'I Was Only Twelve--It Doesn't Count': Why Adolescent Sex Offenses are Not Legally Relevant in Prosecutions of Adult Sex Offenders and Why Military Rules of Evidence 413 & 414 Should be Amended Accordingly

• Author: Major Charles A. Kuhfahl Jr.
• Pages: 06

132 MILITARY LAW REVIEW [Vol. 194

"I WAS ONLY TWELVE-IT DOESN'T COUNT": WHY ADOLESCENT SEX OFFENSES ARE NOT LEGALLY RELEVANT IN PROSECUTIONS OF ADULT SEX OFFENDERS

AND WHY MILITARY RULES OF EVIDENCE 413 & 414 SHOULD BE AMENDED ACCORDINGLY

MAJOR CHARLES A. KUHFAHL JR.*

Misconstruction of the underlying reasons that adolescents engage in crime as well as overestimation of their decision-making capacities trap the criminal [justice] system in a cycle that has little to do with justice [and more to do with vengeance].1

I. Introduction

Until 1994, a majority of the country's criminal jurisdictions, to include the federal government, abided by the mantra that individuals should be convicted based solely on evidence pertaining to the acts alleged and not simply because they were bad people. Such was the reason for the existence of Federal Rule of Evidence (FRE) 404(b) and similar state statutes. 2 This almost universally-held belief was dealt a

significant blow, however, when Congress amended the Federal Rules of Evidence to specifically allow the introduction of "propensity" evidence in cases involving either sexual assault of any kind or sexual molestation of a child.3

In accordance with Military Rule of Evidence (MRE) 1102(a), the amendments to FRE 413 and 414 became applicable to the military on 6 January 1996.4 On 27 May 1998, the President signed Executive Order 13,086, officially amending the MRE by adding MRE 413 and 414.5

Notwithstanding the flawed rationale behind the amendments, federal courts have consistently rejected constitutional challenges to the rules, both facially and as applied to the individual defendants.

Recently the Court of Appeals for the Armed Forces (CAAF) began chipping away at the inflexibility of these rules, specifically MRE 414. In a series of cases, beginning with United States v. McDonald6 and continuing with United States v. Berry,7 the CAAF has ruled that adolescent sex offenses committed by service members have no legal relevance in later prosecutions of those same service members as adults. These rulings are supported by recent studies in the field of psychology and neurology, which indicate that an adolescent's thought processes are not the same as an adult's, i.e., they do not commit crimes for the same reasons. Relying on the aforementioned studies, the CAAF now seems unwilling to unilaterally accept the general "propensity" arguments proffered by the Rules' proponents in Congress,8 at least when the evidence concerns adolescent sex offenses. While the CAAF has not declared an outright prohibition against the introduction of such evidence, the requirements the Government must satisfy prior to offering such evidence are so onerous that the CAAF has implicitly created a de facto prohibition against the admission of adolescent sex offenses under

either MRE 413 or 414. To ensure that the maximum amount of fairness is afforded to military accused, and to eliminate any remaining ambiguity in this area, the time has come to explicitly amend the MRE to reflect the CAAF's implicit intent.

In order to provide a historical backdrop to the issue presented in this paper, Part II will address the reasons Congress originally decided to amend the FRE and the unorthodox methods it used to do so. Part III will review the early challenges to the new rules and discuss the rationale proffered by the courts to preserve the constitutionality of both FRE 413 and 414. Part IV will examine the aforementioned psychological studies as well as studies into the low recidivism rates of adolescents which further support the McDonald and Berry rulings. Part V will provide an in-depth analysis of the CAAF's reasoning in both McDonald and Berry and will lay the groundwork for this paper's overall position. Part VI will discuss the high standards of proof now facing government counsel and what affect that will have for future military prosecutions. Lastly, this paper will argue that the time is at hand to amend the MRE to prohibit the admission of evidence concerning single incidents of adolescent sexual misconduct in later adult prosecutions. Part VII provides recommended amendments to both MRE 413 and 414, which should eliminate any confusion that may still exist in this field.

II. History and Purpose of Federal Rules of Evidence 413 & 414

It can hardly be said that FRE 4139 and 41410 were the result of years of research in the field of criminology, careful consideration of the effects that the amendments would have on future defendants, or months of intense debate in Congress.11 Indeed, both rules were added to the

Violent Crime Control and Law Enforcement Act of 1994 (Crime Control Act)12 as "a last minute effort to gain bipartisan support for the Act."13 All told, a mere twenty minutes of debate took place on the floor of Congress for all three rules-413, 414, and 415.14 One would think that such sweeping changes to decades of established case law in the field of propensity evidence15 would mandate at least cursory discussion for one entire day. However, "as one house democrat noted, '[i]t is very difficult to argue against something that would suggest that in some way [Congress is] going to make it easier for child molesters or sexual abusers to walk.'"16

Notwithstanding the political wrangling17 and administrative shortcomings18 concerning the attachment of the rules to the Crime

Control Act, the sponsors' stated purpose in attaching the amendments was clear: to combat the perceived high recidivism rates of persons who commit sex offenses in general and sex offenses against children in particular.19 The fact that this perception differed greatly from reality was apparently not a major concern of the federal legislature. For example, according to one Bureau of Justice study involving sex offenders released from prisons in fifteen states during 1994, recidivism rates for sex offenders ranged only from 2.5% to 5.3%.20 While these rates vary slightly depending upon the study, overall recidivism rates for sex offenders are consistently lower than those of the general criminal population.21 (This disconnect between perception and reality concerning recidivism rates will be discussed in more detail in section IV.) The true reason the Rules were implemented, at least according to the bill's cosponsor, Senator Robert Dole, was to help the Government obtain convictions it possibly would not be able to obtain otherwise.22

In addition to the unsupported claims of recidivism, other reasons cited for enacting the new rules included:

(1) the need to admit all possible evidence because there are few witnesses to sexual assaults; (2) the need to rebut defenses of consent in rape cases; (3) the need to corroborate children's testimony in child molestation cases; (4) the fact that victims often do not come forward until they hear that another person has been assaulted; and (5) the danger to the public if a rapist or child molester remains at large.23

Notwithstanding the Judicial Conferences Committee's strong objections to the rules,24 Congress submitted the bill to the President on

12 September 1994 and he signed it into law the next day. After the Crime Control Act became law, MRE 413 and 414 were adopted through Executive Order 13,086 on 27 May 1998.25 Whether or not Congress was correct in enacting FRE 413 and 414 has been, and continues to be, fertile ground for commentators both for and against the amendments.26

Other than a few superficial changes,27 the President incorporated FRE 413 and 414 into the Manual for Courts-Martial on 27 May 1998.28

III. Treatment of FRE 413/414 in Federal, State, and Military Courts

Since their implementation, attacks against FRE 413 and 414, at least in the federal civilian sector, have been based in large part on the alleged unconstitutionality of the statute, both on its face and as applied to the individual defendants. To date, the Supreme Court has not specifically ruled on the constitutionality of FRE 413 and 414, or for that matter, even addressed the constitutional concerns raised not only by the individual defendants but by the Judicial Conference Committee prior to enactment of the rules.29 As such, all of the substantive analysis of the constitutionality of the statute has been undertaken by the courts in the federal circuit. Of those, the Eight and Tenth Circuits have taken the lead in setting the de facto standard of analysis. Constitutional attacks on FRE 413 and 414 have generally rested on two arguments: violations of the defendants' rights to equal protection and due process.30

A. Supreme Court and Federal Circuits

In one of the first cases to challenge the constitutionality of the new rules, the Tenth Circuit wasted little time in rejecting the equal protection argument as it pertained to FRE 414, and arguably by inference to FRE 413, going so far as to call the argument "meritless."31 While some

commentators have noted the disproportionate number of Native Americans that have been convicted based on evidence introduced only because of the amendments to the Federal Rules of Evidence, the courts have yet to be swayed by the statistical impact on Native American defendants. Instead, courts have relied on the general principle that a statute "is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose."32 Absent a discriminatory purpose, the courts apply a rational basis test to the statute and consistently find that the amendments pass constitutional muster with ease.33

The more compelling argument is that an individual defendant, as opposed to a class of defendants, is denied the due process of a fair trial when the Government is allowed to introduce not only convictions, but mere allegations of past sexual misconduct. The obvious danger is that "when a jury hears evidence of the bad character of a person . . . the jury will render harsh decisions against that person not because the person is...