The “He Has Done It Before Rule”

Generally speaking, the rules for a court martial do not allow prosecutors to introduce as evidence other crimes committed by the defendant in the past. Military Rule of Evidence 413 is an exception. Rule 413 says that accusations of prior sexual misconduct can be admitted at a sexual assault court martial as evidence of a tendency toward sexual violence.

For example, say that three years before your current charge, you were accused of assault consummated by a battery because you punched a guy in a bar who poured a beer on your head. The government cannot admit this prior allegation in your sexual assault case simply to show that you are the kind of person who breaks the law. Now, assume that instead of punching a guy in that bar, you were accused of grabbing a woman’s breast. The prosecutor at your trial may inform the jury of this accusation to show that you are the kind of person who has a propensity to sexually assault women. That’s because of Rule 413, the so-called “He Has Done It Before Rule.”

Admitting Prior Misconduct as Evidence

The use of a prior sexual assault accusation as evidence at trial is not guaranteed. Your judge first has to determine whether the value of this evidence outweighs the danger of creating an unfair prejudice against you at trial. The judge will look at several factors in making this determination, including:

1. Whether this evidence is helpful to decide a contested point in the trial;

2. Whether the government can admit the evidence in a non-prejudicial manner;

3. The time that proving the earlier allegation will take up at trial;

4. Whether the evidence will distract the panel from the purpose of the trial;

5. How many prior acts of alleged sexual misconduct there are and whether these acts happened recently enough to be relevant to the current charge;

6. Your relationship with the person accusing you of the earlier sexual misconduct; and

7. The similarity of the earlier misconduct and the misconduct on trial now.

Fighting Rule 413 Evidence in Court

The military’s Manual for Courts-Martial specifically lays out what is and what is not considered a sexual offense. Your attorney should carefully analyze the allegations of prior sexual misconduct and make sure the acts they describe fall under the Code’s definition of “sexual offense.” If the earlier acts do not qualify, they are not admissible against you under Rule 413.

Facing a court martial? Let Capovilla & Williams help you. Call (404) 496-7974.