(concurring in part in the result):
14. I agree with the majority’s disposition of the first issue, except for the statement that “[t]he testimony relied on by appellant tended to show objective circumstances upon which a reasonable person might rely to infer consent.” 41 MJ at 438 ¶ 7. This statement suggests that the alleged victim was sending mixed messages. There were no mixed messages in this case. Appellant’s testimony unequivocally describes actual consent. The victim’s testimony unequivocally describes lack of consent. Mistake of fact was never even suggested, much less raised by the evidence.
15. I agree that the military judge did not abuse his discretion by precluding cross-examination which would have revealed that appellant had failed a polygraph examination. Such cross-examination would have been highly prejudicial and only marginally relevant. See Delaware v. Van Arsdall, 475 U.S. 673, 679 ¶ 12, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986) (Trial judge has “wide latitude insofar as the Confrontation Clause is concerned” to prevent “prejudice, confusion of the issues, ... or interrogation that is repetitive or only marginally relevant”). If the military judge had not limited the cross-examination in this case, I have no doubt that we would now be entertaining an issue regarding ineffectiveness of counsel.