Absence of Malice?: Federal Circuit Finds Lack of Records of Military Rapes Inadmissible to Prove Their Nonoccurrence
Federal Rule of Evidence 803(7) provides an exception to the rule against hearsay for
Evidence that a matter is not included in a record described in paragraph (6) [the business records exception] if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.
So, would this rule allow for the admission of evidence that there were no service records of two veterans being sexually assaulted? That was the question addressed by the Court of Appeals for the Federal Circuit in its recent opinion in AZ v. Shinskei, 2013 WL 5420978 (Fed. Cir. 2013).
In Shinskei,
Veterans AZ and AY filed claims with the Department of Veterans Affairs (“VA”) seeking disability compensation for post-traumatic stress disorder (“PTSD”) alleged to have resulted from sexual assaults that occurred during service. The veterans’ service records d[id] not reflect any reports of the alleged sexual assaults. The VA Regional Office (“RO”), Board of Veterans’ Claims (“Board”), and the Court of Appeals for Veterans Claims (“Veterans Court”) rejected the claims in part on the ground that the veterans’ service records did not include reports of the alleged assaults, and because the veterans stated that the assaults were never reported to military authorities.
The veterans thereafter appealed, claiming, inter alia, “that the Board and Veterans Court erred by treating the absence of reports of the alleged sexual assaults as pertinent evidence that the assaults did not occur.”
In response, the Federal Circuit found that “courts have refused to admit evidence of the absence of a record to show that an event did not occur, where it was not reasonable to expect the event to have been recorded.” Applying this principle, the court concluded that
the absence of a report of an unreported sexual assault is too ambiguous to have probative value. Because the alleged assaults were not reported to military authorities, no reasonable person could expect records documenting the assaults to exist, or infer that the absence of such records tends to prove the assaults did not occur. Thus, the absence of records “provides neither positive nor negative support for service connection,”…and is “not pertinent evidence, one way or the other,” to that determination, see id.
In sum, basic evidentiary principles preclude treating the absence of a record of an unreported sexual assault as evidence of the nonoccurrence of the assault. Therefore, we agree with the appellants that where an alleged sexual assault, like most in-service sexual assaults, is not reported, the absence of service records documenting the alleged assault is not pertinent evidence that the assault did not occur.
-CM