Army Appellate Court Reverses Rape Conviction After Military Judge Limited Defense Cross-Examination of the Alleged Victim

The Army Court of Criminal Appeals recently reversed a guilty finding for rape in the case of United States v. NievesVele. PV2 NievesVele was convicted of rape and sentenced to 14 years confinement, a dishonorable discharge, and reduction to E-1. At trial, the alleged victim testified that PV2 NievesVele had committed forcible penetration without consent. The defense wished to cross-examine the alleged victim about the conversations between the alleged victim and PV2 NievesVele both before and during the alleged assault. The Government objected and the Military Judge conducted a closed hearing pursuant to Military Rule of Evidence (MRE) 412. MRE 412 is commonly known as the “rape-shield law.” Under this rule, evidence that is intended to prove a victim’s sexual predisposition or to prove that the victim engaged in other sexual activity is generally inadmissible. There are exceptions for evidence that would show that another person might be responsible for injuries or other evidence attributed to the accused or for evidence that would show that the activity was consensual.

Here, the defense argued that evidence of what happened during the charged assault did not fall under MRE 412, and that if it did, the questions they wanted to ask were intended to show that the activity was consensual. The prosecutor objected to the questions, not only as evidence at trial but even for purposes of the hearing. He argued that Article 6 of the UCMJ prevented the defense from asking the alleged victim any embarrassing or personal questions, even in the context of the closed hearing. The Military Judge agreed and prevented the defense from asking the alleged victim questions concerning the events of the alleged assault.

The Army appellate court found that the Military Judge had abused his discretion in limiting the defense in this way. It noted that MRE 412 hearings are closed in order to protect the privacy and dignity of the alleged victim and that limiting the questions asked even in that setting because they are “embarrassing” or “personal” violated PV2 NievesVele’s Fifth and Sixth Amendment rights to due process and to confront his accuser. The court further found that the evidence the defense primarily sought to raise concerned the actions of PV2 NievesVele, and would not be covered by MRE 412. Further, the court found the Military Judge’s finding that the proffered evidence was not relevant or material to be unreasonable.

The Court set aside the guilty verdict and sentence and returned the matter to the Convening Authority. Under the circumstances, the Convening Authority will be able to order a retrial on the charge. If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.

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