Mil. R. Evid. 412 limits the extent to which an accused in a sexual assault case can introduce evidence regarding the alleged victim’s prior sexual behavior. The rule, however, carves out three exceptions. Under Mil. R. Evid. 412 (b)(1), the following evidence is admissible:
(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...; and
(C) evidence the exclusion of which would violate the constitutional rights of the accused. In analyzing admissibility, the military judge must first determine whether the evidence is relevant under Mil. R. Evid. 401, and then apply the balancing test under Mil. R. Evid. 412 (c)(3).
Under Mil. R. Evid. 412 (b)(1)(C), the accused has a right to present evidence that is relevant, material, and favorable to his defense. United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004). In applying the rule, the military judge is not asked determine whether the proferred evidence is true, it is for the members to weigh the evidence and determine its veracity. Id.
In determining whether evidence is material, the military judge looks at 'the importance of the issue for which the evidence was offered in relation to the other issues in the case; the extent to which this issue is in dispute; and the nature of the other evidence in the case pertaining to this issue. Banker, 60 M.J at 222 (quoting United States v. Colon-Angueira, 16 M.J. 20, 26 (C.M.A. 1983)). Under the rule, the term favorable is synonymous with “vital.” Id.
Important Cases
Relevance of Extramarital Relationships (Lying to Protect a Relationship)
Evidence of an extramarital relationship can be relevant, material, and favorable to the defense theory of the case when it shows that the alleged victim would lie to protect the relationship. See generally, Olden v. Kentucky, 488 U.S. 227 6 (1988); United States v. Williams, 37 M.J. 352(C.M.A. 1993).
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Evidence may also be constitutionally required when the alleged victim has a motive to testify falsely to explain to her boyfriend why she was with another individual. United States v. Sanchez, 44 M.J. 174, 179 (C.A.A.F. 1996).
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In a prosecution for rape and sodomy, evidence of an prior extramarital affair of the alleged victim, including her husband’s reaction to it, had a direct and substantial link to the victim’s credibility, a material fact at issue, where the existence of a prior affair may have established a greater motive for the victim to lie about whether her sexual encounter with appellant was consensual, namely a motive to protect her marriage; because the evidence had a tendency to prove or disprove a substantial issue in question, it was both relevant and material; in addition, the probative value of the evidence of the prior affair outweighed the dangers of unfair prejudice where the victim’s credibility was crucial to appellant’s conviction and there was no dispute as to whether the affair occurred, making it unlikely that the evidence would result in a waste of time or lead to a trial within a trial to determine whether past events actually occurred; as such, the evidence of the prior affair was constitutionally required in this case as an exception to MRE 412(a), and the military judge erred when he prevented appellant from presenting a theory that a prior affair made it more likely that the victim would have lied. United States v. Ellerbrock, 70 M.J. 314.
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Appellant, who was charged with rape, was entitled to cross-examine the victim, his wife, about her relationship with another man and about her phone call to that man immediately after the underlying rape incident, where appellant wanted to establish that the relationship with the man was a motive for the victim to fabricate the rape allegation and the proposed line of questioning did not involve allegations of sexual behavior that would implicate the exclusionary rule of MRE 412; cross-examination of this man may have established a motive for the victim to fabricate her allegation of rape, and the military judge erred in excluding this cross-examination. United States v. Roberts, 69 M.J. 23
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Even assuming that evidence that the victim was previously involved in consensual sexual relations with an enlisted member was relevant in the prosecution of appellant for sexual misconduct with the victim, the confrontation clause did not entitle him to cross-examine the victim about that prior relationship; although the victim’s credibility was in dispute, knowledge of the exact nature of her indiscretion in relation to the other issues in the case was not important where the military judge allowed appellant to present a fairly precise and plausible theory of bias, i.e., that the victim lied to preserve a secret which if revealed could have an adverse impact on her military career, including possibly disciplinary action under the UCMJ; while the victim’s credibility was in contention, it is unclear why the lurid nuances of her sexual past would have added much to appellant’s extant theory of fabrication. United States v. Smith, 68 M.J. 445.
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Previous False Accusations of Sexual Assault
Evidence of an alleged victim's prior accusation of sexual assault is only admissible if the prior accusation is shown to be false. It can also be admissible under M.R.E. 404 (b) as modus operandi, motive, or character for truthfulness evidence.United States v. Erikson, 76 M.J. 231.
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Lying to Protect a Reputation
The prosecution opened the door to cross-examination of the victim with respect to a prior complaint of sexual assault that the defense contended was fabricated to protect her reputation, where the prosecution introduced evidence of the victim’s prior complaint to bolster her credibility with respect to the reasons for her delayed reporting of the charged offense, thereby benefiting the prosecution. United States v. Savala, 70 M.J. 70.
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Procedure for Admissibility under Banker
United States v. Banker, 60 MJ 216
MRE 412, the rape shield evidence rule precluding admission of evidence of the sexual history of sexual assault victims, was intended to safeguard the alleged victim against the invasion of privacy and potential embarrassment that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact-finding process; by affording victims protection in most instances, the rule encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders; MRE 412 was intended to protect victims of sexual offenses from the degrading and embarrassing disclosure of intimate details of their private lives while preserving the constitutional rights of the accused to present a defense).
MRE 412 is not limited to nonconsensual sexual offenses, but applies to proceedings involving alleged sexual misconduct; following the 1998 amendments to MRE 412, the applicability of MRE 412 hinges on whether the subject of the proffered evidence was a victim of the alleged sexual misconduct and not on whether the alleged sexual misconduct was consensual or nonconsensual.
In the trial of the accused for sexual misconduct involving a 14-year-old babysitter, the proffered testimony of the accused’s son that the babysitter sexually molested him fell within the scope of MRE 412 because the babysitter was a victim of the accused’s sexual misconduct where due to her age, she was not capable of legally consenting, notwithstanding any factual consent.
The purpose of the MRE 412 rape shield law is to protect alleged victims of sexual offenses from undue examination and cross-examination of their sexual history; MRE 412 is a rule of exclusion; MRE 412 is broader in its reach than its federal counterpart; under MRE 412, not only is evidence of the alleged victim’s sexual propensity generally inadmissible, evidence offered to prove an alleged victim engaged in other sexual behavior is also generally excluded.
In order to overcome the exclusionary purpose of MRE 412, an accused must demonstrate why the general prohibition in MRE 412 should be lifted to admit evidence of the sexual behavior of the victim; in particular, the proponent must demonstrate how the evidence fits within one of the exceptions to the rule; in light of the important and potentially competing constitutional and privacy claims incumbent in MRE 412, the rule requires a closed hearing to consider the admission of the evidence; among other things, the victim must be afforded a reasonable opportunity to attend and be heard at this closed hearing.
Based on the evidence presented at the closed hearing held under MRE 412, the military judge applies a two-part process of review to determine if the evidence is admissible; first, pursuant to MRE 401, the judge must determine whether the evidence is relevant; evidence is relevant if it has any tendency to make the existence of any fact more probable or less probable than it would be without the evidence; where the military judge determines that evidence is relevant, the judge employs a second analytic step by conducting a balancing test to determine whether the probative value of such evidence outweighs the danger of unfair prejudice; the accused has a right to put on testimony relevant to his theory of defense; however, the right to present relevant testimony is not without limitation; the right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.
Although a two-part relevance-balance analysis is applicable to all three of the enumerated exceptions to MRE 412, evidence offered under the constitutionally required exception is subject to distinct analysis; while the relevancy portion of this test is the same as that employed for the other two exceptions of the rule, if the evidence is relevant, the military judge must then decide if the evidence offered under the constitutionally required exception is material and favorable to the accused’s defense, and thus whether it is necessary; in determining whether evidence is material, the military judge looks at the importance of the issue for which the evidence was offered in relation to the other issues in this case, the extent to which this issue is in dispute, and the nature of the other evidence in the case pertaining to this issue; after determining whether the evidence offered by the accused is relevant and material, the judge employs the MRE 412 balancing test in determining whether the evidence is favorable to the accused’s defense; while the term favorable may not lend itself to a specific definition, this Court believes that based on Supreme Court precedent and the Court’s own rulings in this area, the term is synonymous with vital.
Although the MRE 412 balancing test bears resemblance to the MRE 403 balancing test, the two tests are distinct; the balancing test contained in MRE 412 differs in two critical respects from that contained in MRE 403; first, under the MRE 403 balancing test, a presumption of admissibility exists since the burden is on the opponent to show why the evidence is inadmissible; MRE 403 is a rule of inclusion; in contrast, MRE 412 is a rule of exclusion; the burden of admissibility shifts to the proponent of the evidence to demonstrate why the evidence is admissible; second, MRE 403 is generally applicable to evidence offered by either the government or the accused; to exclude evidence under MRE 403, the military judge must find substantial prejudice leading to one of a number of enumerated harms, including unfair prejudice to the accused; MRE 412’s general rape shield rule is applicable to both parties; however, in contrast to MRE 403, the balancing test that MRE 412 establishes for exceptions to the general rule contemplates evidence that the accused seeks to offer; thus, MRE 412 requires the military judge to determine on the basis of the hearing that the evidence that the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice; it would be illogical if the judge were to evaluate evidence offered by the accused for unfair prejudice to the accused; rather, in the context of the rape shield rule, the prejudice in question is, in part, that to the privacy interests of the alleged victim; as a result, when balancing the probative value of the evidence against the danger of unfair prejudice under MRE 412, the military judge must consider not only the MRE 403 factors such as confusion of the issues, misleading the members, undue delay, waste of time, needless presentation of cumulative evidence, but also prejudice to the victim’s legitimate privacy interests.
MRE 412 does not wholly supplant MRE 403 since the military judge may exclude evidence on MRE 403 grounds even if that evidence would otherwise be admissible under MRE 412.
In applying MRE 412, the judge is not asked to determine if the proffered evidence is true; it is for the members to weigh the evidence and determine its veracity; rather, the judge serves as gatekeeper deciding first whether the evidence is relevant and then whether it is otherwise competent, which is to say, admissible under MRE 412; while evidence of a motive to fabricate an accusation is generally constitutionally required to be admitted, the alleged motive must itself be articulated to the military judge in order for him to properly assess the threshold requirement of relevance.
Rule 412. Sex offense cases; relevance of alleged victim’s sexual behavior or sexual predisposition
(a) Evidence generally inadmissible
The following evidence is not admissible in any proceeding involving an alleged sexual offense except as provided in subdivisions (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
(1) A party intending to offer evidence under subsection (b) must--
(A) file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is offered unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and
(B) serve the motion on the opposing party and the military judge and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.
(2) Before admitting evidence under this rule, the military judge must conduct a hearing, which shall be closed. At this hearing, the parties may call witnesses, including the alleged victim, and offer relevant evidence. The alleged victim must be afforded a reasonable opportunity to attend and be heard. In a case before a court-martial composed of a military judge and members, the military judge shall conduct the hearing outside the presence of the members pursuant to Article 39(a). The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.
(3) If the military judge determines on the basis of the hearing described in paragraph (2) of this subsection that the evidence that the accused seeks to offer is relevant for a purpose under subsection (b) and that the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim's privacy, such evidence shall be admissible under this rule to the extent an order made by the military judge specifies evidence that may be offered and areas with respect to which the alleged victim may be examined or cross-examined. Such evidence is still subject to challenge under Mil. R. Evid. 403.
(d) For purposes of this rule, the term “sexual offense” includes any sexual misconduct punishable under the Uniform Code of Military Justice, federal law or state law. “Sexual behavior” includes any sexual behavior not encompassed by the alleged offense. The term “sexual predisposition” refers to an alleged victim's mode of dress, speech, or lifestyle that does not directly refer to sexual activities or thoughts but that may have a sexual connotation for the factfinder.
(e) A “nonconsensual sexual offense” is a sexual offense in which consent by the victim is an affirmative defense or in which the lack of consent is an element of the offense. This term includes rape, forcible sodomy, assault with intent to commit rape or forcible sodomy, indecent assault, and attempts to commit such offenses.
(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...; and
(C) evidence the exclusion of which would violate the constitutional rights of the accused. In analyzing admissibility, the military judge must first determine whether the evidence is relevant under Mil. R. Evid. 401, and then apply the balancing test under Mil. R. Evid. 412 (c)(3).
Under Mil. R. Evid. 412 (b)(1)(C), the accused has a right to present evidence that is relevant, material, and favorable to his defense. United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004). In applying the rule, the military judge is not asked determine whether the proferred evidence is true, it is for the members to weigh the evidence and determine its veracity. Id.
In determining whether evidence is material, the military judge looks at 'the importance of the issue for which the evidence was offered in relation to the other issues in the case; the extent to which this issue is in dispute; and the nature of the other evidence in the case pertaining to this issue. Banker, 60 M.J at 222 (quoting United States v. Colon-Angueira, 16 M.J. 20, 26 (C.M.A. 1983)). Under the rule, the term favorable is synonymous with “vital.” Id.
Important Cases
Relevance of Extramarital Relationships (Lying to Protect a Relationship)
Evidence of an extramarital relationship can be relevant, material, and favorable to the defense theory of the case when it shows that the alleged victim would lie to protect the relationship. See generally, Olden v. Kentucky, 488 U.S. 227 6 (1988); United States v. Williams, 37 M.J. 352(C.M.A. 1993).
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Evidence may also be constitutionally required when the alleged victim has a motive to testify falsely to explain to her boyfriend why she was with another individual. United States v. Sanchez, 44 M.J. 174, 179 (C.A.A.F. 1996).
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In a prosecution for rape and sodomy, evidence of an prior extramarital affair of the alleged victim, including her husband’s reaction to it, had a direct and substantial link to the victim’s credibility, a material fact at issue, where the existence of a prior affair may have established a greater motive for the victim to lie about whether her sexual encounter with appellant was consensual, namely a motive to protect her marriage; because the evidence had a tendency to prove or disprove a substantial issue in question, it was both relevant and material; in addition, the probative value of the evidence of the prior affair outweighed the dangers of unfair prejudice where the victim’s credibility was crucial to appellant’s conviction and there was no dispute as to whether the affair occurred, making it unlikely that the evidence would result in a waste of time or lead to a trial within a trial to determine whether past events actually occurred; as such, the evidence of the prior affair was constitutionally required in this case as an exception to MRE 412(a), and the military judge erred when he prevented appellant from presenting a theory that a prior affair made it more likely that the victim would have lied. United States v. Ellerbrock, 70 M.J. 314.
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Appellant, who was charged with rape, was entitled to cross-examine the victim, his wife, about her relationship with another man and about her phone call to that man immediately after the underlying rape incident, where appellant wanted to establish that the relationship with the man was a motive for the victim to fabricate the rape allegation and the proposed line of questioning did not involve allegations of sexual behavior that would implicate the exclusionary rule of MRE 412; cross-examination of this man may have established a motive for the victim to fabricate her allegation of rape, and the military judge erred in excluding this cross-examination. United States v. Roberts, 69 M.J. 23
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Even assuming that evidence that the victim was previously involved in consensual sexual relations with an enlisted member was relevant in the prosecution of appellant for sexual misconduct with the victim, the confrontation clause did not entitle him to cross-examine the victim about that prior relationship; although the victim’s credibility was in dispute, knowledge of the exact nature of her indiscretion in relation to the other issues in the case was not important where the military judge allowed appellant to present a fairly precise and plausible theory of bias, i.e., that the victim lied to preserve a secret which if revealed could have an adverse impact on her military career, including possibly disciplinary action under the UCMJ; while the victim’s credibility was in contention, it is unclear why the lurid nuances of her sexual past would have added much to appellant’s extant theory of fabrication. United States v. Smith, 68 M.J. 445.
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Previous False Accusations of Sexual Assault
Evidence of an alleged victim's prior accusation of sexual assault is only admissible if the prior accusation is shown to be false. It can also be admissible under M.R.E. 404 (b) as modus operandi, motive, or character for truthfulness evidence.United States v. Erikson, 76 M.J. 231.
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Lying to Protect a Reputation
The prosecution opened the door to cross-examination of the victim with respect to a prior complaint of sexual assault that the defense contended was fabricated to protect her reputation, where the prosecution introduced evidence of the victim’s prior complaint to bolster her credibility with respect to the reasons for her delayed reporting of the charged offense, thereby benefiting the prosecution. United States v. Savala, 70 M.J. 70.
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Procedure for Admissibility under Banker
United States v. Banker, 60 MJ 216
MRE 412, the rape shield evidence rule precluding admission of evidence of the sexual history of sexual assault victims, was intended to safeguard the alleged victim against the invasion of privacy and potential embarrassment that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact-finding process; by affording victims protection in most instances, the rule encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders; MRE 412 was intended to protect victims of sexual offenses from the degrading and embarrassing disclosure of intimate details of their private lives while preserving the constitutional rights of the accused to present a defense).
MRE 412 is not limited to nonconsensual sexual offenses, but applies to proceedings involving alleged sexual misconduct; following the 1998 amendments to MRE 412, the applicability of MRE 412 hinges on whether the subject of the proffered evidence was a victim of the alleged sexual misconduct and not on whether the alleged sexual misconduct was consensual or nonconsensual.
In the trial of the accused for sexual misconduct involving a 14-year-old babysitter, the proffered testimony of the accused’s son that the babysitter sexually molested him fell within the scope of MRE 412 because the babysitter was a victim of the accused’s sexual misconduct where due to her age, she was not capable of legally consenting, notwithstanding any factual consent.
The purpose of the MRE 412 rape shield law is to protect alleged victims of sexual offenses from undue examination and cross-examination of their sexual history; MRE 412 is a rule of exclusion; MRE 412 is broader in its reach than its federal counterpart; under MRE 412, not only is evidence of the alleged victim’s sexual propensity generally inadmissible, evidence offered to prove an alleged victim engaged in other sexual behavior is also generally excluded.
In order to overcome the exclusionary purpose of MRE 412, an accused must demonstrate why the general prohibition in MRE 412 should be lifted to admit evidence of the sexual behavior of the victim; in particular, the proponent must demonstrate how the evidence fits within one of the exceptions to the rule; in light of the important and potentially competing constitutional and privacy claims incumbent in MRE 412, the rule requires a closed hearing to consider the admission of the evidence; among other things, the victim must be afforded a reasonable opportunity to attend and be heard at this closed hearing.
Based on the evidence presented at the closed hearing held under MRE 412, the military judge applies a two-part process of review to determine if the evidence is admissible; first, pursuant to MRE 401, the judge must determine whether the evidence is relevant; evidence is relevant if it has any tendency to make the existence of any fact more probable or less probable than it would be without the evidence; where the military judge determines that evidence is relevant, the judge employs a second analytic step by conducting a balancing test to determine whether the probative value of such evidence outweighs the danger of unfair prejudice; the accused has a right to put on testimony relevant to his theory of defense; however, the right to present relevant testimony is not without limitation; the right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.
Although a two-part relevance-balance analysis is applicable to all three of the enumerated exceptions to MRE 412, evidence offered under the constitutionally required exception is subject to distinct analysis; while the relevancy portion of this test is the same as that employed for the other two exceptions of the rule, if the evidence is relevant, the military judge must then decide if the evidence offered under the constitutionally required exception is material and favorable to the accused’s defense, and thus whether it is necessary; in determining whether evidence is material, the military judge looks at the importance of the issue for which the evidence was offered in relation to the other issues in this case, the extent to which this issue is in dispute, and the nature of the other evidence in the case pertaining to this issue; after determining whether the evidence offered by the accused is relevant and material, the judge employs the MRE 412 balancing test in determining whether the evidence is favorable to the accused’s defense; while the term favorable may not lend itself to a specific definition, this Court believes that based on Supreme Court precedent and the Court’s own rulings in this area, the term is synonymous with vital.
Although the MRE 412 balancing test bears resemblance to the MRE 403 balancing test, the two tests are distinct; the balancing test contained in MRE 412 differs in two critical respects from that contained in MRE 403; first, under the MRE 403 balancing test, a presumption of admissibility exists since the burden is on the opponent to show why the evidence is inadmissible; MRE 403 is a rule of inclusion; in contrast, MRE 412 is a rule of exclusion; the burden of admissibility shifts to the proponent of the evidence to demonstrate why the evidence is admissible; second, MRE 403 is generally applicable to evidence offered by either the government or the accused; to exclude evidence under MRE 403, the military judge must find substantial prejudice leading to one of a number of enumerated harms, including unfair prejudice to the accused; MRE 412’s general rape shield rule is applicable to both parties; however, in contrast to MRE 403, the balancing test that MRE 412 establishes for exceptions to the general rule contemplates evidence that the accused seeks to offer; thus, MRE 412 requires the military judge to determine on the basis of the hearing that the evidence that the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice; it would be illogical if the judge were to evaluate evidence offered by the accused for unfair prejudice to the accused; rather, in the context of the rape shield rule, the prejudice in question is, in part, that to the privacy interests of the alleged victim; as a result, when balancing the probative value of the evidence against the danger of unfair prejudice under MRE 412, the military judge must consider not only the MRE 403 factors such as confusion of the issues, misleading the members, undue delay, waste of time, needless presentation of cumulative evidence, but also prejudice to the victim’s legitimate privacy interests.
MRE 412 does not wholly supplant MRE 403 since the military judge may exclude evidence on MRE 403 grounds even if that evidence would otherwise be admissible under MRE 412.
In applying MRE 412, the judge is not asked to determine if the proffered evidence is true; it is for the members to weigh the evidence and determine its veracity; rather, the judge serves as gatekeeper deciding first whether the evidence is relevant and then whether it is otherwise competent, which is to say, admissible under MRE 412; while evidence of a motive to fabricate an accusation is generally constitutionally required to be admitted, the alleged motive must itself be articulated to the military judge in order for him to properly assess the threshold requirement of relevance.
Rule 412. Sex offense cases; relevance of alleged victim’s sexual behavior or sexual predisposition
(a) Evidence generally inadmissible
The following evidence is not admissible in any proceeding involving an alleged sexual offense except as provided in subdivisions (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
(1) A party intending to offer evidence under subsection (b) must--
(A) file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is offered unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and
(B) serve the motion on the opposing party and the military judge and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.
(2) Before admitting evidence under this rule, the military judge must conduct a hearing, which shall be closed. At this hearing, the parties may call witnesses, including the alleged victim, and offer relevant evidence. The alleged victim must be afforded a reasonable opportunity to attend and be heard. In a case before a court-martial composed of a military judge and members, the military judge shall conduct the hearing outside the presence of the members pursuant to Article 39(a). The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.
(3) If the military judge determines on the basis of the hearing described in paragraph (2) of this subsection that the evidence that the accused seeks to offer is relevant for a purpose under subsection (b) and that the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim's privacy, such evidence shall be admissible under this rule to the extent an order made by the military judge specifies evidence that may be offered and areas with respect to which the alleged victim may be examined or cross-examined. Such evidence is still subject to challenge under Mil. R. Evid. 403.
(d) For purposes of this rule, the term “sexual offense” includes any sexual misconduct punishable under the Uniform Code of Military Justice, federal law or state law. “Sexual behavior” includes any sexual behavior not encompassed by the alleged offense. The term “sexual predisposition” refers to an alleged victim's mode of dress, speech, or lifestyle that does not directly refer to sexual activities or thoughts but that may have a sexual connotation for the factfinder.
(e) A “nonconsensual sexual offense” is a sexual offense in which consent by the victim is an affirmative defense or in which the lack of consent is an element of the offense. This term includes rape, forcible sodomy, assault with intent to commit rape or forcible sodomy, indecent assault, and attempts to commit such offenses.
