Argument Preview: A military judge’s restrictions, the constitutional rights of the accused, and a special interest group’s claims about privacy, in United States v. Robinson
CAAF will hear oral argument in the Army case of United States v. Robinson, No. 17-0231/AR (CAAFlog case page), on Wednesday, November 29, 2017, at 9:30 a.m. The case challenges convictions of violating a lawful general regulation (fraternization) and sexual assault of a person who was incapable of consenting due to impairment by an intoxicant, in violation of Articles 92 and 120. The appellant was convicted by a general court-martial composed of members with enlisted representation, and was sentenced to reduction to E-1, total forfeitures, and a bad-conduct discharge (and no confinement).
CAAF granted review of two issues and specified a third:
I. Whether the miltiary judge erred by failing to admit constitutionally required evidence under Military Rule of Evidence 412(b)(1)(C).
II. Whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for the specification of Charge 1, which involved an Article 92, UCMJ, violation of Army Regulation 600-20.
Whether the evidence was legally sufficient to establish that Appellant knew or reasonably should have known that SPC VM was too intoxicated to consent to a sexual act.
Specialist (E-4) Robinson attended a party at the off-base residence of another specialist. Many were in attendance, including other specialists and also junior enlisted soldiers. One of the other specialists was Specialist VM, who was drinking at the party but left because she felt uncomfortable as the only female present. Gov’t Div. Br. at 4. VM drove herself back to the barracks and while nobody stopped her from driving, one of the other partygoers followed her and then returned to the party and reported that she made it home safely. Gov’t Div. Br. at 5.
At trial VM testified that after returning to her barracks room she vomited, quickly washed, undressed, put a trash can next to her bed, and fell asleep. She testified that her next memory was of Robinson on top of her having sex with her. Her next memory after that was waking up later in the day.
Robinson testified in his own defense and told a different story. Well, he tried to. Citing Mil. R. Evid. 412, the military judge prohibited Robinson from testifying that he and VM had previously discussed having sex, prohibited Robinson’s defense counsel from calling other witnesses to testify about flirtatious activity they observed between VM and Robinson, prohibited Robinson’s defense counsel from asking VM about that prior flirtatious activity, and rejected a question from a member directed at a friend of both Robinson and VM that asked: “From what you know of SPC [VM], did she ever display interest towards SPC Robinson?” App. Br. at 8-9 (quoting record).
Mil. R. Evid. 412 is the military’s rape shield rule, and it prohibits admission of evidence “offered to prove that any alleged victim engaged in other sexual behavior” (Mil. R. Evid. 412(a)(1)) and evidence “offered to prove any alleged victim’s sexual predisposition” (Mil. R. Evid. 412(a)(2)). The rule does, however, contain exceptions, including for:
[E]vidence the exclusion of which would violate the constitutional rights of the accused.
Mil. R. Evid. 412(b)(1)(C). This constitutionally-required exception is notable for a few reasons, including that there isn’t a bright-line where exclusion of evidence violates an accused’s constitutional rights, and that CAAF found the exception’s procedural requirements problematic in United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011) (the JSC proposed eliminating the problematic test it in the rewrite of the MCM for the MJA).
Specifically, while Mil. R. Evid. 412 mirrors the equivalent Fed. R. Evid. 412, the military rule includes an additional test that balances the alleged victim’s privacy against the evidence offered under an exception to the rule:
If the military judge determines on the basis of the hearing described in paragraph (2) of this subsection that the evidence that the accused seeks to offer is relevant for a purpose under subsection (b) and that the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim’s privacy, such evidence shall be admissible under this rule to the extent an order made by the military judge specifies evidence that may be offered and areas with respect to which the alleged victim may be examined or cross-examined. Such evidence is still subject to challenge under Mil. R. Evid. 403.
Mil. R. Evid. 412(c)(3) (emphasis added). The federal rule does not require balancing the probative value against the evidence in criminal cases, however it does require such balancing in civil cases. The 1994 commentary by the Rules Advisory Committee about this distinction includes that:
Under subdivision (b)(1)(C), evidence of specific instances of conduct may not be excluded if the result would be to deny a criminal defendant the protections afforded by the Constitution. For example, statements in which the victim has expressed an intent to have sex with the first person encountered on a particular occasion might not be excluded without violating the due process right of a rape defendant seeking to prove consent. Recognition of this basic principle was expressed in subdivision (b)(1) of the original rule. The United States Supreme Court has recognized that in various circumstances a defendant may have a right to introduce evidence otherwise precluded by an evidence rule under the Confrontation Clause. See, e.g., Olden v. Kentucky, 488 U.S. 227 (1988) (defendant in rape cases had right to inquire into alleged victim’s cohabitation with another man to show bias).
Subdivision (b)(2) governs the admissibility of otherwise proscribed evidence in civil cases. It employs a balancing test rather than the specific exceptions stated in subdivision (b)(1) in recognition of the difficulty of foreseeing future developments in the law. Greater flexibility is needed to accommodate evolving causes of action such as claims for sexual harassment.
Fed. R. Evid. 412 advisory committee note (1994 amendment) (emphases added) (available here).
CAAF addressed this balancing test in Gaddis, rejecting a facial challenge to the constitutionality of Mil. R. Evid. 412 but concluding that balancing an alleged victim’s privacy interests “would only be unconstitutional in circumstances under which a military judge excluded evidence, the exclusion of which would violate the constitutional rights of the accused, because its probative value did not outweigh the danger of unfair prejudice to the alleged victim’s privacy.” 70 M.J. at 253 (emphasis omitted). A few weeks later CAAF decided United States v. Ellerbrock, further explaining that:
in general the probative weight of the evidence must outweigh the privacy interests of the victim. It is true that M.R.E. 412(c)(3) evidence may be sufficiently relevant and material — its probative value sufficiently high — that it may be essential to an accused’s constitutional right to put on a defense regardless of how it balances against the victim’s privacy. If so, its probative weight will necessarily outweigh any privacy interests of the victim. Such evidence in the vernacular of case law is termed “favorable,” or “vital” to the accused, and is constitutionally required because the accused has a right to a fair trial and an opportunity to put on a defense.
70 M.J. 314, 323 (C.A.A.F. 2011) (emphasis added). Fundamentally, these cases (and the commentary to the federal rule) outline the rather obvious proposition that in a criminal prosecution an accused’s constitutionally-protected rights are more important than an alleged victim’s privacy. Accordingly, once a military judge determines that certain evidence is constitutionally-required to be admitted (a difficult question, for sure), privacy considerations can’t prevent its admission.
Neither Robinson nor the Army Government Appellate Division challenge that proposition, but the victims-rights advocacy group, Protect Our Defenders (POD), does.
POD filed an amicus brief in support of the Army Government Appellant Division that asks CAAF to reject its holdings in Gaddis and Ellerbrock because:
No civilian court has ever held that considering a victim’s privacy is unconstitutional. As discussed above, victims’ privacy is a legitimate governmental interest because it promotes the reporting of sexual assault, encourages victims’ continued participation in the prosecution of sex crimes, and protects victims from embarrassment and degradation.
In a footnote in Gaddis, this Court incorrectly asserts that the current federal rule does not include a balancing test to determine whether the three exceptions applied. Id. at 255 n. 3.10 Federal courts continue to determine whether evidence is “constitutionally required” by conducting a balancing test that weighs the probative value of the evidence against the privacy interests of the victim. See United States v. Pumpkin Seed, 572 F.3d 552 (8thCir. 2009); Barbe v. McBride, 521 F.3d 443 (4th Cir. 2008); Dolinger v. Hall, 302 F.3d 5 (1st Cir. 2002); Richmond v. Embry, 122 F.3d 866 (10th Cir. 1997); United States v. Seibel, 2011 U.S. Dist. LEXIS 88607 (D.S.D. August 9, 2011); Grant v. Demskie, 75 F.Supp. 2d 201 (S.D. N.Y. 1999); United States v. Powell, 226 F.3d 1181 (10th Cir. 2000); Petkovic v. Clipper, 2016 U.S. Dist. LEXIS 94532 (N.D. Oh. 2016); Buchanan v. Harry, 2014 U.S. Dist. LEXIS 66665 (E.D. Mich. 2014); Gagne v. Booker, 680 F.3d 493 (6th Cir. 2012).
The above cases are not comprehensive. There are more cases. What cannot be found is a single case (outside of the military justice system) that prohibits weighing the probative value of the evidence against a victim’s privacy interests.
Amicus Br. at 18-19. CAAF, of course, has also “[n]ever held that considering a victim’s privacy is unconstitutional.” Rather, as discussed above, CAAF held that excluding evidence and violating the accused’s constitutional rights in order to protect an alleged victim’s privacy would be unconstitutional.
Furthermore, a quick review of some of the cases cited by POD suggests that they are readily distinguishable, either on their facts or on the different requirements of the state rules at issue (some are habeas petitions in state cases). But what’s really surprising is that it didn’t take much effort to find what the amicus brief claims cannot be found:
[T]he Rule explicitly recognizes that in a proper case the constitutional right of a criminal defendant to confront the witnesses against him shall be paramount.
. . . Granted, pursuant to Fed. R. Evid. 611(a)(3), the Court must shield witnesses from “harassment or undue embarrassment,” but there is no corresponding judicial obligation to protect a witness from being discredited or tangentially embarrassed. To paraphrase Davis, whatever temporary embarrassment might result to the complainant or her family by disclosure of her prior allegations of rape is outweighed by Defendant’s right “to probe into the influence of possible bias in the testimony of a crucial identification witness.”
United States v. Stamper, 766 F. Supp. 1396, 1404 (W.D.N.C. 1991) (order) (citations omitted) (emphasis added). Admittedly, Stamper pre-dates the modern version of Fed. R. Evid. 412 (the rule was significantly revised in 1994). But the original text (available here) is functionally identical to the current version insofar as an alleged victim’s privacy isn’t specified as a factor in a criminal case. In both the original rule and the current rule (each a creature of Congress) an alleged victim’s privacy is a required consideration in a civil case, but not in a criminal case. POD’s brief functionally ignores this (dodging it in a footnote. Amicus Br. at 18 n.10). Perhaps this is why POD can’t find a case that’s clearly on point.
By the way, an interesting note about Stamper is that CAAF cited it in LRM v. Kastenberg, 72 M.J. 364, 370 (C.A.A.F. 2013) (CAAFlog case page), observing that the district court appointed counsel for the victim and allowed that lawyer to examine witnesses on the 412 issue.
Ultimately, the privacy of an alleged victim is the underlying purpose of the rape shield, but creating a rule to protect privacy generally isn’t the same as allowing privacy to equal (or override) constitutional rights.
Regardless of what CAAF thinks of POD’s brief, privacy is an unconvincing reason to deny Robinson the opportunity to testify about his discussions with VM about what they might do together, or to allow others to testify about their observations of VM and Robinson together. VM can hardly claim privacy against Robinson for her conduct with Robinson himself, particularly where that conduct is in the presence of third-parties.
And so it’s unsurprising that the Government Division’s brief doesn’t make a privacy argument, but instead argues relevance:
The military judge did not abuse his discretion because appellant failed to articulate a theory that showed the evidence was relevant, material, and that the evidence was more probative than the dangers of unfair prejudice.
Gov’t Div. Br. at 14. The Government Division asserts that Robinson’s claims about prior discussions about sex “lacked context and specificity, [and] was a self-serving claim made by appellant, and defense failed to connect these purported conversations with appellant’s supposed mistake of fact as to consent.” Gov’t Div. Br. at 15. As for the flirting:
Appellant’s theory is based on the belief that hugging and flirting, at some unknown date prior to the offense, establishes consent or mistake of fact as to consent to sexual intercourse. This is misguided, and the probative value of evidence supporting such a theory is low. The low probative value is significantly outweighed by the danger of, “among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Van Arsdall, 45 U.S. at 679.
Gov’t Div. Br. at 16. This is an appealing argument except that the other things seem to amount to nothing in this case. What in the world was so invasive or confusing about testimony that people saw VM and Appellant flirting (particularly considering one of the members specifically asked about it)? The Government Division’s brief doesn’t say.
The Government Division’s brief also argues that “evidence of prior sexual interest may be material to the issue of consent; however, it is irrelevant here because of SPC VM’ s inability to consent due to her intoxication.” Gov’t Div. Br. at 17. But Robinson’s brief highlights the prosecution’s closing argument:
Members of the panel, the version of the story given to you, the version of events given by Specialist Robinson is unreasonable. Unreasonable. When you return to deliberate, consider the reasonableness.
App. Br. at 13 (quoting record) (emphases omitted). The problem for the Government Division is that the full context of the relationship between Robinson and VM might have made Robinson’s testimony reasonable.
I expect Wednesday’s oral argument will focus on the facts actually excluded and how they might have affected the result, with privacy considerations as an afterthought.
CAAF also specified an issue questioning whether the evidence is legally sufficient. This is a difficult issue to gauge without the full record, but Robinson’s brief focuses on some significant facts including that VM successfully drove back to the barracks (and presumably through a military checkpoint, though the brief doesn’t say), that Robinson testified about VM’s active participation in the sex, and that VM testified that Robinson’s version “could have happened” but she just didn’t remember. App. Br. at 45 (quoting record).
The Government Division does, however, present the stronger argument on the second granted issue. Robinson’s brief argues that:
applying a general intent mens rea to the language from AR 600-20 in this case is not a sufficient level of mens rea to separate wrongful from otherwise innocent conduct. In fact, based on SPC Robinson’s testimony, he was merely drinking alcohol and socializing with his friends, none of whom were part of his platoon or under his supervisory authority. Neither of these actions are inherently criminal. One of the witnesses even explained, “It was a normal typical Friday. We were all drinking, playing dominoes, and just having fun and talking.”
App. Br. at 34. The Government Division responds:
fraternization involves a violation of the boundaries necessary for healthy relationships between soldiers of different ranks. A noncommissioned officer cannot innocently expose a junior soldier to an unduly familiar relationship. Accordingly, all that is necessary to separate wrongful from innocent conduct for a fraternization offense is to prove appellant deliberately engaged in the behavior determined by the factfinder to create the deleterious effects prohibited by AR 600-20.
Gov’t Div. Br. at 26.
CAAF issued a bunch of decisions addressing mens rea over the past two years. The first was United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page), which held that an accused must have acted with at least reckless disregard for the true age of a person to whom he provided alcohol in order to be convicted of violating the order prohibiting providing alcohol to an underage person. The second was United States v. Rapert, 75 M.J. 164 (C.A.A.F. Mar. 18, 2016) (CAAFlog case page), which held that the element of wrongfulness in the Article 134 offense of communicating a threat, as specified by the President, requires proof of an accused’s mens rea. The third was United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016), cert denied, 137 S. Ct. 248 (Oct. 3, 2016) (CAAFlog case page), which held that there is no scenario where an accused could innocently engage in the kind of conduct prohibited by the general intent military offense of maltreatment. The fourth was United States v. Haverty, 76 M.J. 199 (C.A.A.F. Apr. 25, 2017) (CAAFlog case page), holding that recklessness is the minimum mens rea to sustain a conviction of hazing in violation of Army Regulation 200-20 paragraph 4-20. Coincidentally, in each of these cases Judge Ohlson wrote for the court. A fifth decision, in United States v. Tucker, 76 M.J. 257 (C.A.A.F. May 23, 2017) (CAAFlog case page), was per curiam and held that the term neglects in Article 134 does not mean negligence (rejecting the published decision of the Army CCA that found that the term states a negligence mens rea).
I think it likely that CAAF will seek to use the reasoning of these five decisions to resolve the mens rea issue in Robinson.
ACCA opinion (summary disposition)
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) answer
• Appellant’s reply brief
• Amicus brief (Protect Our Defenders) in support of Army Gov’t App. Div.
• Blog post: Argument preview