The Air Force CCA explains that subsequent consensual sexual contact – even if unproven – could suggest that an alleged assault was actually a consensual encounter
With a published opinion in United States v. Leonhardt, 76 M.J. 821, No. 39014 (A.F. Ct. Crim. App. Aug. 16, 2017) (link to slip op.), a three-judge panel of the Air Force CCA reverses the appellant’s convictions of sexual assault and abusive sexual contact because the military judge applied an improper burden of proof on the defense for the introduction of evidence bearing on the alleged victim’s credibility.
The charges again Second Lieutenant (O-1) Leonhardt arose out of a sexual encounter with a fellow cadet at the Air Force Academy. Leonhardt’s defense wanted to introduce evidence that after the alleged assault, Leonhardt and the alleged victim:
had consensual sex . . . at least twice in his room . . . within approximately a week and a half of the alleged assaults, that he told three other lieutenants about these encounters, and that one of these individuals also saw [the alleged victim] in Appellant’s room during this time frame.
Slip op. at 4. Leonhardt testified to these facts in a pretrial hearing. The alleged victim also testified in the hearing, but she denied any subsequent sexual contact.
The defense sought to introduce this evidence to attack the alleged victim’s credibility, arguing:
[B]ecause she would engage in consensual sex after the fact, you have to question whether or not the allegation she’s making is even a truthful allegation. So, that’s the reason we’re offering it.
Slip op. at 4-5 (quoting record).
But the military judge applied Mil. R. Evid. 412 to prohibit the defense from cross-examining the alleged victim at trial about subsequent contact, ruling that the defense failed to prove that any subsequent contact occurred and failed to prove that any subsequent contact was admissible:
The Defense in this case has the burden to demonstrate the profferred evidence to at least a preponderance of the evidence and to provide a basis for admissibility.
They have failed on both counts. The alleged victim testified credibly that there was no post-event consensual sexual behavior. Additionally, the Defense did not posit a viable reason to admit the evidence. The proffered evidence has no relevance to consent or mistake of fact to consent on the night in question (like arguably pre-assault consensual behavior). The proffered evidence does not offer insight into motive on the part of the alleged victim. Additionally, the proffered evidence is merely an assertion by the accused; completely denied by the alleged victim. There was no corroborative or independent evidence offered to assist this fact finder.
Slip op. at 5 (quoting ruling) (emphases omitted).
Leonhardt did not testify at trial and the defense did not otherwise elicit evidence of sexual contact between him and the alleged victim after the alleged assault. A panel of members convicted him.
The CCA reverses, finding that the military judge’s limitation of cross-examination was error for two reasons.
First, the CCA finds that the military judge made an improper credibility determination:
In [United States v. Roberts, 69 M.J. 23, 27 (C.A.A.F. 2010)], the United States Court of Appeals for the Armed Forces held the military judge abused his discretion when he weighed the credibility of defense witnesses in performing a relevancy analysis under Mil. R. Evid. 412. Roberts, 69 M.J. at 27. “‘In applying [Mil. R. Evid.] 412, the judge is not asked to determine if the proffered evidence is true . . . . Rather, the judge serves as gatekeeper deciding first whether the evidence is relevant and then whether it is otherwise competent, which is to say, admissible under [Mil. R. Evid.] 412.’” Id. (ellipsis in original) (quoting United States v. Banker, 60 M.J. 216, 224 (C.A.A.F. 2004)). Similarly, in the instant case it is apparent the military judge’s ruling relied in part on a determination that Appellant’s motion testimony was not sufficiently credible. This was error. “[I]t is for the members to weigh the evidence and determine its veracity.” Banker, 60 M.J. at 224; see also United States v. Zak, 65 M.J. 786, 793 (A. Ct. Crim. App. 2007) (“[T]he military judge’s ruling on the veracity of the evidence [proffered under Mil, R. Evid. 412] usurped the role of the panel members, was clear error, and, as a result, an abuse of discretion.”) (Citation omitted.)
Slip op. at 7 (emphasis added). Put differently, the defense need not prove that subsequent sexual contact actually occurred in order to be allowed to cross-examine the alleged victim about it.
Second, the CCA finds that the military judge’s conclusion that the proffered evidence had no relevance was error:
Although inartfully stated, the Defense motion and argument taken together indicate the evidence was offered to show the charged sexual encounters were in fact consensual. The military judge found the Defense failed to demonstrate “a basis for admissibility” and asserted, inter alia: “The proffered evidence has no relevance to consent . . . on the night in question . . . .” We cannot agree, and we find this conclusion to be an abuse of discretion.
Relevance is a “low threshold.” Roberts, 69 M.J. at 27. Evidence is relevant if it has any tendency to make the existence of a fact more probable or less probable than it would be without the evidence. Mil. R. Evid. 401(a). In general, willingness to engage in consensual sexual activity has some tendency to indicate that recent prior sexual encounters between two individuals were also consensual. See United States v. Sousa, 72 M.J. 643, 648 (A.F. Ct. Crim. App. 2013) (“Evidence that [the victim] engaged in consensual sexual activity with the appellant after the date she alleged she was forcibly sodomized was constitutionally required to be admitted on the issue of consent . . . .”); United States v. Leak, 58 M.J. 869, 876–77 (A. Ct. Crim. App. 2003), rev’d on other grounds, 61 M.J. 234 (C.A.A.F. 2004); United States v. Parker, 54 M.J. 700, 708 (A. Ct. Crim. App. 2001). We find no reason to conclude otherwise in Appellant’s case.
Slip. op at 8 (emphasis added). Put differently, the possibility that subsequent sexual contact occurred was relevant because it could suggest that the alleged assault was actually a consensual encounter.
The CCA concludes:
The Government notes that Ms. MG would presumably have denied the proffered post-offense consensual sexual encounters if she had been cross-examined about them. However, it is possible the members might not have believed her, or might have harbored greater doubts about her testimony and credibility more generally. In addition, if the military judge had not excluded the proffered evidence, Appellant might have testified in findings and the members might have found him credible enough to raise reasonable doubts about Ms. MG’s testimony.
Slip op. at 10.
The CCA authorizes a rehearing.