Accused of sexual assault in the military?

Sexual assault in the military is charged under Article 120 of the Uniform Code of Military Justice (UCMJ).  Article 120 actually has 4 different offenses: Rape, Sexual Assault, Aggravated Sexual Contact, and Abusive Sexual Contact.  Rape and Sexual Assault are penetration offenses while Aggravated Sexual Contact and Abusive Sexual Contact are, as stated in the titles, contact-only offenses (touching, grabbing, squeezing).

Accused of sexual assault in the military?

5 things you can do to defend yourself

 

1. No one who talks, walks. If you are accused of sexual assault – whether in the military or in the civilian community – don’t make any statements, to anyone (especially command or law enforcement), without first speaking to a lawyer.  Yes, you may have a compelling version of events that paints hot, steamy, consensual sexual encounter.  But the English language is a b*tch and, when under pressure by law enforcement, suspects often minimize bad facts that will be taken as consciousness of guilt, make admissions that will later be used to prove elements of the crime, and to make statements that may conflict with other evidence in this case.  And, worst of all, it’s almost always on video!  The reality is, no one cares about your version of events – they just want to get evidence to convict you.  If you are accused of sexual assault in the military, keep your mouth shut!

 

2. Tell the cops to go get a warrant. There is no reason – ever – to consent to search and/or seizure of your personal property (like clothing or a cell phone), DNA, blood, and so forth. Don’t submit to a sexual assault forensic examination (SAFE) without a warrant.  It will not help you.  Remember, the cops are there to get evidence to charge you with sexual assault, not help prove it was great sex.  And your refusals cannot later be used against you.

 

3. If you are accused of sexual assault, start using good judgment. The natural reaction when you have something go bad in life is to engage in risky behavior. Most often, young men accused of sexual assault in the military want to prove that girls want them – so what do they do?  They go out, get drunk, and try to get laid.  Sometimes this can lead to an additional accuser or propensity evidence establishing a modus operandi (“MO”).  Stay away from the alcohol, start using good judgment, and keep it in your pants until the sexual assault case is complete.

 

4. Stay away from the accuser. And don’t antagonize him or her. There will likely be a civilian protective order or military protective order (MPO).  If you violate this order, that is a completely different offense, and you can be found guilty of this offense even if you are exonerated from the sexual assault.  Also, stay off social media and avoid trashing the accuser to others.  Everything will get back to the accuser.  The accuser gets “victim input” into the prosecution decision, and you don’t want to push an accuser to prosecute because you have trashed them during the investigation.

 

5. Get a lawyer. If accused of sexual assault in the military, you need to have a lawyer represent you from the moment you become aware of the accusation.  The lawyer will be able to start building a defense case: collecting and preserving evidence, interviewing witnesses, and obtaining statements.  Also, a good lawyer will send a notice to law enforcement and military authorities that you are represented; the lawyer places a barrier between you and them, ensuring your rights are respected and properly exercised.  Because law enforcement and command are used to working with lawyers, the representation will not be received as an indication of guilt; rather, most commanders (surprisingly) are happy that their Soldier, Sailor, Marine, or Airman have someone advocating for them.

 

Many military sexual assault cases are lost during the investigation because of a failure to properly exercise rights, because of admissions made by the accused, or because of physical evidence collected through consent when no warrant would have been issued.  You may have made a poor decision by becoming involved with the accuser – start making good decisions today.

 

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Attorney Patrick Korody is a former Navy JAG who specializes in military justice and court-martial defense.  He is a former Special Victims’ Prosecutor and has defended dozens of military sexual assault cases across the globe.