In United States v. Villanueva, No. 201400212 (N-M. Ct. Crim. App. Jan. 29, 2015) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA reverses the appellant’s conviction for male-on-male forcible sodomy after finding that the military judge erred by denying the defense the opportunity to question the alleged victim about the “things he had done while drunk, including placing his penis in another man’s hand during a penis measuring contest.” Slip op. at 2.

At trial, the alleged victim was allowed to testify that he was a heterosexual. The Government then used the alleged victim’s sexual orientation as proof of the charged offense:

In its opening statement, the Government described HN P as someone who “was all about meeting whoever knew the good looking girls,” and was “not into [homosexual activity].” HN P testified during the trial that he “was straight.” This could only have left the members with the impression that, since HN P was not gay, he would not have consented to the sodomy.

Slip op. at 5 (modification in original) (citations to record omitted). But despite this testimony and argument, the appellant was not allowed to cross-examine the alleged victim about his sexuality or his conduct while intoxicated (notably, the alleged victim was intoxicated at the time of the alleged forcible sodomy). Writing for the panel, Judge Holifield explains that this was error because:

These statements go directly to the appellant’s ability to challenge the Government’s proof that the appellant did not hold a reasonable and honest belief that HN P was consenting to the sexual activity. . . . By excluding them, the military judge denied the appellant his right to mount a defense, and allowed the Government to meet its burden based on an incomplete description of events.

Slip op. at 5. The CCA reverses the conviction and authorizes a rehearing.

In addition to the 412 issue, the prohibition of M.R.E. 404(a)(1) immediately comes to mind:

Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

I’m aware of precedent that holds that heterosexuality is a pertinent character trait of the accused that may be presented by the defense under M.R.E. 401(a)(2). See United States v. Gagan, 43 M.J. 200 (C.A.A.F. 1995). But I’m not aware of any caselaw that supports the Government’s implication in this case that the alleged victim was heterosexual and therefore did not consent to the sodomy with the appellant. That seems to be a clear invocation of improper propensity evidence.

16 Responses to “The NMCCA reverses a forcible sodomy conviction due to the erroneous exclusion of evidence under M.R.E. 412”

  1. stewie says:

    This is just once again a case where a TC tries to have their cake and eat it too.  We can talk about his sexual orientation, but you cannot.  If they’d just left well enough alone, and not talked about how straight he was, defense would have had a much harder time I think talking about whether or not he sometimes exhibited same-sex attraction (or did things that could lead to that perception).
    Zach, are you saying though that the government would be barred from asking “why were you not interested in having sex with the appellant?  Because I’m straight.”?
    I would think the government can probably ask that question.  If they wanted to.  It opens the door in this case, so I’m not arguing for it’s wisdom necessarily.

  2. Lieber says:

    What Stewie said.  I don’t know why the government would ever ask a question like that though…it always gets vics into trouble when they testify that “I wouldn’t have consented because I’m not into Irish men” or into swinging or whatever…

  3. Zachary D Spilman says:

    That’s exactly what I’m saying, stewie

    The argument that the alleged victim necessarily would not have consented to sexual contact with the appellant because the alleged victim is (or at least thinks he is) heterosexual is no different than the argument that the alleged victim necessarily would have consented to the contact had he been homosexual.

    And before anyone jumps on my use of the word “necessarily,” I think that if the issue of consent is not dispositively resolved by the alleged victim’s sexual orientation, then that orientation is either irrelevant or its probative value is substantially outweighed by the danger of unfair prejudice.

  4. Advocaat says:

    Col Jessup:  Ever put your penis in another man’s hands, asked him put his penis in yours?
    LT Kaffee:  No, sir.
    Col Jessup:  Have you, HN P?

  5. Joseph Wilkinson says:

    Someone certainly should jump on your use of the word “necessarily” because (like most talk on this subject) it forgets where the burden of proof lies.  The defense is not limited to evidence that “necessarily proves” his innocence.  (In fact, even the prosecution is not limited to pieces of evidence that, each in isolation, “necessarily prove” guilt.)
    For something to be relevant to the defense, it doesn’t have to “necessarily prove” that the accuser consented.  It simply has to make this fact “more likely.”   Since only a small minority of men consent to sex with other men, it is both relevant and highly probative, though not absolutely dispositive.   That is why we have (but shouldn’t have) 412…to exclude evidence that would otherwise be admissible, and to do it for the sake of the accuser’s privacy rather than the accused’s right to a fair trial.

  6. Zachary D Spilman says:

    Lost you in there Joseph Wilkinson. My gut tells me that the prohibition on the use of propensity means that sexual orientation may not be used as a way to determine whether or not someone consented on a particular occasion. But, as I said in the post, I can’t cite a case that clearly states that proposition. 

  7. stewie says:

    It’s also no different then if he’d said “because I wasn’t attracted to him.”  I view it, in a vacuum, as a relatively harmless “why” answer.  I think it’s admissible.  As I, and others have said, not sure it’s wise, and it certainly wasn’t in this case.  It certainly opens the door to counter-evidence, although that door could have possibly still opened depending on the specifics.  But I think orientation is relevant to consent because people of one orientation don’t tend to consent to sexual acts with someone of a different orientation. That’s exactly why we allow the defense to raise it.  “I’m gay, I couldn’t have raped that woman.”

  8. brian lc says:

    One may even argue that the government violated 412 when they admitted victim propensity evidence without (making an assumption here) a 412 ruling from the judge.  Although normally thought of as a barrier to defense, 412 doesn’t care who the moving party is.  The government’s burden to introduce the victim’s chastity (or similar trait) is no less than the defense (and actually much harder as there is no constitutional exception applicable to the government).
    In this regard, I think the CCA was a little off base.   The 412 ruling wasn’t necessarily wrong – when it was made (don’t know without record).  It became a problem when the government introduced propensity evidence (assumptively) in violation of MRE 412. 

  9. stewie says:

    And I think that interpretation of 412 as overly broad is just as wrong here as when the government expands 412 to include anything related to relationships.  I am/am not physically attracted to (insert gender here) I would argue is not 412 evidence.  It’s not the type of propensity evidence 412 intended/intends to bar IMO. 

  10. k fischer says:

    My take on this case……Call me a victim blamer, but if a homosexual man expresses an attraction to me and is known for throwing extravagant parties, then the last thing I would do is tell him about placing my penis in another man’s hands, consume five drinks in 90minutes in his presence, be the last person with this man at a party, let him in my trailer, or say, “Oh baby, that feels so good” when engaging in homosexual acts with the man.  Of course, I’m not a homosexual.  It would interesting to see whether the vic’s trailer mate had a bias against the Vic.  If he doesn’t then I would opine that this panel would have kicked both of them out if they could.  Or perhaps they believed every word of the appellant ‘s story then wondered why the appellant couldn’t wait until the next morning to engage in sexual acts with the Vic.  Going panel on a male on male sex crime is a risky decision, but I can understand where the judge was so protective of the “Vic” in this case based on this 412 decision after the Gov clearly opened the door.  Also the judge easily could convict for an alcohol facilitated forcible sodomy and have it pass factual sufficiency. Anybody know if the appellant testified?
    Finally, “Gay Chicken” is not much of a game when both parties are gay, which my personal opinion is that any Marine male engaging in such a game is in the very least bi-curious. 

  11. Advocaat says:

    It’s from 2003, but Prof. Peter Nicolas wrote a law review article on this very topic (“They Say He’s Gay”:  The Admissibility of Evidence of Sexual Orientation, 37 Ga. L. Rev. 793).  Both parties might want to give it a read before any rehearing.

  12. Abe Froman says:

    From my understanding, the appellant did not testify.  There was also another victim from an unrelated incident.  He was acquitted of that charge.  seems to me that the court was looking for a reason (other than factual sufficiency) to kick the case. 

  13. Joseph Wilkinson says:

    Zachary, I was arguing with this statement:
    And before anyone jumps on my use of the word “necessarily,” I think that if the issue of consent is not dispositively resolved by the alleged victim’s sexual orientation, then that orientation is either irrelevant or its probative value is substantially outweighed by the danger of unfair prejudice
    ….because that isn’t so.  412 exists because that isn’t so.  An unusual orientation or behavior is quite probative and relevant, and the rarer the jurors think it is, the more probative it is.  Because jury members, being human, are likely to assume that other people <a href=””>think and feel like themselves</a>…so that, in the absence of evidence, they naturally will assume that the male AV isn’t any gayer than they (or their sons and brothers) are, and the female AV doesn’t sleep with strangers any more than they (or their sisters and daughters) do.  Especially when they’re on the stand squeezing out tears in their Sunday best. 
    The Defense shouldn’t have to wait for the Government to “open the door” in order to rebut those natural prejudices; that’s one reason why 412 should be abolished.  
    (This is really clear once you get outside the realm of sex.  In a self-defense case the defense can prove the accuser was belligerent and so was likelier to have started the fight.  But that doesn’t “dispositively resolve” the question of who started the fight; it is merely evidence that is useful in securing an acquittal.  Thank heavens we don’t have “assault shield” rules to keep it out.)

  14. Zachary D Spilman says:

    The Defense shouldn’t have to wait for the Government to “open the door” in order to rebut those natural prejudices; that’s one reason why 412 should be abolished.  

    A few thoughts in response.

    First, addressing the panel’s “natural prejudices” is an issue for voir dire, not for the trial itself. That’s not to say that it isn’t a concern during trial, but evidence is offered to prove material facts, not to address a bias in the finder-of-fact that won’t yield to the facts and law of the case.

    Next, the fact that a person likes or dislikes (for example) chocolate ice cream does not prove or disprove consent when the person claims that another person forced them to eat chocolate ice cream. The same applies for sexual preference.

    Finally, the analysis for the defense is different because of the issue of mistake. As in the case discussed in this post, an accused who knows about an alleged victim’s preferences might have formed a mistaken belief about consent based on that knowledge and the specific facts of the encounter. Of note, a mistaken belief about consent means no actual consent. It also need not be based on information that is true (for example, perhaps the alleged victim fabricated the story about the things he did while drunk).

    In any event, I don’t think we’re talking about the same thing. You’re focused on the ability of the defense to use an alleged victim’s sexual preferences (an ability I acknowledge), while I’m focused on the impropriety of the prosecution using evidence of preferences as proof of action in conformity with those preferences.

  15. k fischer says:

    Great, now I’ve got Sarah Mclachlan playing in my head…….. Everyone here knows how to cry……… I agree that the rule should be consistent between Vic and accused.  Once someone opens the door by playing the straight card, then the other side should be permitted to admit evidence to rebut that trait.  Seems like the Government did that in its opening. It is odd that the Gov would win the 412 motion to keep out homosexual acts of the Vic, then use his alleged heterosexuality as a basis to show lack of consent.  Seems kind of unfair.  Would the defense be able to keep out the accused’s orientation, then argue in opening that he is known for liking to be surrounded by beautiful women?  That would be rather disingenuous, wouldn’t it?

  16. k fischer says:

    Also, once the Vic denies he is homosexual or tells someone he is not interested in the accused, then wouldn’t his gay acts be relevant under 608c to show motive to fabricate because he is a closet gay or bicurious and he is concerned that someone knew they hooked up and does not want to appear to be a homosexual?  The walls in those trailers at GTMO are pretty thin.