(concurring in the result):
The principal opinion holds that there is a violation of appellant’s constitutional right of confrontation when the prosecutrix makes an allegation of rape to protect her extramarital affair with M and deliberately conceals that information from the defense. As that opinion recognizes, the victim’s past sexual behavior is “constitutionally required [under these facts] to be admitted.” It continues as follows:
The Court unequivocally adopted the Supreme Court’s holding that where evidence is relevant, material, and favorable to the defense, such evidence is constitutionally required to be admitted. See United States v. Valenzuela-Bernal, *362458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed. 2d. 1193 (1982), cited in United States v. Dorsey, supra at 5 and United States v. Colon-Angueira, supra, 16 M.J. at 26; see also United States v. Saipaia, 24 MJ 172, 175 (CMA 1987) (“Primarily, Mil.R.Evid. 412 is a rule of relevance, specifically concerned with the relevance of the victim’s sexual past in a trial for a sex offense.”), cert. denied, 484 U.S. 1004 [108 S.Ct. 694, 98 L.Ed.2d 647] (1988). Furthermore, this constitutionally limited evidentiary rule has been applied by this Court with equal force to evidence of post-offense sexual behavior. See generally United States v. Colon-Angueira, supra.
37 MJ at 359.
The principal opinion also recognizes the factual similarity between this case and Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988). Thus it would appear that the holding of Olden is sufficiently dispositive of this case without the necessity of citing the earlier opinions of this Court which have been so severely criticized. As Professors Charles Alan Wright and Kenneth Graham have stated:
It is disheartening to see the seriousness with which some courts have treated these forensic fables.46.1 For example, in a recent decision in the Court of Military Appeals it was held that the defense had a right to inquire into the sexual conduct of the victim’s husband and allegations that she had engaged in sexual intercourse with other men after the rape.46.2 The court thought that the proffered evidence might support an inference that the victim was passing out her favors to others in retaliation for her husband’s supposed cheating on her with another woman. The court does not explain why a woman who wanted to make her spouse a cuckold would accuse her putative lover of rape or why a defendant who thought he was engaging in consensual intercourse found it necessary to use a knife to threaten his partner and cut tbe microphone off her cab radio or why the two of them would select the backwoods as the place for their tryst. One must suppose that when the defendant drove off in the victim’s cab, he could reasonably believe that she was making him a gift of the vehicle in gratitude for his participation in her scheme of revenge on her errant spouse.
23 C. Wright and K. Graham, Federal Practice and Procedure: Evidence § 5387 at 583 (Pocket Part 1993).
We would leave the issue of an appropriate balance between the rights of defendants and rape victims which are beyond the facts of this case for another day.
Forensic fables
For another example, see U.S. v. Dorsey, C.M.A., 1983, 16 Mil.Jus. 1.
After the rape
U.S. v. Colon-Angueira, C.M.A., 1983, 16 Mil. Jus. 20 (holding exclusion was harmless error).