In this post from September, I analyzed the unpublished en banc opinion in United States v. Soto, No. 38422 (A.F. Ct. Crim. App. Sep. 16, 2014), that reversed a conviction for forcible rape in violation of Article 120(a) (2006) on the basis that the Government failed to satisfy its burden to demonstrate that the appellant used physical force to cause the sexual intercourse.

Last Friday the Air Force certified the case to CAAF:

No. 15-0247/AF. U.S. v. Eddy C. Soto. CCA 38422. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issues:




25 Responses to “The Air Force certifies Soto”

  1. k fischer says:

    I wish one day we could have a Soto defense, which would essentially be that no conviction may stand where the only evidence corroborating a sexual assault charge is the testimony by the complaining witness and the defense has shown that a motive to fabricate exists, which preceded the allegation being made.

  2. stewie says:

    I don’t think that’s a proper defense.  A motive to fabricate does not equal fabrication.  If the panel recognizes the motive, but nevertheless believes the alleged victim beyond a reasonable doubt (because they don’t believe that motive actually led her to fabricate beyond a reasonable doubt) should be able to convict.
    IOW, just because I’m married, doesn’t mean I can’t ever be raped by someone else…because in that scenario, a motive to fabricate exists by definition.

  3. RKincaid3 (RK3P) says:

    Stewie is 100% correct.  The presence of a factor does not diminish the importance of other factors.  The fact is that liars can be raped, and so can hookers.  So, the motive to lie or engage in promiscuous sex or for profit does not in any way mean that the alleged victim of rape actually consented to the sexual act.  Two different issues in a situation where there are many, many issues.

  4. Zeke says:

    @k fischer:
    I’m not in support of it, but we could always go back to 1951, when, under the then still sparkling-new UCMJ regime, the following rule reigned:
    “A conviction cannot be based upon the uncorroborated testimony of an alleged victim in a trial for a sexual offense, or upon the uncorroborated testimony of a purported accomplice in any case, if such testimony is self-contradictory, uncertain, or improbable.”  MCM (1951), para. 153a (p.289).

  5. RKincaid3 (RK3PO) says:

    Now Stewie, that is a great idea/suggestion!  But it will never happen because of the toxic legal and political climate we are in–when those in power have everything BUT justice in mind when passing statutes amending the UCMJ.

  6. RKincaid3 (RK3PO) says:

    Meant to also say, in addition to the above: “…or the RCM or ExOrds or what have you.”

  7. RKincaid3 (RK3PO) says:

    Or the MRE.

  8. stewie says:

    That’s the rule right now, since such a statement wouldn’t remotely come close to BRD. Although, uncertain means what exactly? I can think of a several ways an alleged victim could be “uncertain” yet I could still find her credible BRD.

  9. Zeke says:

    @stewie – If only our system of military justice actually required proof BRD in order to convict…  Contrary to our practice in the military jurisdiction, the embodiment of proof BRD is not some elusory platitude that we have our judges instruct to our panel members.  One of the greatest delusions we military practitioners have convinced ourselves of is that we can make up for the want of a sufficiently large jury comprised of common citizens with variable viewpoints and mixed allegiances, by relying instead on vague instructions, which, even when phrased in a most laudable manner, amount to little more than platitudes.  The true test for proof BRD has been, and remains: If even one presumed-reasonable juror of a properly impaneled court has doubt, then there is reasonable doubt.  There is no substitute for that test.  There are no instructions on reasonable doubt that can remedy the lack of a jury system.  No, I’m afraid our system does not truly require proof BRD.  It requires only proof sufficient to convince a super-majority.  That standard of proof might be something, it might even be justice.  But, despite our posturing and pretty-worded instructions, it’s not proof BRD.

  10. Joseph Wilkinson says:

    That’s the rule right now, since such a statement wouldn’t remotely come close to BRD.
    No it isn’t.  But it should be.
    I once helped to defend a court-martial where the accused said the sex was both consensual and enthusiastic…until the point where she said “no,” at which point he stopped and took her home. The alleged victim said she didn’t remember what happened. The judge did not grant 917’s.  The panel was out for a couple of hours, though happily they did return a “not guilty” verdict.
    A year or two ago I had to watch an Army sex-assault training film (which naturally is not available for public download).  In that training a girl gets picked up at a drunken party.  She doesn’t remember what happened – the film shows some deeply caring officer telling her over and over that “it’s not her fault”…and later on, the characters refer to the fact that the guy is now in jail for rape.  The message is perfectly clear: if she doesn’t remember, and there’s no corroboration, it’s rape – convict!  

  11. stewie says:

    Well, yes it is the rule. Whether a panel follows that rule or not is a different story, and a different problem. And I’ve seen cases where the panel didn’t convict, and I don’t think that’s the message.  I do think it’s a dangerous side effect of the push to believe victims that some panels will take away that as the message. Army training videos I think we can all say are deeply flawed when it comes to an accurate statement of the law.  But as you say, the panel you were in front of didn’t take that message.
    Zeke, I get it, you think the system is not justice, is completely dead, etc. I don’t agree, and I don’t think any system has perfected what you list as the true test for BRD. Civilian juries do all sorts of crazy things both ways, even with unanimous verdicts.  That’s not to say we don’t have problems, obviously the changes made are hyper-focused not on justice but an end-result.  But with respect you engage in hyperbole a bit.

  12. k fischer says:

    I think the Federal instruction on what Reasonable Doubt is exemplifies what reasonable doubt is:
     “Reasonable doubt” exists when an ordinary person would hesitate to act on the evidence in the most important of his or her own affairs.
    Buying a car is a pretty important personal affair.  Would an ordinary person hesitate to buy a car with a puddle of oil on the ground underneath it at the lot?  Yes.  You would probably point that out to the salesman.  So, what if the salesman said, “Oh, I just had the oil changed.  Our mechanic must have spilled some.”  Would you trust the salesman?  Would you trust the mechanic who works for the car lot if he told you that he just changed the oil?  What if he told you that it was counter-intuitive, that oil on the ground does not mean that a car is not in good mechanical shape.  What if you asked to take it to your own mechanic, and the salesman refused.  Would you buy the car?  Would you hesitate to buy the car?  If you would hesitate, then that’s reasonable doubt.
    And Stewie, your opinion that the 1951 rule has not changed better be a ruse, otherwise, I might think you are a bad egg.

  13. Christian Deichert says:

    @ Joseph Wilkinson — funny, I remember defending a court-martial in Iraq in 2005 for one of two Soldiers accused of larceny and conspiracy to commit larceny.  The day before my case, the co-accused pleaded guilty to only the larceny and testified during the Care inquiry that the larceny was all his idea and there was no conspiracy with my client.  The TC on those cases, as you may remember, did not pursue the conspiracy charge against the first accused, yet refused to dismiss the larceny and conspiracy charges against my client, despite all evidence to the contrary.  That case also ended in an acquittal. 
    It’s just interesting how one’s perspective changes once one has spent some time at the defense bar.

  14. stewie says:

    I see that argument made all the time by DC, and no one objects, and no MJ says “that’s not the rule” so what everyone knows it’s changed but are just ignoring it? IOW all that “rule” does is give one example of reasonable doubt.  DC can argue that the statement is contradictory or uncertain or improbable and that there is no corroboration and thus it is reasonable doubt.
    IF the panel believes that, then they will likely acquit.  If a Service Court reviewing the case believes that they will find factual insufficiency. 
    As for your analogy.  What if I’ve dealt with the salesmen before? Or to make the analogy more apropos, what if several people I trust say, this guy is a truthful person.  Then I might not hesitate to act.  You want to make things very black and white, and very simple when things are usually more gray and more complicated.

  15. k fischer says:

    I think back in 1951, the rule quoted by Zeke would require a finding of not guilty under 917, would it not?  That rule is no longer around for sexual assaults, is it?  Or are you talking about the jury instruction of reasonable doubt in the Federal Court?
    My analogy was really a closing argument based on the federal jury instruction for reasonable doubt.  
    I agree, No’ccam McRazor.  I see many of these things as very simple, black and white issues, as the simplest explanation is usually the correct one.  The Government wants to make things very complicated with their expert in Vietnamese culture to explain that a woman who makes a very late complaint of rape against an AF instructor AFTER she finds out that she is not the only one he is hooking up with would actually fly out to be with her alleged rapist multiple times after she was raped by him to “save face.”  
    Whereas, my simple explanation is that this airman was trying to save face after she found out her boyfriend was cheating on her by falsely accusing him of raping her.  And, that “rule” did not save Soto, notwithstanding her uncorroborated statement being highly improbable, unless you think the Vietnamese cultural expert was actually corroboration.
    In fact, the rule was never cited by the AFCCA.  Instead, they found factually insufficiency for force in that the Government never proved the elements of force.  In fact, they bent over backwards to avoid discussing the ridiculous notion that a woman would get on a plane and fly across the country twice more to be with a man who raped her on her first visit by stating that they were not making any opinion regarding the credibility of the alleged victim in the case.  If this 1951 rule was still in effect, then wouldn’t they mentioned the fact that her statement was not corroborated and improbable?  The words uncorroborated, unsupported, corroborated, or supported are nowhere to be found in the opinion.  I checked.
    And, I just noticed for the first time after skimming the opinion:  This was a military judge alone trial!!!!!!!  A military judge convicted Soto, not a panel.  Wowwww!!!!!!  Amazing.

  16. stewie says:

    All things being equal, is the first part of Occam’s Razor, and when dealing with the law (or human interactions), rarely are all things equal. 

  17. Joseph Wilkinson says:

    Stewie – If you explicitly require corroboration in a he-said-she-said, as the rule once was, you get 917’s or dismissals in situations like that.  If you simply believe that uncorroborated, doubtful claims aren’t so proved (on which point I agree with you), the cases still go to the jury and the dice still get rolled.  Or, rather, the coin gets flipped.
    Other developments make it even worse.  A couple of weeks ago I took a class on Article 120, and one of my younger classmates told us that girls are now taught, starting in their teenage years, that they should not resist a rapist for fear of getting hurt.  (The opposite of the older mores and the older legal rule – that you needed real resistance to demonstrate lack of consent, unless it would be futile.)  The result, if they’re following that training, is to make rapes look more like consensual sex from the physical point of view, while we’ve changed the evidentiary requirements to require less corroboration.   Even before you get to the indoctrination, these developments seem well designed to convict more innocents (and, for that matter, acquit more of the guilty; the more innocence looks like guilt, the easier are errors in both directions).
    Christian – Your lad also claimed (as a surprise at trial) that he reported the theft right away to his NCO.  Unfortunately, because we had to try Tallil cases at Balad, the rebuttal witness I needed wasn’t available; demonstrating his perjury might’ve changed the verdict.  The security video we introduced certainly suggested to me (though not to the panel, obviously) that he was playing lookout while the stolen goods were packed away, and walking out the door with his buddy and the goods instead of trying to stop him.   A far cry from a “he-said/she-didn’t-say” sex assault prosecution – a video that “looks like rape” would count as corroboration under any rule.  I don’t see the contradiction.  

  18. stewie says:

    Indoctrination? Come on. I don’t think what teen girls are taught regarding how to act during a rape is intended to somehow bear fruit by making it easier to convict innocent people.
    I don’t think it should result in a 917. Yes, I understand the problems with lie detection, but the reality is, that’s what juries do in any case where credibility is involved (which is a significant majority of them quite frankly).  I don’t know how you design a system that removes the need for any credibility determination from a jury. Certainly you can go with unanimous verdicts to smooth out errors and I am not opposed to that at all.  But the definition listed there includes “uncertain” so if she’s drugged and isn’t “certain” about some aspects you can’t convict? Even if you are sure she is being credible?  What counts as certain? I’d be more skeptical of a “certain” rape victim to one with some uncertainty quite frankly, particularly in a drug/alcohol situation. 
    Improbable? Ok, sure. Self-contradictory? Depends. What facts are contradicted? Does that mean “lie” or does it mean two things don’t match? How relevant do those two things have to be?  That’s why we have fact-finders to figure these things out. I’d love a computer that could do it, but we ain’t there yet.  Now, if we wanted to add additional, defense-friendly instructions to cover some of these areas, I’m in favor of that too.
    Like I said, this is complicated stuff. It’s humans interacting with humans, there is no “simplest” explanation most of the time, and at the end of the day, you don’t have video evidence and you often don’t have witnesses, so you are left with credibility determinations made by fact-finders.  It’s not flawless, but that’s not the standard, nor is it humanly possible. But the rule above isn’t a very good one IMO. It’s too wide a net for too varied a crime.

  19. stewie says:

    And by that last bit, I meant making it a 917/dismissal by the MJ situation, not the concept that it can’t be argued to the panel as reasonable doubt.

  20. Joseph Wilkinson says:

    Stewie — the “indoctrination” I was referring to was the training we talked about in the earlier comments (and the PC indoctrination at universities)…which strongly favors “presumption of guilt.”  Teaching girls to lie back like good little victims isn’t intentionally designed to make guilt look like innocence and innocence look like guilt…but it has that effect regardless of the intent, even before you get to the indoctrination.  Which simply makes things worse.   Every accuser has an invisible chorus behind her.
    I don’t think it should result in a 917. Yes, I understand the problems with lie detection, but the reality is, that’s what juries do in any case where credibility is involved (which is a significant majority of them quite frankly).  I don’t know how you design a system that removes the need for any credibility determination from a jury.
    You don’t remove it completely.  But what you do is, you require something more than the “Lady or the Tiger” credibility 50/50.  If there’s no corroboration, don’t let the jury make the call.  What the older rule recognized was that rape allegations, far more often than others, arise from situations where there’s often a strong motive for accusers to lie, and not only to lie but to accuse a specific person; and “innocence” looks too much like “guilt” if you don’t have a higher standard…especially if you teach your potential victims not to resist.   
    That is also why the older rule didn’t allow convictions based on “uncorroborated testimony of a purported accomplice in any case,” sexual or not…accomplices have a readily obvious incentive to point the finger, and to lie.  (Such cases will typically lead to an acquittal anyway…I was stuck prosecuting one once, because my corroborating witnesses didn’t make it back to Iraq, and that’s exactly what happened…but it’s logical to have a rule saying, “in the generality, this is just too weak.”)  
    Certainly you can go with unanimous verdicts to smooth out errors and I am not opposed to that at all. 
    I’m skeptical that would help.  “Unanimous verdicts” mean that some jurors must be browbeaten into agreeing with the rest, and the kind of people who are good at browbeating are not necessarily the fairest.
     But the definition listed there includes “uncertain” so if she’s drugged and isn’t “certain” about some aspects you can’t convict? Even if you are sure she is being credible?
    “Sure she is being credible” why?   If there is a solid “why,” there’s corroboration; if not, not.  The fact that she tells her story with conviction, or squeezes out a few tears on the stand, or has a face like an angel…these should not be enough for a “sure.”   Sociopaths, drug addicts, and other accomplished liars can manage all of the above, at least for a while.    

  21. stewie says:

    I think it’s too complex to say “you can’t let the jury make the call.”  Not every SA case actually has a strong motive to lie.  Many do, but enough don’t.  I do agree that eventually, particularly if both the accused and the alleged victim testify, you end up with a one or the other situation, but even in cases with other corroboration, if you have that situation, that’s still the primary dynamic, and at best the other corroboration (unless it’s really strong or really weak) ends up as a tiebreaker unless one side or the other is clearly lying.
    The problem is “in generality.” Now, as I said, if we want to look at more instructions that highlight this issue in a defense-favorable way to the panel, I can get behind that.  “There is no corroborating evidence for the alleged victims allegations in this case, you can/should take this into consideration when deciding whether or not the government has met their burden of proof beyond a reasonable doubt.”  (Or something better, that’s just off the top of my head).
    But I don’t think this is binary enough to make that rule a good rule.
    I fundamentally don’t agree with your concept that “if there’s a solid why, there’s corroboration.”  There often isn’t anyone but her and him. Maybe not the majority of cases for sure, but a significant chunk boil down to not a lot but her claim.  I certainly think it’s fair for the defense to argue, that’s not enough, I’ve certainly made that argument quite a few times…but I also recognize that it potentially CAN be enough.
    Is her statement internally consistent? Is it consistent over time?  Even with minor inconsistencies or uncertaincies.  Yes, it involves lie-detecting by panels, but that’s part of just about every case we have.  It’s flawed, but it’s unavoidable, and short of advances in lie-detector technology, the best we can do. 
    What you’ve effectively said is, rapists, all you have to do is get her alone, have no one see you, and you can’t be convicted because it’s her word against yours, and we won’t ever convict based on just that.

  22. Joseph Wilkinson says:

    Rules have to be made for the “generality” – to fit the reality of the society they’re made for.  If you can’t prove it, then you can’t prove it; and we shouldn’t write legal rules to get lots of convictions for cases where there is no real proof.  
    Likewise, the “spectral evidence” that was used to hang the Salem witches should never have been admitted (and some good thinkers of the time opposed it) – even if that meant no witchcraft convictions at all.  And the “repressed memory” evidence that was so popular in the 80’s — I’m sure you remember the controversy — should have been excluded, and prosecutions based on it completely forbidden, even if that meant no one would be convicted of those kinds of allegations.  (Which as I remember would be of sexual abuse or satanic ritual abuse…according to the psychologist’s school of thought.)
    What you’ve effectively said is, rapists, all you have to do is get her alone, have no one see you, and you can’t be convicted because it’s her word against yours, and we won’t ever convict based on just that.
    Rubbish.  That only works if she is determined to be a victim, to make no noise, to never fight back.  And the standard I support — which was the standard for centuries — is that she has a duty to fight back as much as she can.  The scream, the fat lip, the blood, the injuries on both from the struggle — these are the corroboration that turns a coin flip into a solid case.  And, incidentally, can stop the rape from being completed.  (In fact, in that class I mentioned, we saw a picture of an attacker whose victim did fight back.  She put plenty of “evidence” right there on his face, and he couldn’t manage more than “attempted” rape; and in the first rape case I ever dealt with, prosecution side, the girl fought back hard enough that the attacker just gave up.)
    There were lots of rape convictions back when that was the standard, and men haven’t gotten any scarier since then.   It’s a workable standard and better tuned to justice. 

  23. stewie says:

    1. Rules that have explicit cutoffs don’t work well with generalities.  Rules that have exceptions do better in that situation.
    2. More importantly, two problems with your second paragraph.  First, ok, she fights back, but he’s stronger, she isn’t able to cause any damage and he doesn’t either.  Now what?  Better get sharp nails girlfriend and make sure you leave a mark or it won’t be counted…because it’s still just your word against his.  Second, so if she’s scared, or petrified, too bad for her.  You better yell, punch and kick, in spite of any training you’ve had not to, or in spite of just being afraid or else no one will believe you.  A DUTY to fight back?  That’s cray-cray in the parlance of kids today.  There are a lot of “centuries-long” things we no longer embrace, so citing how we used to treat rape doesn’t do much to persuade.  Are you also in favor of the “she was a slut and probably wanted it” defense as well?  Should we consider the length of her dress or her sexual reputation as well? Those were “centuries-long” things we used to consider as well.
    No, fight back or we don’t believe you isn’t justice.

  24. Joseph Wilkinson says:

    First, ok, she fights back, but he’s stronger, she isn’t able to cause any damage and he doesn’t either.  Now what?
    That’s not what actually happens in the cases I know, including the old ones.   Fight back, and either someone gets hurt, or the rape fails completely.  Examples include the underlying case that led to U.S. v. Shipp – there were issues with the identification, but no question of it being a rape); the Buckner court-martial Mr. Borch wrote about a few years ago (blood, injuries, scream right then, report right then); and on the negative side, the case lovingly described in this book (a third party with a motive to lie claimed a father had raped his daughter; father and daughter denied it; physical evidence supported the father, because the girl was not only uninjured but physically still a virgin).  Do you know of any real cases where she fights back, the rape is completed, and yet nobody gets hurt?   I don’t think we should replace justice with coin-flips based on things that don’t really happen. 
    Normally in dubious modern cases — not in the old ones — I hear the old “scared or petrified.”  Real case: wife comes downstairs, sees another women bent over in front of her husband.   Other woman looks up and says, “It’s not what you’re thinking…he was raping me!”  No injuries, no screams, no signs of a struggle.  After talking to advocates and counsellors, she unsurprisingly comes out with the “I was scared and I just froze up!” story.  Happily we kept it from trial because she and the husband had been smooching at the club hours before.  In front of security cameras (I think that was the tipping point for the Article 32 officer, and I salute the honest TC who gave me the security tapes).  But for that it would’ve gone to trial and we’d’ve been spinning the credibility roulette-wheel, only the constant indoctrination the members receive might put a thumb on that wheel.
    So to answer you – if the only evidence of “rape” versus “consensual sex” is the “I just froze up” story…then no, that case should not go to trial. 
    There are a lot of “centuries-long” things we no longer embrace, so citing how we used to treat rape doesn’t do much to persuade. 
    The modern rule works badly because it brings us back to 50/50 justice, even before you get to jury indoctrination, which is likely to make it worse.  You suggested that the older rule would never get any convictions (because all the rapists would have to do is get their victims alone).  I pointed out, correctly, that the older rule did get convictions and lots of them.  So your objection was not correct.   “More recent” does not mean “better”; “fashionable” does not mean “wise” or “just.”  
    Are you also in favor of the “she was a slut and probably wanted it” defense as well?  Should we consider the length of her dress or her sexual reputation as well?
    Yes and yes.  Of course we should, at least when it fits the facts of the case.  Abstract it from sex and you can see it easily.
    Suppose you’ve got an assault case.  You’re claiming self defense.  There’s a ton of evidence that the “victim” was a very belligerent man, always starting fights just the way your client says he did.  Does that evidence come in?  Of course it does.  Could your client possibly be guilty even though the victim was belligerent and started lots of fights?   Yes, he could, but it’s relevant evidence to the charge and it would be horrifically unjust to leave it out.   Would you leave it out for the sake of the belligerent man’s “privacy”?   No, of course you wouldn’t. 
    So your man’s accused of rape.   It’s like the Tennessee v. Johnson rape in the first chapter of The Devil’s Advocates (it was the underlying case for U.S. v. Shipp).  The stranger attacks the girl, partly strangles her with a leather strap, threatens her, and forces her; the injuries are clear and there’s no question of consent.  In that case her sexual proclivities don’t matter (the real case turned on identification rather than consent).  So they are excluded.
    But suppose your man’s accused of rape.  He says he met her for the first time on Saturday night.  After one drink she was ready for sex, and within the hour they were doing it.   A few days later, she finds a cause to claim rape.   The jury sees her on the stand and walks in with a host of hidden assumptions – my sister wouldn’t do that; my daughter would do that; I wouldn’t do that; what a terrible thing to believe about a girl, that she would do such a thing!  
    You fight those hidden assumptions by showing that this girl does, in fact, do on a regular basis the very thing your client says she did.   Likewise, if her habits depart from other community standards in a way that strengthens the defense, that should come in, regardless of whether they have anything to do with sex.
    The Borch article includes a cite to a WWI-era Alabama case, Story v. State, that makes the point very well.  A white prostitute brought a rape accusation.  The accused, a black man, said he was just a customer; the accuser claimed otherwise.   This particular prostitute had a reputation for taking black customers, a thing most white prostitutes at the time would not do.  The trial court excluded that last piece of evidence and he was convicted; but the Alabama Supreme Court, to its great credit, reversed.  
    They understood that the jury, without information, would naturally assume that this woman would never take a black customer, and so give her story extra credibility it didn’t deserve.  Since that was an unusual thing in that time and place, it was right and proper to let them know…so that Story could not be convicted based on hidden assumptions that were factually wrong. 
    Yes, it causes the accuser more embarrassment.  But if I have to choose between “embarrassing people” and “convicting innocent men”…I know which way I’ll go.

  25. stewie says:

    She was a slut and wanted it is not about her interactions with the person she had sex with, it’s about bringing in her prior, unrelated sexual proclivities to say well she must have wanted it with him because she lets every ship dock in her port.  No one has an issue with a prostitute’s activities being brought in, that’s a reasonable exception, particularly when there’s a claim by the accused that he sought her services AS a prostitute.  That she preferred black customers is also relevant in that case.  It’s not barred by 412.  That’s the whole point, if interpreted correctly, 412 can be used to find the right mix between what is constitutionally required and what is simply an attempt to make the victim unchaste or unpure or unlikeable by enough conservative panel members.
    And no, I suspect there weren’t a lot of convictions back in the day, not compared with what there would be if we had a more reasonable set of laws.  The goal is not no innocent person ever, that’s not possible.  If that were the goal, we’d have proof beyond all doubt, not just reasonable doubt.  We’d require two witnesses like in biblical times.  No one likes the new changes, well at least most don’t, and certainly they are going to convict more innocent men, and I’m firmly on-board the go back to 2006 train.  But your train, to extend the metaphor, where we go back to the 70s effectively, is a bridge too far.
    This isn’t simply about “embarrassment” it’s also about relevance, and it’s also about recognizing that one can say yes to Tom and Dick, and no to Harry. 
    Your extreme skepticism about freezing up (to the point of it not being possible apparently) simply isn’t reality.  SOMETIMES freezing up is a lie, SOMETIMES it’s real.  In your hypo, bringing up that she was caught by her husband would support it being a lie.  Of course, that lies well outside our discussion about he-said, she-said since there’s a third party involved.  It’s the whole point I’m making, there are examples on both ends, and a generalized we bar this in all situations doesn’t fit the reality, despite your disbelief in one side of that reality.