
    UNITED STATES, Appellee, v. Private Roosevelt DORSEY, U.S. Army, Appellant.
    No. 44,321.
    CM 440998.
    U. S. Court of Military Appeals.
    July 5, 1983.
    For Appellant: Captain Kenneth G. Gale (argued); Colonel William G. Eckhardt, Lieutenant Colonel R. Rex Brookshire II, Major Paul J. Luedtke (on brief); Captain Thomas R. Peppier.
    
    
      For Appellee: Captain John J. Park, Jr. (argued); Colonel R.R. Boiler, Lieutenant Colonel John T. Edwards, Major Joseph A. Rehyansky (on brief).
   Opinion of the Court

FLETCHER, Judge:

A general court-martial composed of officer and enlisted members was assembled at Fort Bragg, North Carolina, in February and March 1981. Appellant pleaded not guilty to the charges against him which had been previously referred to this court-martial. The members found him guilty of rape, assault with intent to commit voluntary manslaughter, and communication of a threat, in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934, respectively. Appellant was sentenced to a dishonorable discharge, confinement at hard labor for 10 years, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved these findings and the sentence as adjudged. The Court of Military Review affirmed this action. United States v. Dorsey, 14 M.J. 536 (C.M.R.1982).

This Court granted review in the present case on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT’S MOTION TO INTRODUCE EVIDENCE OF THE ALLEGED VICTIM’S PAST SEXUAL CONDUCT.

This issue is pertinent to appellant’s conviction for rape as alleged in Charge I, and its specification thereunder. Its resolution does not affect the other findings of guilty in this case.

The Court of Military Review summarized the facts in this case concerning the granted issue (id. at 537-38):

The victim of the alleged rape, Private Rainey, testified that after midnight on the night in question, Dorsey came to her room three times. The first two times Dorsey claimed he was looking for his roommate, Murphy, because he (Dorsey) had locked himself out of their room. After the second visit, Murphy, who was then in Rainey’s room, left with Dorsey. However, Murphy apparently did not have the keys, because on the third visit Dorsey returned alone and asked Rainey to look for Murphy’s keys. After Rainey told him that the keys were not there, Dorsey invited her to visit him and Murphy in their common lounge area. She agreed in order to stop him from continuously coming back and told him that she would be there in ten minutes. After she dressed and came out of her room, Dorsey was waiting for her. When they arrived at Dorsey’s room, he used a key to enter; they talked and then Dorsey forcibly prevented her from leaving and raped her.
Dorsey, on the other hand, testified that on his third visit to Rainey’s room he told her that he wished he had some company and Rainey replied that she would be down in ten minutes. He left and was in his room watching TV and counting his money when, to his surprise, Rainey appeared at his door. They sat on his bed and talked; Dorsey “fiddled” with a small ornamental button on the shoulder of her sweater. When he stopped, she stood up and stripped to her slip. For a moment, he was speechless, because he did not want to have sex with her. He was tired, had to report for duty approximately one hour later, and, believing that Murphy had had sex with her earlier, was reluctant to be “second.” Instead, he “kind of rubbed her knee like,” and asked her how she “classified” herself; before she could answer, he beat her to the punch by telling her that she was a “whore,” married, and just had sexual relations with his roommate and now wanted to have sex with him. In response, Rainey dropped her head, began to cry, ran out of Dorsey’s room and left the billets.
The trial defense counsel moved that the defense be permitted to introduce evidence to show the sexual conduct between Rainey and Murphy several hours prior to the alleged rape on the ground that it would support a defense theory that the allegation of rape was Rainey’s fabricated response to Dorsey’s accusatorial statement. It was argued that such evidence would strengthen Dorsey’s claim that the reason for Rainey’s false accusation was her bias and anger towards Dorsey and that its admission was constitutionally required. Memorandum of Law, Appellate Exhibit IV.
The military judge limited presentation of such evidence. He barred introduction of extrinsic evidence concerning the alleged act of sexual intercourse between Rainey and Murphy but allowed presentation of testimony as to what Dorsey believed and may have said about it to Rainey.
Specifically, he ruled that “evidence about what the accused said in the entire statement will be admissible from whatever source---- Evidence of the act, itself, other than that statement, is inadmissible from whatever source.”

The first problem we must address concerns the scope of the challenged ruling of the trial judge in this case. He ruled that “independent evidence” of the prosecutrix’ act of consensual sexual intercourse with appellant’s roommate could not be admitted at this court-martial. On its face, such a ruling implies that the form of the excluded evidence was a controlling factor in his determination that it was not “constitutionally required to be admitted” under Mil.R. Evid. 412(b)(1). See generally United States v. Banker, 15 M.J. 207, 211 (C.M.A.1983). It is the legal correctness of this implication, as a basis for his ruling, that we first must examine.

To appreciate the meaning of “independent evidence” as understood by the military judge, we must turn to the record of trial. In her Memorandum of Law, attached as an appellate exhibit to the record of trial, defense counsel sought permission to question appellant about a purported statement he made to the prosecutrix at the time of the alleged offense. She stated that appellant would testify that he said to her, “You just fucked my roommate, you’re married and now you’re trying to fuck me; how do you classify yourself?, a whore.” Trial counsel in a Memorandum of Law, also attached to the record of trial, opposed this request to the extent that appellant should not be permitted to testify, “You just fucked my roommate.” The Government noted initially that a problem existed as to whether appellant actually knew that the prosecutrix engaged in sexual intercourse with appellant’s roommate. He then argued that such evidence of past sexual conduct of the prosecutrix was not critical to the defense in this case and not “constitutionally required to be admitted” in accordance with Mil.R.Evid. 412(b)(1).

The military judge questioned defense counsel at trial about her motion. He stated that he construed defense counsel’s motion as a request to introduce not only evidence of appellant’s statement about the prosecutrix’ past sexual conduct but also “independent evidence” that the prosecutrix engaged in such sexual conduct. Defense counsel agreed and asserted that cross-examination of the prosecutrix or testimony from appellant’s roommate would be probative of the great emotional impact appellant’s statement had upon her and her strong motivation to falsely cry rape. Trial counsel also opposed this request on the basis of Mil.R.Evid. 412, and argued that the probative value of this evidence was outweighed by its prejudice. The military judge permitted defense counsel to question appellant about any statements he made to the prosecutrix about her past sexual behavior and his belief that they were true, but refused to allow “independent evidence” of her sexual conduct with appellant’s roommate. Appellant testified that he made these statements to the prosecutrix and assumed they were true.

We have examined Mil.R.Evid. 412, and find no prohibition against admission of independent or extrinsic evidence of a prosecutrix’ past sexual conduct if such evidence “is constitutionally required to be admitted” under section (b)(1). The fact the defense intended to evidence was that the prosecutrix, just prior to the alleged rape, engaged in consensual sexual intercourse with appellant’s roommate. Testimony from appellant that he assumed this act occurred and made statements to this effect is less reliable evidence than the so-called “independent” testimony from the purported participants in this act, i.e., the prosecutrix and appellant’s roommate. See Mil.R.Evid. 602. Moreover, defense counsel made it clear that the excluded evidence was not offered to show that the prosecutrix had a poor character for truthfulness and therefore was probably lying to the members. Mil.R.Evid. 608(b) does make a distinction between extrinsic evidence and evidence adduced on cross-examination, both of which are offered to show a witness’ poor character for truthfulness. Yet, this distinction is not applicable where the evidence is offered to show a motive for certain conduct (Mil.R.Evid. 404(b)) or a motive for false testimony. Mil.R.Evid. 608(c); United States v. Banker, supra at 210. Here, defense counsel stated that the proffered evidence would be probative of the intense motive of the prosecutrix for falsely crying rape to her roommates and for falsely testifying against appellant at his court-martial. To the extent that the military judge based his ruling on the form of the evidence offered, his ruling was incorrect.

A second problem exists in this case. The Government at trial and on appeal asserts that evidence of the prosecutrix’ sexual conduct with appellant’s roommate, regardless of the form in which it was presented, was not admissible under Mil.R.Evid. 412(b)(1). At trial, the Government argued “that the probative value of ... [this] evidence," if any, was clearly outweighed by its “danger of unfair prejudice.” Mil.R.Evid. 412(c)(3); see generally United States v. Kasto, 584 F.2d 268 (8th Cir.1978), cert, denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979). On appeal, it argues that this evidence was not legally relevant and as such was not “constitutionally required to be admitted” under Mil.R.Evid. 412(b)(1). See Mil.R.Evid. 402 and 403. It also suggests that this evidence was not logically relevant to any issue of any consequence in the present case and constituted a thinly disguised attack on the rape victim’s character for chastity. Mil.R.Evid. 401. The Court of Military Review agreed with the argument of appellate government counsel.

In addressing these arguments, some general comments concerning Mil.R.Evid. 412 are appropriate. This rule of evidence, except in certain procedural aspects, is “substantially” the same as Fed.R.Evid. 412. See Analysis of the Military Rules of Evidence, Appendix 18, Manual for Courts-Martial, United States, 1969 (Revised edition) (hereafter cited as Analysis), Mil.R. Evid. 412. Examination of the legislative history of Fed.R.Evid. 412 indicates that Congress intended that evidence of a rape victim’s past sexual behavior not be routinely admitted at a criminal trial for rape. See D. Louisel and C. Mueller, Federal Evi dence § 197 (1982 supp.). Mil.R.Evid. 412 was intended to accomplish this same objective. See Analysis, supra. This is a significant change from past court-martial practice. See para. 153b, Manual, supra. Yet this new policy of exclusion is couched in terms permitting the admission of such evidence under certain circumstances. See Fed.R.Evid. 412(b)(1) and (2); Mil.R.Evid. 412(b)(1) and (2). From these circumstances, it is quite clear that this so-called “rape shield” rule is not an absolute bar to the admission of such evidence at a court-martial. See Analysis, supra; Doe v. United States, 666 F.2d 43 (4th Cir.1981); see generally Westen, Compulsory Process II, 74 Mich.L.Rev. 191, 211 n. 64 (1975).

In this light, it must be determined whether the defense demonstrated that the proffered evidence was “constitutionally required to be admitted.” Mil.R.Evid. 412(b)(1). The meaning of this phrase is not particularly described in this evidentiary rule, but its legislative history makes clear the drafters’ intention that this rule should not be applied in derogation of a criminal accused’s constitutional rights. See generally Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Under such circumstances, we believe the decisions of the Supreme Court expounding upon a defendant’s constitutional right to present his defense will provide the proper scope of this evidentiary rule. See Westen, supra at 211 n. 65.

In a recent decision in this area, the Supreme Court has stated that a criminal accused has the right to present evidence which is relevant, material, and favorable to his defense. United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982). See United States v. Lucas, 5 M.J. 167 (C.M.A.1978). In that case, the Supreme Court addressed claims by a criminal defendant that his constitutional rights under the Due Process Clause of the Fifth Amendment and the Compulsory Process Clause of the Sixth Amendment were violated by the Government’s prompt deportation of aliens who had witnessed his alleged offense. The Supreme Court held a violation of these provisions requires some showing that the relevant evidence lost would be both material and favorable to the defense. Id. 102 S.Ct. at 3449. See also Washington v. Texas, 388 U.S. 14, 16, 87 S.Ct. 1920, 1921, 18 L.Ed.2d 1019 (1967). The same type of analysis was employed in Davis v. Alaska, supra 415 U.S. at 309, 94 S.Ct. at 1107, where the Supreme Court found a real possibility existed that the prohibited cross-examination of a juvenile would have caused serious damage to the state’s case.

The first question we must decide is whether appellant demonstrated the relevance of the proffered evidence to prove the existence of a fact asserted by the defense. See Analysis, supra, Mil.R.Evid. 401; see generally Westen, supra at 207-13. In other words, did the evidence have “any tendency to make the existence of any fact ... more probable or less probable than it would be without the evidence”? Mil.R. Evid. 401 (emphasis supplied). We conclude that it did.

The theory of the defense in this case was that no act of sexual intercourse occurred between the prosecutrix and appellant on the night in question. See Article 120; para. 199a, Manual, supra. To negate the Government’s case on this element of the offense, it offered testimony from appellant to that effect. In addition, it attempted to undermine the credibility of the prosecutrix with respect to her assertions that an act of sexual intercourse occurred. See Mil.R. Evid. 607; United States v. Banker, supra. In particular it attempted to show a motive for the prosecutrix’ complaint of rape (Mil. R.Evid. 404(b)) and for her testimony at trial. (Mil.R.Evid. 608(c)).

In general, motive can be described as an inward emotion, passion, or feeling in a person which “is likely to lead” that person to do an “appropriate act” as “an outlet” for this emotion. See J. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law § 117 (3d ed. 1940) (hereafter cited as Wigmore). The defense particularly contended that the prosecutrix had a feeling of anger towards appellant and a feeling of guilt concerning herself. She argued that it was reasonable to infer that an angry person would do some act of revenge against the person who was the object of her anger. She further intimated that a person experiencing guilt would do some act of revenge against the person who caused this feeling of guilt to surface. The particular acts to be inferred from this emotional state of mind in the prosecutrix were her false accusations that appellant raped her. No argument has been presented by the Government which would lead us to conclude that such acts of revenge could not be reasonably considered appropriate outlets for these emotions. Id.

In order to secure the benefit of this evidential inference, the defense was required to show these emotions existed in the prosecutrix at the time she made her accusations. In this case, defense attempted to show circumstantially the existence of these emotions by evidencing facts or events about the prosecutrix which tended to excite these emotions in her — Wigmore, supra, §§ 117, 385-89; in other words, facts which would have real probative value as causes or stimuli for these emotions.

To show the prosecutrix’ anger toward appellant, the defense introduced evidence that appellant rebuked her for her marital infidelity, demeaned her character for chastity, and rejected her sexual advances, all based on his assertion that she just had sex with his roommate. The military judge permitted such evidence to be admitted as relevant to her state of mind. To show her guilty feelings, the defense additionally offered the excluded evidence that the prosecutrix had in fact engaged in consensual sexual intercourse with appellant’s roommate. The military judge refused to admit this evidence.

We conclude such evidence was relevant to her feelings of guilt. From it the inference can be drawn that the prosecutrix had knowledge that appellant’s • accusations were true or at least had some basis in fact. In our opinion, it would not be unreasonable to further infer that a person brutally confronted with the harsh realities of her conduct might feel some guilt. See Wigmore, supra, § 389. Accordingly, the excluded evidence in conjunction with evidence of appellant’s statements had some tendency to show the existence of a guilty state of mind on her part. See Westen, supra at 209.

The second question we must address is whether the defense demonstrated that the excluded evidence was material. See United States v. Valenzuela-Bernal, supra. In other words, was the fact intended to be proved by the evidence “of consequence to the determination of” appellant’s guilt? Mil.R.Evid. 401; Analysis, supra, Mil.R. Evid. 401. In making such a judgment, it is necessary to consider 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 other evidence in the case pertaining to this issue. See generally Westen, supra at 225.

The above criteria must be evaluated in light of the evidence of record. The prosecutrix was the only eye witness for the Government who testified that the act of rape occurred. She also testified that she was emotionally upset when she ran from appellant’s room and complained to her roommates that appellant raped her. She stated that her emotional state was a product of appellant’s physical attack upon her. The prosecutrix’ roommates confirmed her emotional state and her complaint. Appellant denied that any act of sexual intercourse occurred. He also asserted that the jprosecutrix ran from his room in an emotional state only because of his statements to her. Appellant’s roommate, Bradshaw, testified that he was awakened from his sleep and saw the prosecutrix and appellant in their room. He stated that he did not see them struggling at that time nor was he later awakened by any scream for help which the prosecutrix testified she made. Also, there was no physical or medical evidence introduced at this trial that demonstrated that an act of sexual intercourse, with or without force, occurred between the prosecutrix and appellant that night. Finally, the Government in rebuttal called to the stand the company commander of both appellant and the prosecutrix. He stated that appellant did not have a good reputation for truthfulness and, in his opinion, was a liar. He further testified that the prosecutrix did have a good reputation for truthfulness and, in his opinion, generally told the truth.

The evidentiary state of this record makes it quite clear that the relevant evidence excluded by the military judge would have had a reasonable likelihood of affecting the judgment of the trier of fact. See United States v. Vaienzuela-Bernal, supra 102 S.Ct. at 3450, citing Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); Westen, supra at 222. The critical issue in this case was the credibility of the prosecutrix and appellant. This conclusion is further buttressed by the closing arguments of both counsel. The excluded evidence, as indicated earlier, was relevant to the prosecutrix’ credibility and therefore pertains to an important issue in this case. See Davis v. Alaska, supra. Second, the above evidentiary record makes it quite clear that the parties to this trial vigorously disputed the issue of the prosecutrix’ credibility. Finally, it is readily apparent that the excluded evidence of motive was intimately connected to the defense evidence of motive already admitted by the military judge. Moreover, it would be provided by a witness other than appellant. Under these circumstances and in view of the fact that no other evidence was admitted in this case to show the prosecutrix’ feelings of guilt, we conclude that the excluded evidence could reasonably be deemed to add substance and weight to the existing evidence of motive. See Westen, supra at 226.

The third question which must be answered is whether the defense demonstrated that the proffered evidence was favorable to its case. See United States v. Valenzuela-Bernal, supra. No one at trial or on appeal disputes the fact that the prosecutrix engaged in consensual sexual intercourse with appellant’s roommate a short time prior to the alleged offense. The existence of this fact is further supported by the testimony of the prosecutrix and appellant’s roommate taken at the Article 32 investigation, the report of which is attached to the record. Accordingly, the excluded evidence was exculpatory to the extent that it undermined the credibility of the sole prosecution witness who directly testified to appellant’s guilt of the charged offense. In addition, the excluded evidence could have corroborated appellant’s testimony in that it might be considered more probable if a basis in fact existed for his assumption. Under these circumstances, the excluded evidence was favorable to defense.

The final question in this case is whether the proffered evidence was properly excluded because its probative value did not outweigh the danger of unfair prejudice which would result from its admission. Mil.R. Evid. 412(cX3). Trial counsel stated that the prosecution’s case would suffer if the evidence was admitted because the jury would be inclined to decide appellant’s guilt on the basis of the fact that the prosecutrix had a poor moral character. See Mil.R. Evid. 403; Tanford and Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U.Pa.L.Rev. 544, 574-75 (1980). He also argued that the admission of this evidence would violate the policy of the federal government reflected in Mil.R.Evid. 412. He asserts that the Government has a strong interest in sheltering victims of rape from humiliation and psychological damage and in encouraging the reporting and prosecution of rape offenses. See Analysis, supra, Mil.R.Evid. 412. These legitimate governmental interests will be frustrated, he claims, by the admission of evidence of the prosecutrix’ sexual behavior with appellant’s roommate. See generally Mil.R.Evid. 402.

We reject trial counsel’s first argument because the remedy of exclusion is overly drastic to protect against the potential prejudice he suggests. See 128 U.Pa.L.Rev. at 577; Note, Constitutional Restraints on the Exclusion of Evidence in the Defendant’s Favor: The Implications of Davis v. Alaska, 73 Mich.L.Rev. 1465, 1491 (1975) (hereafter cited as Note). Under the circumstances of the present case, an instruction limiting the use of the evidence would be more appropriate. Mil.R.Evid. 105. See Westen, supra at 212.

In addressing his second argument, we note that Mil.R.Evid. 412(bXl) states that “evidence of a victim’s past sexual behavior is” inadmissible “unless ... admitted in accordance with subdivision (c)(1) and (c)(2) and is constitutionally required to be admitted.” In view of this language, the balancing test prescribed in Mil.R.Evid. 412(c)(3) may not be appropriate to evidence offered under this particular provision. See Louisell and Mueller, supra, § 198[B] (at 223); S. Saltzburg, L. Schinasi, and D. Schlueter, Military Buies of Evidence Manual 208 (1981). Assuming that this balancing test is appropriate, we again must note that appellant demonstrated that the excluded evidence was relevant, material, and vital to his defense. See United States v. Valenzuela-Bernal, supra. In such a situation, we believe the holding of the Supreme Court in Davis v. Alaska, supra 415 U.S. at 319-20, 94 S.Ct. at 1111-1112, dictates that the constitutional right of appellant to present such evidence is paramount. See also Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931). See generally Note, supra; Weinstein’s Evidence para. 412[01] (1982); Westen, supra at 207-13.

For the foregoing reasons, we hold that the military judge erred to the prejudice of appellant’s substantial rights by excluding the proffered evidence.

The decision of the United States Army Court of Military Review as to Charge I and its specification is reversed. The findings of guilty of Charge I and its specification, and the sentence, are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing on Charge I and the sentence may be ordered.

EVERETT, Chief Judge

(concurring):

See my concurrence in United States v. Colon-Angueira, 16 M.J. 20 (C.M.A.1983).

COOK, Judge

(dissenting):

The thrust, I take it, of the majority opinion is that if appellant had only been able to prove that Rainey had sexual relations with Murphy earlier that evening, then the court members might have inferred that Rainey was deeply wounded by appellant’s alleged insult (on the assumption that the truth hurts). Appreciating that, the court members might have further inferred that Rainey would conceive an intent to retaliate against appellant. That possibility, in turn, might have led the court members to infer that the charge of rape was invented. All of this purportedly would have bolstered appellant’s claim that he did not have intercourse with Rainey in the first place. Thus coming full circle, evidence that Rainey had had intercourse with Murphy allegedly would have been probative of the contention that she did not have intercourse with appellant. Let us first turn to “[t]he evidentiary state of this record,” to which the majority alludes, in order to evaluate this thesis.

I

Appellant testified on direct examination that he returned to the barracks in the early morning hours of Saturday, November 15,1980, after a night of partying. His account of what happened next is as follows:

A: When I returned to the barracks around the hours of 3:30 and 4:00, I went around to my — I went — when the dude let us out, me and — me and one of my partners, we was talking — we talked for a little while and I — I told him to come around and wake me up because I had dayroom orderly that next day. He say he will if he be up in time.
Q: Did you return to your room?
A: Yes, I returned to my room. I returned to my room and knocked on the door and I aint — I received no answer. So—
Q: How loudly did you knock on the door?
A: I just — just a little knock — just knocked.
Q: Was it a normal knock?
A: Normal knock.
Q: What did you do when you received no response?
A: Then I thought about Murphy had went out with Private Rainey and I went up — I went up to they room and I knocked on the door. Private Young— Private Young came to the door, and I asked her, “Let me speak to Rainey?” and she said, “Dorsey, that girl — that girl is sleep.” And I said, “I told you, I needed to see her. I need to get my key from Murphy — find Murphy and get the keys,” and she said, “Dorsey, the girl asleep.” So, she shut the door, and I knocked again. And—
Q: How much later did you knock? How much longer did you wait before you knocked?
A: I didn’t leave. I just knocked right back after she had shut the door. And Private Wheeler came to the door at that time, and she said, “Dorsey, the girl is sleep.” “I told you I need to get my — find Murphy to get my keys,” and she said that she was sleep. And I asked her — I told her to give me a light to light a cigarette and she said she wasn’t going to give me nothing in a snappy voice. So—
MJ: What did you say just now?
WITNESS: I said, “She said she wasn’t going to give me no light for my cigarette.”
MJ: And then what?
WITNESS: “In a snappy voice.”
MJ: Oh, go ahead.
A: So, I asked her — I asked why — we was — we was talking and I was trying to find — I was — I was asking her for a light, and I was trying to find Murphy, but she — she would not give me no light. So, she slammed the door in my face and I — and I cursed her, and at that time, when she — she reopened the door and started arguing back at me. And then that time Private Rainey came — Rainey came up to the door and I asked where — where Murphy was, and she said she didn’t want to awaken him. So, by that time — well, any kind of — me—me and Wheeler started arguing again because she had said something to me. And Murphy appeared from the — from the back of the room, and came out, and we talked. And I asked him for the keys, and he told me that he had lost his keys, also. And I asked him did he — did he know where they were, but he ain’t had no idea. So, we went on out into the — we was in — we was in the common living area at that time, and Private Rainey joined us. She joined us in the common living area, and we was — we was trying to figure out where he — where he — where he had lost the keys and we was trying to figure out how — how was we going to get into the room. So, as we went to the door — as Murphy went through the door, as — and I followed him—

(Emphasis added.)

As he was leaving, appellant told Rainey, “I wished — that I wished I had some company, and she replied that she’d be down in ten minutes.” Appellant then returned to his room, while Murphy proceeded to the room of another girlfriend. Nevertheless, appellant was “surprised” when, a few minutes later, Rainey appeared at his door as promised. And although appellant had just besought Rainey’s company, he portrayed himself as suddenly being uninterested because he was

very tired and exhausted from being out so late and I had to work that next day. I had about — no more than an hour — an hour to 30 or 40 minutes to get some rest. So, I getting, you know, curious how long that she was going to be there, you know, did she plan on staying the night or anything.

But apparently conquering his exhaustion, he admitted to “fiddling” with a “little button” on the shoulder of her sweater and he “kind of rubbed her knee like.” It was then, according to appellant, that “she stand up and took off her clothes and sat back — stripped to her — she strip to her— her slip was the problem.” (Emphasis added.) Again reversing fields, appellant called her a “whore,” reminded her that she was married and had just been with his roommate, and scolded her for attempting to seduce him. Thereupon, according to appellant, Rainey dropped her head in shame, burst into tears, and ran out of the room wearing only a slip, leaving the rest of her clothes behind.

Rainey’s recollection was considerably different. She confirmed, as did Murphy and her roommate, Wheeler, that Murphy was in her room that night and left with appellant early in the morning. She also admitted that, when she answered the door and talked to appellant, she was wearing only a slip. But according to Rainey, after appellant left with Murphy, he returned yet another time, knocked on the door, and asked her to look for Murphy’s keys. It was on this occasion that appellant asked her to come back with him and keep Murphy and him company. Considering appellant a friend, Rainey agreed, in order to stop him from further disrupting her roommates’ sleep. Telling him she would be down in ten minutes, she dressed, then left the room. To her surprise, appellant was waiting for her outside the door (he “was standing behind a wall and he kind of jumped out”), and he accompanied her to his room.

When they got there, appellant had his keys and opened the door. Inside the room, Rainey discovered that Murphy was not there and asked appellant where he was. Appellant said, “Murphy caught a cab.” She started to leave, but, at appellant’s importuning, agreed to stay and talk with him in the common living area of the room. There, appellant tried to kiss her, but she tried to get away. Appellant would not let her leave, and they struggled. Eventually he picked her up and carried her to his sleeping area. She managed to bite him on the neck, but desisted when he threatened to hurt her. She knew that he “carried a knife and that he’d used it on someone.”

At the bed, appellant succeeded in forcibly removing Rainey’s clothes, except for her slip. Regarding the slip, Rainey testified:

A: (Crying) Dorsey had asked me to — he told me my slip was in the way. He kept saying to me, “Help me Rainey, help me.” I said, “No, Dorsey! You’re doing this against my will! ” (Pause) And then — and then he asked me, he said, “The slip was in my way — in his way” and he wanted me to take it off.[]

(Emphasis added.) Eventually appellant succeeded in penetrating Rainey. She escaped by telling appellant she had to go to the bathroom and was about to “wet the bed.” At this, appellant pulled away from her. As soon as she got free of him, she bolted, wearing only her slip.

When Rainey returned to her room, she was met by her roommate, Young, who described her as “hysterical.” Rainey was reluctant to tell her roommates what had happened and only reported the incident to her superiors at her roommates’ urging.

II

From the foregoing, I conclude that the prosecution presented a very substantial case against appellant. My review of the entire record convinces me of the correctness of the Court of Military Review’s finding that “on the night in question, ... [appellant] was on the prowl.” United States v. Dorsey, 14 MJ. 536, 538 n. 3 (A.C.M.R.1982). Further, his “now I wanted it, now I didn’t” account of the incident was most unhelpful to his cause. Regarding his credibility, appellant already faced an uphill battle, being convicted at the same trial of assault with intent to commit voluntary manslaughter and communication of a threat. These charges stemmed from an altercation which developed when appellant and the ubiquitous Murphy accosted a man and a woman. In addition, appellant’s own company commander described him as a liar and one who would “lie under oath.” By contrast, the commander described Rainey as “very honest and truthful” and one he would believe under oath.

Bradshaw’s testimony, cited by the majority, that he was awakened from his sleep, saw appellant and Rainey in their room, but was not later aware of any struggling or screams, takes on a different perspective when it is realized that Bradshaw had a history of alcohol-related blackouts and had consummed “about two six-packs or so” that evening. Thus, without reference to the obvious possibility that his testimony was influenced by fear of or loyalty to appellant, the court members had adequate grounds to discount Bradshaw’s sporadic recollection.

Additionally, the hysteria which Rainey exhibited when she returned to her room seems far more likely to be associated with flight from sexual assault than from insult. Her condition does not appear to be explainable by a concern that her husband might discover her infidelity with Murphy, since a charge of rape against appellant did nothing to mask that. To the contrary, it virtually guaranteed its discovery.

It also strikes me as somewhat improbable that one who had been so indiscreet in her affairs with Murphy, and who allegedly was so brazen as to throw herself at appellant, would have become so enraged by a mere insult. But if she were fabricating just to get even with appellant, she certainly chose an unusual vehicle! For in order to accomplish that goal, it was necessary for her to endure a series of risky interviews and hearings over several months, and to answer countless embarrassing personal questions posed by often doubting and hostile strangers. One can readily imagine far easier methods of retaliation. And she must have been a brilliant actress indeed to carry off such a fraud, for the record of trial alone indicates that she cried at least 39 times during her testimony.

Ill

Besides presenting powerful evidence of appellant’s guilt, the record leaves little doubt that the court members were aware of the nature of the relationship between Rainey and Murphy. If proof of this be needed, it came from a dialogue that occurred between the military judge and one of the members, out of the presence of the other members, when the judge was seeking to understand the basis of a question that the member had submitted:

MJ: What have I missed?
MEMBER (MAJ SEMON): I’m not sure I can identify what you missed, but to me it is pertinent to understand that just a — just a matter of maybe an hour or so prior to the alleged incident of rape,—
MJ: Um hum.
MEMBER (MAJ SEMON): —she, as a married woman, was in the room with this other man, Murphy. The other two girls having testified they didn’t— weren’t even cognizant of his presence,[] so, I’d have to presume, since it wasn’t brought out, that he was there with her.
MJ: Well, you’re not required to presume anything.
MEMBER (MAJ SEMON): If one wants to use the fact, in considering all the stuff presented, it was presented, but it was never delved into; so it’s there. So, I—
MJ: No, what I was just saying is that you must draw your own conclusions.
MEMBER (MAJ SEMON): Yes, sir.
MJ: Yes.
MEMBER (MAJ SEMON): And one can’t help but think of one possible conclusion, being, immoral activity— MJ: Um hum.
MEMBER (MAJ SEMON): —because of the fact that she is a married woman.
MJ: Um hum.
MEMBER (MAJ SEMON): And because of the fact that maybe it’s against the law, so to speak, a small law-company policy, however subjective one wants to look at that, to me it’s pertinent to know the facts of that.
MJ: And what do you think it might help you decide? What do you think it might tell you? What answers do you think it might assist you in reaching?
MEMBER (MAJ SEMON): There’s a possibility, depending on the answers, that it could lead me to believe that her testimony might be less credible, the fact that in one hour, she’s engaged in sexual activity with another man, and then an hour later, she’s accusing another man of having raped her.

(Emphasis added.)

In addition to demonstrating the potential for misuse of the proffered evidence, Doe v. United States, 666 F.2d 43 (4th Cir. 1981); United States v. Nez, 661 F.2d 1203 (10th Cir.1981); Government of Virgin Islands v. Scuito, 623 F.2d 869 (3rd Cir.1980); United States v. Kasto, 584 F.2d 268 (8th Cir.1978), cert, denied, 440 U.S. 930,99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); United States v. Driver, 581 F.2d 80 (4th Cir.), cert, denied, 439 U.S. 987, 99 S.Ct. 582, 58 L.Ed.2d 660 (1978); McLean v. United States, 377 A.2d 74 (D.C.Ct.App.1977), this testimony makes it clear that a mere verbalization of the obvious would not have affected the result. Therefore on this record, I am satisfied there was no possibility of prejudice to appellant — even if the evidence in question were erroneously excluded. Article 59(a), Uniform Code of Military Justice, 10 U.S.C. § 859(a).

By 1980, forty-five jurisdictions and the Federal Government had enacted some form of “rape shield” law. Despite the multiplicity of jurisdictions involved, I have neither found nor been cited to any case in which the concept of these laws has been rejected. Thus, one can only marvel at the celerity with which Mil.R.Evid. 412 has been dispatched. After this case, accused need only utter three things to side-step the “rape shield” law and guarantee the relevance of the details of an alleged sexual assault victim’s sex life: First, he must deny that a crime occurred. Next, he must contend that he insulted the alleged victim regarding her prior sexual activity. Lastly, he must assert a belief that the victim’s complaint was a fabrication to retaliate against the prior insult. This done, an accused will be as free as ever an accused was to intimidate and degrade an alleged victim regarding her sexual past. Moreover, apparently this is not the only chain reaction sort of theory that an accused will be able to construct to span a nexus gap.

My purpose is not to sustain “rape shield” laws at any cost, for indeed I am unsure that they add anything to the underlying principle that only relevant evidence is admissible. Mil.R.Evid. 402. My problem in this case is that the theory of relevance accepted by the majority requires speculation upon speculation upon speculation— speculation that Rainey would be hurt by the insult; speculation that she would then seek to retaliate against appellant; and speculation that the method she would choose would be a false accusation of rape. At some point, a progression becomes so extended and so labored that it loses meaning. United States v. Kasto, supra. This is such a progression. Undoubtedly there will be cases in which an alleged victim’s separate sexual activity is germane to an issue in the case. I will have to await such a case to identify the circumstances which would permit this type of inquiry.

I would affirm the decision of the United States Army Court of Military Review. 
      
      . Q: Now, Private Dorsey, were you surprised to see Specialist Rainey at the door to your room after you’d asked her earlier for some company?
      A: Yes, I were. When I — when I made— when I said that to her, I was thinking of— like — that—that she, you know, that she wouldn’t, you know, wouldn’t — that perhaps that, you know, she would think about it and maybe some other time, you know, that, you know, I see her that she still, you know, remember that what I had said to her, you know, but at the time, I didn’t think that she was going to come down to the room right then, within that same night. Well, I was kind of like, you know, making a point to her that I wouldn’t mind, you know, having sex with her, you know.
     
      
      . Appellate Exhibit IV:
      In the present case the issue is not consent. There is denial that any intercourse ever took place between the defendant and the alleged victim. The defense does not intend to introduce the victims [sic] sexual history, merely one episode, closely related in time to the alleged rape to show her state of mind at the time the defendant made his statement. Such evidence is highly probative. It goes to the issue of bias and provides an explanation of the victims [sic] actions at the time the rape is alleged. It provides a motive for the victim to claim to her roommates that she was raped by the defendant. The evidence will hardly interfere with the States [sic] interests in encouraging rape victims to report rapes and to disallow the presentation of this evidence would amount to denying the defendant the right to defend himself.
     
      
      . This knifing incident allegedly occurred sometime prior to the alleged rape and is unrelated to the assault with intent to commit voluntary manslaughter of which appellant was convicted, which occurred about a month after the rape. Apparently Rainey’s judgment cannot be faulted because, in this subsequent assault, witnesses described appellant as making a series of “ballet-like lunges” at the victim, finally stabbing him in the chest with a knife.
     
      
      . Compare appellant’s otherwise incongruous statement (text, p. 10) that, as Rainey was voluntarily shedding her clothes, “her slip was the problem.”
     
      
      . Initially, the roommates had not been aware of Murphy’s presence in the room. However, as their testimony indicates, they subsequently found out about it.
     
      
      . Tanford and Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U.Pa.L. Rev. 544 (1980). See also Annot, 1 A.L.R. 4th 283 (1980) (Constitutionality of “Rape Shield” Statute Restricting Use of Evidence of Victim’s Sexual Experiences).
     
      
      . It is unnecessary to deny that intercourse occurred, as appellant did here, because the alleged retaliatory motive could have been derived equally from an insult given after consensual intercourse.
     
      
      . It is of course merely fortuitous that the alleged insult here concerned only Rainey’s relations with Murphy earlier that evening. As the scope of the insult broadens, so apparently would the scope of the relevant inquiry necessarily expand.
     
      
      . United States v. Colon-Angueira, 16 M.J. 20 (C.M.A.1983). See also Gale, Military Rule of Evidence 412: The Paper Shield, 14 The Advocate 146 (May-June 1982).
     