The “Rape Shield” Rule - Mil. R. Evid. 412.

(a)  Evidence Generally Inadmissible—The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): 
                (1)  Evidence offered to prove any alleged victim engaged in other sexual behavior.
                (2)  Evidence offered to prove any alleged victim’s sexual predisposition.
(b)  Exceptions—
                (1)  In a proceeding, the following evidence is admissible, if otherwise admissible under these rules:
                                (A)  evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than an accused was the source of semen, injury or other physical evidence;
                                (B)  evidence of specific instances of behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
                                (C)  evidence the exclusion of which would violate the constitutional rights of the defendant.
(c)  Procedure to Determine Admissibility—
                (1)  A party intending to offer evidence under subdivision (b) must—
                                (A)  file a written motion at least 5 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court for good cause requires a different time for filing or permits filing during trial; and
                                (B)  serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim’s guardian or representative.

Reputation and opinion evidence of the past sexual behavior of an alleged victim of nonconsensual sexual offenses appears, under the rule, to be inadmissible.  Mil. R. Evid. 412(a) and (b).  The Court of Military Appeals has stated, however, “we have grave doubts whether Mil. R. Evid. 412(a) should be properly construed as an absolute bar to the admission of evidence of a prosecutrix’ sexual reputation.”  United States v. Elvine, 16 M.J. 14 (C.M.A. 1983).

Specific instances of past sexual behavior of an alleged victim generally are inadmissible, with certain listed exceptions. 

Evidence constitutionally required to be admitted.  United States v. Williams, 37 M.J. 352 (C.M.A. 1993):  Military judge denied defense motion for rehearing based on newly discovered evidence concerning the victim’s credibility.  The evidence suggested a motive to fabricate, and showed that the Government expert based his opinion testimony on her “deceitful and misleading” information.  Since the evidence was relevant, material, and favorable to the defense, it was “constitutionally required to be admitted.”

United States v. Greaves, 40 M.J. 432 (C.M.A. 1994), cert. denied, 115 S. Ct. 907 (1995):  Military judge properly prevented accused from testifying that he knew that rape victim was a hostess at a Japanese bar and dressed provocatively.  Testimony was not relevant where victim was semi-conscious and where accused was allowed to testify about circumstances which allegedly led him to believe victim consented.

United States v. Diaz, 39 M.J. 1114 (A.F.C.M.R. 1994).  Rape victim’s credibility is crucial when victim is the only witness who can establish force and lack of consent, particularly when there is no physical evidence of force and the victim makes a delayed complaint.

United States v. Gray, 40 M.J. 77 (C.M.A. 1994).  Evidence of child’s sexual activity with another relevant to show alleged victim had knowledge beyond her tender years to corroborate accused’s claims that nine-year-old girl initiated advances.

United States v. Harris, 41 M.J. 890 (Army Ct. Crim. App. 1995).  Evidence of victim’s prior sexual activity as a prostitute was constitutionally required to be admitted where defense theory was that victim agreed to sexual intercourse in expectation of receiving money for a bus ticket to Cleveland and was motivated to retaliate by alleging rape only after accused called her a “skank bitch.”  See also United States v. Saipaia, 24 M.J. 172 (C.M.A. 1987), cert. denied, 484 U.S. 1004 (1988).

United States v. Buenaventura, 45 M.J. 72 (1996).  Evidence of sexual abuse of eight-year-old victim by grandfather and expert testimony regarding “normalization” - replacing abusive person (grandfather) with friendly person (accused) in recalling the abuse - was constitutionally required to be admitted.  But see United States v. Gober, 43 M.J. 52 (1995); United States v. Pagel, 45 M.J. 64 (1996).

United States v. Lautere, 46 M.J. 794 (Army Ct. Crim. App. 1997) (no abuse of discretion in excluding two-year-old act of adultery on issue of whether victim had motive to lie, where claim not substantiated by evidence on the status of the victim's reconciliation with husband or church, or other evidence of guilt which would have given her a motive to fabricate rape claim).

United States v. Carter, 47 M.J. 395 (1998).  At the accused's rape trial, the victim's roommate testified that she entered the victim's room and found the accused and the victim in bed.  The victim was partially dressed and unconscious and she claimed that the accused raped her while she was asleep.  Defense had evidence from an unnamed witness that the victim and her roommate were homosexual lovers and their relationship gave both witnesses a motive to lie.  At a 39(a) session, MJ allowed defense to make a showing that this evidence of victim's past sexual relationship was constitutionally required under MRE 412(b)(1).  At the hearing, the victim denied any such relationship and the defense was not able to produce the unnamed witness.  Held: defense failed to establish and adequate foundation for an exception to the 412 ban.

United States  v. Morris, 47 M.J. 695 (N.M.Ct. Crim. App. 1997).  Accused was charged with false official statements and battery for sexually forcing himself on a female friend.  After the incident, the victim’s boyfriend noticed the hickeys and asked her what happened.  At first she lied, and later told him the accused attacked her. Defense sought to introduce evidence that the victim was not faithful to her boyfriend in order to cast doubt on her credibility.  Held: MJ was correct in excluding the evidence under 412 because it was not constitutionally required and that it was not probative of a motive to fabricate.

The victim’s past sexual history must be relevant to the defense’s theory before it is admissible.  United States v. Velez, 48 M.J. 220 (1998).  Accused convicted of rape.  CAAF noted that the defense theory of the case was that the contact never happened, so even if the victim was promiscuous, it didn’t matter under the defense theory.  See also, United States v. Grant, 49 M.J. 295 (1998).  Victim’s sexual orientation is not per se admissible on issue of consent.

Someone else source of evidence.  If the TC has introduced evidence of semen, injury or other physical evidence, the defense must be allowed to introduce victim’s past sexual behavior to show another was the source.

Evidence of past accused-victim sexual behavior on the issue of consent.  United States v. Jensen, 25 M.J. 284 (C.M.A. 1987).  Includes acts and statements of intent to engage in intercourse.

United States v. Kelly, 33 M.J. 878 (A.C.M.R. 1991).  Military judge erred in excluding evidence of alleged rape victim’s flirtatious and sexually provocative conduct.  To admit evidence of past sexual behavior, the proponent must demonstrate that the evidence is relevant, material, and favorable to the defense.  The prosecutrix’s past sexual conduct met those requirements.  The rape shield provisions aim to protect the victim from harassment and humiliation, but those ends are not served by excluding evidence of open, public displays of sexually suggestive conduct.  Findings and sentence were set aside.

United States v. Knox, 41 M.J. 28 (C.M.A. 1994)(per curiam), cert. denied, 115 S. Ct. 1106 (1995).  No error in refusing to allow accused to testify about rape victim’s prior sexual acts and promiscuity to support claim that she consented or his reasonable mistake of fact as to her consent.  Of interest here is that the defense apparently presented expert testimony that the victim did not have a post-traumatic stress disorder as a result of the alleged rape.

Requirements for admission.  As a foundational matter the proponent must show:

The act is relevant for one of the specified purposes in Rule 412(b);

Where the act occurred;

When the act occurred;

Who was present;

Opponent (typically the government) shows the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.

United States v. Sanchez, 44 M.J. 174 (1996).  As offer of proof failed to identify the significance and theory of admissibility of the victim’s prior sexual behavior, accused was not entitled to hearing on the admissibility of Rule 412 evidence.  Judge Everett claims that, where alleged motive is commonly understood and obvious from the facts, it is unnecessary for the defense to produce expert testimony.  However, where the proffered motive is highly speculative and not commonly understood, expert testimony is essential to understand the connection between the motive to lie and the prior consensual behavior.

United States v. Moulton, 47 M.J. 277 (1997).  Even if judge excludes evidence in pretrial session, defense should remain vigilant.  Trial counsel may inadvertently open the door to victim’s sexual history by demonstrating the traumatic effect the incident has had on her.  If so, defense may then be able to challenge the credibility of the victim’s explanation for the delayed reporting, by proving the existence of a subsequent sexual relationship, such as here, a sexual relationship with a field grade officer.