CAAF ruled 3-2 in United States v. Ellerbrock that a military judge abused her discretion in denying an accused the ability to cross-examine his accused victim about an extramarital affair she had had two-and-a-half years before.
The alleged victim, CL, had a long-term affair with a male roommate in Jacksonville, Florida, while her husband was stationed at Fort Stewart. CL’s husband, who described himself as “hot tempered,” kicked down the door of his wife’s lover. Nevertheless, at the time of trial, both CL and her husband described their marriage as good.
CL’s husband deployed, asking a family friend, Specialist Jackson, to look after his wife. After CL put her child to bed one night, and while Jackson was at the home, CL consumed three to four shots of gin. She had also been taking Xanax and Effexor.
Several other friends came over, including appellant. CL continued to drink. Jackson and the other friends (except Appellant) left the house. Eventually the friends went back into the apartment where they heard the bed squeaking and people moaning. The lights came on to reveal CL and appellant have sex. Someone told appellant to get off CL. Appellant allegedly responded by telling the friends to leave because he was “almost done.” The friends left. Witnesses gave conflicting testimony as to the CL’s apparent level of intoxication and her reaction when the lights came on. The next morning CL remembered having sex with Appellant, stating something to the effect of, “I can’t believe I did that” and “I fe[el] horrible.”
The defense sought to cross-examine CL about the prior affair, arguing that this information showed that CL had a motive to lie about having consensual sex with appellant. CL wanted her marriage to continue, and, according to the defense, the previous incident, and her husband’s reaction, shed light on why CL might claim she had been raped.
The military judge excluded testimony about the previous affair under M.R.E. 412, finding that the probative value of the evidence did not outweigh its dangers to CL’s privacy interests, and that the dangers of unfair prejudice substantially outweighed the probative value of the evidence. ACCA affirmed.
CAAF reversed, in a fact-intensive opinion that has, in my mind, hints of factual sufficiency doubts throughout; reading the opinion, the case seems like the kind of sexual assault not usually won by the government. The court held that it was a “fair inference” that a second consensual sexual dalliances would be more damaging than one, and that the defense should have been able to explore the potential effect of the first affair on CL’s willingness to tell the truth.
The case, in my view, doesn’t mark any sea changes in M.R.E. 412 law; it seems to be an as-applied opinion in a case with a fact pattern that will ring familiar to anyone who has deployed with a military unit a few times.
Judges Baker and Ryan dissented.