These are three things you should know about military sexual assault trials. There’s so much more that goes into any sexual assault allegation, but these three things may surprise you.
An Alleged Victim’s Sexual History is Heavily Protected at Trial
The military and many state courts have remarkably strong safe guards in favor of an alleged sexual assault victim’s right to privacy. These laws are known as Rape-Shield laws in many courts. In the military we call it Military Rule of Evidence 412.
Rule 412 provides that the past sexual predispositions and behaviors of an alleged victim cannot ordinarily be used at trial. In order to make mention of virtually any information that contains sexualized connotation, the defense has to first file a timely motion with the military judge asking permission to use the information at trial. The defense then has to prove why that information is critical to their defense, which is often an uphill battle unless you can directly link the past event with the Accused’s belief that the alleged sexual assault was consensual, or to discredit the alleged victim in a manner directly relevant to the allegations at hand.
Can Prior Affairs Be Used Against a Sexual Assault Accuser?
If there’s an extramarital relationship between the alleged victim and the accused, that can be used as a plausible reason for a false accusation. Even if that past affair wasn’t with the Accused, but with someone else, that information may still be admissible if the defense can clearly identify an explanation as to how that past relationship formed a motive for the alleged victim to lie against the Accused.
In our line of work, we call all of these circumstances motives to lie or motives to fabricate. And so, in this example, an extra-marital relationship could be a motive to fabricate. If our client had an affair with a married woman, and that married woman later alleges that our client sexually assaulted her, we could introduce evidence of their prior affair, and potentially even evidence of her affairs with other men, if you can show how her sexual history created a reason for her to lie or to show why the Accused thought he had consent.
If the alleged victim was married, perhaps that person’s spouse was unaware of the extramarital relationship, and that can cause the alleged victim to claim sexual assault to avoid personal responsibility for the infidelity. It’s sad to say, but we see that in a lot of cases. Many alleged victims attempt to get around their own accountability by making claims of sexual assault.
We’ve even seen it in cases where a military member says that they’ve had a bad year or bad few months in their military career, and they use sexual assault to explain their poor performance or any variety of things that might be going on in their personal life. Whether it’s an affair, or any other motive to fabricate, it’s all about how your attorney navigates the rules of the court in order to present the strongest evidence of your innocence.
Previous False Allegations of Sexual Assault Might Not be Admissible
If an alleged victim has made previous false accusations of sexual assault, it depends on the particular case on whether that information can be entered into evidence for the defense. Again, Military Rule of Evidence 412 limits the amount of information that is not related to the sexual assault at issue from being placed before the members. So, prior claims of sexual assault or sexual offenses, if false, may be admissible, and that’s a maybe. It really depends on the ability of the defense attorney to convince the judge that that information is relevant to the case at hand.
Current military case law says that the burden is on the defense to prove by a preponderance of the evidence that an alleged victim’s prior sexual assault claim is untrue before being permitted to use it at trial. When we prep our cases, we go through an extensive investigation to determine whether an alleged victim has made previous claims of sexual assault. We investigate to determine what happened with those previous claims. But not all attorneys use previous claims to defend military members around the world. It simply relies on your attorney’s ability to get that information, investigate that information, and convince the military judge that the information is relevant to your particular case. Oftentimes, we hear the government argue that somebody can lie in one circumstance and tell the truth in another, and while that’s true, in military sexual assault cases, the truth is extremely important. Credibility is extremely important. Therefore, you need an attorney that’s capable of convincing the judge to allow these false accusations in the past to be used in the defense of your particular case.
You Have a Right to Have Free Experts in a Military Sexual Assault Case
There are dozens of ways in which an expert witness could be important in a criminal trial. In military sexual assault cases, there could be a need for an expert in psychology, DNA analysis, digital forensics, gynecology, toxicology, and law enforcement. We’ve seen these types of experts in famous TV cases like in the Johnny Depp case, and many others.
In the military, an accused person has the right to the appointment of experts in any field that are deemed necessary. The experts that we typically use are nationally renoun figures in their field with incredible reputations. Obviously, these experts can be very costly. But if your attorney can establish their necessity, the Government will be forced to pay for everything related to that expert.
In some cases, the prosecution uses their own experts to help prove their case. Ordinarily, the defense will be appointed a confidential expert in the same field as any expert the prosecution intends to make part of their case. These “defensive” experts are important to make sure the prosecution’s witness doesn’t say something that isn’t supported by the science in their field. If the prosecution expert does say something wrong, the defense expert will help the attorneys craft questions for cross-examination, or may even take the witness stand themselves to explain why the prosecution expert is wrong.
In other situations, the defense expert is needed to present scientific information even though the prosecution does not have expert testimony to present. We have used this strategy many times to call an expert in the defense side of the case to help prove why the allegations are untrue or unreliable.
Since so many military sexual assault cases involve alcohol, often an expert in forensic psychology or toxicology is necessary for the defense to offer testimony about the effects of alcohol and how those effects can reduce the reliability of the allegations.
At Golden Law, we’ve established great relationships with some of the best experts in the world, and have those experts by our side when we walk into a courtroom. We will find the right experts for your case to work for the defense, even when the government wants to involve their experts, no matter how reliable or unreliable they may be.
