In this post last September I discussed a decision of the Army CCA that set aside the findings of guilty in a sexual assault case after concluding that the trial judge improperly excluded evidence of other sexual activity of the two alleged victims under Military Rule of Evidence 412. The military judge in that case balanced the probative value of the evidence against the privacy interests of the victims, as required by M.R.E. 412(c)(3). But CAAF rejected that test in United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011) (link to slip op.) and United States v. Gaddis, 70 M.J. 248(C.A.A.F. 2011) (link to slip op.), and when the ACCA conducted its own analysis under the proper tests, it found that it was error to exclude the evidence.

Notably, at last year’s Code Committee meeting the JSC announced that it had drafted a “legally-accurate” rewrite of the M.R.E. that was rejected by the National Security Council because it didn’t do enough to protect the privacy rights of an alleged victim. Perhaps this issue will be on the agenda at this year’s Code Committee meeting.

Now the Army CCA considers another 412 ruling that excluded evidence at trial, in United States v. Grimes, No. 20100720 (A.Ct.Crim.App. Jan. 31, 2014) (link to unpub. op.). In a divided opinion, a three-judge panel of the court affirms the military judge’s ruling that prevented the Defense from introducing some of the 412 evidence it sought to admit.

Appellant was convicted of a single specification of rape and sentenced to confinement for three years, total forfeitures, reduction to E-1, and a dishonorable discharge (only 33 months of confinement was approved). The circumstances of the offense involve Appellant awakening the alleged victim in her barracks room, rolling her onto her stomach, and having sexual intercourse with her while she protested. M.R.E. 412 was implicated by a pre-existing sexual relationship between Appellant and the victim (“SPC MT”), about which the victim testified:

SPC MT’s boyfriend did not care for appellant and did not want SPC MT to continue her friendship with appellant. Specialist MT used a false name in her cellular phone contact list for appellant in order to hide the fact that she was communicating with appellant from her boyfriend.

All but one of the [prior] consensual sexual encounters occurred before morning physical training (PT) formation in appellant’s barracks room. Due to time constraints, SPC MT characterized the sex as “pretty much rough and fast.” She further testified that she was up against the wall or face down, and appellant penetrated her vagina from behind. On at least one occasion, SPC MT told appellant “no,” prior to the intercourse, but stated that she did not mean it, and said it in a moaning, heat of the moment, type of way. During the course of their sexual relationship, appellant would send a text message to SPC MT in the early morning hours prior to PT formation, inviting her to his room to “talk. ” In this context, SPC MT stated that “talk” was a euphemism for sex.

During one of the earlier sexual encounters, appellant invited SPC MT over to his barracks room in the evening to watch movies. Specialist MT spent the evening in appellant’s room, and although they engaged in consensual sexual intercourse, SPC MT did not characterize this instance as rough or fast. Instead, as she started to fall asleep while watching a movie, appellant touched and caressed her, she awakened, and they had sex.

Slip op. at 2-3 (emphases added). Notably, MT’s boyfriend departed for training the day before the events leading to the rape conviction, and on the day of the events MT and Appellant exchanged over 50 text messages, and “that at least one of the text messages could have stated ‘we could talk,’ or words to that effect.” Slip op. at 3.

In pre-trial motions, the Defense sought admission of a range of testimony about the prior sexual activity between Appellant and the alleged victim, and the military judge admitted some and excluded some. This ruling was revised during the trial itself as the case unfolded. But the judge did not permit evidence about prior “rough” intercourse between Appellant and MT, nor did the judge allow the Defense “to introduce further details of the sexual relationship, to include any mention of ‘common practice of movements and positions.'” Slip op. at 7. Additionally, while “Appellant did not testify on the motion or during the merits portion of the court -martial,” the military judge instructed the panel on the defenses of consent and mistake of fact as to consent. Slip op. at 4. Cf. United States v. Payne, No. 201200477 (N-M.Ct.Crim.App. Dec. 12, 2013) (unpub. op.) (link to slip op.) (briefly discussed in this post) (instructions not given where appellant didn’t testify and there was no other evidence to warrant them). The CCA’s analysis focuses on the omitted evidence in the context of these instructions.

The CCA majority finds no error in the military judge’s ruling limiting details about the nature of the prior encounters between Appellant and MT, explaining that:

the movements and positions at issue, those occurring on or before 26 August 2009 and that related to the charged offense, are quite distinct by time, location, and circumstances – to say nothing of the consciousness of SPC MT. As such, this dispute would distract the members by confusing the issues.

Slip op. at 11. Then, assuming it was error, the majority finds it harmless largely based on the overall strength of the Governmnet’s case.

But one judge dissents, emphasizing “the low threshold for relevance under [M.R.E.] 412.” Slip op. at 12. “[T]his information would have been admissible under a Mil. R. Evid. 412 analysis as either an exception under Mil. R. Evid. 412(b)(1)(B) or because it was material and its exclusion was prejudicial.” Slip op. at 13 (citing Gaddis and Ellerbrock). The dissent sees prejudice in the possibility that the sexual position indicated a non-consensual encounter:

I cannot imagine that the description of the position of the bodies and penetration from the rear was not relevant to the panel and did not inform them in their evaluation of the defenses of consent and reasonable mistake of fact of consent. Moreover, without knowledge that prior sexual activity between appellant and SPC MT included sex while SPC MT was face down on her stomach, the panel was left with the impression that this alleged sexual assault was the first time sex between the two occurred in this type of sexual position and inflated this position as an attack from behind with SPC MT in a defenseless position. This impression makes it less likely SPC MT would either consent or that appellant would have reasonable mistake of fact on whether she would consent to activity in that manner.

Slip op. at 13. And the dissent is “not persuaded by the majority’s suggestion that appellant needed additional support, such as his testifying, in order to make the issue of sexual movements and positions relevant to the defenses of consent or reasonable mistake of fact as to consent.” Slip op. at 13. The dissent would set aside the findings.

I think this case is a likely candidate for CAAF to review the application of Gaddis and Ellerbrock.

9 Responses to “A close call on M.R.E. 412 at the Army CCA”

  1. k fischer says:

    Once again, I cannot imagine how Congressional representatives could say that there is a need for radical reform of the military’s approach to sexual assault prosecution, after reading the facts of this case.   US v. Grimes is a sure loser in the civilian world, if Grimes even gets indicted and faces trial.  But in the military, Grimes gets a DD and 33 months in jail.  Sounds like the SVP’s got a conviction in a pretty tough case.

  2. What a joke says:

    Scrap the whole thing and let the AUSAs prosecute. Between this, sinclair, Amos, Franklin, weirick.  It’s a system but isn’t a justice system

  3. Dew_Process says:

    So, judicial recognition that sometimes “no” does not mean “no!”  Or more accurately, it is a fact-specific issue.
    Judicial recognition that the phrase “just ‘talking'” between two young adults in contemporary slang means “no strings attached, casual sex partners,” — cf. the many drug cases where cops are allowed to testify about drug slang or “code” words.
    And remarkably, the Senior Judge on the panel dissenting, with a common-sense, fact-specific rationale why in this case, holding that the Accused was prejudiced.  Hopefully, CAAF will grab onto this.
    @ K fisher – agree.  This would be no-billed in a nano-second in most civilian jurisdictions — at least as to the forcible rape. 
    For anyone who tried military rape cases before MRE 412 was enacted, this case provides an interesting “flash-back.”  “Back in the day” when members were instructed to consider such things as “prompt outcry,” “resistance consistent with personal safety,” and the prior sexual history between the two individuals involved, this case probably would not have been referred either.  Now, I’m not saying that MRE 412 lacks validity, but rather, Military Judges – who are supposed to give the Accused  the benefit of the doubt, simply as the dissent points out, are applying it too stringently, especially in circumstances where there has been an on-going sexual relationship.

  4. Lieber says:

    It’s interesting that the DC made the decision not to put the Accused on…you’d think that almost mandatory (tactically) if you’re arguing mistake of fact as to consent (or even consent)…and it will likely get in the 412 history that the MJ otherwise excluded (“how did you know she was consenting….” “cause that’s the way we always did it”)…

  5. k fischer says:

    I wonder if they put the victim back on the stand to testify about aggravation?  I understand that he stuck his penis in her vagina while she was asleep and that she ended a sexual intercourse relationship with Grimes so he committed the offense of rape under its current definition, but she was still kissing Grimes and hanging out with him on the downlow.  Is the facts of his offense so aggravating that he has to go to jail for 3 years?
    Let’s say that the situation was reversed and he just started dating another person, she snuck into his room, went down on him, and he woke up to her fellating him.  Should she go to jail for 33 months for forcible sodomy?  I would say, no, because it’s not that aggravating since they’ve been together at least four times prior, and he’s still kissing her behind his new girlfriend’s back.  What’s the big deal?

  6. TC says:

    Good point, what’s a little rape between old friends?

  7. k fischer says:

    Well, when you put it that way……it sounds kind of stupid.   So, if the situation were reversed as I said, then she should go to jail for 33 months for forcible sodomy?

  8. afsvc says:

    KF –
    On the facts presented, yes, she would be guilty of forcible sodomy. Should/would she get 33 months? I don’t think so, but I wouldn’t really lose any sleep over it/I doubt it. 
    However, I’d submit that the punishment question is a bit of a red herring here. That goes more to the issue of the rather weird, compared with majority of systems in the US, way that we sentence folks under the UCMJ. Basically, we grab a group with very little (if any) experience in criminal law, give them a few pages of instructions, have a couple of lawyers state (absent any context) what they think the crime is worth and throw them back into the room to do whatever chicken-bones-and-voodoo they can to get a sentence. On these facts, I’d agree it didn’t work out very well for the ACC. On the other hand, had they come back with 60 days HLC and a reprimand, he’d probably feel pretty good (absent SOR). Personally, I don’t know that either end is right and thus I’d support MJ-only sentencing. That would provide more certainty, though less chance of windfall, for either ACC.

  9. k fischer says:

    I threw that hypo out there to see if anybody ever crossed a victim in a questionable rape case who got on the stand, cried, and would never get over the trauma of what the accused did to her, despite facts that contradict the effect to which she testified.
    For instance, I had a vic who stated that after her rape she locked herself in her house because she was afraid, and her daughters, who were asleep in the house at the time of the charged offense, were terrified, asking, “He won’t come back will he, Momma?”  She met the accused online and invited him to a party after which he was convicted of raping her.  At the trial 9 months later, this vic was 6 months pregnant from another Soldier who she met online and made arrangements to meet behind the China Wok on post where she conceived in his SUV.  A small part of me wanted to cross her on this fact because most of her testimony sounded right, but the facts indicated otherwise, i.e.  Don’t tell me that your life is shattered and you lock yourself inside your home when you are getting knocked up by some other random Soldier who you met online where you met him and hooked up with him in his SUV out back of the China Wok.
    Nonetheless, I refrained from asking her questions out of fear that the panel would think I was victim blaming and beating up on this poor victim who it appears was not affected one iota by the rape.