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Do Ask, Don’t Tell: Significant Change Made to Military’s Rape Shield Rule, by Colin Miller, Evidence ProfBlogger, EvidenceProf Blog


Military Rule of Evidence 412, the military’s rape shield rule, reads as follows:

Rule 412. Nonconsensual sexual offenses; relevance of victim’s behavior or sexual predisposition

(a) Evidence generally inadmissible. The following evidence is not admissible in any proceeding involving alleged sexual misconduct, except as provided in sections (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. In a proceeding under this chapter, the following evidence is admissible, if otherwise admissible under these rules:

(1) 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;

(2) 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 III-15

(3) evidence the exclusion of which would adversely affect the integrity or fairness of the proceeding.

So, let’s say that a military judge deems evidence of a serviceperson’s sexual history or predisposition admissible under this rape shield rule. What can the serviceperson do?

According to an article in Hawai’i Army Weekly,

victims may now petition the service court of criminal appeals for a writ of mandamus in cases where the victim believes the military judge erred in a ruling pertaining to rape shield evidence under Military Rule of Evidence 412 or violating the psychotherapist-patient privilege under MRE 513.

A writ of mandamus is

an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion….

In the federal courts, these orders most frequently appear when a party to a suit wants to appeal a judge’s decision but is blocked by rules against interlocutory appeals. Instead of appealing directly, the party simply sues the judge, seeking a mandamus compelling the judge to correct his earlier mistake.

So, assume that a serviceperson is being court martialed for raping another serviceperson, and the military judge deems evidence of the alleged victim’s sexual history or predisposition admissible. Under this new version of Rules 412 and 513, the victim can immediately file a writ of mandamus to have the evidentiary ruling reversed. Here is the specific new language that has been added:

(d) Victim’s Rights. A victim of an offense specified in subsection (b) shall have rights as follows:

(1) To a Special Victims’ Counsel provided under section 1565b(b) of this title.

(2) To have all communications between the victim and any Sexual Assault Response Coordinator, Sexual Assault Victim Advocate, or Special Victims’ Counsel for the victim considered privileged communications for purposes of the case and any proceedings relating to the case.

(e) Availability of Writ of Mandamus. To seek enforcement of the rights accorded a victim under subsection (d), the victim may apply for a writ of mandamus. The right shall first be asserted to the military judge in any court-martial proceeding in which the accused is being tried. The military judge shall take up and decide any motion asserting  a victim’s right in this section. If the military judge denies the  relief sought, the victim may petition the court of criminal appeals  for a writ of mandamus. The Court of Criminal Appeals for an armed force has jurisdiction to grant relief sought under this paragraph. If the court of appeals denies the relief sought, the reasons for the  denial shall be clearly stated on the record in a written opinion.

Given the issues that the military has had with rape and sexual assault, this is a significant change that should make victims of these crimes more willing to come forward.