Evidence of an alleged victim’s other sexual behaviors is generally prohibited when defending against an Article 120 charge, however, I was able to argue its admissibility for my client during his appeal and get his convictions set aside!

Generally, evidence of an alleged victim’s other sexual behaviors or sexual predisposition is off limits to the defense.  However, there are times when an accuser’s other sexual behaviors or sexual predisposition may be presented as evidence to show that an accused is innocent of an Article 120 charge.  This is a very sensitive area of the law because military judges do not want an Article 120 court-martial to become a discussion of whether or not an alleged victim is promiscuous or not.  Therefore, Military Rule of Evidence (M.R.E.) 412 allows this type of evidence about an alleged victim to be presented only for three specific reasons.  First, this type of evidence may be presented to show that the accused is not the source of semen, injury or other physical evidence.  Second, it may be presented to show consent on the part of the alleged victim.  Finally, this type of evidence may be presented if its exclusion would violate the constitutional rights of the accused.  If a military judge determines that the M.R.E. 412 evidence a party wishes to present fits in one of these categories and is relevant, there is one more hurdle to jump.  The last hurdle to jump before the evidence about the alleged victim can be presented is that it its probative value must outweigh the danger of unfair prejudice to the alleged victim’s privacy.  This seems like a tough hurdle, however, I was able to jump it while appealing my client’s case to the Army Court for Criminal Appeals (ACCA) this past summer in U.S. v. Lopez.  There were two different alleged victims in this case and I argued that the appellant in this case had the right to present M.R.E. 412 evidence pertaining to both alleged victims.  The pertinent evidence regarding one victim involved her sexual behavior after the alleged offense and the evidence regarding the other involved her sexual behavior prior to the alleged offense.  In both cases, the appellate court agreed with my argument and determined that the military judge erred in excluding the M.R.E. 412 evidence regarding both victims.  The military judge at the court-martial level determined that the M.R.E. 412 evidence was relevant to show consent, however in both instances, the military judge determined that the evidence should be excluded based on the last hurdle.  The military judge held that it was too prejudicial to the privacy of the victims.  This ruling was overturned by ACCA following my argument.  My client’s convictions under Article 120 were set aside and so was his sentence.  M.R.E. 412 evidence is not easy to get admitted in an Article 120 case, especially in today’s political environment.  You need someone with experience on your side.  Please call me for help.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

William E. Cassara- Military Law Attorney

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