Yesterday CAAF granted review of an oddly-worded issue involving Mil. R. Evid. 412 – the military’s rape shield rule:

No. 17-0476/AF. U.S. v. David C. Carpenter II. CCA 38995. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:


Briefs will be filed under Rule 25.

The CCA’s opinion is available here and reveals that the appellant was convicted of sexual assault of a child in violation of Article 120b(b) for a sexual encounter with a 13-year-old boy. The appellant’s defense was that he mistakenly believed the boy was 16. To prove this mistaken belief the defense sought to cross-examine the boy about the boy’s internet posts soliciting sexual encounters in which he claimed he was 18, 19, and 20 years old. But those posts were made after the encounter with the appellant. The defense also sought to introduce evidence about other men with whom the boy had sexual encounters, and also evidence that the boy was “adept at conceling his age.” Slip op. at 5. But the military judge found the evidence was not relevant in part because:

the relevant inquiry with regard to whether Appellant’s belief about JM’s age was objectively reasonable is based on the facts known to Appellant at the time of the conduct.

Slip op. at 5. The CCA concluded that:

We agree with the military judge that the proffered evidence was irrelevant to the mistake-of-fact defense. The military judge therefore did not abuse his discretion by excluding it.

Slip op. at 6.

Considering this, it’s strange that the granted issue challenges both the CCA’s limitation of cross-examination (when it was the judge) and the invocation of Mil. R. Evid. 412 (when the real issue seems to be relevance).

Another 412 issue on CAAF’s docket for next term is the constitutionally-required exception to the rule, which will be considered in United States v. Robinson, No. 17-0231/AR (grant discussed here).

8 Responses to “CAAF grants review of Mil. R. Evid. 412 issue”

  1. Tami a/k/a Princess Leia says:

    The other Craigslist messages are relevant to show:  (1) lack of JM’s credibility–he lied about his age, what else is he lying about?; (2) to show appellant’s belief that JM was at least 16 years old was reasonable; and (3) to show the Craigslist ad appellant responded to (since the original apparently wasn’t admitted into evidence).
    The cases AFCCA relies on do not limit MRE 412 evidence to at or before the incident, nor do they limit the mistake of fact defense to information that existed at the time of the incident.  The mistake of fact regarding age defense must be honest and reasonable under ALL the circumstances.  If those circumstances include the fact that JM lied about his age, claiming to be 18, 19, and 20 years old in his subsequent solicitations for sex, then I think these subsequent Craigslist ads MUST come into evidence.

  2. Brian says:

    Wow; this is so cool. This was my case!  Look forward to hearing how this turns out.

  3. Zachary D Spilman says:

    The mistake of fact regarding age defense must be honest and reasonable under ALL the circumstances.

    I disagree, Tami. An honest and reasonable mistake regarding a material fact is an affirmative defense to a general intent crime because it negates mens rea. That’s measured by what the accused knew at the time, not by the true facts. 

    In this case the alleged victim sent emails and had encounters after the encounter with the appellant. Those post hoc acts have no bearing on whether the anti hoc mistake was reasonable. 

    The alternative would allow introduction of any number of otherwise-irrelevant facts (such as, for example, the child’s immature conduct with his friends that was unknown and unknowable to the appellant) to portray the child as young and undermine an otherwise reasonable mistake.

    As for credibility, that wasn’t in issue. The child testified that he lied to appellant about his age. He also lied to investigators. Slip op. at 3.

    Finally, the other ads were only admissible to show the content of the ad that the appellant read if the other ads were identical, and that’s not clear. Furthermore, if they were identical, they could have been used to refresh the child’s recollection about the wording of the first ad (making admission cumulative with the child’s testimony).

    None of that seems to actually implicate 412.


  4. (Former) ArmyTC says:

    Tami, those sounds like impeachment by specific instances of untruthfulness to me, here wrapped up within a somewhat complex (and probably misguided) 412 analysis…which makes me wonder if this case is a follow up to U.S. v. Erikson (76 MJ 231)? If defense counsel can establish the falsity of the prior statements, then they can cross JM about them. That said, how far can they go? I think M.R.E. 608 allows defense to impeach with the prior false statements, but will they be able to go into where the statements were made and in what context? I would actually say no. The court could craft a cross examination question along the lines of “you have previously lied about your age on the internet, correct?” but I don’t think they get to go into the craigslist posting or the reason for lying. 

  5. Vulture says:

    Doesn’t this seem like the prohibition against showing a AV’s sexual history but in reverse?  Say that the history of being a totally loose floozy isn’t permissible for the purposes of showing that a particular sexual encounter was consensual rather than a rape.  But now, a continued, assuming he lied before, pattern of deceptive behavior is being regarded as being off limits.  I am interested to see where this line of reasoning gets its authority from.  All the sudden Manti Teo sounds like reasonable guy.

  6. stewie says:

    I mean if the child testified that he lied about his age, what fact in dispute do the craigslist ads make more or less likely?
    Having said that, if he says, yes I lied to him about his age, and yes I lied to investigators (which is also post hoc by the way but that was allowed in apparently) then why couldn’t a valid cross question be, and you also put out ads where you advertised yourself as being of age?
    Of course, it’s all cumulative, and apparently the factfinder didn’t care.

  7. k fischer says:

    Finally, Appellant argues that other adult men’s decisions to engage in sexual conduct with JM establish that Appellant’s belief was objectively rea-sonable because, he posits, those other men would not have engaged in the conduct had they known JM’s true age. Whatever probative value this argu-ment might have—and we believe it has very little, if any—is undercut by the fact that Appellant sought to introduce this evidence through cross-examination of JM. However, JM would not have been able to testify about his paramours’ subjective belief about his age or speculate as to whether they would have engaged in sexual conduct had they known his true age.

    I understand that JM could not speculate about his paramour’s subjective belief, but could his other paramour’s mistaken belief based on JM’s lies be relevant to show that the appellant’s subjective belief was objectively reasonable?  Seems like an alternative Soddi defense, i.e. Six other dudes did it, and what if Carpenter’s attorneys desired to call these six men to testify?  It’s odd that the AFCCA highlights how the defense intended to introduce this evidence.  I’m assuming that there was a pretrial 412 motion.  When they lose their motion, do you think they are going to put these guy’s names down on the witness list?  And, this question might have been asked by the Military Judge, and the DC might have said they were going to get the information out through cross examination.
    I hope this little dipstick’s Dad disciplined him appropriately for ruining Carpenter’s life.  And, my experience in the Army is that factfinders typically don’t care when its a male on male crime.  I don’t know about the Air Force.

  8. Zachary D Spilman says:

    could his other paramour’s mistaken belief based on JM’s lies be relevant to show that the appellant’s subjective belief was objectively reasonable?

    I think so. At a minimum it’s admissible lay opinion about the child’s apparent age. But it’s hearsay (if not speculation) for the child to testify about what the other men thought.  

    and what if Carpenter’s attorneys desired to call these six men to testify?

    That’d be a different case. Moreover, such testimony need not necessarily implicate other sexual activity by the child.