Monday, October 28, 2013

Sexual Assault At Coast Guard Academy, The Webster Smith Case Appendix 7

Appendix 7

This Is The Ultimate Issue On Appeal As Decided By The Trial Judge, Captain Brian Judge


M.R.E. 413 [sic] EVIDENCE CADET [SR]

The Defense has provided notice that it intends to introduce evidence of specific instances of sexual behavior involving then Cadet, now Ensign [SR]. This alleged sexual behavior is the subject of the secret that Cadet Smith is charged with threatening to expose in Specification I of Additional Charge II. The Government seeks to bar the introduction of such evidence pursuant to M.R.E. 412. At the Article 39(a) session held on 23 May 2006, Ensign [SR] did not testify because she invoked her right under Article 31(b) to consult with an attorney. The accused testified as to the content of his conversations with Cadet [SR] on this subject. The Defense also submitted a written statement dated 15 February 2006 that Cadet [SR] provided to the Coast Guard Investigative Service.


During the summer training program at the start
of their first class year, Cadet Smith and Cadet [SR] were both assigned to patrol boats that moored at Station Little Creek. Both lived in barracks rooms at the Station. In May 2005, Cadet Smith approached Cadet [SR] to inform her that he was hearing rumors from the enlisted personnel assigned to the Station that she had
a sexual encounter with an enlisted member assigned to the Station. Cadet [SR] told him that this was true, but that it was not a consensual encounter. Cadet Smith then informed the enlisted personnel who were spreading the rumors that the conduct was not consensual.

On or about 19 October 2005, Cadet Smith again approached Cadet [SR]. He told her that he had remained in contact with some of the enlisted personnel assigned to Station Little Creek and that the rumors surrounding her sexual encounter with the enlisted man had continued. This time she told him that the incident with the enlisted man had been a consensual encounter and that scope of the encounter had been greater than she had previously described.

At the Article 32 hearing, Cadet [SR] merely stated that she had confided a secret to Cadet Smith.

In her 15 February 2006 statement, she merely stated that a situation occurred which led to rumors. On both occasions, she went on to state that on October 19th, she was concerned enough that Cadet Smith would expose this secret that she agreed to pose for a picture with him in which both of them were nude, and later that night allowed him to perform cunnilingus on her then she performed fellatio on him.


1.    Generally, evidence that an alleged victim of a sexual offense engaged in other sexual behavior or evidence of the alleged victim’s sexual predisposition is not admissible. M.R.E. 412(a). There are three exceptions to this general rule, but only one may be relevant here: evidence of the sexual behavior of the victim is admissible if excluding the evidence would violate the constitutional rights of the accused. M.R.E. 412(b)(1)(C). This exception protects the accused’s Sixth Amendment right to confront witnesses and Fifth Amendment right to a fair trial. United States v. Banker, 60 M.J. 216, 221 (2004). In other words, the accused has a right to produce relevant evidence that is material and favorable to his defense. Id. Evidence is relevant if it tends to make the existence of any fact more or less probable than it would be without the evidence. M.R.E. 401. Assuming these requirements are met, the accused must also demonstrate that the probative value of the evidence outweighs the danger of unfair prejudice. M.R.E. 412(c)(3). In this context, the unfair prejudice is, in part, to the privacy interests of the alleged victim. Banker, 60 M.J. at 223. M.R.E. 412 is a legislative recognition of the high value we as a society place on keeping our sexual behavior private.

2.   The Defense offered several theories of why this evidence is admissible. First, the Defense wanted to introduce this evidence to impeach the credibility of Ensign [SR] when she testifies. The general rule is that a witness’ credibility may be attacked in the form of an opinion or by reputation concerning the witness’ character for truthfulness. M.R.E. 608(a). Specific instances of conduct of witness may be admitted, at the discretion of the military judge, if probative of truthfulness. I decline to exercise that discretion in this case because I believe that, under these circumstances, the probative value of this evidence is substantially outweighed by the danger of unfair prejudice. Then Cadet [SR] was under no duty to be completely forthcoming with Cadet Smith concerning her private life, particularly under these circumstances since her rumored conduct would be in violation of Coast Guard regulations and could subject her to disciplinary action or other adverse consequences. More important, despite any limiting instruction, members might consider this evidence less for its tendency to prove Ensign [SR]’s character for truthfulness than for its tendency to prove that she is a bad person. Finally, conflicting testimony on this point from Ensign [SR] and Cadet Smith could easily sidetrack members from testimony regarding the charged offenses which the member’s should be focusing on.

3.    The Defense also argued that the members must know the substance of Cadet [SR]’s secret in order for them to independently assess whether or not she would feel coerced into taking a nude photograph with Cadet Smith and later engaging in mutual oral sex in order to protect that secret. While the importance of her secret would be relevant in this fashion, I do not think that the members would need to know the specifics. At the Article 39(a) session, the Government offered a generic formulation that would impress upon the members the seriousness of the secret. In essence, the members could be informed that the secret was information that if revealed could have an adverse impact on her Coast Guard career, including possibly disciplinary action under the UCMJ.

4.    The final rationale offered by the Defense at the Article 39(a) hearing is the most persuasive. The Defense argued that if the members hear that Cadet [SR] originally told Cadet Smith that a sexual encounter with another man was non-consensual, and then later admitted that it in fact was consensual, then the members could use this testimony to infer that the same thing is happening in this case. In other words, the members could infer that Cadet [SR] has a propensity to bring false accusations against men with whom she has had consensual sexual encounters. I agree that this theory would be a valid reason for admitting this evidence under M.R.E. 412(b)(1)(C), but there are two problems with the Defense proffer. First, the evidence proffered that Cadet [SR] made these statements is not strong since it comes from the accuse d, who has an obvious bias. Cadet [SR]’s written statement and Article 32 testimony on this point is not clear. She admitted at the Article 32 that she only partially confided in Cadet Smith in May and fully confided in him on October 19th; however, this is far from proof that she initially claimed that the encounter was non-consensual. In fact, it is consistent with the rest of Cadet Smith’s Article 39(a) testimony that on October 19th she told him that the scope of the sexual encounter had been greater than she had previously described.  The probative value of this evidence is therefore low.

5.   More important, there is no evidence that Cadet [SR] made an official complaint against the unnamed enlisted man. Even if Cadet [SR] told the accused in May that the encounter was not consensual, the nature of this confidential statement is far different from the nature of her statements to law enforcement personnel that she must have known would result in a public prosecution. Cadet [SR]’s alleged statement to Cadet Smith was apparently intended to keep more people from learning about her sexual encounter with the enlisted man. It was not a false complaint to law enforcement. In contrast, her statements made in this case were to law enforcement personal and would certainly lead to a public prosecution. Consequently, even if Cadet [SR] falsely told the accused in confidence that her sexual encounter with the enlisted man was nonconsensual in an effort to suppress rumors, this would have little value in proving that her official allegations against Cadet Smith resulting in a public trial are also false. I am convinced that the minimal probative value of this evidence is outweighed by danger of unfair prejudice to Ensign [SR]’s privacy interests and the potential danger of sidetracking the member’s attention to a collateral issue as described in paragraph 2 above.

For the above reasons, the Government’s objection that this evidence is inadmissible in accordance with M.R.E. 413 [sic] is SUSTAINED.

This order was effective on 26 May 2006.
Done at Washington, DC,
Brian Judge
Captain, U.S. Coast Guard
Military Judge




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