|  In
a criminal case involving an alleged sexual assault, the defense
attorney will need to address a number of issues in preparing for
trial. One matter that may become a source of contention in the
case is the sexual history of the alleged victim. Years ago, the
legislative bodies of our federal and state governments recognized
that when a victim of sexual assault is subjected to intense cross-examination
of her sexual history, it may discourage the reporting of sexual
offenses, or otherwise unduly interfere with the administration
of justice. The days of a defense attorney indiscriminately assailing
the sexual history of the victim, in an effort to secure an acquittal
for the defendant, are long gone.
Victims of sexual offenses now have a broad veil of protection
from that sort of trial tactic by defense attorneys, courtesy of
what is commonly referred to as the “Rape Shield Law.”
In the military, that law has been codified by Military Rules of
Evidence (M.R.E.) 412, which provides as follows:
(a) Evidence generally inadmissible. The following evidence is
not admissible in any proceeding involving alleged sexual misconduct,
except as provided in subsections (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged
in other
sexual behavior.
(2) Evidence offered to prove any alleged victim’s sexual
predisposition.
(b) Exceptions:
(1) In a proceeding, the following evidence is admissible, if
otherwise admissible under these rules:
(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.
(c) Procedure to determine admissibility.
Rule 412 is intended to shield victims of sexual assaults from
the often embarrassing and degrading cross-examination and evidence
presentations common to prosecution of such offenses. However, M.R.E.
412 recognizes the fundament right of an accused under the Fifth
Amendment of the Constitution of the United States to present relevant
evidence that is “constitutionally required to be admitted.”
Let me give some examples as to how the exceptions to this rule
of evidence work.
a) Assume that the alleged victim is examined by a physician or
Sexual Abuse Nurse Examiner (SANE) and evidence of bruising is found
on the alleged victim. At trial, the prosecution will likely present
evidence of the “injuries” to the court as being caused
by the sexual assault of the accused. If the defense has evidence
that the alleged victim engaged in sexual relations with another
person prior to the alleged assault, the defense may be permitted
to present evidence of the prior sexual activity to attempt to establish
that the “injuries” occurred as a result of the prior
sexual activity, rather than by the accused. Under the first exception
to M.R.E. 412, the defense may be successful in that argument.
b) Assume that the alleged victim had been dating the accused for
a couple of months prior to the alleged rape and that they had previously
engaged in consensual sexual relations. She now says he raped her,
and while he acknowledges they had sex, he says it was consensual.
The question here is to what extent is their prior sexual relationship
admissible? Consider the opposing arguments: The prosecution argues
that regardless of how many times they had sex, NO means NO and
that the defense should not be permitted to elicit testimony as
to the prior consensual sexual relationship between them. On the
other hand, the defense argues that when we are dealing with the
issue of consent, the fact that she engaged in consensual sex with
the accused in the past is clearly relevant to the issue of consent
on this occasion. Under the second exception to M.R.E. 412, the
fact that they engaged in prior sexual relationships may be admissible.
c) Assume that the alleged victim has previously filed a complaint
of sexual abuse against another person. The defense will likely
investigate that incident with great detail. If the defense can
establish that the prior complaint of sexual abuse was false, the
defense will argue that evidence of prior false complaints and the
facts related to that situation, are admissible to show the propensity
of the alleged victim to bring false complaints of sexual assault.
In this scenario, the analysis to M.R.E. 412 states that evidence
of past false complaints of sexual abuse by an alleged victim does
not fall within the scope of this rule which means it may be admissible
into evidence.
Although the rule provides for admissibility of prior sexual activity
under the noted exceptions, before that evidence can come before
the court, the defense must file a notice of intent to present the
evidence before trial. A pre-trial hearing will be held, at which
evidence will be heard, the position of the parties will be argued
and the alleged victim can participate in the proceedings. The court
has broad power to prohibit or limit such evidence, however if it
does so, the defense will likely claim that the refusal of the court
to permit the evidence violates the constitutional rights of the
accused. The court also has the power to close the court, and to
seal the records of the proceedings, in an effort to minimize the
exposure of the alleged victim to the public scrutiny.
This is a most difficult area of criminal law and the subject of
much controversy. Prosecutors and victim’s advocates argue
that the Rape Shield Law should be strictly applied to “shield”
any alleged victim of sexual assault from any inquiry by the defense
attorney as to the sexual history or character of the victim. Defense
attorneys on the other hand will argue that their client can not
get a fair trial if all of the relevant evidence of the alleged
victim’s sexual history is not presented before the court.
The court must carefully weigh and balance the rights of the accused
to due process of law against the rights of the alleged victim –
a difficult task at best.
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