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.