(concurring in part and concurring in the result in part):
I have never doubted that a delay for the psychiatric examination of an accused is not chargeable to the Government for speedy trial purposes — regardless of who exercises the responsibility mandated by paragraph 121, Manual for Courts-Martial, United States, 1969 (Revised edition), to initiate the process. United States v. Beach, 1 M.J. 118, 119 (C.M.A.1975) (Cook, J., dissenting). Therefore, I agree that appellant’s right to a speedy trial was not violated. However, I disagree with the analysis in the remainder of the principal opinion.
If I follow the thread of the majority’s logic, it is this: because Mrs. Robison testified that the prosecutrix had mentioned that she discovered her husband in an automobile with another woman, and because Robison testified that the prosecutrix was visibly upset on reporting this, then the judge1 might have inferred that the prosecutrix’ husband had been sexually unfaithful to her, or at least that she may have thought so.2 If the judge inferred that, he might further have inferred that the prosecutrix decided to get even with her husband. That, in turn, might have led the judge to infer that she would choose to retaliate sexually, i.e., by being unfaithful in return.
And had the judge followed this particular chain of inferences, he might have concluded that, when the prosecutrix allegedly had sexual relations with two of her fellow *31employees at some unspecified time, possibly months after the charged offense, she was at those times still under the influence of that mental state, i.e., the intent to get revenge. Having thus bracketed the encounter with appellant, the judge might have concluded that, at the time of the alleged rape, the prosecutrix was being governed by that same motive. This, in turn, might have made the judge more likely to believe that she was willing to accede to appellant’s advances.
By this tortuous process, the majority arrives at the conclusion that admission of evidence that the prosecutrix later had consensual intercourse with her co-workers could theoretically have tended to prove that the intercourse with appellant was also consensual. I consider this utter nonsense, for given sufficient time and imagination, and absent any restrictions on length or probability, I am confident that a sequence of inferences can be fashioned such that virtually any fact, theoretically, could be said to support any other. But the judicial process cannot function with such a theory of relevance. Cf. Attorney-General v. Hitchcock, 1 Exch. 91, 103 (1847), cited in United States v. Cottle, 14 M.J. 260, 264 (C.M.A.1982). Even assuming that the prosecutrix possessed the speculated motive and engaged in sexual relations with her co-workers, we still know nothing about whether she was interested in having sex with appellant. 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). Without some indication that she was bereft of all discretion in the matter, the evidence of her extramarital affairs, if any, is simply irrelevant.3 Mil.R.Evid. 401-403; United States v. Dorsey, 16 M.J. 1, 8 (C.M.A.1983) (Cook, J., dissenting).
I do agree with the majority that the exclusion provisions of Mil.R.Evid. 4124 cannot be applied mechanically, for undoubtedly there will be cases wherein evidence of a sexual-assault victim’s past behavior is relevant and material, such that its admission is constitutionally required. U.S. Const, amend. VI. The instant case is not one of them.
Accordingly, I join in affirming the decision of the United States Army Court of Military Review.
. The case was tried by military judge alone.
. Other than the simple statement that the prosecutrix had found her husband with the other woman, no evidence was produced or even proffered which suggested infidelity. The prosecutrix, of course, denied discovering that her husband had been unfaithful.
. It is perhaps not impertinent to note that the motive ascribed to the prosecutrix here is quite inconsistent with falsely accusing a lover of rape — particularly where she was neither caught in the act, nor in some other way threatened with exposure or embarrassment. Interestingly, there is no suggestion in the record that she similarly accused her other alleged lovers of rape.
. MiLR.Evid. 412 provides, in pertinent part:
(a) Notwithstanding any other provision of these rules or this Manual, in a case in which a person is accused of a nonconsensual sexual offense, reputation or opinion evidence of the past sexual behavior of an alleged victim of such nonconsensual sexual offense is not admissible.
(b) Notwithstanding any other provision of these rules or this Manual, in a case in which a person is accused of a nonconsensual sexual offense, evidence of a victim’s past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is—
(1) admitted in accordance with subdivisions (c)(1) and (c)(2) and is constitutionally required to be admitted; or
(2) admitted in accordance with subdivision (c) and is evidence of—
(A) past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury; or
(B) past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which the nonconsensual sexual offense is alleged.