The Air Force CCA holds that the charged sexual assault offenses may be used to prove that the accused has a propensity to commit the charged sexual offenses
In an unpublished decision in United States v. Maliwat, No. 38579 (A.F. Ct. Crim. App. Oct. 19, 2015) (link to slip op.), a panel of the the Air Force concludes that:
Congress and the courts have repeatedly said that the prior sexual misconduct of an accused is relevant to whether the accused committed the charged offenses. This includes the use of evidence of other charged sexual offenses to demonstrate propensity under Mil. R. Evid. 413.
Slip op. at 9 (citations omitted). In Maliwat, the charged sexual offenses involved two separate women, and the military judge instructed the members that if they found that a preponderance of the evidence supported the allegations then they could use that evidence as evidence the appellant’s propensity to commit sexual assault. The panel then convicted the appellant of the assault of one of the women, but acquitted him of the assault of the other.
The AFCCA joins two other CCAs in concluding that the charged sexual offenses may be used as evidence of propensity to commit the charged sexual offenses. The Army CCA reached that conclusion in United States v. Barnes, 74 M.J. 692, No. 20120308 (A. Ct. Crim. App. May 8, 2015) (discussed here), review denied, 75 M.J. 27 (C.A.A.F. July 28, 2015), and the NMCCA reached that conclusion in United States v. Bass, 74 M.J. 806 (N-M. Ct. Crim. App. Aug. 18, 2015) (discussed here).