Rule 412 Should Apply to the Government

Military Rule of Evidence 412 is an exclusionary rule that places the sexual behaviors of an alleged victim of a sexual offense beyond the limits of relevancy.  Any evidence of the “sexual behavior” or “sexual predispositions” of an alleged victim is forbidden from being admitted in any proceeding.  The Rule does have three stated exceptions that allow such evidence to be admissible if it 1) proves “that a person other than the accused was the source of semen, injury, or other physical evidence; 2) is conduct between the alleged victim and accused offered to prove consent or by the prosecution; or 3) is evidence that “the exclusion of which would violate the constitutional rights of the accused.”

Rule 412 does not distinguish between the defense and the government.  In fact, it uses the term “a party” instead of just “the defense” when introducing the procedural requirements of the rule.  The term “a party” in Rule 412 has a clear legal meaning referencing both the defense and the government.  Rule 412 also requires that “a party intending to offer evidence under subsection (b) must-” file a written motion.  The Rule provides that the moving party will serve its motion “on the opposing party” as well as notify the alleged victim.  The use of “a party” and “opposing party” in Rule 412 would not make sense if it was intended to only apply to the defense.

The strict procedural protections are designed to protect the purported victim from potentially humiliating evidentiary arguments in open court.  As such, the procedural protections apply regardless of whether it is the defense or the government attempting to elicit evidence of an alleged victim’s sexual behavior or sexual predisposition.

If Rule 412 did not apply equally to the government, it would present the potential for absurd results in contravention of the rule.  For example, suppose the defense wanted to introduce evidence that an alleged victim habitually dressed provocatively in order to support its theory that she wanted to engage in sexual behavior with the accused.  A military judge would correctly prevent such evidence from being admitted under the rule.  If we suppose instead that it is the government that wants to introduce this same evidence in order to support its theory that the accused targeted the alleged victim because of the manner of her dress, would we really expect such evidence to be admissible?  Such a result would violate the state purpose of Rule 412 in shield an alleged victim from embarrassing and degrading examination.  As such, it is clear that the government should not get a free pass when it comes to complying with the procedural protections of Rule 412.