In an unpublished decision in United States v. Maliwat, No. 38579 (A.F. Ct.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).

33 Responses to “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”

  1. k fischer says:

    Once again, another protection has eviscerated, i.e. the spillover panel instruction, for the special victim of sexual assault.  Whereas for any other crime, the panel cannot use other similar acts to convict based on the evidence of a general criminal disposition.  But, for sex crimes, there is no such protection anymore. 
    Whether or not this is wise is not my point.  Based on the case law of the 3 CCA’s, perhaps the military judge’s benchbook should be amended to provide a noted exception to paragraph 7-17, AR 27-3 for sexual offenses in which there are multiple charges of sexual offenses.

  2. k fischer says:

    And based on the text messages that were contained in the opinion, I also can see how the panel convicted the Accused and this seems like a good decision.  But, it would be nice to know what the other texts said because it seems like there could be more to this case than meets the eye.  Perhaps the DC was ineffective by failing to use the other texts, maybe not.  Unfortunately, I can’t say either way without reading them for myself.  Rather than using those texts for factual sufficiency, those texts might have been relevant for victim impact and reduced the sentence.
    With the brainwashing that has gone on and a man’s disposition to agree with a woman who he wants to get back with, I can see how one may tell a woman who is accusing him of rape that he was sorry.  But, in this particularly case, it’s pretty hard to get around:
    A1C JM: Sorry but I am mad about what happened earlier.Appellant: I knew u would be. . . . I’m sorry babeA1C JM: I said no.Appellant: I know . . . I couldn’t control myself. The more u said no the more I wanted u
    That is a difficult case for a defense counsel.

  3. RY says:

    I think it exceptionally difficult to get past the “I couldn’t control myself. The more u said no the more I wanted u”  All arguments about placating the victim to reconcile or pretty much any other defense goes out the window when he volunteers this info. 
    Incidentall, the “I couldn’t control myself” would be one of my favorite quotes in closing if I were TC.  Reminds me of the drug user in AF who wrote in his statement to cops, “I’m not afraid of jail, I can do jail.”  And lots of jail he got. 

  4. stewie says:

    Boy, that text message is better than a CID confession for the government.

  5. DCGoneGalt says:

    That’s why all incriminating email/text messages need to have “j/k lol” after them.  Just in case. 

  6. Alfonso Decimo says:

    When I was a defense counsel, I often cringed at the bad facts created by my client, but it’s even worse when the client creates new bad facts, after representation has begun. How do you convince your client to just stay away from everyone involved?  Not easily done.  j/k lol.

  7. k fischer says:

    A new TC was offering a Chapter 10 prior to charges being preferred on a rape case that the previous TC determined not to be charged.  I asked for the CID report to see what my chances of getting an acquittal was if we took it to trial because the previous TC wasn’t going to have the Command prefer.  When I got the CID report that included a pretext conversation that included a response to the rape allegation in a text,  “u deserve someone better than the monster I am” and “It felt so wrong I couldn’t even cum,” a Chapter 10 conditioned upon a General discharge was negotiated, signed, and submitted swiftly and with great haste.  j/k lol.

  8. Dew_Process says:

    And I guess the “presumption of innocence” is out the window as well and we can cross-out this Bench Book Instruction:

    . . . the accused is presumed to be innocent until (his) (her) guilt is established by legal and competent evidence beyond a reasonable doubt;  # 2-5-12

    And next, the “unreasonable multiplication of charges” will become “relevant” simply because . . . .

  9. RY says:

    Incidentally, 2 yrs seems light to me here.  He writes he knew she said no, he couldn’t control himself, the more she said no, the more he wanted to take her and, according to her, he held her down physically overpowering her.  He may not have brandished a gun, but this sure seems to warrant more than a deuce. 

  10. k fischer says:

    C’mon, chap.  It’s not that bad…..yet.  The first move that McCaskill, in conjunction with and the backing of Teresa Scalzo and all of the Services’ TJAG’s, will make will be to change “by legal and competent evidence beyond a reasonable doubt” to “by a preponderance of legal and competent evidence.” 
    When that doesn’t work, they will cut a niche out of the 5th Amendment to permit the panel to draw a negative inference if the Accused doesn’t testify, which little do they know is superfluous at a Court-martial with panel members.  This will only be for sex cases, though, because they are special.
    Then, they will switch the words “innocent” to “guilty” and require the Accused to prove innocence by a preponderance of the evidence in sex cases, which, once again, superfluous.  At that point, the military serviceswide would probably have a 98% conviction rate for sexual assault cases, which 2% going free would be acceptable to them because people might think the court-martial system is unfair if it was a 100% conviction rate.

  11. Advocaat says:

    Are TC currently taught not to give 413/414 notice if the prior offenses are charged?  Are SVCs taught to ensure TC is giving notice?  Rather than relying on the CCA to do a clean-up, the govt loses nothing and it’s better practice to protect the record and live up to the special duties of a prosecutor by giving notice.

  12. Concerned Defender says:

    Just shaking my head at the destruction of the rights of men … er… the accused in these cases. 
    Just so we all understand,when a woman whom you’ve had a prior sexual relationship, several sexually explicit texts with about her vagina and breasts and sex, and friendship with calls you over to “rub her head” and she says she’s naked and not putting any clothes on, and playfully texts “no sex” and you say “lol ok” … then you go over and have sex and she’s okay with it afterward, that is what amounts to rape in the modern world??? 
    And I don’t buy the assertions she said “no” with any level of legitimacy.  Why?  A man cannot pin a woman down and undress himself against anyone demonstrating a minimal level of resistance.  She apparently said no, and I’m betting that was followed by giggling or a lack of seriousness in her voice. 
    What a sham.  If it wasn’t so serious these brainwashed feminist cases are a joke.  The woman needs a scolding to not invite men over to rub her head while she’s naked and the case should have been dismissed with prejudice. 
    Texts as criminal admissions?  Hardly.  These were him trying to smooth over a friend who felt guilty for changing her mind and realizing how stupid SHE was to put herself in a situation in which ANY person would expect that sex is going to happen, and apparently did.
    So here’s an analogy.  We are good friends and I lend you my car a bunch of times, and then for unclear reasons the lending stops.  Then I invite you over to look at my car, all gassed up and ready to go.  Keys in the ignition.  Ask you if you’d like to sit in it.  Turn on the engine, and rev it a few times.  I know you need to borrow it to get somewhere too.  Car is sitting there, you’re ready to go, the car is ready to go.  And I go inside and have a glass of lemonade and weakly say, “nah.”  You take the car and return.  Ask me if I’m okay with it and I say, “no biggie.”  Then later I decide that it hurt my feelings, so I report it and you go to prison for 2 years and get a Dishonorable Discharge!!!  In what world is this right or fair to you, the car borrower?  There was no physical or psychological harm done, in reality.  The only person that really suffers is the accused.
    The reasonable doubt standard has moved so far down the peg as to now be akin to a preponderance or even “some evidence” standard as to make a mockery of justice.   And the ensuing reasonable punishment standard in my view violate the 8th Amendment against cruel and unusual punishment. 
    Can anyone articulate the real harm done to the “victim” here, that she could not have otherwise anticipated by HER prior sexual behavior and her invitation and lack of clothing?  I mean, seriously?
    As for the bleedover, what’s the point of having a trial.  Let’s just skip the trials and go right from accusation to hanging. 
    There’s a very special place in Hell reserved for women like this. 

  13. DCGoneGalt says:

    cd:  Safe to assume you deliberately left off the “j/k, lol”?

  14. k fischer says:

    How do you explain the texts?  The facts seem to indicate that it happened, he left, they text, and she goes to NCIS that day.  I do think the scenario you laid out seems exactly what happened except for the text.  
    And, I bet he didn’t testify.  IF YOUR CLIENT DOESNG TESTIFY IN FRONT OF A PANELIN A CASE LIKE THIS HE WILL BE CONVICTED.  If the case strategy is to contest the case in hopes you get that jury who understands reasonable doubt and the fifth amendment (white buffaloes), then maybe you come in for a soft landing with the sentence.    If that was the stragegy, then we’ll played.

  15. Concerned Defender says:

    I’d explain the texts as a man trying to smooth things over with a woman.  What were his options?  Really?
    1.  Ignore her – that would further infuriate her and increase the likelihood of a complaint of some sort
    2.  Deny and argue with her, “look baby, that’s now how it went down and you know it.”  – that would risk infuriating her and a report but he would have shown a high level of sophistication in preserving his defense for his future Court Martial.  Surely every 20 year old non-lawyer is positioning himself for his future defense and such. 
    3.  Do what any normal human would do under a misunderstanding that a friend is claiming you harmed them.  Admit it (even if your admission really isn’t truthful) to smooth things over, take responsibility, etc. in hopes of moving forward and past this.  And also diffusing the possible rape allegation that hits him.
    As for the egregious sentence.  Let’s assume that he did go to far in spite of her verbal only protests of no.  Taken in total, she has at LEAST a significant % of the responsibility for the situation having set it up, invited him, been unclothed, only to really protest immediately preceeding the act; and offering what I can best determine to be effectively zero physical resistance.  So she has a huge piece of the contributory causation for the event, through acts leading up to the sex and the omission for really taking any genuine affirmative acts to prevent the sex, even going so far as to “consent” after-the-fact by saying it was okay.  So in the end, she has sex with a familiar sex partner who ejaculates on her stomach.  He does nothing to force her according to the record, he just does it and she offers no resistance other than weak a few weak “no” statements.  She doesn’t get pregnant nor contract any disease as reflected in the record.  For her it’s an incident where at best her feelings were hurt.  For him, it’s 2 years of prison, a DD, ruined life, and SO registry….   Yeah, that’s fair.  J/K lol. 

  16. DCGoneGalt says:

    The texts are what I would call incriminating.  If you say that I raped you and I did not my first instinct is not to agree with you to just get out of an awkward conversation.  Counterintuitive behavior smells like BS most of the time regardless of which side is serving a warm dish of it.

  17. (Former) ArmyTC says:

    I couldn’t control myself. The more u said no the more I wanted u

    Yeah…totally just trying to smooth things over…CD, let me make sure I understand your position: Doesn’t matter that she explicitly told him “no sex” and that he acknowledges she told him “no.” They had a prior relationship right? And she was naked, so she must have wanted it? And hey, she doesn’t have an STD and didn’t get pregnant right? No harm no foul.
    We need a sarcasm font on this blog…


  18. k fischer says:

    Sounds like a little more than her feelings were hurt.  It appears that her wrist and leg was hurt from the bruising.  I get your point that the aggravation in her circumstances wasn’t as bad as a jump out of the bushes/break into your home rape, but when a person says, “No,” then it’s game off.  I’ve always wondered how extenuating the victim’s behavior would be when she behaves in such a way that the man gets turnt up.  This time of year in Georgia brings the rut, where bucks lose their mind over hot does and start doing really stupid things to get themselves killed in an attempt to get a little lovin’.  It’s hormonal and biological for some men, just like drinking and fighting.  I certainly wouldn’t act that way, but I wonder what good old Maliwat would have done had his best friend grabbed him by the base of the scrotum and yanked his nutsack off.  But, of course, we are focusing on the behavior of the victim, which is entirely verboten.
    So, based on this case, I have a new Rape Allegation Prevention tip (#8) for Rape Allegation Prevention month aka “RAPril”:  When you have been expressly relegated to the friend zone by a woman, and after attempting to kiss your way out of the friend zone you get rebuffed with a “No, stop, I don’t want this,” STAY IN THE FREAKING FRIEND ZONE!!!!!!!!  Remember this, and your chances of being accused of Rape should be greatly minimized. 

  19. k fischer says:

    (Former) Army TC:

    They had a prior relationship right? And she was naked, so she must have wanted it?

    To retort, I would like to cite Gunny Hartman from “Full Metal Jacket”:

    Gunnery Sergeant Hartman: [after discovering A1C JM lying naked in her bed] J***** H C*****. A1C JM, why did you ask Maliwat to come to your hooch while you are naked in your bed?
    A1C JM: Sir, I don’t know, sir. 
    Gunnery Sergeant Hartman:A1C JM, if there is one thing in this world that I hate, it is a naked female lying in a bed inviting a male to her hooch when she does not want any sexual contact! You know that don’t you?
    A1C JM: Sir, yes, sir. 
    Gunnery Sergeant Hartman: If it wasn’t for harlots like you, there wouldn’t be any sexual assault in this world, would there?
    Private Gomer Pyle: Sir, no, sir.

    Of course, this would require A1C JM to possess reason and accountability, which victims advocates have trained us to believe she does not.  Instead it is a far better method to attempt to control a raging hormonal idiot manchild who should have stayed in the friend zone.

  20. k fischer says:

    j/k lol.

  21. stewie says:

    This is why I can’t take CD seriously. It’s one thing to ask if the use of evidence in this case is proper…it’s another to rail that a guy with those text messages is somehow the innocent victim of a vengeful woman. No one in their right minds responds that way in a text message if it was a purely consensual act.

  22. k fischer says:

    Yeah, they do.  You just don’t understand counterintuitive player behavior.  I am an expert at identifying CPB, as well as False Allegation Prevention (“FAP”).  I’m going to turn April into FAPril with my FAP campaign and eliminate false rape allegations if I get that Navy HQE job.  
    I’m still waiting on my letter of recommendation from you, Stewie.  I thought we were friends, Bromigo. 

  23. Bill Cassara says:

    K Fischer: I see a lucrative future for you.  When the government puts on an expert for Counter Intuitive Behavior of victims, I can put you on for counter Intuitive Behavior of accused.  Hypothetically, I will call their expert VV.
    VV:  Well, the fact that she sent him a text message saying she would be naked but didn’t want sex doesn’t mean she wanted sex.  It could mean she wanted sex. It could also mean it doesn’t.
    KF: The fact that he apologized doesn’t mean he is sorry. It could mean that. But it could also not mean that.

  24. Concerned Defender says:

    I believe the texts could very well boil down to counter-intuitive behavior, just like a false confession occurs counterintuitively.  And just like the counter-intuitive behavior that “victims” often demonstrate.  It’s all just human nature.
    We’ve all had significant others and close friends.  Sometimes you do something that upsets them due to a misunderstanding.  We often simply admit we were wrong and apologize rather than draw it out in a bitter argument, hoping to move past it.
    This is not a clear cut case.  Seems it boils down to a much deeper psychological understanding of this twisted young woman who would do this to a man, her friend.  Invite him over to clearly lure and tease him with sex, with full knowledge that he would want sex, only to say no at the magic moment.  I could not in good conscience convict this man under these circumstances.  In terms of culpability she is at least as, if not more, culpable and the cause of this mess.  She put this in motion to the natural forseeable conclusion, did little to stop it, and then complained when the natural forseeable result occurred.  Basic tort application to criminal law.
    Greater than criminal intent or act, it seems this kid simply lacked the sophistication and understanding of what he was doing was going to ruin his life when this flake complained. 

  25. Concerned Defender says:

    Lest anyone think I’m condoning rape, I don’t.  I had a very close girlfriend who was roofied and raped.  I was there for her the next day when she was a wreck.  They never caught the perp, who was a stranger.  That was heartbreaking and tragic and he life was changed for the worse that day.  I am not condoning rape.
    I am turning the responsibility for ‘regret sex’ comparatively on the parties that are actually responsible, rather than just always dumping the blame on the man.  
    Here’s my test:  If you reverse the genders and still come to the same conclusion, then it’s rape.  But if by reversing the genders and still believe the man is responsible, then it’s just regret and not rape.
    For instance, if you reverse the genders in this case, (eg the naked man invites his friend with whome he has had prior sex with and knows she lusts after him) and the man is prone and she straddles him and has sex with him against his weak refusals.  Anyone here roll their eyes and say he didn’t get raped?  I would.  We’d all say he’s okay with it and that he wasn’t hurt by it and that he probably wanted it, and it was just regret that caused the complaint – and that regret was his own decisions for causing the sex.  My point exactly.

  26. k fischer says:

    Don’t forget that sometimes the falsely accused will apologize for things he did not do in an attempt to normalize a situation where he is being falsely accused.  I mean, its like you suffered this traumatic event like being falsely accused, and you just want to get back to that safe place where you weren’t being falsely accused, so you just agree with her.  There are so many reasons why a woman might make a false complaint, so I cannot begin to tell you what was going this particular false accuser’s mind because I am a blind expert.  You know the Government is paying me $2,000.00 per day and I don’t know a single thing about this case. 
    But maybe, he is afraid she will not be his best friend anymore, so he feels if she apologizes the relationship will continue.  And you know, maybe he was so traumatized that he did not quite process what she was actually accusing him of.  Granted a woman might very clearly state, “It was rape.”  But, when a woman who you thought was your best friend starts falsely accusing you of sexually assaulting her, it is so traumatic from someone who you really trusted and cared about.  You might think that a man would never apologize for that crime, but I’ve seen many cases where that very thing happens.  I can’t cite any specific cases or literature that I have read, but its the body of my experience reading various articles, studies, comments from Stewie and (Former) ArmyTC on, etc., make up my expert opinion. And let’s face it, women think everything is a man’s fault, (looking at the panel) am I right guys? So, men become conditioned to that mindset to just agree with women just to get them to cease the false accusations because if they are blamed for one more thing they didn’t do, they will suffer even more dehumanization.  Look at the A Team.  Folks wonder why BA had a bad attitude and Murdock was crazy.  It was because they had been court-martial’d for a crime they did not commit!  So, had A1C JM accused Maliwat of murdering her yesterday by text, it becomes almost like a Pavlovian reaction for him to text back, “I’m sorry.”

  27. k fischer says:

    I like the gender reversal policy.  That is a good point and a clever way to show the hypocrisy.  Like I said, I think there was probably a lot more to the case than what the opinion let on.

  28. stewie says:

    false confessions aren’t really “counter-intuitive.” They happen for very understandable reasons under at least somewhat predictable circumstances. They are actually stronger than “counter-intuitive behavior” IMO. There is nothing counter-intuitive about what he wrote. People feel guilt and express it, and that’s what he did.
    All the joking about CI behavior aside, as someone else on here said, it’s baloney for the most part no matter which side pushes it. The only use for it is to highlight that there is no one set way to respond to certain situations…other than that very limited use, there’s little value to it.

  29. k fischer says:

    The way to counter the counter-intuitive behavior expert in a case where the failure to report makes no sense whatsoever is to with specificity ask what they are basing their opinion.  If it is Dr. Veronique Valliere, then she has testified in the past that she can’t name a specific body of work, or patient, but it is her general experience that has given her her expertise over the years.  Plus, she goes in blind to testify, so she is not supposed to know anything about the facts of your case.  But, she has a lot of experience counseling complaining witnesses (hundreds) AND sex offenders (thousands).
    If you ask her something like, how many cases, between the hundreds of victims and the thousands of sex offenders that you personally have dealt with, involved an alleged victim who was an Ivy league educated, who was a former Unit Victim Advocate, who made more money that the Accused and owned a home in a different state, who married the Accused within 30 days of first meeting him and 8 days after he alleged brutally anally sodomized her?  Of course her answer will be, ‘I’ve never seen a case like that.”  Her answer might change now that she was an expert on a court-martial with those crazy facts, but you can follow up and ask her whether there was a conviction.  And, then ask her about the outcomes of any specific results that she throws up. 
    Because it seems that these experts like to generalize how these bizarre behaviors are counter-intuitive, but they cannot reconcile it with a case that even remotely matches in their personal experience.  Of course, the more and more wrongful convictions they might get, then the more their opinions will be supported.

  30. stewie says:

    I think the problem is not what you say it is. You, appear, to be saying there are somethings that since they violate common sense must be evidence in contrary of a sexual assault. For example, you talk about marrying someone after. But that doesn’t necessarily mean a sexual assault didn’t occur. Wives who are raped don’t always rush to the divorce court, and girlfriends who are beaten don’t always run out the door. I think there’s a place for reminding folks that people react differently and not everyone reacts logically to events.
    Having said that, the problem I see is that CI behavior experts don’t stop at that, they go on to use CI behavior as actual proof of the assault (see because she did this CI thing that actually shows she was sexually assaulted). They don’t say it that blatantly, but the clear implication is left.

  31. k fischer says:

    Have you ever known or even heard of a case where a woman who made more money than her husband, owned a home in a different state, and was Ivy League educated did not report that she was brutally anally raped less than 30 days after meeting him, but instead, married her rapist 8 days later?  Oh, and she doesn’t say anything about this to anyone, except for two years later, on the day after she was served with divorce papers to which she countered with a claim for sole physical and legal custody of the parties one year old daughter.  Does that sound legit to you?  Could a counter-intuitive victim behavior expert’s explanation of general victim behaviors convince you that under the facts of that case, not only her failure to report, but her decision to marry this man, are plausible behaviors of an actual victim? 
    See, you are changing the battlefield to fit your narrative.  I’m not talking about a wife who has certain loyalties to her husband or a girlfriend who got beat who stays with her boyfriend because she has nowhere else to go.  I understand how that is plausible because there are no means to escape or maybe they want to work on their marriage. 
      I’m talking about a woman who owned a home in a different state, who was higher ranking than the Accused at the time they met, who had a job making twice as much as the Accused with a civilian contractor in Afghanistan when they met, who was not pregnant when they met or married, who easily could have escaped this butt rapist with her job, who had known this man for less than 30 days.  Not to mention the fact that when she came home from Afghanistan to work on her Masters, she says he vaginally raped her, so she goes down to Bragg and quits her job and outprocesses, so she can be with him.  Those are facts of my case.  Does it sound plausible that an actual victim with those characteristics would marry and remain married to someone like that?

  32. CI says:

    Counter-intuitive victim behavior = reason to doubt the complainant’s claim.  Does it necessarily mean the complainant is lying?  No, of course not.  People react to trauma in strange ways, sometimes.  But, counter-intuitive behavior is, well, counter-intuitive.  Therefore, it should, in a reasonable person who has “common knowledge of the ways of the world,” cause doubt.  Then, it’s just a question of whether that doubt is “reasonable” given the other evidence in the case.  If the doubt caused by the counter-intuitive behavior it is reasonable, then an acquittal is required by the law no matter how true it is that real victims sometimes behave in strange ways.

  33. k fischer says:

    I like that argument.  And, perhaps why victim advocates have created this CI field because if you rename reasons to doubt with counter-intuitive Victim behavior, you implant victim status and lessen the impact of the reason to doubt a complaining witnesses’ illogical story and makes them question the way they know how things work in the world.