[Federal Register Volume 60, Number 19 (Monday, January 30, 1995)]
[Notices]
[Pages 5656-5658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2121]



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DEPARTMENT OF DEFENSE

Manual for Courts-Martial

AGENCY: Joint Service Committee on Military Justice (JSC).

ACTION: Notice of proposed amendment.

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SUMMARY: The Department of Defense is considering recommending changes 
to Military Rule of Evidence 412, as set forth in the Manual for 
Courts-Martial, United States, 1984, Executive Order No. 12473, as 
amended by Executive Order Nos. 12484, 12550, 12586, 12708, 12888, and 
12936. The proposed revision resulted from changes made to Federal Rule 
of Evidence 412 by the Violent Crime Control and Law Enforcement Act of 
1994, as necessitated by Military Rule of Evidence 1102. [[Page 5657]] 
    The proposed changes have not been coordinated within the 
Department of Defense under DoD Directive 5500.1, ``Preparation and 
Processing of Legislation, Executive Orders, Proclamations, and Reports 
and Comments Thereon'', May 21, 1964, and do not constitute the 
official position of the Department of Defense, the Military 
Departments, or any other government agency.
    This notice is provided in accordance with DoD Directive 5500.17, 
``Review of the Manual for Courts-Martial'', January 23, 1985. This 
notice is intended only to improve the internal management of the 
Federal government. It is not intended to create any right or benefit, 
substantive or procedural, enforceable at law by a party against the 
United States, its agencies, its officers, or any person.
    The proposed changes follow in their entirety:
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 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; or
    (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 person accused of committing a non-consensual sexual offense 
who intends to offer evidence under subdivision (b) must--
    (A) file a written motion at least 5 days prior to trial 
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 government and the military judge and 
notify the allowed 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 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) that the evidence which the accused seeks to 
offer is relevant and that the probative value of such evidence 
outweighs the danger of unfair prejudice, such evidence shall be 
admissible in the trial to the extent an order made by the military 
judge specifies evidence which may be offered and areas with respect to 
which the alleged victim may be examined or cross-examined.
    (d) For purposes of this rule, the term ``sexual behavior'' means 
sexual behavior other than the sexual behavior with respect to which a 
nonconsensual sexual offense is alleged. 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 attempt to commit such offenses.
    The following information shall be added to the end of the Analysis 
Section for M.R.E. 412 (Appendix 22, M.R.E) as follows:
    1995 Amendment: The revisions to Rule 412 reflect changes made to 
Federal Rule of Evidence 412 by the Violent Crime Control and Law 
Enforcement Act of 1994. The purpose of the amendments is 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 factfinding 
process.
    The terminology ``alleged victim'' is used because there will 
frequently be a factual dispute as to whether the sexual misconduct 
occurred. Rule 412 does not, however, apply unless the person against 
whom the evidence is offered can reasonably be characterized as a 
``victim of alleged sexual misconduct.''
    The term ``sexual predisposition'' is added to Rule 412 to conform 
military practice to changes made to the federal rule. The purpose of 
this change is to exclude all other evidence relating to an alleged 
victim of sexual misconduct that is offered to prove a sexual 
predisposition. It is designed to exclude evidence that does not 
directly refer to sexual activities or thoughts but that the accused 
believes may have a sexual connotation for the factfinder. Admission of 
such evidence would contravene Rule 412's objectives of shielding the 
alleged victim from potential embarrassment and safeguarding the victim 
against stereotypical thinking. Consequently, unless the an exception 
under (b)(1) is satisfied, evidence such as that relating to the 
alleged victim's mode of dress, speech, or lifestyle is inadmissible.
    In drafting Rule 412, references to civil proceedings were 
delegated, as these are irrelevant to court-martial practices. 
Otherwise, changes in procedure made to the federal rule were 
incorporated, but tailored to military practice. The military rule 
adopts a 5-day notice period, instead of the 14-day period specified in 
the federal rule. Additionally, the military judge, for good cause 
shown, may require a different time for such notice or permit notice 
during trial. The 5-day period preserves the intent of the federal rule 
that an alleged victim receive timely notice of any attempt to offer 
evidence protected by Rule 412. Given the relatively short time period 
between referral and trial, the 5-day period is more compatible with 
court-martial practice.
    Similarly, a closed hearing was substituted for the in camera 
hearing required by the federal rule. Given the nature of the in camera 
procedure used in Rule 505(g)(4), and that an in camera hearing in the 
district courts more closely resembles a closed hearing conducted 
pursuant to Article 39(a), the letter was adopted as better suited to 
trial by courts-martial. Any alleged victim is afforded a reasonable 
opportunity to attend and be heard at the closed Article 39(a) hearing. 
The closed hearing, combined with the new [[Page 5658]] requirement to 
seal the motion, related papers, and the record of the hearing, fully 
protects an alleged victim against invasion of privacy and potential 
embarrassment.
    These amendments would take effect upon approval by the President, 
subject to the following:
    a. The amendments made to Military Rule of Evidence 412 would apply 
only to cases convened on or after (effective date).

ADDRESSES: Copies of the proposed changes may be examined at Office of 
the Judge Advocate General, Criminal Law Division, Building 111, 
Washington Navy Yard, Washington, D.C. 20374-1111. A copy of the 
proposed changes may be obtained by mail upon request from the 
foregoing address, ATTN: LT Kristen M. Henrichsen.

DATES: Comments on the proposed changes must be received no later than 
April 17, 1995 for consideration by the Joint Service Committee on 
Military Justice.

FOR FURTHER INFORMATION CONTACT: LT Kristen M. Henrichsen, JAGC, USN, 
Executive Secretary, Joint Service Committee on Military Justice, 
Office of the Judge Advocate General, Criminal Law Division, Building 
111, Washington Navy Yard, Washington, D.C. 20374-1111; (202) 433-5895.

    Dated: January 24, 1995.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 95-2121 Filed 1-27-95; 8:45 am]
BILLING CODE 5000-04-M