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Military Sexual Assault Defense

Contrary to popular belief, the military takes sexual assault allegations very seriously. In fact, today’s political climate basically requires that the military prosecute nearly all allegations sexual assault, regardless of how weak or frivolous they may appear.

A service member convicted of sexual assault faces the potential of years in confinement, dishonorable discharge, and lifetime sex offender registration. Even in cases that don’t go to trial, service regulations now require commanders to process service members for involuntary discharge based on the mere allegation of sexual assault.

MJA has had tremendous success defending service members charged with sexual assault from all branches of the military. If you are the subject of a sexual assault investigation or charges, don’t delay in seeking legal advice. Contact our military defense lawyers now to learn more.

ARTICLE 120, UCMJ (RAPE AND SEXUAL ASSAULT)

Article 120, UCMJ, prohibits rape and sexual assault generally. Article 120 is probably the most complicated and comprehensive punitive article in the UCMJ. While entire books could be written about the topic of military sexual assault, we’ll just hit the highlights here.

Article 120 prohibits the following nonconsenual sexual conduct:

  • Rape;
  • Sexual Assault;
  • Aggravated Sexual Contact; and
  • Abusive Sexual Contact.

Each of these offenses is described in more detail below.

RAPE AND SEXUAL ASSAULT

The offenses of rape and sexual assault both require nonconsensual “sexual acts”, though the circumstances are a little different for each. “Sexual acts” generally include vaginal, anal, and oral sex, as well as penetration of the vulva by any part of the body or object (finger, device, etc).

Rape occurs when a service member commits a sexual act upon another by:

  • using unlawful force;
  • using force causing or likely to cause death or grievous bodily harm;
  • threatening or placing that other person in fear of death, grievous bodily harm, or kidnapping;
  • first rendering that other person unconscious; or
  • administering to that other person by force or threat of force, or without their knowledge or consent, a drug or intoxicate which substantially impairs their ability to appraise or control conduct.

In contrast, sexual assault occurs when a service member commits a sexual act under slightly less severe circumstances. These include:

  • threatening or placing a person in fear;
  • fraudulently representing that the sexual act is for a professional purpose;
  • creating the false belief that the person is someone else;
  • when the sexual act is without consent;
  • when the other person was asleep, unconscious, or unaware of the act; and
  • when the other person is incapable of consenting due to drugs, alcohol, or because of mental or physical disability.

AGGRAVATED AND ABUSIVE SEXUAL CONTACT

Aggravated and abusive sexual contact criminalize “sexual contacts” instead of “sexual acts.” Sexual contacts are very broadly defined. Sexual contact is defined as touching, or causing another person to touch, either directly or through the clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person.

This touching may be accomplished by any part of the body or an object. To be criminal, there must be an intent to “abuse, humiliate, harass, or degrade any person or to arose or gratify the sexual desire of any person.”

Aggravated sexual contact can be charged when the sexual contact occurs under the same conditions as rape. Abusive sexual contacts involve sexual contacts which occur under the same conditions as sexual assault.

RELATED OFFENSES

Related punitive articles include Article 117a (wrongful broadcast or distribution of intimate visual images); Article 120b (rape and sexual assault of a child); and Article 120c (other sexual misconduct like indecent viewing, visual recording, or broadcasting).

“Attorney Gerald Healy is by far one of the most experienced, fearless, and confident defense lawyers I have ever known . . . He was successful in defending my case and getting all the charges fully acquitted.

MAXIMUM PENALTIES

Convictions for rape and sexually assault carry potential sentences of life or 30 years in confinement, respectively. Both convictions risk total forfeitures and require a mandatory dishonorable discharged from the military.

Aggravated and abusive sexual contact carry potential sentences of 20 years and 7 year confinement, respectively. Both offenses risk punitive discharge (dishonorable or bad conduct) from the service and total forfeitures.

DEFENSES

In nearly all sexual assault cases, the alleged victim’s credibility is of utmost importance to any judge or jury. If the alleged victim is shown to be less than truthful, this creates doubt as to her story or allegations. A common way of attacking the credibility of the alleged victim is the use of prior inconsistent statements.

An accused may also raise specific defense to combat an allegation of rape of sexual assault. Two of the most common defenses in sexual assault cases are consent and mistake of fact as to consent. Mistake of fact as to consent can be raised when the accused, either mistakenly or out of ignorance, believed that the other person was consenting to the sexual act. This mistake has to be reasonable under the circumstances.

MOTIVES TO LIE

Even when the jury or judge sees inconsistencies or outright falsehoods in an alleged victim’s statement, they are usually left wondering why he or she would lie about such a serious allegation. Below are some of the top motives to lie that MJA has uncovered in the past several years.

  1. The alleged victim is married. When there is little doubt that sex occurred and the alleged victim is married, it places her on the horns of a dilemma–she must either admit to the adulterous act and face the harsh consequences that follow, or claim to her husband, friends, family, law enforcement that she did not consent. If you had the choice between telling your spouse that you cheated or saying that you were victimized in a vulnerable state, which would you say?
     
  2. Consensual sexual acts can be criminal. Under the UCMJ, service members can be charged and prosecuted for consensual sexual activities like fraternization, adultery, and oral sex. For example, lets say that a married, 20-year-old female Army Corporal has sex with a male Private First Class from the same unit at post party off post. Assuming they were both drinking, the female Corporal would be in violation of Article 92 (fraternization and under-age drinking) and Article 134 (adultery).
     
  3. Lying is a crime in the military. An often over looked motive to fabricate–or rather to continue to tell the false story–is the lie itself. Under the UCMJ, a service member who lies about a sexual assault can be charged with providing a false official statement under Article 107. At MJA, we often call this the “continuing” motivation to lie because the alleged victim sticks to her original false claim to avoid prosecution. Using the same example from above, let’s say the Corporal falsely told investigators that she was sexually assaulted but later felt guilty about the allegation. At that point, she has a difficult decision to make. She can either recant her original story and face prosecution, or continue with lie. If she recants, the Corporal would be facing charges under Articles 92, 107, and 134. Under those circumstances, it’s not hard to imagine why an alleged victim might perpetuate the lie–basic self-preservation.

Other reasons to lie include financial incentives, concerns over child custody or spousal support, and simply having remorse over making a bad decision to engage in a sexual relationship with someone else.

PRETRIAL CONFINEMENT

Service members suspected of sexual assault are often placed in pretrial confinement pending court-martial. This is a devastating punishment which significantly impacts a service member’s ability to prepare for trial. What’s worse, it prevents them from being with loved ones when it matters most. Service members held in pretrial confinement beyond their end of active service (EAS/ETS) are not entitled to pay and allowances while in confinement.

Any commissioned officer may order any enlisted person into pretrial confinement. Officers may only be ordered into pretrial confinement by their commanding officer. Within 7 days of the imposition of pretrial confinement, a “detached and neutral” officer is required to independently review the confinement decision. The officer may order that the service member be released from pretrial confinement. Later, the military judge assigned to the case may also order their release.

MJA has successfully fought to have service members released from pretrial confinement confinement for some of the most serious UCMJ offenses, including rape and sexual assault. When properly litigated, a service member unlawfully confined may be entitled to significant sentencing credit and even back pay.

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KNOW YOUR RIGHTS

The decisions you make while under investigation will directly impact your likelihood for success at trial. Here are three fundamental rights you can, and should, invoke:

Right to remain silent. Service members have an absolute right to remain silent if questioned about a suspected UCMJ violation. Providing a statement to law enforcement almost never helps and may result in additional charges. If the statement you make is different from that of the alleged victim, you may be charged with making a false official statement or obstructing justice. “Cooperating” with law enforcement won’t prevent the military from taking adverse action against you–it just makes the government’s case stronger.

Right to refuse consent. There is also no obligation to consent to any search or seizure of your person or property. If investigators have probable cause to believe that there is evidence of a crime in a certain location, they must obtain an authorization from your commander before conducting a search. Absent probable cause, the only way law enforcement can search or seize your property is with your consent. Providing consent gives law enforcement the right to search your phone, vehicle, residence, or person for evidence which they intend to use against you. Don’t be fooled.

Right to counsel. Service members suspected of a crime have the absolute right to consult with an attorney, military or civilian, before waiving their rights. It is crucial to consult with an attorney if you are suspected of a crime. Remember that no matter the specific legal circumstances you are facing, you are entitled to legal counsel and should utilize it.

PROTECT YOUR FREEDOM AND YOUR MILITARY FUTURE

When your career, freedom, and future are on the line, you need an experienced law firm in your corner.  The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you.  We have successfully defended service members facing investigation, court-martial, and discipline for the most serious sexual assault offenses and will ensure that every avenue of defense is aggressively pursued on your behalf.  Call us today at (843) 773-5501 for a free consultation.

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Our Battles Won

Results Matter. When your career, reputation, and freedom are on the line, you need an experienced law firm in your corner. With more than 75 years of combined legal experience, the attorneys at MJA know how to fight and win. Our results speak for themselves.

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When Your Career Is On The Line

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