Time to Fine-Tune Military Rule of Evidence 412
196 MIL. L. REV. 47 (2008)
44 Pages Posted: 20 Jul 2013
Date Written: July 1, 2008
Federal Rule of Evidence 412 was enacted to “protect rape victims from degrading and embarrassing disclosure of intimate details” without “sacrificing any constitutional right possessed by the defendant.” Military Rule of Evidence 412 was adopted with a similar goal of “shield[ing] victims of sexual assault from the often embarrassing and degrading cross-examination and evidence presentations common to prosecutions of such offenses” while still recognizing the right of the accused “to present relevant defense evidence.” The Federal Rule, and consequently the Military Rule, has been amended since its inception, but the intent has remained clear: protect the victim of a sexual crime without ignoring the compelling constitutional rights of an accused. Military Rule of Evidence 412, much like its federal counterpart, has generally been successful in meeting the intent behind its enactment by balancing these equally compelling, yet competing interests in a fair manner. However, as with any rule, unforeseen situations and unintended consequences can require refining the rule to comply with congressional intent. As currently drafted, and in application, the rule creates complications for both the Government and defense in nonconsensual sexual act cases which violate the spirit and intent behind MRE 412. This article explores these shortcomings and, to ensure MRE 412 complies with Congress’s intent, offers suggestions for amending the rule.
Keywords: rules of evidence, military rules of evidence, federal rules of evidence, rape-shield, rape, nonconsensual sex, constitutional rights, relevance, balancing test, Federal Rule of Evidence 412, Military Rule of Evidence 412, Military Rule of Evidence 403, Federal Rule of Evidence 403
JEL Classification: K10, K14
Suggested Citation: Suggested Citation