These are questions we get at Shewmaker & Shewmaker every time we speak to a Soldier who is accused of sexual assault. Well…the answer is not as simple as it used to be!
Your general good military character used to be admissible in sexual assault cases if the defense could show to the military judge that there was a nexus however strained or slight, between the charged misconduct and your military service. The result was that the defense used to be able to present a “good soldier defense” in nearly every sex assault case. See United States v. Wilson, 28 M.J. 48 (C.M.A. 1989).
The “good soldier defense” was especially helpful in “he said, she said” sexual assault cases. The defense could call your commander or a soldier you deployed with to tell the court that in their opinion you’re a good soldier. The panel or military jury would hear this and hopefully conclude that you’re not the type of soldier who would sexually assault another person.
However, on 17 June 2015, the 2015 NDAA’s directive to revise M.R.E. 404 was implemented by Executive Order. These new provisions excluded the use of evidence of your general good military character to show probability of innocence for sexual assault offenses. Bad news for you, right?
Not exactly! A skilled military defense attorney knows that this change does not preclude a defense based on your good character. You may still offer evidence of your good character under M.R.E. 404(a) if those traits are relevant (pertinent) to your defense. In nearly every sexual assault via bodily harm case, for example, you will be allowed to introduce relevant character evidence such as your peacefulness towards women or your honesty (if you testify or, under certain circumstances, if the Government offers a statement you made). So, my friends, not all is lost.
Understand, however, that once your attorney offers evidence of your good character to the panel the prosecution may rebut that evidence with evidence to show that you’re not a peaceful or honest person. So, if your attorney calls a witness to testify that in his opinion your peaceful towards women than the Government could rebut that evidence by calling your ex-girlfriend who will testify that you’re not peaceful towards women. In other words, you open the door and you must face the consequences!
This article just scratches the surface of what is known as “character evidence.” However, you need to understand these rules and you need to hire an attorney who understand these rules. Character evidence can make or break a sexual assault defense. So, proceed with caution my friends and keep up the fire!
If you have any questions contact us or call us at (770) 939–1939.
