Monday’s daily journal has this entry:
No. 18-0228/AR. United States, and ST, Appellees v. Colby Morris, Appellant. CCA 20180088. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.
The filing involves a petition for extraordinary relief in the nature of a writ of mandamus that was granted by the Army CCA last month, in United States and ST v. Lieutenant Colonel Shahan, Military Judge, and Morris, No. 20180088 (A. Ct. Crim. App. Apr. 18, 2018) (link to slip op. (on CAAFlog)).
Last year, in a case with a similar (but different in a significant way) procedural posture, CAAF ruled 3-2 that it lacks jurisdiction to consider a writ-appeal of a CCA’s action on an alleged victim’s Article 6b writ peition. See Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. Feb. 2, 2017) (CAAFlog case page).
But this writ-appeal is different because the petition was brought by both the prosecution and the alleged victim; “pursuant to the All Writs Act, 28 U.S.C. § 1651 and Article 6b, Uniform Code of Military Justice, 10 U.S.C. § 806b.” Slip op. at 1 (emphasis added). So it’s a hybrid petition, and jurisdiction may exist under Article 66 (for the CCA) and Article 67 (for CAAF), and not merely under Article 6b.
The case also raises an interesting question about Mil. R. Evid. 412, the military’s rape shield rule.
The writ petition challenged a ruling by the military judge that permitted the defense to introduce evidence of what the alleged victim was wearing at the time of the alleged assault. The CCA explained that:
During the closed hearing the defense argued that the clothing Ms. ST was wearing was evidence of her sexual behavior. Under the defense theory, Ms. ST’s choice of dress, among other things, created in the mind of the accused an honest and reasonable belief that she consented to sex. The defense argued that such evidence met the requirements for the constitutional exception under Mil. R. Evid. 412(b)(C).
Slip op. at 5-6. The military judge allowed the evidence, concluding that:
the clothing was not prohibited by Mil. R. Evid. 412 because the rule’s prohibition on introducing evidence of a victim’s mode of dress did not include the clothing she was wearing at the time of the offense.
Slip op. at 2.
The CCA reversed for two reasons.
Writing for a three-judge panel, Judge Wolfe first explained
We interpret the military judge’s ruling as stating that an alleged victim’s dress at the time of the offense is, as a matter of law, not covered by the prohibitions in Mil. R. Evid. 412. . . .
On this issue of law, we disagree. Military Rule of Evidence 412 focuses not on the types of evidence (e.g. clothing) to be admitted, but the purpose for which the evidence sought to be introduced will be offered.
Slip op. at 4 (emphasis in original). And here the clothing was offered for a prohibited purpose:
In this case, it seems clear that the alleged victim’s clothing was offered for either the purpose of demonstrating her sexual behavior, as argued by the defense, or her predisposition, as argued by the government. While an alleged victim’s clothing, like other evidence collected from the scene of a crime, may be relevant and admissible for reasons that fall outside of Mil. R. Evid. 412, this was not the defense’s motion.
Slip op. at 6. That seems like the right result, not just because of Mil. R. Evid. 412, but also because an alleged victim’s manner of dress is specifically excluded as a basis for consent (and, by extension, mistake of fact as to consent) in the statutory definition of consent:
(A) The term ‘consent’ means a freely given agreement to the conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue shall not constitute consent.
Article 120(g)(8) (2012) (emphasis added). The military judge avoided this exclusion by concluding that:
the term ‘manner of dress’ includes – – contemplates what an alleged victim has been seen wearing on previous occasions, but it is not meant to apply to what an alleged victim is wearing on the evening of the actual alleged assault. . . .
Slip op. at 4 (quoting ruling) (marks in original). That reading, however, seems absurd for two reasons. First, it means that the manner of dress exclusion applies only to situations where the accused and the alleged victim had prior interactions. Second, it means that an alleged victim’s clothing is evidence of consent. Put differently, the military judge’s ruling means that a revealing costume worn by a stranger at a Halloween party is an invitation for a sexual touching. That’s pretty clearly wrong.
Yet the CCA found a bigger problem with the military judge’s ruling:
While the parties offered the military judge plenty of argument on the motion, they did not present the court with evidence on which he could base a ruling. The parties attempted to, but could not agree on a proffer of Ms. ST’s testimony. The parties disagreed in their description of what the clothing looked like, and the military judge declined to open the box to make a factual determination.
Slip op. at 7.
Accordingly, the CCA concluded:
Given the absence of facts to support any ruling, we grant the government’s writ-petition, but only in part. Given the military judge’s erroneous determination that an alleged victim’s clothing at the time of the offense falls outside of Mil. R. Evid. 412 as a matter of law, and given the absence of any facts that would support reaching the same effective result for different reasons, we find the government’s only means for relief is to set the ruling aside; the right to this relief is clear and indisputable; and the issuance of the writ is necessary and appropriate under the circumstances. While military judges have broad discretion to decide evidentiary issues, and writ-petitions are an extreme measure to correct erroneous rulings, there must be some evidence to support a Mil. R. Evid. 412 ruling to avoid it becoming a shell of a proceeding.
However, we do not go any further. . . .
Slip op. at 8-9.