Time to Fine-Tune Military Rule of Evidence 412

• Author: Major Shane R. Reeves
• Pages: 05

2008] FINE-TUNING MRE 412 47

TIME TO FINE-TUNE MILITARY RULE OF EVIDENCE 412

MAJOR SHANE R. REEVES*

There is a strong social policy in not only punishing those who engage in sexual misconduct, but in also providing relief to the victim.1

In our zeal . . . it is important that we keep in mind the constitutional rights of the defendant to a fair trial. . . . The bill clearly permits the defendant to offer evidence where it is constitutionally required.2

1. Introduction

   "How many men did you have sex with before this alleged rape?" "So you have serviced 95% of the battalion?"3 "You enjoy sexual intercourse, don't you?" "How many times have you had premarital sex?" "You have cheated on your spouse quite a few times, haven't you?" Prior to the enactment of The Privacy Protection for Rape Victims

   Act of 1978, which amended the Federal Rules of Evidence (FRE) to include Rule 412, questions such as these were permissible in federal court and deemed an appropriate manner in which to question a victim's veracity in a rape trial.4 Federal Rule of Evidence 412 ended this trial tactic and generally gave victims protection from these forms of embarrassing questions concerning their sexual history.5

   Military Rule of Evidence 412, derived from FRE 412 with some minor modifications,6 attempts to shields victims of nonconsensual sexual offenses7 from degrading examination and cross-examination questions during courts-martial by generally excluding any evidence of

   the victim's prior sexual history.8 Similar to the federal rule, MRE 412 extensively limits defense evidence in nonconsensual sexual crime prosecutions.9 Specifically, MRE 412 will not allow "[e]vidence offered to prove that any alleged victim engaged in other sexual behavior" or "[e]vidence offered to prove any alleged victim's sexual predisposition."10 The rule, however, does not act as an absolute bar to the defense entering evidence of the victim's past behavior. Military Rule of Evidence 412 offers three exceptions where the victim's past sexual behavior may be introduced:

   (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

   (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

   (C) evidence the exclusion of which would violate the constitutional rights of the accused.11

   If a party intends to offer evidence under any of the three exceptions, certain procedural requirements must be met.12 If all procedural requirements are satisfied, the military judge will conduct a closed hearing where the parties may call witnesses, the victim may be present, all members will be absent, and the motion, related papers, and record of

   the hearing will remain sealed.13 After the hearing the military judge will determine if the evidence offered by the accused is "relevant and that the probative value of such evidence outweighs the danger of unfair prejudice."14 If the evidence passes this threshold, then the evidence may be offered subject to any limitations set by the military judge.15

   Federal Rule of Evidence 412 was enacted to "protect rape victims from degrading and embarrassing disclosure of intimate details" without "sacrificing any constitutional right possessed by the defendant."16

   Military Rule of Evidence 412 was adopted with a similar goal of "shield[ing] victims of sexual assault from the often embarrassing and degrading cross-examination and evidence presentations common to prosecutions of such offenses" while still recognizing the right of the accused "to present relevant defense evidence."17 The Federal Rule, and consequently the Military Rule, has been amended since its inception,18

   but the intent has remained clear: protect the victim of a sexual crime without ignoring the compelling constitutional rights of an accused.19

   Military Rule of Evidence 412, much like its federal counterpart, has generally been successful in meeting the intent behind its enactment.20

   The rule has typically balanced these equally compelling, yet competing interests in a fair manner. However, as with any rule, unforeseen situations arise and unintended consequences can require refining the rule to comply with congressional intent.21 As currently drafted, and in application, the rule creates complications for both the Government and

   defense in nonconsensual sexual act cases which violate the spirit and intent behind MRE 412.22

   Due to the current form of the rule, the Government may find that evidence offered to prosecute a nonconsensual sexual offense is excluded, thus unfairly prejudicing a victim. Military Rule of Evidence 412 excludes all testimony of the victim's other sexual behavior or sexual predisposition unless a stated exception applies, regardless of which party is offering the evidence.23 In certain sexual offense prosecutions, in particular those involving child victims, the Government must rely on other sexual behavior evidence24 and expert testimony to prove that a nonconsensual sexual offense was committed upon the victim.25 Yet, a plain reading of MRE 412 coupled with a timely objection from defense counsel will most likely result in the exclusion of the Government-offered "other sexual behavior" evidence. Military Rule Evidence 412 therefore acts as an unintended shield for the accused by excluding any testimony concerning the victim's sexual behavior that is not with the accused, even if offered by the Government. This unforeseen use of MRE 412 as a defense tool to counteract the Government's prosecution violates the intent behind the rule and frustrates prosecution of nonconsensual sexual offenses.26

   Military Rule of Evidence 412 also contains an unnecessary and potentially unfair hurdle to the defense in nonconsensual sexual offenses. The accused may only admit evidence of the victim's sexual behavior or sexual predisposition if a stated exception to the rule is met, the evidence is deemed relevant, and the unique MRE 412 balancing test is satisfied.27

   The defense has the burden of establishing that an exception applies and explaining how the evidence falls within the exception.28 If the defense is capable of articulating a narrow and compelling reason why the victim's other sexual behavior or sexual predisposition is necessary for a defense, it is extremely unlikely that a military judge could justify excluding the evidence.29 Yet, despite this unlikelihood, the defense-offered evidence is further filtered by the MRE 412 balancing test.30

   This is particularly troubling when the accused attempts to enter evidence that is constitutionally required under MRE 412(b)(1)(C).31

   Requiring the defense to comply with the MRE 412 balancing test creates an unnecessary additional step that is contrary to the congressional intent behind the rule.

   The unintended use of the rule by defense to exclude a child victim's inappropriate sexual behavior is clearly contrary to Congress's intent to protect the interests of the victim.32 Congressional intent to protect the

   constitutional rights of the accused to a fair trial and a complete defense is also contravened by the unnecessary MRE 412 balancing test.33 The unforeseen use of MRE 412 as a defense shield and the unnecessary nature of the MRE 412 balancing test were most likely never envisioned by the legislation's drafters. Thus, to address these shortcomings and to ensure MRE 412 complies with Congress's intent, the rule must be amended.

   To support this proposition this article is divided into five sections. Section I introduces the basic tenets of MRE 412 and the current issues with the rule. Section II examines the legislative history of MRE 412 to illustrate the congressional intent behind the rule. Section III explains how MRE 412 may result in unintended protections for an accused in specific types of prosecutions and why a fourth exception to the rule is needed to end this unforeseen practice. The unique MRE 412 balancing test and why it should be eliminated is discussed in Section IV. Finally, Section V concludes that only by adopting these proposals will MRE 412 comply with the drafter's intent.

2. Legislative History

   To illustrate the need for these changes, it is important to appreciate the legislative history of FRE 412 and MRE 412. Specifically, the unintended collateral consequences of MRE 412 for Government prosecutions as well as the unnecessary additional hurdles the rule imposes on an accused are contrary to congressional intent. By understanding the historical background of FRE 412 and MRE 412 the current problems become evident and the necessity to amend the rule to correct these issues becomes apparent.

   1. Background

      Prior to 1978, in sexual assault cases the federal court system34

      allowed an accused to present evidence of a victim's sexual history in his defense.35 This often led to humiliating cross-examination questions concerning the victim's prior sexual history in which the trial became "inquisitions into the victim's morality, not trials of the defendant's innocence or guilt."36 These sexual assault trials yielded "evidence of at best minimal probative value with great potential for distraction and incidentally discourage[d] both the reporting and prosecution of many sexual assaults."37 Pressure from law enforcement and women's organizations to end the use of a victim's sexual history38 coupled with

      legislative recognition of the limited relevance of such evidence39 led Congress to enact The Privacy Protection for Rape Victims Act of 1978 which amended the Federal Rules of Evidence to include Rule 412.40

      Testimony before Congress and the ensuing debates concerning The Privacy Protection for Rape Victim's Act highlighted two competing interests: the victim's right to not disclose intimate personal information and the...