Article 6b of the UCMJ provides alleged victims of crimes with certain rights. Those rights include the right to be notified of court proceedings in the case against the alleged offender, the right to be present at court proceedings, and the right to be informed of any plea agreements in the case. They also include the right to petition the service appellate court for a writ of mandamus. A writ of mandamus is an order from an appellate court to a lower court ordering it to exercise its authority or to limit the exercise of its authority. An appellate court will not issue one when they merely disagree with the lower court’s decision. A writ of mandamus is only to be issued as a drastic remedy for really extraordinary causes.
Under Article 6b(e)(1), a victim can petition for a writ of mandamus when he or she believes the trial court has made a ruling that violates any of his or her victim’s rights. This includes circumstances when they believe a military judge’s ruling violates the protection afforded them by Military Rule of Evidence [MRE] 412.
MRE 412 limits the admissibility of evidence of sexual behavior or sexual predispositions of alleged victims. An accused servicemember cannot use the victim’s unrelated sexual behavior to try and prove that their encounter was consensual. However, there are exceptions to the rule. Evidence of other sexual behavior that would show that a person other than the accused was responsible for any injury or other physical evidence is admissible. Evidence of sexual behavior between the victim and the accused in order to show that the sexual act at issue at trial was consensual is admissible. Evidence “the exclusion of which would violate the accused’s constitutional rights” is also admissible. This last category includes evidence that is favorable to the accused and is relevant and material to his defense.
In a recent opinion from the Air Force Court of Criminal Appeals, the attorney representing an alleged victim petitioned the appellate court for a writ of mandamus after the military judge at trial ruled that certain sexual behavior by the alleged victim was admissible under this third exception to MRE 412. In United States v. Rahman the accused is charged with several specifications of sexual offenses against his stepdaughter over a seven-year period. As part of the pretrial litigation in the case, the military judge considered a motion under MRE 412 from the defense. The judge ruled to allow the admission of evidence related to rumors of a sexual relationship between HF, the alleged victim, and another witness in the case as well as evidence of sexual relationships between HF and others that led to her leaving her stepfather’s house shortly before making the allegations of sexual assault against him. HF’s counsel petitioned for a writ of mandamus, asking the Air Force Court of Criminal Appeals to direct the trial judge to disallow this evidence. The appellate court’s opinion in In re HF determined that the military judge’s decision did not rise to the level required for a writ of mandamus to issue. The Court found that the military judge’s findings of fact and conclusions of law were not clearly or indisputably outside of his authority or discretion and denied the petition.
The appellate court had previously declined to stay the court-martial at the trial level while considering HF’s petition, so the court-martial has been continuing towards trial. That trial will continue and the military judge’s ruling on the MRE 412 evidence stands.
If you or your loved one want to appeal a court-martial, you need someone with experience who knows what arguments to make on your behalf, and when to make them. I have argued this issue, and numerous others in front of appellate courts and CAAF. I have the experience you need. Please call Bill Cassara at (706) 860-5769 for a free consultation.