Strategic Sexual Assault Litigation Skills

The Naval Justice School conducted a Strategic Sexual Assault Litigation Skills Course this week in Newport, Rhode Island. The course was designed to teach the responsibilities of senior counsel in mentoring junior counsel. The course primarily concentrated on advanced litigation skills. I was invited to speak on how the rules of evidence can most effectively be used by defense counsel when representing a client faced with either a sexual assault or child molestation charge.

When preparing to litigate the admissibility of evidence in sexual assault or child molestation cases, it is important to understand the policy purpose behind the rules. There are three rules under the Military Rules of Evidence (MRE) that your defense should be very familiar with if you are facing either a sexual assult or child molestation charge. The three MREs are 412, 413 and 414.

The policy purpose behind MRE 412 is to protect victims of sexual misconduct from harassment, embarrassment, and invasions of privacy, while encouraging victims to report crimes and testify against offenders. The rule is commonly called the “rape shield” rule. MRE 412 applies at all stages of a case, including Article 32s. This rule effectively keeps out otherwise relevant evidence in order to protect the privacy interests of victims of sexual misconduct. The authority given to an accused under MRE 404(a)(2) to prove a relevant character trait of a victim is withdrawn by MRE 412 in cases involving sexual misconduct.

A 2007 amendment to Rule 412 clarifies that it applies in all cases involving a sexual offense wherein the person against whom the evidence is offered can reasonably be characterized as a “victim of the alleges sexual offense.” Additionally, operation of the rule does not require an actual charge of a sexual offense, so long as the charge involves sexual misconduct. Thus, if an accused were to kidnap a person for the purpose of a sexual attack, the rule would apply even though the accused is only charged with kidnapping.

MRE 413 and 414 are designed to trump the bar against using propensity evidence to prove the accused committed the crime charged. MRE 404(a) is clear, with few exceptions, that evidence of an accused’s character, when offered to prove he acted in conformity with that character on a particular occasion, is not allowed. MRE 413 and 414 are intended to provide for more liberal admissibility of character evidence in criminal cases of sexual assault and child molestation where the accused has committed a prior act of sexual assault or child molestation.

What your Defense Counsel Should Understand

A. Understanding what MRE 412 prohibits. The exclusions of MRE 412 go beyond actual physical sexual conduct. They include an alleged victim’s use of contraceptives, the fact she has an illegitimate child, or that she once had a venereal disease. The exclusion also applies to the way the alleged victim dresses, speaks, or carries herself if offered as sexual predisposition evidence.

B. Understand the exceptions to MRE 412. As a defense counsel, it is vitally important to understand the exceptions. Subsection (b)(1) of the rule contains three exceptions to the general rule of inadmissibility of specific instances of sexual behavior by the alleged victim. The exceptions are (1) to prove someone other that the accused was the source of semen, injury, or other physical evidence; (2) sexual conduct with the accused to prove consent to the acts charged; and (3) instances in which the exclusion would violate the constitutional rights of the accused. The first two exceptions are straightforward in their application. It is the third exception that gives counsel the greatest difficulty. It is important to understand that the “constitutional rights” referred to in subsection (b)(1)(C) concern the accused’s Sixth Amendment right to confront witnesses and his due process right to present a defense. For example, an accused charged with rape has the constitutional right to prove the complainant was living with another man to show she had a motive to falsely accuse him of the rape. Olden v. Kentucky, 488 U.S. 227 (1988).

C. Effectively arguing “constitutionally required” evidence – the defense counsel must show that the evidence is relevant, material, and favorable to the defense. The defense counsel must also survive the heightened balancing test under MRE 412 to show that the probative value of the evidence offered outweighs the danger of unfair prejudice to the alleged victim’s privacy. In order to accomplish this task, the mantra, Relevant, Material, Favorable to the Defense, must be driving home to your counsel. The defense must independently establish each and every one of these elements in order to establish that evidence is constitutionally required. There are, in general, 3 types of constitutional evidence that are considered fundamental: Confrontation, Compulsory process, and Due Process. A criminal defendant has a right to a meaningful opportunity to present a complete defense. Any argument your counsel make should tie their need for the information to one of these fundamental rights and then argue why that evidence affects their ability to present a defense.

1. Relevance: The key to understanding what is relevant and admissible is being able to articulate a theory of the case. Why? What happens if you cannot articulate a theory of the case? Then you probably are trying simply to smear the victim, something that is not permitted. On the other hand, if you can articulate a theory and convince a military judge that you will not be able to present a defense without the evidence, you might gain admission of the evidence.

2. Material: The key to understanding what is material, is understanding that the military judge will look at the importance of the issue for which the evidence is being offered in relation to the other issues in the case; the extent to which that issue is in dispute; and the nature of the other evidence available in the case pertaining to that issue. In other words, if the issue is collateral or if there is non-412 evidence available to prove it, then you will not be able to meet the requirement of materiality. However, if it is an important issue, if there is no other way of proving it but by using the 412 evidence, then you stand a much better chance of success.

3. Favorable to the defense: all evidence being offered by the defense should be favorable. This analysis under 412 is more concerned with whether the probative value of the evidence outweighs the danger of unfair prejudice to the alleged victim’s privacy. This standard is different from Rule 403 which would state the evidence is admissible unless the danger of unfair prejudice substantially outweighs its probative value. Rule 403 is written to favor admissibility when the balance is close, while Rule 412’s balancing test is written to disfavor admissibility.

D. Understand what MRE 413-414 allows – The rules are designed to trump the bar against using propensity evidence to prove the accused committed the crime charged, however, prior to admitting 413 or 414 evidence, the military judge must make certain threshold findings.

1. That the accused is charged with a sexual offense under Rule 413/414;
2. the evidence that the government is attempting to admit under 413/414 involves the accused’s commission of another offense; AND
3. the evidence is relevant under Rules 401 and 402.

The first and second threshold requirement is usually met by simply looking at the charge sheet and the proffer of the government regarding the uncharged offense. The third threshold requirement is a relevancy one. A military judge must determine that information is relevant, and that a panel could reasonably find that the accused committed the uncharged offenses (note that there is no requirement that the accused was convicted or even charged with the other uncharged conduct).

Lastly, although the rule states “is admissible” the military judge is required to conduct a MRE 403 balancing test prior to admitting evidence of similar crimes under 413 or 414. The 403 test is not altered when considering evidence under 413 or 414. As with 404(b) evidence, the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice. To effectively argue “unfair prejudice” counsel need to understand that unfair prejudice to the accused means that the panel will use the evidence for an impermissible purpose. The panel will respond to the evidence, usually in an emotionally way, that will cause them to ignore other admissible and more relevant evidence on the issue and decide the case on an improper basis.