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:

(8) 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.

35 Responses to “CAAF dockets a hybrid Article 6b writ-appeal (about an alleged victim’s clothing)”

  1. John Marshall says:

    I agree that the military judge’s ruling is probably wrong on the law. But the CCA is right to allow the possibility that an alleged victim’s manner of dress CAN be admissible without violating MRE 412 under the right facts. For example, suppose the accused buys the alleged victim lingerie “for the next time we have sex,” and later the accused goes home with the alleged victim and she emerges from her bedroom changed into the very same lingerie. The manner of dress of the alleged victim, under these facts, undoubtedly conveys a message that I believe an accused would have the constitutional right to present before a fact finder.  Now, that message might overcome by other evidence demonstrating lack of consent, but surely it is constitutionally relevant. Your hypo of the sexy Halloween costume represents one extreme, and mine another. The CCA seems right to conclude that these are factual issues decided on the margin.

  2. stewie says:

    But your example is accompanied by words “the next time we have sex.” Those words are what matters, not the clothing. If it’s just the clothing, shouldn’t come in. I may be struggling from a lack of imagination but I cannot imagine where clothing comes in. Now certain acts like removal of clothing, sure, but other than that, not seeing it.

  3. Nathan Freeburg says:

    Of course there are times when the clothing could come in.  She walks into the bathroom wearing clothes, and comes out and crawls into bed with the accused wearing lacy lingerie.  That’s coming in (depending on the defense).

  4. stewie says:

    I’d say the fact that she took off clothes and climbed into bed with the accused is way more important than she was wearing lacy lingerie…same argument if she threw on shorts and shirt to me. Climbing into bed with the accused is more relevant than what she was wearing.

  5. Anonymous says:

    For many (most?) couples, wearing sexy lingerie for each other (as opposed to a sexy costume at a widely-attended party) is a signal the person wants to have sex–no words needed. I dare say that most people that dress up in sexy lingerie for their partner generally intend for the encounter to end in sex. The CCA seems to leave the door open for a scenario where a partner presenting herself alone to her partner in sexy lingerie could be considered evidence of consent and, as such, a valid 412(b)(1)(C) exception.

  6. stewie says:

    And some women wear “sexy lingerie” to bed as a routine matter. I know because I’ve dated a couple of them. And what counts as “sexy lingerie” vice just a “nightie?” I maintain other actions would be required, not simply the wearing of the negligee/sexy lingerie.

  7. Anonymous says:

    Those sound like factual issues. We could also inject facts that show a couple always has sex when lingerie is worn–which is likely true for many couples. Nonetheless, it seems clear there are instances where the manner of clothing is/should be evidence of consent and, as such, should be considered by the fact finder.

  8. stewie says:

    There might also be instances where if a woman wears sexy clothes to the club it’s because she’s looking to pick someone, it could even be something she does often, but we don’t allow the mere fact of her wearing that clothing into evidence.
    I think you are on much stronger relevance grounds going after acts vice clothing. I also don’t think it’s the case that “many couples” have a signal where if she wears lingerie it means sex. It’s not relevant anyways, the question is what practices did this couple have. What acts did she do besides the wearing of the lingerie that indicated consent? I think it’s much narrower than you do clearly.

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

    What’s interesting to me is that the government jumped on board with this petition with the alleged victim.  Why?  To get around the jurisdictional impediment for a straight 6b appeal?  The ordinary course of business is for the government to request reconsideration, and then the government deals with a ruling it doesn’t like.
    Clothing worn at the time is absolutely relevant to a variety of things, and it could be relevant to the accused state of mind.  I don’t even see this as a 412 issue.  The only thing is the accused would have to testify to something in addition her clothes that made him believe she consented, as the manner of dress doesn’t automatically mean consent.
    This is a factual issue to be resolved at trial, not something to junk up the appellate courts and delay the prosecution of this case unnecessarily.

  10. stewie says:

    Tami almost there with you but not quite. I wholeheartedly concur you need something in addition, clothes by itself won’t do it. Words or action are necessary. Clothes are usually smack dab in 412 because the wearing of clothes are almost always used as an argument towards predisposition to having sex. What I don’t get is why the judge allowed it in. I’m assuming there were also actions tied to it that established consent, just allow that in and move on.

  11. Vulture says:

    The MJ’s distinction over what the alleged victim wore on previous occasions isn’t so absurd.  It was in response to a Government assertion: 
    The government argued that what Ms. ST. wore to bed—on a night when she was not expecting visitors—is prohibited sexual predisposition evidence. 
    Government introduced the question of behavior outside the night in question, not the Defense.  We never have to consider the Halloween party.

  12. k fischer says:

    What’s the context of this case?????  Is this a “He touched my breast and butt case,” or is this a “Well, I got into bed with him and he started touching me and I never said “Yes” or “No” but I just froze” case, or is it a case where there is a clear motive to fabricate?
    Because the failure to put on something more modest indicates the sexual conduct between the two parties that indicates consent and would corroborate his story that she actually consented and is now saying he didn’t have consent because [motive to fabricate].
    It could also be used to show his state of mind (which is quite reasonable) that she was consenting to the sexual act if it were the two former situations.
    Not to mention that you know the Government is going to have her testify looking like a librarian, so shouldn’t the panel see what she was wearing on the night in question, so they can see what he saw?  
    But, part of me agrees with Stewie.  Just because a woman is wearing sexy lingerie doesn’t mean you get to start having sex with her. 
    After many a drunken night, I have awoken next to a woman who was dressed in something sexy and revealing.  That alone doesn’t give me license to start touching her body if I have never even made out with her, if that is solely his  defense. 
    And, Stewie, after you have been married for over ten years, when your spouse comes to bed wearing something from her sexy lingerie drawer, that means she is about to jump your bones.  

  13. stewie says:

    kf, I’ve dated multiple people who wore nothing but what I considered at least sexy lingerie to bed. It was just how they rolled fashion-wise and was not tied to their sexual interest level. I concur with you that context matters, and I guess my point here is that if you have any context (via acts/words) that context is going to be WAY more illustrative/dispositive/relevant to consent than getting into a discussion about how sexy was what she was wearing, and was it something she always wore to bed, or maybe it isn’t all that sexy or a host of inanity that particular rabbit hole could invite.

  14. (Former) ArmyTC says:

    People like KF are the reason we still need to have SHARP training. 
    k fischer, If only part of you agrees with the idea that just because a woman is wearing sexy lingerie, you can’t start having sex with her, the implication is that the rest of you believes the opposite. So the rest of you is a rapist? And nice job qualifying how the lingerie “doesn’t give [you] license to start touching her body if you have never even made out with her.” So if you have made out with her? Game on? That’s your idea of consent. 
    And while I’m at it, you seem to believe she has a duty to wear something more modest. Why is that? Is there a particular reason a woman should defer to modesty at the expense of comfort? 
    I get that this is not the normal type of comment on this forum, but I have a moral responsibility to call out that behavior when I see it. Your comment is deplorable. At best, you used inarftul language, at worst it makes you a horrible person.

  15. TC says:

    Why do we have to force k fischer into a single box?  It seems like that oversimplifies things.  In my experience, things tend to be a little more nuanced.  Isn’t it at least possible that he’s both inartful and a horrible person?

  16. Anonymous says:

    Army TC–come back from the ledge! We’re talking about whether lingerie can be evidence of consent and/or mistake of fact as to consent. No one said lingerie is per se a green light to have at someone. If you prefer a practice in your own life that requires an affirmative verbal consent from each partner that’s fine. However, in the real world people often signal consent through non-verbal cues. For some couples, that can be the wearing of lingerie. It’s a factual analysis. Your comments seem to advocate for a one-size-fits-all set of rules on how couples should consent–not how they often do, in fact, consent.

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

    Former Army TC’s comment is an example of the gender discrimination that STILL happens.  K Fischer’s comment about waking up next to a woman after a drunken night indicates maybe HE was a sexual assault victim.  And “affirmative consent” is not the standard.
    Regardless, what the alleged victim was wearing at the time of the alleged assault is just part of the case.  If the accused’s mindset was really just “she’s fair game because she wore a tank top and a thong,” there’s an instruction for that.  I highly doubt that was his only mindset, but since the defense made the motion, it’s the defense’s burden to show something more.
    And since ACCA is big on telling judges how to preside over cases,  maybe we should be suggesting to defense counsel how to litigate 412 issues.  Having the accused testify about his mindset at the closed hearing is a good start.  What does she normally wear to bed, because that could undercut the theory she wasn’t expecting anyone to join her in bed.  Halloween costume issue?  What’s the costume, could be relevant to both people’s state of mind.  Tight fitting jeans?  How easily they come off (or difficulty in coming off), whether she helped take them off, etc., goes to consent.  Was she wearing a nightmare outfit like some of the “fashions” at the fashion show?  If so, and she was drunk but still managed to take her outfit off shows pretty good coordination, cutting against the theory she was “too drunk.”
    I litigated a case in Korea, the so-called victim changed her clothes from Jean shorts and t-shirt to short skirt and tank top after her parents left.  The outfit she put on, she wanted to be more attractive.  No bra, and she wore fishnet thong underwear because she thought she would be more “appealing.”  Still want to argue clothing choice doesn’t factor in to the equation on consent or mistake of fact?
    I’m waiting for someone to say they saw Brick kill a guy with a trident.  Because this conversation escalated quickly.  It really got out of hand!

  18. Vulture says:

    The bizzarro thing is that for bad law you look to bad facts.  But CAAF is champing at the bit to make law out of where there are no facts.  Guess that this case was dressed too sexy by not wearing anything.

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

    Vulture, the writ was filed, nothing guarantees CAAF will take it up.  If they do, I think it will be on the issue of whether the government can piggyback on a 6b appeal to help the alleged victim overcome the jurisdictional impediment for CAAF review.  THAT is “subterfuge.”  I see this as a disturbing trend that needs to be squashed quickly.
    Maybe also it’s time to revisit the argument about the SVC being a second arm of the Government, trial counsel in disguise.
    And what is the basis for this writ?  Seems to me the government and alleged victim technically won at ACCA.
    Does going to bed naked count as “manner of dress?”

  20. Concerned Defender says:

    The feminists have succeeded in having their cake AND eating it too.  
    Reminds me of the woman who wears skin tight yoga pants and tube top to the gym, revealing literally everything, and then accuses men of being perverts for looking.
    MRE 412 is a perversion of logic.  Let it all in.  It’s relevant is it not, to at least introduce it to the finder of fact and let them decide?  If they conclude it was not reasonably suggestive toward interest in sex, then so be it.  It was harmless.  Conversely, let’s see exactly what she was wearing.  If negative connotations come to mind, well then that’s just the reality of it.  And isn’t that quite valuable for an accused to have, when he’s facing LIFE in prison for rape??   Based on a misunderstanding of what the woman was communicating in her street walker outfit, when she came home with him, did the dead, only to claim rape a month later when it suited her.
    I’d love for the panel to have the alleged victim parade around in the galley in the lingerie she wore to the dance club, and then listen to her claim she wasn’t looking for sex but got lost en route to church choir practice, and going home with the Sailor she wasn’t interested in sex.  Give me a break.
    These rules have become a total abortion of anything resembling justice.  And get worse seemingly every year. 
    Every breath, act, outfit, face book post, or high school yearbook entry that an accused has ever made, written or worn will likely be introduced  to show his behavior and intent.  His ex-lovers called to the stand.  His reputation drug thru the mud.  
    Yet relevant evidence which is the basis for either express consent, implied consent, or mistake of fact (i.e. the extremely suggestive clothing worn by the complaining party) cannot be introduced?  Is a woman not communicating at least SOMETHING when she paints on her top, squeezes into a skirt two sizes two small and that shows off the lunchbox, and dolls herself up like a Vegas streetwalker, and heads out to find Mr. Right?  Surely she’s communicating SOMETHING relevant to the target sexual audience.  What’s the risk in presenting this to the finder of fact?  After all, are we not wanting maximum honest and transparency for justice? 
    Oh, wait, no…. apparently it’s just designed to convict the accused with minimal effort.
    I find that very troubling, and always have.  

  21. Concerned Defender says:

    I want to add more.  In cases where the complaining witness’ clothing choice BENEFITS her allegation of assault, it universally is introduced to attempt to show there was no consent.  So, again, the “have your cake and eat it too” theory at play. 
    It seems to me, as a natural human being with human relationships, that clothing choice (if freely made) is almost always direct expression and communication of intent.  
    For example, if I were invited to play some casual football, I would put on the appropriate clothing and go to the location.  That doesn’t mean that I consented to being tackled en route to the field, but once I arrived, my outfit offers at least some communication that I’m here to play some football.  Perhaps further dialogue or clarification is warranted.  But say someone throws a ball at me as I walk onto the field, I don’t see it, and it hits me in the head and injures me.  That would not be an assault, given the totality of my dress and arrival and consent or implied consent or a mistake of fact. 
    Change the facts – say I’m invited to play football and I put on jeans, dress shirt and tie, and heavy winter coat and cloves and scarf, and I show up at the field.  No further communication is necessary.  Not interested in playing football.  If someone throws the ball and hits me in the head, under this set of facts, it’s probably an assault since I clearly communicated by my outfit I’m not engaged in football. 
    Likewise, manner of dress is not necessarily dispositive but it is absolutely probative.  If the complaining witness wore a 1 piece heavy snow mobile outfit and hat and 4 layers of clothing to the bar, complete with padlock chastity belt, that would be communicating resistance to sex.  However, it would seem that wearing 4 pieces of dental floss as clothing to the club communicates a strong desire to pick up a man.  And while that, by itself, is not consent to touching or sex, it’s akin to putting on the football uniform and walking onto the field.

  22. K fischer says:

    TC, @ 5.10.18 7:02 pm,
    This clip pretty much sums up how I feel about your most excellent burn.

  23. stewie says:

    Tami you are talking about something different though. Whether a piece of clothing is too hard to take off while drunk says nothing about consent but capacity, which is only relevant in a case involving incapacitation. So yes, you can talk about clothing there but not in the vein of she really wanted it because she was wearing sexy stuff. And even if she wanted to be “more appealing” that’s a pretty big leap from that to she wanted the pickle in her hooha.
    It would require a VERY narrow set of facts for clothing alone to be relevant to consent. We are a long dating/married couple and we have mutually agreed that when she is wearing the pink negligee with the purple bow that she wants to have sex. I think it’s simply too easy to slide into impermissible territory on clothes when you start saying oh sure because she was wearing X that’s evidence she wanted Y.
    You should focus on actions or words.

  24. k fischer says:

    (Former) ArmyTC, 
    “Having sex” to me is anything that would violate Article 120 in it’s current format, a conviction for which would require the convicted Serviceman to register as a sex offender.  This would include kissing, booby grabbing, butt grabbing, junk grabbing, oral or anal sodomy, and sexual intercourse.  Do I believe that SGT Colby, in the case, had free reign to stick his penis in Ms. ST’s vagina because she went to bed with him wearing a thong and a tank top?  Of course NOT.  But, I don’t know what the facts of this case are.  In fact, ACCA didn’t even enlighten the reader regarding with what offense SGT Colby was charged.  Nor do we know what kind of physical relationship they had prior to him showing up at her place where she answered the door in a thong and revealing tank top, then proceeded to get into bed with him.  Is it reasonable for him to think that it would be okay if they were spooning to cup her breasts?  Perhaps, depending on the facts.
    Take this example.  Let’s say that I, a newly minted Specialist piano player in the Army Band who PCS’d to his permanent party unit, went to a get together over at the other piano player’s house.  This guy is married, but, there are many rumors that it is a sham marriage and he is on the down low.  The clarinet player who is openly gay is there.  Everybody is drinking and the clarinet player and I are too drunk to drive while still having the capacity to consent to sex, but we don’t really want to spend the money to take an uber back to the barracks.  So, the host of the party says we can stay in his guest bedroom which has a king sized bed.  So, me and clarinetist get into the bed.  I take off my clothes and sleep in my rainbow arrayed thong, and don’t put on the shorts the host laid out for the clarinetist and me.  As I am dozing off to sleep, he and I are engaged in a conversation about turn-ons.  I tell him about the time a woman woke me up performing oral sex on me and how hot it was. I wake up the next morning at 7 a.m. to the clarinetist who woke up before me manually stimulating my morning wood.
    So, I run down to CID and report that I am a victim of sexual assault.  You get assigned to the case as the SVP, and you listen to me tell you these facts.  If the first question that comes to your mind isn’t, “Why would you get into bed with an openly gay man wearing a rainbow colored thong?” then you, my friend, are not living the reality that most panel members are.  Of course, I wouldn’t run down to CID because I, being a reasonable person who uses common sense and understands the ways of the world, would realize that perhaps not putting on the shorts, getting into bed with a gay man, wearing a rainbow colored thong, and telling him about sexual things I have enjoyed in the past probably sent the wrong message.

    you seem to believe she has a duty to wear something more modest. Why is that?

    Because I believe that women should not send mixed signals by allowing a member of the opposite sex in their bed while wearing a thong.  Just like I would strongly advise rainbow thong wearing SPC Fischer to not continue that practice if I were the SVP in my hypo, I would advise a woman to do the same.  Yeah, there are men like Stewie and me who err on the side of doing nothing when laying next to a woman wearing a thong, but there are also many men who think that might be a signal.  (Oh by the way, the female to which I referred when we actually started dating a couple of weeks later asked me why I didn’t try to get with her the next morning because she wore her lingerie for that purpose)
    You think I’m deplorable?  I think the cases prosecuted by some SVPS and actions taken by TJAGs are deplorable.  Men have to register as sex offenders when they get convicted of any kind of sexual contact, no matter how slight the touch is or what part of the body it occurred.
    You want some training?  Teach these young men how to respect women and engage in sexual intercourse in such a way that consent is more clear.  Here is tip #7 from my False Allegation Prevention (FAP) list:
    7. Start sexual contact from her lips (the ones on her face) and work your way down. So, many cases I read about could have been avoided if the man knew how to make love to a woman. If you have never kissed a woman, then the first move you make should not be to stick your finger in her vagina…..particularly while she is sleeping. Exercise the baseball diamond rule: 1st base kissing, 2nd base boobies, 3d base oral, and home plate is intercourse. Mickey Mantle hit a lot of home runs, but did he still have to run the bases? Yes. He didn’t get to step on home plate without going to 1st, 2nd, and 3d base. It certainly would save time if you could just touch home plate, but that’s not the way it works in baseball and that is not the way it works in love. Make sure you tag each base in order. If you are taking too long getting there, she will tell you to speed up. Let her be your base coach. Never argue with your base coach about stopping. If she tells you to hold at second, don’t even think about going to third. Stay at second. If she changes her mind and waves you to go to third, then tell her it would be nice if she went to third on you. Also, it is wise to pause and look to see if the outfielder has the ball before advancing to the next base. You will know you have the green light because most likely your base coach will screaming, “What’s the matter with you? Why are you stopping????”  And, if she waves you around third and tells you she’s ready to advance to home, don’t go head first like Pete Rose.  Go in on your back, and let her be on top.
    If men followed these rules, there would far less false and true allegations of sexual assault.  But, you idiots can’t train this way and will continue to waste my tax dollars because somebody might get “triggered” or someone would say it was “unprofessional.”

  25. Vulture says:

    Tami.  Uh durp.  OK, crisis averted.  

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

    Stewie, considering she traveled from Yongsan to Camp Humphreys FOR the express purpose of having sex with the client, then got mad because he wanted to play basketball with his friends afterwards, and called her stupid for refusing bus money back home.  The change in clothing after her parents left was relevant to her deception she told them she was going to stay home, when obviously her intent was to get some at the Hump.  Was also relevant to her state of mind and ability to plan and execute her plan, as this was a mental competence case.  She had a Forrest Gump IQ level.  Yet no one seems to think Jenny raped Forrest.
    Going back to the clothing issue, let’s say a woman wears a shirt to a party that says, “I want to fuck your brains out.”  Relevant to consent or mistake of fact, based just on the shirt?  I think so.  Does it even count as “manner of dress,” as opposed to the message on her shirt regardless of how she was dressed?  Why would anyone even have to argue about it, she was wearing the shirt that night as part of what happened.
    It’s really getting to the point where body cameras are needed to record what happened so as to avoid false accusations.
    Speaking of clothing, would anyone think I consented to Jabba putting his slimy tongue on me just because I was wearing that gold bikini?  No, but then it was obvious to everyone at his parties that I wasn’t consenting, and with that chain on, it kind of makes resistance futile anyway.  But now if I wore that same gold bikini for Han, well maybe he’s entitled to think he’s getting some based on what I’m wearing, because I love him even though he’s a scruffy Nerfherder.  And then if I don’t want sex at that moment, maybe I need to explain why, like I was just trying it on to see if it still fits after 35 years (sadly, no it doesn’t).  But if I don’t say anything and we end up having sex, do I get to say Han sexually assaulted me and then block out wearing the bikini because it was “the” gold bikini?  And Han’s story is after 35 years she still looks hot in that gold bikini so yeah, of course I had sex with her Worshipfulness.
    Who doesn’t remember the gold bikini? Not relevant just because it happens to be manner of dress?

  27. k fischer says:

    Stewie, you said:

    You should focus on actions or words.

    I 100% absolutely agree with this statement as a trial strategy for defense counsel.  If your entire defense hinges upon you raising reasonable doubt because she was wearing a thong, then your guy is going to get convicted.
    But, this is about admissibility of evidence.  And, what she was wearing in addition to allowing him into her bed might have given him a belief that a panel could find reasonable that she was consenting to certain sexual acts.  Doesn’t the exclusion of what she was wearing, if it led to his honest belief, prevent him from presenting a defense on that element?  Seems like there are a few people who might use what she wore in corroboration with what she did to determine whether or not his belief was reasonable.
    Can anyone enlighten us on what the allegations are?  And, I think Tami’s right.  Get this accused on the stand and let him put out his defense to get this evidence in.  And, let the SVP argue the crazy notion that it is irrelevant.  I typically default to putting my client on the stand.  Rarely do I see an SVP who actually has the ability or evidence to effectively cross examine my client when they are innocent.

  28. Private Incel says:

    Should we worry about false rape accusations or instead worry about the airmen, marines, sailors, and soldiers who worry about false rape accusations so much that they’re afraid to talk to women?

  29. J.M. says:

    The phrase ‘rainbow thing wearing SPC Fischer’ will be stuck in my head for some time. I humbly suggest consideration of a screen name change from k fischer to k fischer  a/k/a The Todd.

  30. K fischer says:

    In the age of #metoo, I wonder what would have happened to The Todd if Scrubs were on NBC today.

  31. stewie says:

    The Todd was primarily sexual harassment. I don’t remember him touching anyone too much who didn’t want to be touched.
    Great TV show, funny character, but in real life, someone who would need to tone it down whether before or after metoo.

  32. K fischer says:

    Let me clarify my point.  I wonder if in the age of #metoo whether or not the Todd would even be a character on Scrubs, I.e. Whether the writers would even write a character like that out of fear of being called out for being politically incorrect.
    And he motorboated the doctor and nurse over their scrubs in the episode where he pretended to be gay.  Two charges of abusive sexual  contact…….or maybe four, depending on the SVP.

  33. stewie says:

    I’ll defer to your Scrubs knowledge, having said that not sure your point. Are you suggesting it’s a bad thing if we maybe don’t treat sexual harassment and sexual assault as funny jokes? Maybe you still have the Todd character. Instead of being a groper and sexually inappropriate, he remains awkward, sexually ambiguous (The Todd does not discriminate) and somewhat vacuous and thus still funny.
    Is that “fear of being politically correct” or is that “I don’t want to minimize and make fun of legit sexual assault/harassment?” Or do you think motorboating is just harmless fun?

  34. Concerned Defender says:

    Stewie, let me answer your question with a question/scenario.  Let’s say you are in a public gym with witnesses.  A fellow servicemember woman you find unattractive comes up to you, grabs two fists full of your buttocks and squeezes without your consent.  You find this pretty embarrassing.  You don’t know the intent, of course, but you assume she’s romantically interested and didn’t mean real harm. You have the full range of legal action against her.  What would you like to see done?  Prison?  Sex offender registry?  Counseling/warning?  Kicked out of the service?  Career ended?  Federal felony type conviction for sexual assault?

  35. stewie says:

    Uh the vast majority of those cases don’t end up at court-martial. And no, I have no interest in that person having a long military career if they are cosmically stupid enough to do that in a public gym with witnesses.