(dissenting):
I
Dealing properly with the granted issue before the Court in this case requires putting it in perspective. In doing so, the best beginning point is the testimony of the prosecutrix, who was the first government witness at appellant’s trial for rape.
On direct examination, she testified that on the evening of May 22,1979, after being at Fort Hood, Texas, for fifteen days, she left her fiance’s barracks about 7:00 p.m. enroute to the barracks of a friend. She “said hello to” Private William May, and asked him to walk with her to her destination. They went to Helen’s Hide-Away to play pool. PFC Lewis, a friend of May, sat down at a table with them. May and Lewis then went with the prosecutrix to a bowling alley, where May made a telephone call and she went to the restroom. Appellant joined them at the bowling alley, and he and Lewis asked if she would go to Moore’s barracks. They went across a field and through a large parking lot, where there were two guards. As they walked through the parking lot, appellant grabbed her hand and interlocked his fingers with hers. The prosecutrix also was holding hands with May. Ultimately May, appellant, and the prosecutrix arrived at Moore’s barracks and proceeded through the lobby to Sergeant Moore’s room, which was two doors from the lobby on the ground floor.
The prosecutrix entered the room, since this was “[j]ust common courtesy”; and thereupon she “walked over and sat down on Sergeant Moore’s bed.” Appellant said that it was time for her to have sex with him, whereupon she went to the door of the room but was unable to open it because she “could not understand the lock.” According to her, appellant subsequently hit her, put his hand over her face to keep her from screaming, and threatened her. He and Lewis had intercourse with her, after which she went to her fiance’s barracks.
In response to further questions from trial counsel, the prosecutrix revealed that as a child she had been sexually assaulted by her father and had sexual relations with him from the time when she was five until age fourteen. Over a defense objection that the sexual assaults in her childhood were not relevant, she was allowed to continue her testimony as a basis for showing “through ... psychiatric testimony” how “this affects her resistance and her consent at the time of the alleged incident.” She then explained that her father had had sexual relations with her a few times every week, and that he also was a child beater.
Next, trial counsel sought to elicit testimony that, after the prosecutrix’ mother *368had divorced and remarried, other instances of sexual intercourse occurred with her stepfather; and defense counsel once again objected on grounds of relevance. He noted that “[i]t appears to me that at this time the sole purpose of this testimony is to gain the sympathy of the trier of fact.” The objection was overruled, whereupon the prosecutrix described how, without her consent, her stepfather had sexual relations with her from the time when she was approximately twelve years old. Thereafter, she described how she met her fiance, lived with him for about a year, became pregnant by him, and had a miscarriage. Next, after affirming that she had never “voluntarily made love with anybody except” her fiance, she described how she had been the victim of a sexual assault behind a bowling alley in Lebanon, Oregon. According to her, this incident had occurred when two “friends” invited her to listen to a tape with them in a car, while her fiance and others were bowling inside the alley. Although her “friends” had intercourse with the prosecutrix, who at the time was sixteen and did not consent, and although she eventually reported the incident, it never resulted in a trial.
Later, when she followed her fiance to Fort Knox, Kentucky, where he was staioned at the time, she was sexually attacked again — this time at the hands of a “friend” with whom she was playing pool. She had gone outside with him, fallen asleep, and had awakened with her clothes disheveled. Since she did not “know if” she had “had sex with this guy,” she did not report the incident. However, subsequently she became convinced that sexual relations had occurred, for “later on I come up with the symptoms of VD.” At Fort Knox, she also had had “run-ins with the military police,” because “[t]hey suspected me of prostitution.” Near the end of her direct examination, the prosecutrix testified that she was eighteen years old, had not “plan[ned] on having sex with Moore or any of the others,” and had done nothing to encourage them. She insisted that she had not consented to having intercourse with Moore; that he had forced her to do so; and that she had been “afraid that he was going to kill me.”
On cross-examination, the prosecutrix conceded that although she had been raped twice before and in one instance the alleged rape had been investigated, no prosecution had resulted. According to her, although she had been visiting her fiance at Fort Hood, she had no place to stay on the evening in question and was to make housing arrangements on her own. While walking with appellant and two others to his barracks, she had passed near guards and had made no outcry; and she had entered appellant’s barracks voluntarily. She testified that she had received bruises during the rape and had mentioned them to the doctor and nurses who examined her. Her explanation for being suspected of prostitution by the military police at Fort Knox was that “I was always around men.”
While awaiting Moore’s trial, she had been staying at Poxon House — apparently at government expense — and she admitted that, while there, at her own solicitation, she had given a massage to a man and had been paid for this service. On still another occasion the prosecutrix had reported to the local police that she had been struck by a Sergeant Laundry and that he had bruised her; and she also had reported this to his company commander. However, no action had been taken on her complaint, because her assailant’s “company commander said that the Army protected him from getting into trouble.”
Doctor MeMorries testified later as a government witness that he had examined the prosecutrix in a hospital emergency room after the alleged rape had occurred. He “found no evidence of bruises, or scars, scratches, or bleeding signs. The only thing that I did find was some soiling on the extremities, and in particular, on the inner thighs.” Moreover, no nurse had reported to him any claim .by the prosecutrix that she had been physically beaten. On cross-examination, the doctor verified that the prosecutrix had gonorrhea and that, before the incident with appellant, she had experienced fairly frequent sexual intercourse.
*369Later in the Government’s case in chief, Mrs. Barbara Barnett, the mother of the prosecutrix, was asked whether she had personal knowledge that her husband had beaten her daughter. To a defense objection that this was irrelevant, the assistant trial counsel replied that the Government was seeking to lay the “foundation for expert testimony by ... psychiatrists ... concerning the ... why or the probability, if you will, why Sandra did not fight any more than she did.” The objection was overruled. Over a defense hearsay objection, the witness was also allowed to testify that her daughter had told her that “the first time she had sexual intercourse with her father” was when she was “between four and five, and that is as far back as she can remember.”
Later, the Government called as a witness, Colonel James Randall, an Army psychiatrist who had interviewed the prosecutrix. When defense counsel objected to the relevance of this psychiatric evaluation of the prosecutrix, the assistant trial counsel responded that “[i]t is the Government’s position that the reason Miss Barnett didn’t resist any further is because of the incidents that occurred when she was a child.” Defense counsel then added an objection that the Government’s evidence “is just a matter of trying to influence the tribunal in terms of trying to prejudice them and inflame the minds of the jury against the defendant.” The objection was overruled. Colonel Randall then testified that he had found no “mental or emotional illness,” and he concluded “that she was an immature young lady,” after “taking into consideration her total history background, the way she presented herself, her general behavior, doing things that are sort of naive, gullible, non-worldly, sort of over-trusting individual.” After the doctor testified that, in forming his opinion, he had taken into account “the prior incestuous relations that she had with her father and stepfather,” he was allowed to express a “professional opinion” that the prosecutrix “could unknowingly place herself in a situation — in a sexually compromising situation without realizing it.” His opinion was that this “would be very probable.” Moreover, in Colonel Randall’s opinion, “the probability of Miss Barnett placing herself in that situation [was] inconsistent with normal conduct of individuals,” since “most people have learned to cope with that by that age.”
The next government witness was Captain Smith, a psychologist. While the defense had no objection to his qualifications as an expert in his field, counsel did object to his being “offered on the same basis”— apparently a reference to the expert testimony of the preceding witness. The objection was “noted” by the military judge, who then directed the witness to proceed.
On the basis of psychological tests he had administered to the prosecutrix, Captain Smith testified, over the defense’s “original objection,” that he had formed certain conclusions about the prosecutrix. According to this witness, one of the tests indicated that the prosecutrix was experiencing “schizoidness” and was “sort of in between the normality and a person really out of touch with reality.” However, an intellectual assessment had shown that the prosecutrix had “superior intelligence.” The witness further testified on direct examination that, on the two occasions when the prosecutrix had come to his office, “she was dressed in what I would consider to be unappropriate — in an inappropriate manner, and especially under the circumstances.” The first time “she was dressed in short shorts”; and “on the second day she was wearing a bathing suit with a military shirt” and “they were very revealing and very seductive.” In response to a hypothetical question based on information which the prosecutrix had given to Captain Smith, he stated that it was probable for her to “place herself in a situation with unknown male individuals, without realizing that she was placing herself into a sexually compromising situation.” While the witness “could see how a male would respond on a sexual basis to her, in terms of her behavior,” he did “not see her as deliberately setting that up, not consciously.”
On cross-examination, the witness characterized the prosecutrix as “a seductive per*370son” who “puts herself in positions where she lures men for their companionship” and that while she was “aware of it at a mind level ... emotionally I don’t think she is aware... She is emotionally very immature.” Moreover, he conceded that she might enter a sexual relationship with one or more men and then later call it rape because of “a defense mechanism” operating “at an unconscious level.” On redirect, the witness testified “that it was possible,” but not “probable,” “that she could be engaged in some sexual activity and later scream rape.”
Doctor Nicholas Groth was to be the next government witness; but before he appeared, defense counsel objected in an Article 39a1 session that this witness, a clinical psychologist, had never examined the prosecutrix and was to testify “regarding the psychology of rape” — a matter which the defense contended was not relevant. The assistant trial counsel replied that the witness would tend to rebut the implication in some of the defense questions to the prosecutrix that she had voluntarily accompanied appellant to his room and consented to have sexual intercourse with him and also
to explain certain psychology dealing with rape victims in general, which will corroborate and substantiate, in a pattern, the testimony given by Doctor Randall and Doctor Smith concerning this particular victim; how this fits into a particular pattern of rape; that is, rape falls into a particular type pattern; the basic factors that are involved in a rape and how they comply as they break down into a classification of the different types of rape; and certain consistent accepted medical criteria.
The objection was overruled, and Doctor Groth was allowed to appear. After his credentials as an expert had been established to the apparent satisfaction of the judge, defense counsel objected unsuccessfully that his testimony was irrelevant and was “an attempt to try to bolster the testimony of the victim in this particular case.” The witness then testified that there are “three basic components” in every case of rape: “[ajnger; power; and sexuality.” The relation of these components and their expression in an assault “may vary from one offender to other.” Still another objection was forthcoming from the defense, this time for failure to lay “a proper predicate ... for the offer of any testimony from ... [the] witness”; but this objection also was overruled. Doctor Groth then explained that “what we usually find is that sex is being used to express anger or to express power or some combination of those two factors” and “we see the sexual behavior used to show these other needs; not simply to satisfy sexual desire.” Doctor Groth then divided rapes into three classes: “anger rape,” “power rape,” and “sadistic rape.” The second is “the most common” type and is “characterized in terms of aggression by the offender using only whatever force is necessary to gain control of the victim.” The witness continued:
That may not be physical force. That may be verbal threat; it may be intimidation with a weapon, but if it does reach the point of using physical force, usually, the offender will only use whatever is necessary to subdue to [sic] the victim to overcome her resistance, rather than battering the victim or intending to hurt the victim.
The witness based his conclusions in this regard on interviews with some “500 identified rapists and child molesters” whom he had seen during the preceding fifteen years. Doctor Groth then explained that in
a power rape ... the offender sets out specifically with that intent in mind; in other cases, he simply comes across an opportunity that seems to lend itself to carrying out his intent, and capitalizes on that situation. The victim chosen is frequently determined by vulnerability; the more vulnerable the person, the more powerful the offender can feel in the situation and more in control of the situation.
At this point, defense counsel objected again and argued that the evidence about *371the 500 persons whom Doctor Groth had interviewed did not pertain to the accused then on trial. The objection was overruled. Next, Doctor Groth, distinguished two subcategories of “power rape,” as follows:
I think sometimes you can differentiate on the basis of a conversation between the offender and the victim. One may be more commanding; giving orders; instructions. In the other case, it may be more asking personal information; trying to get a lot of personal detail about the victim’s life or background, and things of that nature, or responses to the assault; things of this nature.
Next, over another unavailing objection by defense counsel, the witness sought to describe “the character of the conversation between a power rapist and the victim.” Doctor Groth then sought to correlate a decision to commit a rape with a perception on the offender’s part that
the victim seems to be vulnerable in some fashion; either because of the situation she’s in, or because of the level of her intellectual ability or her emotional state, or things of that nature seem to be encouraging to someone who is looking for a victim.
The witness explained that a victim might be “more vulnerable” because of the situation, their “psychological attributes,” physical handicaps, or “how the person carries themselves [sic].”
The prosecutor then asked the expert a hypothetical question, which assumed among other things that
He grabs her. She attempts to leave again after breaking loose. He grabs her again; hurls her against the wall; slaps her anywhere from one to seven times; and requires her to have sexual intercourse with him.
On the basis of the facts assumed, the witness testified that “[m]y opinion would be that that fits the description of a power rape very accurately.” Moreover, it fitted “the power-assertive type of offense.” In response to a further question, Doctor Groth opined:
You will usually find that the victim is not seriously injured and may show no evidence of physical trauma unless she has very vigorously resisted in the event that he is becoming increasively [sic] aggressive. But, in most cases of — the victims of power rape, we do not find evidence of physical trauma to the body.
According to Doctor Groth, of the offenders who committed power rape, about half were married and the other half “had never married at the time I saw them.” Reverting to “the hypothetical fact situation” assumed by the prosecutor, Doctor Groth testified that the conduct described “appear[ed] . . . to represent a sexual act evolved of impulse” and explained that “it’s kind of an unplanned, spontaneous sexual urge that surges through the offender that he can no longer control and must gratify at all costs.”
When the prosecutor then added to his hypothetical question “that the victim was subject to child abuse in the form of incest by her father and stepfather” and asked if “that [would] be likely to have any impact on the amount of force that might be required to overcome any resistance on the part of the victim,” defense counsel objected that this “callfed] for a conclusion by this witness as to the ultimate issue that has to be decided by this tribunal of whether there was consent or whether there was force.” The objection was overruled and the witness answered that in his work “with a number of incest victims” he had “noticed that because they have been growing up in a situation where the person typically seen as their protector is, in fact, their victimizer, they tend to learn that it doesn’t do very — it’s not very helpful to complain or to resist, but to be obedient.” In such an instance, the other party “may misinterpret that as consent. Now, when a person cooperates, they may misread that as consenting, when it is in fact simply cooperative.”
In response to a further question from the prosecutor as to “whether or not sex is the principal motivator in the particular hypothetical situation that” had been assumed, Doctor Groth answered: “Sex is the *372way of expressing needs that are nonsexual that have to do with — of a like issue, so it’s not the primary motive. It’s simply the primary means of expressing other motives.” On cross-examination, Doctor Groth said he had never examined the prosecutrix or even met her. After Doctor Groth’s testimony, the Government rested.
Sergeant Moore was the first witness in his own defense. Reduced to capsule form, his testimony was that he, the prosecutrix, and two other soldiers had gone to his room with the expectation of having sexual intercourse; that he had not used force or threats against her; and that she had consented. Various other witnesses then testified for the defense, after which the prosecution offered some rebuttal witnesses.
II
No matter how unchaste a woman’s character may be, she can be the victim of rape. Moreover, even if she lures a man into a sexually inviting situation, he is still guilty of rape if he has intercourse without her consent. However, even when allowance is made for these propositions, the testimony of the prosecutrix in this case almost suffices in itself to generate reasonable doubt. In light of the circumstances under which she had made allegations of rape on prior occasions, her own account of the circumstances under which she arrived at appellant’s room, and the absence of any physical evidence indicating that force had been applied,2 it seems highly arguable that, as a matter of law, appellant was entitled to acquittal, because on the Government’s own evidence a reasonable doubt existed that the prosecutrix had denied her consent to intercourse. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).3
I need not, however, go this far, for even if the evidence sufficed to overcome reasonable doubt, the case certainly was so close on its facts that evidentiary errors by the trial judge in receiving prosecution evidence would be prejudicial. In my view, such errors did occur in admitting some of the expert testimony.
Writing for the Court in United States v. Hulen, 3 M.J. 275, 276 (C.M.A.1977), Judge Cook pointed out:
In United States v. Ford, 4 U.S.C.M.A. 611, 613, 16 C.M.R. 185, 187 (1954), we adopted the test set forth in Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014 (1923), for the admissibility of expert testimony. That test is defined in the following manner:
“Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”
In recent years, there has been increased judicial receptivity to psychological testimony. See, e.g., Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (Ga.1981) (battered woman’s syndrome); United States v. Hill, 655 F.2d 512 (3rd Cir.1981) (susceptibility to entrapment). Undoubtedly, the Federal Rules of Evidence and their clone, the Military Rules of Evidence, tend to encourage this trend. See Fed.R.Evid. and Mil.R.Evid. 701-705. However, the Frye test still has vitality. For example, in Ibn-Tamas v. United States, 455 A.2d 893 (D.C.Ct.App., 1983), the appellate court upheld exclusion of expert testimony about the “battered woman syndrome” by a trial judge who had concluded *373that there had been a failure “to establish a general acceptance by the expert’s colleagues of the methodology used in the expert’s study of ‘battered women.’ ” Id. at 894. See generally Ibn-Tamas v. United States, 407 A.2d 626 (D.C.Ct.App.1979). Accord Buhrle v. State, 627 P.2d 1374 (Wyo. 1981). In any event, since appellant was tried before the effective date of the Military Rules of Evidence, the Frye standard clearly was applicable to his case — whatever might be the effect, if any, of the Rules on the admissibility of scientific evidence and expert testimony in later cases. From my examination of the record, I am convinced that, under the Frye standard, much of Doctor Groth’s testimony and some of that given by Doctor Randall and Captain Smith was inadmissible and should have been excluded. Cf. United States v. Fields, 3 M.J. 27 (C.M.A.1977); United States v. Adkins, 5 U.S.C.M.A. 492, 18 C.M.R. 116 (1955); see generally Comment, The Psychologist as Expert Witness: Science in the Courtroom, 38 U.Md.L.Rev. 539, 557-82 (1979) [hereafter cited as Comment].
A man may be convicted of rape although his victim did not resist to the utmost. See United States v. Henderson, 4 U.S.C.M.A. 268, 273, 15 C.M.R. 268, 273 (1954). Indeed, no resistance is required when obviously it would be futile. However, “[i]f a woman in possession of her mental ... faculties fails to make her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she did in fact consent.” Para. 199a, Manual for Courts-Martial, United States, 1969 (Revised edition). Although, this provision only permits — and does not require- — drawing the inference, clearly the Manual intends that the factfinder examine carefully the extent of a woman’s resistance in determining whether she refused consent.
In offering Colonel Randall’s testimony trial counsel explained that it was the Government’s position that the prosecutrix had not resisted more extensively because of incidents in her childhood. In their testimony, Doctor Randall and Captain Smith indicated that because of the incest and child abuse which the prosecutrix had experienced, she would be especially prone to acquiesce in a demand for sexual intercourse. If the testimony had tended to show that, because of her childhood trauma and otherwise, the prosecutrix lacked the mental faculties to grant consent, it would have been admissible. For example, in United States v. Henderson, supra at 271, 15 C.M.R. at 271, evidence was received that the prosecutrix “had suffered from schizophrenia for some fifteen years” and that she “possessed] the mentality of a child ‘somewhere between 8 and 10 years’ of age.” However, in the case at bar, Dr. Randall, a psychiatrist, testified as a government witness that, upon examining the prosecutrix, he found her to be free of “mental or emotional illness.”
Consistent with trial counsel’s expressed purpose in introducing the testimony of Dr. Randall, this testimony might have been construed by the court members to mean that the prosecutrix lacked the mental capacity to give valid consent — as did the victim in United States v. Henderson, supra. In that event, the members were misled, for the prosecutrix here was an experienced 18-year-old woman; and none of the government experts testified that she suffered from a mental defect or disorder of a sort that would render her incapable to grant valid consent to sexual intercourse.
The prosecutrix’ bizarre past history may explain why she would be willing to grant a request for sexual intercourse; but that was not a question for the factfinders to decide. To the extent that the expert testimony went further and sought to explain why, because of her past history, this prosecutrix would have resisted a rapist less strenuously than some other women would have, it was of minimal relevance in the present case. If appellant employed the threats of death to obtain intercourse — as the prosecutrix claimed in her testimony— the absence of resistance would be readily explainable without reference to any unique personality traits of the victim. Submission to intercourse in the face of a threat of imminent death is generally rec*374ognized as a prudent choice, and such a choice is frequently made by persons whose past was much less turbulent than that of the prosecutrix in this case. In short, as defense counsel correctly perceived in making his objections as to relevance, the expert testimony about the prosecutrix’ personality traits provided no enlightenment to the court members as to the issues of the present case. On the other hand, this evidence invited the members — in the name of science — to speculate, disregard the evidence about what actually had occurred, ignore their own experience and common sense, and decide on the basis of sympathy for the prosecutrix, even though much of the Government’s own evidence indicated that she had voluntary intercourse with appellant.
Furthermore, it seems questionable that the testimony of Dr. Randall and Captain Smith had a basis in generally accepted scientific principles. If a psychologist interviews a woman who has engaged in intercourse without overt manifestation of resistance, how can he be sure that she did not consent, regardless of what she tells him after the fact? Moreover, although the woman’s prior experiences might induce her not to resist strenuously even though she did not wish to have sexual intercourse, how can he be sure that those same experiences might not have induced her to give consent to requested intercourse? The testimony of Doctor Randall and Captain Smith suggested that the prosecutrix’ childhood experiences would have induced her to acquiescence in a demand by someone like her father or stepfather, who both had committed incest with her when she was young. For some purposes, a distinction is drawn between “acquiescence” and “consent,” see, e.g., United States v. Wilcher, 4 U.S.C.M.A. 215, 218, 15 C.M.R. 215, 218 (1954) (search and seizure). However, although common law requirements of resistance in rape cases have been greatly mitigated over the years, it seems unlikely that Congress intended for a servicemember to be subject to conviction of rape — and imposition of a death sentence, see Article 120(a), Uniform Code of Military Justice, 10 U.S.C. § 920(a),4 — when he had sexual intercourse with someone who “acquiesced” but did not “consent.” As I interpret the Uniform Code, acquiescence by a woman constitutes a defense to rape, unless that acquiescence is compelled by use, display, or threats of imminent physical force.
Thus, when a woman of sound mind submits to intercourse because of events in her past of which the person seeking her sexual favors has no knowledge or notice, he cannot be prosecuted for rape because there exists consent. Contrariwise, the reception into evidence of the testimony of Doctor Randall and Captain Smith would tend to suggest that appellant was guilty of rape because the prosecutrix subconsciously identified him with those persons in her family who had used force years before to obtain sexual favors from her and therefore acquiesced to appellant’s desire for intercourse.
Doctor Groth’s testimony was offered by the Government to corroborate that of Doctor Randall and Captain Smith. However, the purported corroboration was minimal, since for the most part Groth was describing the characteristics of a “power rapist,” while the other two experts had testified about characteristics of the alleged victim. Doctor Groth based his testimony largely on his interviews of some 500 “identified” sexual offenders. How these individuals were “identified” is left unclear by the record. How did Doctor Groth ascertain that there had been no consent on the part of the women with whom his “identified” offenders had sexual relations? Doctor Groth acknowledged that frequently an offender might have misconstrued apparent cooperativeness as consent, but he did not make clear how he had determined that, in fact, a “cooperative” victim of an “identified” offender had not given consent. Of course, if consent had been given, there was no rape — and no sexual offender.
*375Furthermore, even if Doctor Groth’s classification and description of a “power rapist” is accurate, it lacked relevance to the case at bar. Although, according to this expert, a “power rapist” commits his offense without using more force than necessary, this characteristic does not tend to establish that a woman who, as in the present case, displays no physical evidence of force has actually been raped, as she claims. While the absence of resistance may be consistent with “power rape,” it is equally consistent with voluntary intercourse. Therefore, Doctor Groth’s testimony, which tends to indicate that the prosecutrix — whom he had never examined— could have been raped without having any bruises or injuries, adds little to the fact-finder’s basis for decision. On the other hand, this evidence makes it easier for the factfinder to draw the logically erroneous conclusion that because the rape could have occurred as the prosecutrix testified, it must have done so.
The principal opinion concedes that parts of Doctor Groth’s testimony were “questionable,” but it insists that these parts “did not influence the court members against the accused in their deliberations on the verdict.” 5 M.J. 354, 364. In so concluding, this opinion fails to recognize that, “because of its aura of special reliability and trustworthiness,” the expert testimony in the present ease “createfd] a substantial danger of undue prejudice or of confusing the issues or of misleading the jury.” See United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir.1973); see also Comment, supra at 589-98.5
Ill
One other matter about the case troubles me. As I have already suggested,6 the testimony of the prosecutrix raised the possibility that, at worst, appellant only made an honest and reasonable mistake concerning consent. Moreover, Doctor Groth testified for the Government that a “power rapist” might misconstrue as consent his “vulnerable” victim’s submission to sexual intercourse. Under these circumstances, a defense of honest and reasonable mistake clearly was raised by the evidence.
Moreover, that defense was in no way eliminated by the testimony of appellant— including that quoted by the principal opinion in a footnote. Testifying in his own behalf, appellant made it perfectly clear that he believed the prosecutrix willingly engaged in intercourse with him. The Government’s own evidence is in large part quite consistent with the honesty and reasonableness of appellant’s belief.
Defense counsel asked if the military judge would be giving an instruction on “[m]istake of fact” as to “[pjerceived consent.” Thereupon, the following colloquy occurred:
ATC: That would appear to be covered in the protestation’s paragraph of the rape instruction, Your Honor.
MJ: Well, it normally is.
IDC: That’s fine.
MJ: But, again, on the Mistake of fact, it’s one of those things where you are taking inconsistent positions.
IDS: Your Honor, I think that the original paragraph instead of Mistake of fact will probably suffice.
MJ: You want to withdraw the request?
IDC: Yes.
The withdrawal of the defense request for an instruction on mistake of fact can hardly be considered a waiver, since it was predicated on an inaccurate assurance that the topic would be covered in another portion of the judge’s advice to the court members. In any event, the military judge has an independent and paramount duty to instruct on any affirmative defense raised by the evidence, regardless of defense theories or requests. United States v. Sawyer, 4 *376M.J. 64, 65 n. 2 (C.M.A.1977); United States v. Graves, 1 M.J. 50, 53 (C.M.A.1975). See United States v. Sermons, 14 M.J. 350 (C.M. A.1982); United States v. Mason, 14 M.J. 92 (C.M.A.1982); United States v. Steinruck, 11 M.J. 322 (C.M.A.1981). Any doubt as to the sufficiency of the evidence to trigger this sua sponte responsibility should be resolved in favor of the accused. United States v. Steinruck, supra; United States v. Staten, 6 M.J. 275 (C.M.A.1979). Thus, despite the absence of a defense request for such an instruction, it was error for the judge to fail to instruct on mistake as to the prosecutrix’ consent — a defense which had been reasonably raised by the Government’s own evidence. Under the circumstances of this case, the failure to give this instruction clearly was prejudicial to appellant.7
IV
Appellant was a victim of prejudicial error, and a miscarriage of justice may have occurred. Accordingly, I would reverse the decision of the United States Army Court of Military Review, set aside the findings and sentence, and authorize a rehearing.
. Uniform Code of Military Justice, 10 U.S.C. § 839(a).
. The medical evidence also impeached the testimony of the prosecutrix that she had been bruised.
. At the very least, there would seem to be reasonable doubt that appellant had not made an honest and reasonable mistake that the prosecutrix had granted consent — especially, in light of Dr. Groth’s testimony on direct examination that the conduct of the “cooperative” victim might be “misread ... as consenting.”
. Of course, I express no view as to the constitutionality of the death penalty of rape, which was authorized by the Uniform Code in 1951.
. This is one of several reasons why expert testimony as to “rape trauma syndrome” has been rejected by some courts. Cf. State v. Saldana, 324 N.W.2d 227 (Minn. 1982); State v. McGee, 324 N.W.2d 232 (Minn. 1982).
. See n. 3, supra.
. In United States v. Carr, 13 M.J. 12 (C.M.A. 1982), we granted review of an issue concerning mistake of fact as a defense in a rape case.