A Private Matter?: Military Court Opinion Reveals Problem With Military Rape Shield Rule

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Federal Rule of Evidence 412(a), the federal Rape Shield Rule, provides that evidence of an alleged victim’s sexual predisposition or other sexual behavior is inadmissible to establish her propensity to consent to sexual acts and her conformity with that propensity, and thus consent, at the time of the alleged rape or sexual assault. In turn, Federal Rule of Evidence 412(b)(1)(A)-(C) set forth exceptions to the Rape Shield Rule when such evidence is offered for other purposes at criminal trials, as long as the evidence is “otherwise admissible” pursuant to Federal Rule of Evidence 403, which provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Meanwhile, Federal Rule of Evidence 412(b)(2) sets forth a general exception to the Rape Shield Rule when such evidence is offered for other purposes at civil trials, but only “if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.” A comparison between the language in Federal Rule of Evidence 403 and Federal Rule of Evidence 412(b)(2) reveals at least a few key differences. Under Rule 403, evidence will be admissible unless its probative value is substantially outweighed by one of several dangers. Conversely, Rule 412(b)(2) flips that balancing test, with evidence only being admissible if its probative value substantially outweighs two dangers. Second, Rule 403 asks judges to consider the danger of unfair prejudice (and several other dangers never really raised in Rape Shield cases) while Rule 412(b)(2) asks judges to consider the danger of unfair prejudice “to any party” and “the danger of harm to any victim,” the latter not being a danger listed in Rule 403. As the recent opinion of the United States Court of Appeals for the Armed Forces in United States v. Gaddis, 70 M.J. 248 (U.S. Armed Forces 2011), makes clear, the military rape shield partially incorrectly conflates these two tests. But are these tests as different as the court asserts, and does that difference have a Constitutional component?

In Gaddis, “[a] panel of officer and enlisted members sitting as a general court-martial convicted [Troy Gaddis], contrary to his pleas, of one specification of sodomy with a child under the age of twelve and four specifications of indecent acts with a child.” On Gaddis’ appeal, the United States Army Court of Criminal Appeals dismissed one specification of indecent acts with a child but otherwise affirmed.

Gaddis then appealed to the United States Court of Appeals for the Armed Forces, with the gravamen of his appeal being that the military judge at his court-martial violated his right to present a defense by deeming certain evidence inadmissible under Military Rule of Evidence 412(a), the military rape shield rule. According to the alleged victim, she told her mother that she was raped by Gaddis after learning that a physical examination was required for her to try out for the cheerleading team at her new school; “she did not want the examination because it would show that she had been raped by” Gaddis.

Gaddis in turn had wanted to present evidence that the alleged victim told her mother that she was raped by Gaddis after her mother discovered e-mails implying that she was otherwise sexually active, leading her to believe that her mother would force her to undergo a physical examination. The military judge did not categorically exclude such evidence, but, based upon the rape shield rule, he held that

You will not refer, Defense Counsel, to the prior sexual activity of the victim or the fact that the e-mails contained rumors of prior sexual activity. That would also confuse the panel. You may, however, refer to the mother’s discovery of e-mails generically, and based upon those e-mails, the victim’s mother wanted to take the victim to a gynecologist and that the alleged victim then made the allegations against the accused shortly thereafter. But you may not refer to the contents of the e-mails substantively or describe them as e-mails relating to sexual activity. Of course, both parties may argue permissible inferences from this evidence.

In his appeal to the United States Court of Appeals for the Armed Forces, Gaddis claimed that the balancing test prescribed by Military Rule of Evidence 412(c)(3) facially violated his right to present a defense. As is the case under the federal Rape Shield Rule, the military rape shield rule allows for a defendant to present evidence of an alleged victim’s other sexual behavior for certain purposes subject to a balancing test. And, under the balancing test of Military Rule of Evidence 412(c)(3), such evidence is admissible if “the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim’s privacy….”

The court did not agree that Military Rule of Evidence 412(c)(3)‘s balancing test facially violates the Constitution but noted that there are some issues with it, holding that:

The M.R.E. 412(c)(3) “balancing test”…is anything but simple to understand or apply, but it is not facially unconstitutional. There is no question that even considering the privacy interest of the victim will yield a constitutionally valid result (1) when applied to evidence that is both constitutionally required and whose probative value outweighs the danger of unfair prejudice, as well as (2) when applied to evidence that is not constitutionally required and whose probative value does not outweigh the danger of unfair prejudice. The test would only be unconstitutional in circumstances under which a military judge excluded evidence, the exclusion of which would violate the constitutional rights of the accused, because its probative value did not outweigh the danger of unfair prejudice to the alleged victim’s privacy. In those circumstances, the test would be unconstitutional as applied. 

So, what does the court mean? Well, as the court noted in Gaddis,

the term “unfair prejudice” in the context of M.R.E. 403 “speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.”….M.R.E. 403 addresses prejudice to the integrity of the trial process, not prejudice to a particular party or witness.

Basically, then, the balancing test in Military Rule of Evidence 412(c)(3) is incorrectly worded. The military rape shield is supposed to be analogous to its federal counterpart, but its federal counterpart contains exceptions in criminal cases as long as the evidence satisfies the traditional Rule 403 balancing test in that it is not unduly prejudicial to the trial process. As the court in Gaddis noted, though, in its prior opinion in United States v. Banker, 60 M.J. 216 (2004), it incorrectly assumed that “unfair prejudice” in the context of former Military Rule of Evidence 412(c)(3) meant something different than “unfair prejudice” as the term is used in Rule 403. This is what led to the present version of Military Rule of Evidence 412(c)(3), which incorrectly conflates the civil and criminal exceptions to the Rape Shield Rule by focusing upon “unfair prejudice to the alleged victim’s privacy….”

So what are the takeaways from Gaddis? Well, the first takeaway is that Military Rule of Evidence 412(c)(3) should be amended so that it is consistent with its federal counterpart and only references “unfair prejudice” and not “unfair prejudice to the alleged victim’s privacy….” But if it is not amended, is it such a big deal? I don’t think so. In my mind, the biggest difference between the civil and criminal exceptions to the federal Rape Shield Rule is the inverted balancing test, not the nature of the “unfair prejudice” balanced. Why?

Well, it is not as if judges are precluded from protecting witnesses from attacks on their privacy and other harmful interrogation techniques. To wit, Federal Rule of Evidence 611(a) provides that

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

Thus, regardless of whether the balancing test for the rape shield rule mentions witness harassment or privacy, judges can still consider such dangers as part of the admissibility calculus. I thus think that the wording of this portion of Military Rule of Evidence 412(c)(3) is less harmful then the Gaddis court intimated.

But wait a minute. If the court is correct that Military Rule of Evidence 412(c)(3) is meant to be modeled after its federal counterpart, isn’t there a bigger problem with the rule? Under Federal Rule of Evidence 412(b)(1)(A)-(C), evidence of an alleged victim’s sexual history offered for a permissible purpose in a criminal case is admissible as long as its probative value is not substantially outweighed by the danger of unfair prejudice (and other dangers) under Federal Rule of Evidence 403. Under Military Rule of Evidence 412(c)(3), evidence of an alleged victim’s sexual history offered for a permissible purpose is admissible only if “the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim’s privacy….” These balancing tests are clearly different, meaning that if the military rule is to be amended, this portion definitely needs to be amended.

The second takeaway is that I think the court got the Constitutional analysis wrong. Again, according to the court,

The test would only be unconstitutional in circumstances under which a military judge excluded evidence, the exclusion of which would violate the constitutional rights of the accused, because its probative value did not outweigh the danger of unfair prejudice to the alleged victim’s privacy. In those circumstances, the test would be unconstitutional as applied.

Why? The court is right that Military Rule of Evidence 412(c)(3) should not mention the alleged victim’s privacy if it is supposed to be the equivalent of its federal counterpart. But this is an evidentiary issue, not a Constitutional issue. Similarly, the fact that Rule 611(a) does allow judges to protect witnesses from harassment or undue embarrassment is also an evidentiary issue, not a Constitutional issue.

So, let’s look back at Gaddis’ Constitutional argument. Gaddis argued that application of the military rape shield rule violated his right to present a defense. As the court responded, “rape-shield statutes like M.R.E. 412 do not violate an accused’s right to present a defense unless they are ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.'” Is it arbitrary to limit evidence of a young girl’s sexual history to protect her privacy and avoid embarrassment? Is it disproportionate to do so based upon the history of rape shield rules and what historically went on in rape and sexual assault cases? I would say that the answer to both questions is “no,” but the United States Court of Appeals for the Armed Forces implies that the answer to both questions is a clear “yes.”

-Colin Miller

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