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AFCCA finds judge erred in not admitting evidence of consensual sex following alleged sexual assault.

Recently, on 16 August 2017, the Air Force Court of Criminal Appeals (AFCCA) reviewed a military judge’s decision to exclude evidence under M.R.E. 412 in United States v. Leonhardt. In this case, a female Air Force Academy cadet accused 2LT Leonhardt, a male Air Force Academy cadet, of raping her after inviting her back to his sponsor’s house. The accuser in this case stated that 2LT Leonhardt forced himself upon her the night he invited her back to the house and then again in the morning after she slept in the same bed with him. Neither of them had been drinking alcohol. 2LT Leonhardt told his defense counsel that the sexual intercourse had been consensual. In fact, he told his defense counsel that a week or two later, the same female and he had consensual sex another two times in a dorm room. When the defense counsel tried to enter the evidence regarding this later consensual sexual intercourse to prove that the initial ones were consensual, the government objected under M.R.E. 412. M.R.E. 412 does not allow an accused to enter evidence regarding an accuser’s sexual predisposition (for example, sexual lifestyle) or other sexual behavior, UNLESS, the evidence is relevant in showing that the accused was not the source of the offense against the accuser, that the accuser consented to the sexual incident or if excluding the evidence would violate the constitutional rights of the accused. Under this rule, just because the evidence an accused wishes to present about the accuser is sexual in nature and may be embarrassing, it does not mean that the accused cannot present it. While M.R.E. 412 protects the privacy of an alleged victim, it also serves to protect the rights of the accused as well. The Air Force military judge in Leonhardt did not allow the evidence showing that there was consensual sexual intercourse after the alleged rapes stating that it was irrelevant to whether the female cadet consented previously. The AFCCA disagreed with the military judge. The AFCCA held that the military judge erred in not allowing 2LT Leonhardt (appellant) to present this evidence during his court-martial. The findings and sentence were reversed in this case.

I have a great deal of experience with M.R.E. 412 evidence. One of my cases involving M.R.E. 412 was the appeal of PFC David Lopez before the Army Court of Criminal Appeals (ACCA) in July 2012. In that case, there were two females who accused him of committing sexual offenses against them. At his court-martial, the military judge did not allow PFC Lopez to present several pieces of evidence about the females that were sexual in nature stating that the probative value of the evidence was outweighed by the prejudice to these females. I appealed these decisions to the ACCA on behalf of PFC Lopez and won. I argued that the judge erred in the application of the probative v. prejudicial balancing test and that the evidence excluded, while highly embarrassing to the accusers, was relevant in showing that PFC Lopez did not commit the offenses he was accused of committing. Excluding the evidence, in this case, violated the constitutional rights of the accused. The ACCA agreed with me and stated that the military judge at the court-martial erred in excluding the pieces of evidence. Just like in Leonhardt, the ACCA set aside the findings and sentence for PFC Lopez. I have a huge amount of experience litigating at the court-martial and appellate level. If you or your loved one is facing a court-martial or wants to appeal one, you need someone by your side with experience. This is one of the biggest decisions in your life, call now, don’t wait. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

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