Navy-Marine Corps Court Pushes Back Against Sexual Assault “Victim” Trying to Avoid Testifying



Since 2008, the military has expanded crime victims' rights with a focus on victims of sexual assault

On May 31, 2022, the Navy-Marine Corps Court of Criminal Appeals ruled against named “victim” of sexual assault who tried to avoid testifying at a pretrial motions hearing (called an “Article 39(a) session” in the military).  In L.S. v. United States, the named victim of a sexual assault charge (“L.S.”) filed a Petition for Extraordinary Relief in the Nature of a Writ of Mandamus to Quash Order to Produce Victim for Testimony at Mil. R. Evid. 412 Hearing and Application For a Stay of Proceedings.  What this means is that the Accused filed a Motion pursuant to Mil. R. Evid. 412 seeking to admit evidence of prior sexual activity/behavior by L.S. at trial.  Mil. R. Evid. 412 is the military’s “rape shield” law. 

As with any rape shield law, prior to such evidence being admissible at trial the defense has to file a motion (aka notice) and the judge has to hold a hearing regarding whether such evidence is admissible.  There are two main threshold questions that have to be to addressed at such a hearing before reaching the question of such admissibility.  First, can the defense establish the existence of such evidence?  Second, if so, does such evidence fall under Mil. R. Evid. 412 (i.e. is it evidence of prior sexual activity/behavior)?  If both those threshold questions are established, the judge then must determine as a matter of law whether the evidence is admissibility at trial under one of the three exceptions in the rule.  

I imagine that in L.S. v. United States, a Navy case out of Jacksonville, Florida, the Government contested whether the evidence proffered by the defense in its motion existed.  Therefore, the defense sought to call L.S. at the motion hearing to establish that the evidence did in fact exist.  The military judge ruled in the defense’s favor, ordering L.S. testify.  Once the judge issued that order, L.S.’s Victim’s Legal Counsel filed a motion to quash that order, which was denied and led to the petitition to the appeals court to quash the order for L.S. to testify.

The appeals court correctly denied the petition by L.S. to avoid testifying since any sexual assault victim at the end of the day is still a court-martial witness that must be produced to testify when such testimony is relevant and necessary both at trial and any pretrial motions hearing. 

why this case is important for court-martial cases.

Victims of sexual assault in the military, with the help of Congress, the President, and military leaders, have become almost immune from any type of compulsory process at a court-martial.  They have become so insulated from the process new laws, rules, and the assistance of counsel that it is extremely difficult for an accused to be both fully aware of the allegation made and to obtain meaningful discovery.  This case demonstrates that, if the defense files a motion that requires the testimony of a sexual assault victim, the victim must appear and testify and cannot disregard the order of the judge.

The use of the term “victim” in this post is out of convenience.  Korody Law normally uses the term “complaining witness” to describe those who have reported being a victim of a crime.  We are dedicated to defending those accused of state, federal, and UCMJ crimes and will be the first to say that reporting a crime doesn’t make anyone a victim in the eyes of the law and that one accused of a crime remains innocent until proven guilty.  

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Jacksonville FL Military Lawyer Patrick Korody handles personal injury, criminal defense, and military law issues including court-martial, security clearance revocation, security clearance denied, security clearance suspended. Jacksonville Florida Mayport Kings Bay NAS Jacksonville NAS JAX Naval Station Mayport Patrick Air Force Base Charleston Naval Weapons Station NAS Key West NAS Pensacola NAS Whiting Field Criminal Defense Lawyer. Criminal Defense Attorney former JAG lawyer provides services to Navy Air Force Marine Corps Army military members. Court-Martial Court Martial Courtmartial adsep boi security clearance revoked security clearance suspended. Military member DUI in Jacksonville, FL. Military sexual assault defense lawyer: sexual contact, rape, indecent assault, child pornography possession. Under investigation by NCIS? Call us. NJP appeals. Administrative Separation Boards. Military trial attorney. Civilian counsel for military members. Offices located on Mayport Road.