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Conviction for forcible sodomy overturned on appeal due to military judge error in excluding evidence about the alleged victim’s sexuality.

Recently, in United States v. Villanueva, the Navy-Marine Court of Criminal Appeals (NMCCA) overturned a Navy male appellant’s court-martial conviction for forcible sodomy against another Navy male Hospitalman (HN P).  HN P went to barbeque attended by appellant and became intoxicated.  HN P claimed that he had little memory of what happened that night, but did remember appellant sodomizing him without his consent.  During the court-martial, HN P testified that he was “straight” and the military judge allowed it.  Further, the military judge allowed the government to paint a picture of HN P as being one who was only into girls to convince the panel members that HN P would never have consented to sodomy with another male.  Appellant’s defense counsel tried to submit evidence during the court-martial to show that HN P’s actions while intoxicated make it possible that he would have consented to sodomy.  For example, the government tried to submit evidence regarding a conversation that HN P had with appellant and some other servicemembers during lunch in the chow hall earlier that day.  During this conversation, HN P admitted to some things that had occurred while drunk that could cause one to question his sexuality.  The military judge did not allow the defense to enter this evidence at the court-martial despite the fact that the government’s case relied on the court-martial panel believing appellant had no reason to believe HN P would consent to sodomy.  The military judge refused to allow the defense’s evidence based on Military Rule of Evidence 412.  M.R.E. 412 does not allow an accused to enter evidence regarding an accuser’s sexual predisposition (for example, sexual lifestyle or flirtatious clothing) 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 NMCCA ruled that the military judge erred in not allowing the defense to present this evidence about HN P at his court-martial.  The NMCCA held that “the members were left with an incomplete picture of what the appellant believed about HN P’s sexual predisposition, that is, only that he had been told that HN P ‘doesn’t swing that way.’”  The NMCCA overturned appellant’s conviction.  I had similar success with M.R.E. 412 representing 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.  ACCA agreed with me and stated that the military judge at the court-martial erred in excluding the pieces of evidence.  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.  You need someone by your side with experience if you or your loved one is facing court-martial charges.  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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