the rationale expressed in Neal when it first addressed whether or not aggravated sexual assault, as set forth under Article 120(c), was facially unconstitutional. The court found “the elements of [aggravated sexual assault under Article 120(c), UCMJ,] do not require the Government to prove a lack of consent.” Id. at 715 (footnote omitted). In its analysis, the *597court acknowledged “an apparent overlap of defense and Government burdens in prosecutions for aggravated sexual contact (sic)” but ultimately characterized this overlap as “only apparent, not actual,” Id. Ultimately, the court concluded “[a] facial challenge to Article 120(c)(2)(c) fails because ... the statute ... does not mandate a shift to the defense of the burden of proof as to any element.” Id. at 716.
As a threshold matter, I note a significant difference between the offenses at issue in Neal on one hand, and Crotchett, Fairley and the instant case on the other. The analysis in Neal centered on the second element of the offense of aggravated sexual contact, ie., that contact was made with another by using force. In Crotchett, Fairley, and the case currently before us, the analysis centers on the second element of aggravated sexual assault, i.e. the alleged victim was substantially incapacitated.4 In the context of the statute, “force” addresses the actions taken by the accused to compel submission of the alleged victim, Art. 120(f)(5), whereas “incapacity,” addresses the physical or mental ability of the alleged victim to give his or her competent consent, Art. 120(t)(14). Given the significant differences between the two types of offenses, the rationale in support of this court’s decision in Neal should be given little, if any, consideration in the court’s decision in either Crotchett, Fairley, or the case at bar.
As another threshold matter, I am aware, as the court noted in Crotchett, that “facial challenges are disfavored” and prevail only when “no combination of facts and circumstances ... can ever exist that would allow a constitutional interpretation” of a statute. 67 M.J. at 714 (citation omitted). Furthermore, I am mindful there is a strong presumption that congressional acts are constitutionally valid and that invalidation of a congressional enactment is warranted “only upon a plain showing that Congress has exceeded its constitutional bounds.” United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). However, “statutes should be interpreted to give meaning to each word,” “courts must presume that a legislature says in a statute what it means and means in a statute what it says there,” and “criminal statutes are to be strictly construed, and any ambiguity resolved in favor of the accused.” United States v. Adcock, 65 M.J. 18, 24 (C.A.A.F.2007) (citations omitted); United States v. Tanner, 63 M.J. 445, 449 (C.A.A.F.2006)(Baker, J., concurring) (citations omitted); see also United States v. Thomas, 65 M.J. 132, 135 n. 2 (C.A.A.F.2007) (citations omitted). Based upon a comprehensive reading of Article 120 in its entirety, I am convinced that the logical application of all of the statutory mandates contained within the article would result in the aforementioned due process violation regardless of any specific fact pattern. Accordingly, for the reasons stated herein, I find that the defense has successfully mounted a facial challenge to the statute. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).
I. The Fifth Amendment Due Process Clause Limits Congress’ Authority to Defíne Federal Crimes
A fundamental principle in Anglo-American jurisprudence is the notion that an accused is presumed innocent until the Government proves beyond a reasonable doubt all the facts necessary to establish his or her guilt. WayNE R. LaFave, et al., Criminal Law 48 (2d ed.Supp.1996). This principle is constitutionally based in the Fifth Amendment’s Due Process Clause. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). While it is well-within a legislature’s authority to define the elements of a crime, a statute that attempts to ease the Government’s burden by allowing the presumption of a fact necessary to constitute an offense violates a defendant’s right to due process. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).
In Mullaney, the Supreme Court reversed the defendant’s conviction for felonious homicide under a state statutory scheme that allowed the presumption of an element (malice aforethought) if the state proved there was an intentional and unlawful killing. Id. The state required the defendant to prove he *598acted in the heat of passion on sudden provocation to prove he was guilty of the lesser offense of manslaughter. Id. at 688, 95 S.Ct. 1881. In defending the statute, the state argued “the absence of the heat of passion on sudden provocation was not a ‘fact necessary to constitute the crime’ of felonious homicide.’” Id. at 697, 95 S.Ct. 1881 (quoting Winship, 397 U.S. at 364, 90 S.Ct. 1068)(em-phasis omitted). The Supreme Court disagreed and held that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the element that differentiated the greater offense from the lesser offense (felonious homicide from manslaughter). Id. at 704, 95 S.Ct. 1881. The case at bar is similar to Mullaney in that Article 120(c) allocates to an accused a burden of proof of a significant fact — whether the sexual act was consensual; a fact which is dispositive over guilt or innocence. Under the statutory scheme of Article 120, the second element of aggravated sexual assault (substantial incapacitation) implies a fact (lack of consent) which, if disproved by the accused, negates the fact establishing the criminality of the sexual act, rather than excusing or justifying it. Some might argue that the Government need not prove “lack of consent” because it is not an explicit element of the offense. But just as the state in Mullaney argued it need not prove the defendant acted with the “absence of heat of passion upon sudden provocation,” the correct response to this argument is what our Supreme Court said, that due process “is concerned with substance rather than this kind of formalism.” Id. at 699, 95 S.Ct. 1881 (footnote omitted).
It is well-established that a legislature is within its authority to define affirmative defenses to crimes in which the defendant may be assigned the burden of proof — so long as the affirmative defense does not require the accused to disprove the elements of the crime. Patterson v. New York, 432 U.S. 197, 207, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). In Patterson, the state statute established second degree murder as a two element offense: (1) the intent to cause another’s death, and (2) causing the death. Id. at 198, 97 S.Ct. 2319. The statute also established an affirmative defense in which the defendant was burdened with proving that he “acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.” Id. (footnote and internal quotation marks omitted). The Supreme Court affirmed the conviction reasoning: “The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed of inferred in order to constitute the crime.” Id. at 205-06, 97 S.Ct. 2319 (emphasis added). As to the affirmative defense, the Court noted that it was a “separate issue” which did not “serve to negative any facts of the crime which the State is to prove in order to convict.” Id. at 207, 97 S.Ct. 2319. In its holding the Court was clear to caution
Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense .... Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.
Id. at 215, 97 S.Ct. 2319.
The case at bar is a perfect example of what the Supreme Court warned against in Patterson; Article 120 shifts to the accused the burden of disproving a fact (lack of consent) which is presumed by the other elements of the offense (substantial incapacity). An alleged victim’s substantial incapacity is a predicate fact from which a fact-finder may reasonably presume a lack of consent. United States v. Mathai, 34 M.J. 33, 36 (C.M.A. 1992). By the terms of the statute, a finding that there was consent is incompatible with a finding that the alleged victim was substantially incapacitated. Art 120(t)(14). Rather than requiring the Government to prove lack of consent beyond a reasonable doubt as an element of the offense, Congress burdened the accused to prove consent, a task which plainly requires the accused to negate the second element.
*599In eases where the elements of an offense and an affirmative defense “overlap in the sense that evidence to prove the latter will often tend to negate the former,” no due process violation occurs so long as the defense is not required to disprove an element of the prosecution’s case. Martin v. Ohio, 480 U.S. 228, 234, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987). The Court’s handling of Martin delicately balanced the authority of the legislature to statutorily define affirmative defenses against the protections of individual due process rights as mandated in Winship. The Court struck this balance by recognizing there is no due process violation when an affirmative defense only partially eclipses one of the elements of the offense, but where the affirmative defense fully eclipses an element of an offense, there lies a due process violation. During oral argument in the case at bar, the Government conceded that the affirmative defense of consent overlapped with the second element of the offense, but relied on Martin for the proposition that the coexistence of those facts did not offend due process. Likewise, this court recognized in Crotchett “an apparent overlap between defense and Government burdens in prosecutions for aggravated sexual [assault].” 67 M.J. at 715. However, both Crotchett and the case at bar are significantly distinguishable from Martin, because the affirmative defense established under Article 120 goes beyond the protective reach of Martin; it fully eclipses the second element of the offense, i.e. someone who is capable of giving consent cannot be substantially incapacitated.
II. “Consent” Under Article 120 Cannot be an Affirmative Defense to Aggravated Sexual Assault because it Negates the Element of Incapacity
Under Article 120(e)(2), there are two explicitly stated elements that constitute an aggravated sexual assault: 1) the accused engaged in a sexual act5 with another person who is of any age; and, 2) the other person was substantially incapacitated.6 Of course, under Article 120(r), if the accused engaged in a sexual act with the other person’s consent, then no offense was committed.7 Specifically, the statute provides: “Consent ... [is] not an issue ... except [it is] an affirmative defense for the sexual conduct in issue in a prosecution under subsection ... (c)(aggravated sexual assault)_” Art. 120(r), UCMJ.8
*600An affirmative defense is an additional fact or set of facts that does not necessarily deny the veracity of the alleged elements of an offense, but when considered in addition to the elements, either excuses, justifies, or mitigates that which would otherwise be criminal behavior. LaFave, CRIminau Law 51. The statute itself actually defines the term as follows: “The term ‘affirmative defense’ means any special defense that, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly, or partially, criminal responsibility for those acts.” Art. 120(t)(16).
Accordingly, if actual consent is truly an affirmative defense, then it must be a fact that is able to co-exist with the facts that constitute the elements of the crime. A careful and comprehensive reading of Article 120 however, leads to the conclusion that actual consent cannot serve as an affirmative defense to the offense of aggravated sexual assault. Consent is statutorily defined as “words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person.” Art. 120(t)(14)(emphasis added). The inclusion of the word “competent” in the statutory definition of consent is critical to this analysis, because as the statute notes further: “A person cannot consent to sexual activity if ... substantially incapable of ... appraising the nature of the sexual conduct ... [or] physically declining participation in the sexual conduct ... or physically communicating unwillingness to engage in the sexual conduct at issue.” Id. (emphasis added).
By the terms of the statute itself, substantial incapacity forecloses any possibility that the alleged victim consented to the sexual act. When a reader of Article 120 reads the statute with the understanding that “consent” actually means consent by a competent person, the line (if any), that delineates the second element (incapacity) from the “affirmative defense” (legal consent given by a competent person) becomes indecipherably blurred. The only conclusion is that “substantial incapacity” implies the fact that actually makes the sexual act at issue a criminal offense, i.e., it was done without the alleged victim’s consent.
The majority opinion recognizes that actual consent and the mistake of fact as to consent are two affirmative defenses to aggravated sexual assault, but the opinion tends to conflate the existence of the two separate defenses in such a manner that attempts to avoid the unconstitutional burden shift attendant to the actual consent defense.
As a matter of law, the affirmative defense of consent is unavailable where the putative victim is ‘substantially incapacitated.’ ... However, the statute provides an alternative affirmative defense in such a scenario, mistake of fact as to consent ...
Majority Opinion at 4. Respectfully, I find this approach flawed in two ways. First, it presumes as fact that the alleged victim was actually substantially incapacitated, thus making the defense of actual consent “unavailable.” As both concurring opinions note, the statute is vague as to whether the availability of the actual consent defense is an interlocutory matter for the judge, or an ultimate question of fact to be determined by the fact finder. Nonetheless, as the statute clearly states, the accused is burdened with establishing the affirmative defense by the preponderance of the evidence. To state that the defense is “unavailable” as a matter of law is to presume the alleged victim is actually “substantially incapacitated,” a finding that only can be made after all evidence is in and the fact-finder has finished deliberating on findings.
Second, the majority opinion relies on the separate defense of “mistake of fact as to consent” as a constitutional back-stop for the actual consent defense. The majority’s application of Article 120(r) in this manner runs the risk, in certain cases, of relying on fiction in order to serve justice. In those rare situations where an alleged victim did consent to the sexual act in question, but falsely claimed substantial incapacity, should the accused defend himself under the falsity that he mistook her consent, or should he rely on the fact that the alleged victim was a willing *601participant to the liaison?9 Perhaps the former approach is the most efficacious application of this fundamentally flawed statute, but I am of the mind that the latter is the more intellectually honest approach and requires the Government to prove, during it’s case-in-ehief, that the accused engaged in a sexual act with another person without that person’s consent.
Furthermore, the Manual for Courts-Martial itself validates the notion that “lack of consent” is an implicit element to aggravated sexual assault, because it recognizes wrongful sexual contact as a potential lesser included offense. Manual FOR CouRts-MaRtial, United States (2008 ed.) Part IV, ¶ 45e(3). As our superior court noted last term, a lesser included offense embraces all of the elements of the greater offense. United States v. Medina, 66 M.J. 21, 24 (C.A.A.F. 2008). Accordingly, the statutory scheme of Article 120, read as a whole, plainly makes “lack of consent” an essential fact necessary to establish an accused’s guilt and thus, assignment of any burden upon the accused to prove consent violates Due Process under the Fifth Amendment.
III. Any Judicial Instructions Given to Avoid the Constitutional Infirmities of Article 120 Usurps Congress’ Authority to Legislate
Courts are required to effectuate affirmative defenses as Congress may have contemplated. Dixon v. United States, 548 U.S. 1, 12, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006). In Dixon the Court affirmed the appellant’s conviction over her challenge that the trial court improperly instructed the jury regarding a duress defense to a federal criminal statute. The Court reasoned that because neither the statute’s structure nor history indicated that Congress actually considered how an affirmative defense would work within the context of the statute, the Court was free to effectuate a duress defense to a federal criminal statute in such a manner that harmonized the statute with the appellant’s rights to due process. Id. at 14, 126 S.Ct. 2437. Accordingly, if Congress was silent on the issue on how to effectuate the affirmative defense of consent under 10 U.S.C. § 920(r), then federal courts would be free to effectuate the affirmative defense as Congress “may have contemplated” it. However, the converse is true in the case of Article 120; Congress specifically established actual consent as an affirmative defense to aggravated sexual assault and specifically set forth the requirement that the accused prove consent by a preponderance of the evidence. As the majority acknowledges, courts must not pervert the purpose of a statute nor rewrite it in its efforts to construe it constitutionally. By simply giving the Benchbook’s proposed instruction each time the issue is reasonably raised by the evidence, a court disregards a significant portion of the statute and embarks upon judicial legislation.
IV. Conclusion
Prior to its 2007 revision, Article 120 set forth only two types of sexual offenses: rape and carnal knowledge. The second element of rape under Article 120 was “that the intercourse was done by force and without consent”. MCM (2005 ed.), Part IV, ¶ 45(b)(1). The second and third elements of carnal knowledge established that the intercourse was done with a person who lacked the legal capacity to consent due to age. Id., Part IV, ¶ 45(b)(2). The common factor of both these offenses was that intercourse was done without the other person’s legal consent. The notion that consent, or the lack thereof, has long been recognized by sociological and legal experts as the central issue at stake regarding sexual assault. Major Jennifer S. Knies, Two Steps Forward, One Step Back: Why the New UCMJ’s Rape Law Missed the Mark, and How an Affirmative Consent Statute Will Put It Back on Target, Army Law, August 2007 at 1-19.
Under the revised Article 120, Congress has attempted to define a variety of sexual offenses by explicitly omitting the language “without consent” from any element and substituting “substantial incapacity” or some other factual predicate from which a fact-finder might reasonably presume the accused *602engaged in some sort of sexual behavior without the alleged victim’s consent. See Art. 120(a)-(n). In the case of sexual batteries as set forth under Article 120(a), (c), (e), and (h), Congress has determined that actual consent is an affirmative defense, ie., a separate fact that either excuses or justifies the conduct embraced by the underlying elements of the offense. Perhaps this statutory scheme satisfies due process concerns as to rape, aggravated sexual contact, and abusive sexual contact — but as to aggravated sexual assault, as set forth under Article 120(c), I find that the treatment of consent as an affirmative defense has resulted in a semantic shell game that results in the presumption of guilt and requires the accused to prove his innocence. This is precisely the scenario that our Supreme Court warned of in Mulla-ney, “[A] State could undermine many of the interests [Winship] sought to protect without effecting any substantive change in its law.” 421 U.S. at 699, 95 S.Ct. 1881.
Finally, the revisions to Article 120, especially Article 120(e)(2), pose dire consequences to military readiness. Sadly, the factual situation contemplated by Article 120(c)(2) is arguably the most common scenario in which our service members are sexually violated. In an effort to give the statute any sort of constitutional vitality, many trial judges have widely adopted the Benchbook’s proposed instruction, just as the trial judge in this case did, which I consider a radically unauthorized and major deviation from the law passed by Congress and signed by the President. The ironic tragedy of such recourse is, as the Government argued during oral argument, application of the statute in such a manner actually makes prosecution of these sorts of sexual offenses more difficult.
“The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.” MCM (2008 ed.), Part I, ¶ 3. I fear that since its effective date, each day that courts continue to countenance this horribly flawed statute as constitutionally viable, the more frustrated each of the above-stated purposes of military law becomes. Moreover, I believe all of our service members, especially the accused and the alleged victims, as well as those men and women responsible for maintaining good order and discipline within the ranks, deserve a statute that clearly and fairly addresses such an important matter in military life.
.United States v. Neal, 67 M.J. 675 (N.M.Ct. Crim.App.2009), certificate of review filed, - M.J.-- (C.A.A.F. 15 May 2009); United States v. Crotchett, 67 M.J. 713 (N.M.Ct.Crim.App. 2009), rev. denied, 68 M.J. 222 (C.A.A.F.2009); and United States v. Fairley, No. 200800762, unpublished order (N.M.Ct.Crim.App. 13 May 2009), were decided before I joined the Court. As a matter of full disclosure, I was the military judge reversed by this court in Crotchett and Fairley.
. I also agree to some extent with the points raised by Judge Maksym's concurring opinion regarding the myriad flaws resulting from some of the statute's unclear language. However, I believe these issues are of secondary importance to the fundamental due process issue which I believe is dispositive in the review of this case.
. Specifically, the court framed the question as follows: "To prove 'force,' must the Government prove lack of consent?” Id. at 678.
. In Crotchett the second element was a variation on substantial incapacity, i.e., "the other person was substantially incapable of declining participation.”
. "Sexual act ... means—
(A) contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or
(B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.”
Art. 120(t)(l), UCMJ.
. Or of a certain physical or mental state that precludes competence, i.e., the other person was substantially incapable of appraising the nature of the sexual act; the other person was substantially incapable of declining participation in the sexual act; or the other person was substantially incapable of communicating unwillingness to engage in the sexual act. See Art. 120(c)(2)(c).
. Article 120(r) establishes two separate affirmative defenses to aggravated sexual assault: 1) actual consent, and 2) mistake of fact as to consent. I believe the latter is a viable affirmative defense because an accused's reasonable mistake that the alleged victim consented to the sexual act is an additional fact which excuses what would otherwise be criminal behavior. Consequently, the mistake of fact as to consent defense does not raise the constitutional issues raised by the defense of actual consent, which negates the second element of the offense. Unlike the majority, I believe that the existence of the mistake of fact defense is inconsequential when assessing the constitutional viability of the actual consent defense.
.In its handling of Martin, the Supreme Court explicitly cautioned against the practice of instructing fact-finders to not consider evidence of an affirmative defense when determining whether there was reasonable doubt about the Government's case, because "such an instruction would relieve the State of its burden and plainly run afoul of Winship’s mandate.” See Martin, 480 U.S. at 234, 107 S.Ct. 1098 (citation omitted). By providing in Article 120(r) that "[cjonsent ... [is] not an issue ... except [it is] an affirmative defense,” Congress did exactly what the Court said not to do. In Neal, this court purported to employ the avoidance doctrine in an effort to give Article 120(r) constitutional viability, but I fear their noteworthy efforts to save the statute led them to disregard the plain meaning of the statute which they chose to interpret as merely " ‘highlighting Congress' removal of 'lack of consent' as an element that must be proven by the Government.” 67 M.J. at 681. I believe the interpretation of the statute expressed in Neal is absurd, because the statute already makes quite *600clear through the various definitions of offenses that consent is not an explicit element.
. Even if the false reporting rate of sexual assault is as low as 6-7%, as some studies suggest, the liberty interests of those 6-7 innocent men out of 100 are reason enough to rigorously adhere to the mandates of Winship.