                        UNITED STATES, Appellee

                                        v.

                 Gregory P. BANKER, Staff Sergeant
                     U.S. Air Force, Appellant

                                 No. 03-0128

                           Crim. App. No. 34531

___________________________________________________________

    United States Court of Appeals for the Armed Forces

                         Argued October 2, 2003

                        Decided August 23, 2004

BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE and ERDMANN, JJ., joined. EFFRON, J.,
filed a separate opinion concurring in part and the result.



                                    Counsel

For Appellant: Captain Antony B. Kolenc (argued); Colonel
   Beverly B. Knott, and Major Terry L. McElyea (on brief).

For Appellee: Captain C. Taylor Smith(argued); Colonel
   LeEllen Coacher, Lieutenant Colonel Lance B. Sigmon,
   Captain Matthew J. Mulbarger (on brief); Lieutenant
   Colonel Robert V. Combs.

Amicus Curiae: Margaret A. Olsen (law student)(argued);
   Nancy Lawler Dickhute, Esq. (supervising attorney)(on
   brief) – for the Creighton University Law School.



Military Judge: Gregory E. Pavlik
      THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Banker, No. 03-0128/AF


     Judge BAKER delivered the opinion of the Court.

     Appellant was tried by a general court-martial

composed of officer and enlisted members at Sheppard Air

Force Base, Texas.   Contrary to his pleas, Appellant was

convicted of sodomy with a child under the age of 16 years

on divers occasions, sodomy on divers occasions, indecent

acts with a child under the age of 16 years on divers

occasions, indecent acts on divers occasions, and adultery

on divers occasions in violation of Articles 125 and 134,

Uniform Code of Military Justice [hereinafter UCMJ], 10

U.S.C. §§ 925, 934 (2000), respectively.      Appellant was

found not guilty of carnal knowledge under Article 120,

UCMJ, 10 U.S.C. § 920 (2000).       The adjudged and approved

sentence provided for a bad-conduct discharge, confinement

for two years, and reduction to the lowest enlisted grade.

     We granted review of the following issues:1

                                     I

     WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
     BY FINDING THAT MIL.R.EVID. 412 APPLIES TO CONSENSUAL
     SEXUAL MISCONDUCT, AN INTERPRETATION THAT DIRECTLY
     CONTRADICTS THE FINDING OF THE COAST GUARD COURT OF
     CRIMINAL APPEALS IN UNITED STATES V. STIREWALT, 53
     M.J. 582 (C.G. CT. CRIM. APP. 2000).



1
  We heard oral argument in this case at Creighton
University School of Law, Omaha, NE, as part of the Court’s
“Project Outreach.” See United States v. Mahoney, 58 M.J.
346, 347 n.1 (C.A.A.F. 2003).

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United States v. Banker, No. 03-0128/AF


                                II

      WHETHER THE MILITARY JUDGE ERRED BY USING MIL.R.EVID.
      412 TO EXCLUDE EVIDENCE CONCERNING THE ALLEGED
      VICTIM’S MOTIVE TO FABRICATE ALLEGATIONS AGAINST
      APPELLANT WHERE MIL.R.EVID. 412 DOES NOT APPLY TO
      CONSENSUAL SEXUAL MISCONDUCT AND THE PROFERRED DEFENSE
      EVIDENCE WAS CONSTITUTIONALLY REQUIRED.

      We conclude that neither the Court of Criminal Appeals

(CCA) nor the military judge erred.

                            BACKGROUND

      In December 1994, LG, who was 14 years old, began

babysitting for Appellant and his wife.     Appellant was 34

years old at the time and had a nine-year old son (MB) and

a five-year old daughter.    Appellant and his family resided

in on-base housing at Sheppard Air Force Base during most

of the years LG babysat.    LG babysat for the Bankers on a

regular basis and participated in other family activities

such as attending dinner and church.

      In early 1995, Appellant initiated sexual contact with

LG.   While driving her home one evening after babysitting,

Appellant parked the car, pretended to be lost, and kissed

LG sticking his tongue in her mouth.     Appellant’s physical

contact with LG steadily increased as he would deliberately

brush his hand against her breasts and buttocks when they

passed in a hallway or doorway.      Appellant also introduced

LG to pornography by showing her magazines, pictures on his



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United States v. Banker, No. 03-0128/AF


computer, and videotapes.    Over time, Appellant progressed

to more overt indecent acts including oral and anal sodomy

and sexual intercourse.    LG considered the relationship

with Appellant to be consensual testifying, “I thought that

this was a consensual relationship”.

        Appellant’s sexual contact with LG continued until

July 1999.    During that summer, LG saw the movie “American

Pie” and was disturbed by the movie’s portrayal that some

men were preoccupied “with getting [females’] virginity.”

LG later asked Appellant whether the portrayal was accurate

and Appellant confirmed that, at least for him, it was

true.    Upset by Appellant’s response, LG stopped engaging

in sexual acts with Appellant and subsequently quit

babysitting for the Bankers.

        LG eventually told a friend about her sexual

relationship with Appellant and the friend convinced LG to

tell her mother.    Upon learning of Appellant’s conduct,

LG’s mother insisted on informing the authorities.     As a

result, the Air Force Office of Special Investigations

(AFOSI) investigated Appellant’s activities.    Although LG

initially minimized Appellant’s conduct when interviewed by

an AFOSI agent, she later revealed the details of his acts.

        During trial, Appellant moved pursuant to Military

Rule of Evidence 412(b)(1)(c) [hereinafter M.R.E.] to offer


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United States v. Banker, No. 03-0128/AF


evidence of LG’s alleged sexual behavior with Appellant’s

son MB, who was 13 years old at the time of trial.

Appellant sought to admit MB’s allegations in an attempt to

prove that LG had a motive for fabricating the accusations

against Appellant.   Appellant further argued that excluding

MB’s testimony violated Appellant’s constitutional rights.

The military judge subsequently held a closed hearing where

both LG and MB testified.

     The only testimony presented at the hearing regarding

LG’s purported sexual behavior was the testimony of MB.

Despite defense counsel’s claim that MB’s testimony was

relevant to attack LG’s credibility, the military judge

found the evidence not relevant.

                              ISSUE I

     M.R.E. 412 states:

          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:


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United States v. Banker, No. 03-0128/AF


                    (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;
                    (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.
          (3)If the military judge determines on the basis
                of the hearing described in paragraph (2)
                of this subdivision that the evidence that
                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 that may
                be offered and areas with respect to which
                the alleged victim may be examined or
                cross-examined.
          . . . .

          (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 attempts to commit such
                offenses.

     M.R.E. 412 is modeled after Federal Rule of Evidence

412 [hereinafter Fed. R. Evid.].   Like the federal rule,



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United States v. Banker, No. 03-0128/AF


M.R.E. 412 was intended 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

fact-finding process.”   Manual for Courts-Martial, United

States (2002 ed.) [hereinafter MCM], Analysis of the

Military Rules of Evidence [hereinafter Drafter’s Analysis]

at A22-36.   “By affording victims protection in most

instances, the rule encourages victims of sexual misconduct

to institute and to participate in legal proceedings

against alleged offenders.”   Notes of Advisory Committee on

proposed 1994 amendment, F.R.E. 412, 28 U.S.C.S. Appx 412

at 87.   M.R.E. 412 was intended to protect victims of

sexual offenses from the degrading and embarrassing

disclosure of intimate details of their private lives while

preserving the constitutional rights of the accused to

present a defense.   See United States v. Sanchez, 44 M.J.

174, 178 (C.A.A.F. 1996); MCM, Drafter’s Analysis at A22-

36.

      Appellant maintains, however, that M.R.E. 412 is not

applicable to his case since the rule only applies to

nonconsensual sexual offenses and he was not charged with

any nonconsensual sexual offenses.   In making this

argument, Appellant relies on the title to the rule,


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United States v. Banker, No. 03-0128/AF


“nonconsensual sexual offenses,” as well as the presence

within the text of a definition of “nonconsensual sexual

offense.”   M.R.E. 412(e).   Furthermore, the Coast Guard

court in Stirewalt, 53 M.J. at 587, found that M.R.E. 412

only applies when there is an alleged victim of a

nonconsensual sexual offense.

     Despite the Coast Guard court’s ruling in Stirewalt,

the Air Force Court of Criminal Appeals determined in this

case that the 1998 amendments to M.R.E. 412 “changed the

focus of the question of the substantive applicability of

the rule from the nature of the alleged sexual misconduct

to the status of the person against whom the evidence is

offered pursuant to M.R.E. 412.     The question is whether

the person is a victim of alleged sexual misconduct, not

whether the alleged sexual misconduct is nonconsensual.”

United States v. Banker, 57 M.J. 699, 703 (A.F. Ct. Crim.

App. 2002).   Specifically, in 1998, M.R.E. 412 was amended

substituting within the text of the rule the phrase

“alleged sexual misconduct” in lieu of “nonconsensual

sexual offense.”   This amendment reflected the 1995

amendments to Fed. R. Evid. 412.    Violent Crime Control and

Law Enforcement Act of 1994 § 40141, Pub. L. No. 103-322,

108 Stat. 1796, 1918-19 (1994).




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United States v. Banker, No. 03-0128/AF


     Nonetheless, the title and definition at the end of

M.R.E. 412 still refer to “nonconsensual sexual offenses.”

As a result, Appellant’s argument warrants further

analysis.

     M.R.E. 412 defines a nonconsensual sexual offense as

“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 attempts to commit such

offenses.”   M.R.E. 412(e).   Significantly, the list of

offenses cited within the rule is presented as an inclusive

rather than an exclusive list.     Moreover, courts have

interpreted the rule in this manner.2    As importantly, the

Drafter’s Analysis makes clear M.R.E. 412 was intended to

apply broadly because “[t]here is thus no justification for

limiting the scope of the Rule, intended to protect human

dignity and to ultimately encourage the reporting and

prosecution of sexual offenses, only to rape and/or assault


2
  Although consent is not an element of carnal knowledge
because victims of the crime are legally incapable of
consent, carnal knowledge is the type of offense
contemplated by M.R.E. 412(e) which was intended to be
broader in its application than the federal rule. See MCM,
Drafter’s Analysis at A22-36; see also United States v.
Vega, 27 M.J. 744, 746 (A.C.M.R. 1988), rev. denied, 28
M.J. 336 (C.M.A. 1989).

                               9
United States v. Banker, No. 03-0128/AF


with intent to commit rape.”   MCM, Drafter’s Analysis at

A22-36.

     In our view, the 1998 amendment to M.R.E. 412 was

intended to shift the focus of the rule to the presence and

protection of a victim rather than the nature of the sexual

conduct.   This intent is reflected in the Manual for

Courts-Martial as well as case law.   See Vega, 27 M.J. at

746; see also Sanchez, 44 M.J. at 177-78.     The analysis of

the rule explains, “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.’”   MCM, Drafter’s

Analysis at A22-36.

     As amended, M.R.E. 412 is not limited to nonconsensual

sexual offenses, but applies to proceedings involving

alleged sexual misconduct.   As a result, we conclude, as

did the CCA, that following the 1998 amendments, the

applicability of M.R.E. 412 hinges on whether the subject

of the proferred evidence was a victim of the alleged

sexual misconduct and not on whether the alleged sexual

misconduct was consensual or nonconsensual.    Therefore, as

a threshold matter, we must determine whether the CCA


                               10
United States v. Banker, No. 03-0128/AF


appropriately classified LG as a victim of Appellant’s

sexual misconduct.

        Appellant asserts LG consented to the sexual activity

in light of her testimony that “the relationship was

consensual.”    This Court, however, has distinguished

between factual and legal consent where children are

involved.    See United States v. Baker II, 57 M.J. 330, 335

(C.A.A.F. 2002).    In Baker II, a case involving a 15 year

old and an 18 year old Airman who engaged in factually

consensual sexual activity, this Court concluded that prior

to determining the decency of the acts or whether legal

consent existed, the court must consider the child’s age,

relationship with the accused, and the nature of the sexual

acts.    Id. at 335-36.   Thus, this Court declined to adopt a

per se rule regarding the age an individual can consent to

certain forms of sexual activity.    Id.   “[T]here is no

magic line of demarcation between decent acts and indecent

acts based precisely on the age of the sex partner.”     Id.

at 335(quoting United States v. Strode, 43 M.J. 29, 32

(C.A.A.F. 1995)).    However, while the Baker II Court

concluded that a child under the age of 16 may factually

consent to certain sexual activity, this Court has never

recognized the ability of a child to legally consent to

sexual intercourse or sodomy.


                                11
United States v. Banker, No. 03-0128/AF


     At the time Appellant’s sexual activity began with LG,

LG was 14 years old.   Appellant was 34 years old.   Although

the UCMJ does not explicitly provide an age of consent for

sodomy or indecent acts, the age of consent for sexual

intercourse is 16.   Arts. 120, 125, UCMJ.   Because both

sodomy and sexual intercourse with a child under the age of

16 are indecent acts involving penetration, we conclude

that LG was not capable of legally consenting to

Appellant’s conduct.

     As a result, based on the facts of this case and the

purpose behind M.R.E. 412, we conclude LG was a “victim” of

the sexual misconduct for which Appellant was found guilty.

Therefore, Appellant’s proffer of MB’s testimony falls

within the scope of M.R.E. 412.     The question remains,

however, whether MB’s testimony was admissible in light of

the rule’s relevancy and balancing requirements.

                            ISSUE II

     A.   Factual Context

     During the military judge’s closed hearing to

adjudicate Appellant’s M.R.E. 412 motion, MB testified that

LG began sexually molesting him during her first year of

babysitting when MB was nine years old.    According to MB,

LG molested him approximately 60 times and continued to

abuse him until she stopped babysitting for the family in


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United States v. Banker, No. 03-0128/AF


July 1999.    MB initially disclosed these allegations during

a counseling session he attended following his

inappropriate sexual behavior with his cousins, his sister,

and his mother.    MB revealed these allegations eight months

after Appellant’s conduct with LG was reported to AFOSI.

The military judge denied admission of MB’s testimony under

M.R.E. 412 after finding the evidence not relevant.

        During the trial, Appellant’s counsel argued that MB’s

testimony was relevant because it went “directly to [LG’s]

credibility and motive to fabricate.”    On appeal, Appellant

maintains LG’s allegations of sexual abuse against

Appellant were made in an effort to protect her from future

allegations involving her sexual misconduct with MB.

Appellant further contends on appeal that LG made this

preemptive strike so that any allegations by MB would be

considered suspect and disregarded as not credible.

        B.   Legal Context

        M.R.E. 412 in popular nomenclature is a “rape shield

law.”    As noted above, its purpose is to protect alleged

victims of sexual offenses from undue examination and

cross-examination of their sexual history.    Thus, M.R.E.

412 is a rule of exclusion.    Although Fed. R. Evid. 412 is

generally understood to address evidence of sexual

propensity, M.R.E. 412 is broader in its reach than its


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United States v. Banker, No. 03-0128/AF


federal counterpart.   See MCM, Drafter’s Analysis at A22-

35(stating that “[a]lthough substantially similar in

substantive scope to Federal Rule of Evidence 412, the

application of [M.R.E. 412] has been somewhat broadened and

the procedural aspects of the Federal Rule have been

modified to adapt them to military practice”).    Under

M.R.E. 412, not only is evidence of the alleged victim’s

sexual propensity generally inadmissible, evidence offered

to prove an alleged victim engaged in “other sexual

behavior” is also generally excluded.

     However, this rule is not absolute because there are

three exceptions to M.R.E. 412.     First, evidence of

specific instances of sexual conduct is admissible to prove

that a person other than the accused was the source of

semen, physical injury, or other physical evidence.      M.R.E.

412(b)(1)(A).   Second, evidence of specific instances of

sexual behavior by the alleged victim with the accused may

be offered to prove consent.   M.R.E. 412(b)(1)(B) expressly

contemplates that such evidence might be offered by an

“accused to prove consent or by the prosecution.”    Id.

     “[E]vidence the exclusion of which would violate the

constitutional rights of the accused” is also admissible as

the third exception to the rule.    M.R.E. 412(b)(1)(C).

This exception addresses an accused’s Sixth Amendment right


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United States v. Banker, No. 03-0128/AF


of confrontation and Fifth Amendment right to a fair trial.

Weinstein’s Federal Evidence, § 412.03[4] [a] (2d ed.

2003).   The text itself, however, is presented in the form

of legal conclusion rather than analytic framework.    As a

result, where evidence is offered pursuant to this

exception, it is important for defense counsel to detail an

accused’s theory of relevance and constitutional necessity.

      In order to overcome the exclusionary purpose of

M.R.E. 412, an accused must “demonstrat[e] why the general

prohibition in [M.R.E.] 412 should be lifted to admit

evidence of the sexual behavior of the victim[.]”    United

States v. Moulton, 47 M.J. 227, 228 (C.A.A.F. 1997).     In

particular, the proponent must demonstrate how the evidence

fits within one of the exceptions to the rule.   Id. at 228-

29.   In light of the important and potentially competing

constitutional and privacy claims incumbent in M.R.E. 412,

the rule requires a closed hearing to consider the

admission of the evidence.   Among other things “[t]he

victim must be afforded a reasonable opportunity to attend

and be heard” at this closed hearing.   M.R.E. 412(c)(2).

      Based on the evidence presented at the closed hearing,

the military judge applies a two-part process of review to

determine if the evidence is admissible.   M.R.E. 412(c)(3).

First, pursuant to M.R.E. 401, the judge must determine


                              15
United States v. Banker, No. 03-0128/AF


whether the evidence is relevant.    Evidence is relevant if

it has “any tendency to make the existence of any fact . .

. more probable or less probable than it would be without

the evidence.”   M.R.E. 401.   Where the military judge

determines that evidence is relevant, the judge employs a

second analytic step by conducting a balancing test to

determine whether “the probative value of such evidence

outweighs the danger of unfair prejudice[.]”   M.R.E.

412(c)(3).   The accused has a right to put on testimony

relevant to his theory of defense.   However, “the right to

present relevant testimony is not without limitation.     The

right may, in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process.”

Michigan v. Lucas, 500 U.S. 145, 149 (1991)(citations

omitted).

     Although this two-part relevance-balance analysis is

applicable to all three of the enumerated exceptions,

evidence offered under the constitutionally required

exception is subject to distinct analysis.   Under M.R.E.

412(b)(1)(c), the accused has the right to present evidence

that is “relevant, material, and favorable to his defense.”

United States v. Dorsey, 16 M.J. 1, 5 (C.M.A. 1983)(citing

United States v. Valenzuela-Bernal, 458 U.S. 858(1982)).

While the relevancy portion of this test is the same as


                               16
United States v. Banker, No. 03-0128/AF


that employed for the other two exceptions of the rule, if

the evidence is relevant, the military judge must then

decide if the evidence offered under the “constitutionally

required” exception is material and favorable to the

accused’s defense, and thus whether it is “necessary.”

United States v. Williams, 37 M.J. 352, 361 (C.M.A.

1993)(Gierke, J., concurring).

     In determining whether evidence is material, the

military judge looks at “the importance of the issue for

which the evidence was offered in relation to the other

issues in this case; the extent to which this issue is in

dispute; and the nature of the other evidence in the case

pertaining to this issue.”   United States v. Colon-

Angueira, 16 M.J. 20, 26 (C.M.A. 1983)(quoting Dorsey, 16

M.J. at 6).

     After determining whether the evidence offered by the

accused is relevant and material, the judge employs the

M.R.E. 412 balancing test in determining whether the

evidence is favorable to the accused’s defense.   While the

term “favorable” may not lend itself to a specific

definition, we believe that based on Supreme Court

precedent and our own Court’s rulings in this area, the

term is synonymous with “vital.”   Valenzuela-Bernal, 458




                              17
United States v. Banker, No. 03-0128/AF


U.S. at 867 (quoting Washington v. Texas, 388 U.S. 14, 16

(1967)); Dorsey, 16 M.J. at 8.

     Although the M.R.E. 412 balancing test bears

resemblance to the M.R.E. 403 balancing test, the two tests

are distinct.    This is evident from the text and intent of

the two rules.

     M.R.E. 412(c)(3) states:

     If the military judge determines on the basis of the
     hearing described in paragraph (2) of this subdivision
     that the evidence that 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 that may be offered and areas with respect to
     which the alleged victim may be examined or cross-
     examined.

(Emphasis added.)


     The M.R.E. 403 balancing test states:

     Although relevant, evidence may be excluded if its
     probative value is substantially outweighed by the
     danger of unfair prejudice, confusion of the issues,
     or misleading the members, or by considerations of
     undue delay, waste of time, or needless presentation
     of cumulative evidence.

(Emphasis added.)


The balancing test contained in M.R.E. 412(c)(3) differs in

two critical respects from that contained in M.R.E. 403.

First, under the M.R.E. 403 balancing test, a presumption

of admissibility exists since the burden is on the opponent


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United States v. Banker, No. 03-0128/AF


to show why the evidence is inadmissible.   M.R.E. 403 is a

rule of inclusion.

     In contrast, M.R.E. 412 is a rule of exclusion.      The

burden of admissibility shifts to the proponent of the

evidence to demonstrate why the evidence is admissible.

United States v. Greaves, 40 M.J. 432, 438 (C.M.A.

1994)(citing United States v. Elvine, 16 M.J. 14 (CMA

1983)); 1 Stephen A. Saltzburg et al., Military Rules of

Evidence Manual 4-189-90 (5th ed. 2003).    Thus, the two

rules lean in different directions: i.e., toward inclusion

in the case of M.R.E. 403 and toward exclusion in the case

of M.R.E. 412(c)(3).

     Second, M.R.E. 403 is generally applicable to evidence

offered by either the government or the accused.   To

exclude evidence under M.R.E. 403 the military judge must

find “substantial prejudice” leading to one of a number of

enumerated harms, including “unfair prejudice” to the

accused.   M.R.E. 412(a)’s general rape shield rule is

applicable to both parties.   However, in contrast to M.R.E.

403, the balancing test that M.R.E. 412(c)(3) establishes

for exceptions to the general rule contemplates “evidence

that the accused seeks to offer[.]”   M.R.E. 412(c)(3).

     Thus, M.R.E. 412(c)(3) requires the military judge to

determine “on the basis of the hearing described in


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United States v. Banker, No. 03-0128/AF


paragraph (2) of this subdivision that the evidence that

the accused seeks to offer is relevant and that the

probative value of such evidence outweighs the danger of

unfair prejudice[.]”   M.R.E. 412(c)(3)(emphasis added).   It

would be illogical if the judge were to evaluate evidence

“offered by the accused” for unfair prejudice to the

accused.   Rather, in the context of this rape shield

statute, the prejudice in question is, in part, that to the

privacy interests of the alleged victim.   Sanchez, 44 M.J.

at 178 (“[I]n determining admissibility there must be a

weighing of the probative value of the evidence against the

interest of shielding the victim’s privacy.”).

     As a result, when balancing the probative value of the

evidence against the danger of unfair prejudice under

M.R.E. 412, the military judge must consider not only the

M.R.E. 403 factors such as confusion of the issues,

misleading the members, undue delay, waste of time,

needless presentation of cumulative evidence, but also

prejudice to the victim’s legitimate privacy interests.3

See Sanchez, 44 M.J. at 178; 2 Christopher B. Mueller &

Laird C. Kirkpatrick, Federal Evidence § 160 (2d ed. 1994).


3
  M.R.E. 412 does not wholly supplant M.R.E. 403 since the
military judge may exclude evidence on M.R.E. 403 grounds
even if that evidence would otherwise be admissible under
M.R.E. 412.

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United States v. Banker, No. 03-0128/AF


C.   As Applied in Appellant’s Case

     Having considered the textual framework of M.R.E. 412

and established our analytic framework, our next step is to

apply this analysis to Appellant’s case.4   We review a

judge’s decision to exclude evidence under M.R.E. 412 for

abuse of discretion.

     Appellant argued at trial that M.R.E. 412 was not

applicable to his case based on the arguments presented in

Issue I of this opinion.   Arguing in the alternative,

Appellant offered the testimony of MB under M.R.E. 412

because it went “directly to [“LG’s“] credibility and

motive to fabricate.”   However, other than maintaining that

MB’s testimony went to LG’s credibility in a general sense,

defense counsel failed to articulate a specific theory or

motive as to why LG might have fabricated the allegations

against Appellant.   In response, trial counsel argued

“there’s no evidence of motive, so our position is that it

is not relevant.”

     As a threshold matter, the judge correctly determined

that M.R.E. 412 was the applicable rule of evidence.      As

noted above, M.R.E. 412 applies not only to propensity

evidence, but also to evidence of the victim’s “other


4
  Consistent with the purposes of M.R.E. 412, the trial
record of the M.R.E. 412(b) hearing is sealed.

                              21
United States v. Banker, No. 03-0128/AF


sexual behavior.”    An allegation of sexual molestation by

the child LG was babysitting fits within the category of

“other sexual behavior.”    That is not to say that M.R.E.

412 bars inquiry regarding a victim’s alleged sexual

misconduct.    Rather, the M.R.E. 412 is intended to shield a

victim from having their own sexual conduct and history

placed at issue, unless the military judge first determines

in the closed hearing that such inquiry is warranted by the

rule.    The military judge did just that in Appellant’s

case, holding a closed hearing concerning MB’s putative

testimony.

        During the closed hearing, the military judge noted

that MB made his allegations eight months after LG made her

allegations against Appellant.       When pressed by the

military judge as to how this evidence related to any

motive to fabricate, defense counsel responded as follows:

“Your honor, she made her allegations months after this

supposed relationship with my client started and yet the

same kind of principle-and it does go directly--.”         After

hearing this evidence, the judge ruled MB’s testimony was

not relevant and, therefore, inadmissible.      Specifically,

the judge stated:

        This evidence is not relevant to the findings portion,
        regardless of its truth. And there’s serious question
        as to whether it’s true based upon the lack of


                                22
United States v. Banker, No. 03-0128/AF


        credibility of [MB], specifically the circumstances
        under which this was disclosed after he, himself was
        in trouble. But that notwithstanding, because that
        would not be determinative of the issue as far as this
        Court is concerned, as to whether the evidence would
        get before the court members. I have to assume for
        the purpose of the motion that the allegations that
        [MB] makes are true. Nevertheless, they are not
        relevant and they’re clearly not constitutionally
        required under these circumstances.

        Notably, while expressing reservations about the

veracity of MB’s putative testimony, the judge correctly

identified credibility as an issue for the members.    In

applying M.R.E. 412, the judge is not asked to determine if

the proferred evidence is true; it is for the members to

weigh the evidence and determine its veracity.    Rather, the

judge serves as gatekeeper deciding first whether the

evidence is relevant and then whether it is otherwise

competent, which is to say, admissible under M.R.E. 412.

Thus, in the case of the third exception argued by

Appellant, the judge determined whether admission of MB’s

allegations would be constitutionally required if there was

evidence sufficient to support a finding that they were

true.    United States v. Platero, 72 F.3d 806, 812 (10th

Cir. 1995).5



5
  “In deciding a competency question, the Judge is not
usurping the function of the jury. The Judge is not
addressing the merits of the case and deciding whether one
side or the other is truthful. Rather, the Judge is

                                23
United States v. Banker, No. 03-0128/AF


     While evidence of a motive to fabricate an accusation

is generally constitutionally required to be admitted, the

alleged motive must itself be articulated to the military

judge in order for him to properly assess the threshold

requirement of relevance.   See Dorsey, 16 M.J. at 4.

Before this Court, Appellant argues that LG fabricated

allegations against him in order to preemptively discredit

any allegations that MB might ultimately have made

regarding LG’s sexual conduct with MB.    However, at trial,

when pressed by the military judge for a theory of

admissibility, defense counsel stated only that MB’s

testimony went “directly to [“LG’s“] credibility and motive

to fabricate”.   The question remained whether Appellant’s

proffer was adequate to show support for his theory.

Sanchez, 44 M.J. at 182 (Everett and Gierke, JJ.,

concurring).

     In the context of M.R.E. 412, it was within the

judge’s discretion to determine that such a cursory

argument did not sufficiently articulate how the testimony

reasonably established a motive to fabricate.   Moreover,

based on the analytic structure of M.R.E. 412, in ruling on

relevancy the military judge was not also required to



assuring that the evidence meets the usual evidentiary
standards.” Platero, 72 F.3d at 812 (citation omitted).

                              24
United States v. Banker, No. 03-0128/AF


address the constitutional exception or the application of

the balancing test.    Therefore, without more, it was within

the discretion of the military judge to conclude that the

offered testimony was not relevant.     As a result, we hold

the military judge did not abuse his discretion in refusing

to admit MB’s testimony since Appellant did not meet his

burden of proving why the M.R.E. 412 prohibition should be

lifted.

                       SUPPLEMENTAL ISSUE

     While this case was under review in this Court,

Appellant filed a motion for grant of review of a

supplemental issue.6   That motion is granted.    Therefore,

notwithstanding our resolution of the granted issues, we

remand the case to the Court of Criminal Appeals for that

court’s consideration of the supplemental issue in light of

this Court’s decision in United States v. Marcum, __ M.J.

__ (C.A.A.F. 2004).


                            DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is set aside.      The record of trial is

returned to the Judge Advocate General of the Air Force for

6
 WHETHER   APPELLANT’S CONVICTION FOR VIOLATING ARTICLE 125,
UCMJ, BY   ENGAGING IN CONSENSUAL SODOMY MUST BE SET ASIDE IN
LIGHT OF   THE UNITED STATES SUPREME COURT’S HOLDING IN
LAWRENCE   V. TEXAS, 123 S.CT. 2472 (2003).

                               25
United States v. Banker, No. 03-0128/AF


remand to that court for consideration of the supplemental

issue and for action not otherwise inconsistent with this

opinion.




                             26
United States v. Banker, No. 03-0128/AF


     EFFRON, Judge (concurring in part and in the result):

     I agree with the lead opinion that: (1) Military Rule of

Evidence 412 [hereinafter M.R.E.] is not limited to cases

involving nonconsensual sexual offenses; (2) in considering

whether evidence is admissible under the rule, the military

judge must first consider whether the evidence is relevant; (3)

if the evidence is not relevant, it is not admissible; and (4)

the military judge in this case did not err in concluding that

the evidence offered by defense was inadmissible because it was

not relevant.

     After concluding that the military judge did not err, the

lead opinion offers a variety of observations regarding the

treatment of relevant evidence under M.R.E. 412.   Although there

are many instances in which it is appropriate for an appellate

court to discuss matters beyond the narrowest possible holding,

a degree of caution may be in order when dealing with a

developing area of law that is highly fact-dependent.   The

treatment of relevant evidence under M.R.E. 412 is such an area.

     M.R.E. 412 involves numerous unresolved interpretative

matters.    Perhaps the most difficult aspect of the rule involves

the issue of when relevant evidence that is otherwise excluded

under the rule must nonetheless be admitted because exclusion of

the evidence “would violate the constitutional rights of the

accused.”   M.R.E. 412(b)(1)(C).   See, e.g., 1 Stephen A.
United States v. Banker, No. 03-0128/AF


Saltzburg et al., Military Rules of Evidence Manual 4-186-88

(5th ed. 2003).   Stephen A. Saltzburg et al., 2 Federal Rules of

Evidence Manual 412-7-10 (8th ed. 2002).   This is an area in

which most cases are likely to involve evidentiary

considerations common to both civilian and military trials.     In

that context, we should not constrain military judges in future

trials from considering a wide range of judicial opinions from

other courts, as well as scholarly works, when confronting

M.R.E. 412 relevancy issues not governed by our precedents.

Under these circumstances, I respectfully decline to join that

portion of the lead opinion that addresses admissibility of

relevant evidence under M.R.E. 412.




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