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Military Sexual Assault DEFENSE
Article 120 UCMJ criminalizes the rape, sexual assault, aggravated sexual contact, and abusive sexual contact.
How to fight an allegation of Article 120 UCMJ sexual assault.
NO STATEMENTS
If you are being accused of military sexual assault, don't make any statements to anyone.
WATCH FOR "CONTROLLED" CALL OR TEXT
Military law enforcement will have the alleged victim contact the suspect by text or phone to try and obtain a confession. Do not answer or respond.
DO NOT CONSENT TO ANY SEARCH
Do not consent to search of your home, car, cell phone or anything else.
Article 120 UCMJ Sexual Assault Defense Lawyer
A conviction of an offense under Article 120 UCMJ carries serious consequences - mandatory dishonorable discharge; brig time; lifetime sex offender registration; loss of rank and pay.
Article 120 UCMJ Sexual Assault Sentences
Rape is punishable by up to Life in prison and carries a mandatory dishonorable discharge. It is classified as a Category 4 offense with an advisory sentence range of 120 to 240 months in prison.
Sexual assault is punishable by up to 30 years in prison and carries a mandatory dishonorable discharge. It is classified as a Category 3 offense with an advisory sentence range of 30 to 120 months in prison.
Aggravated sexual contact is punishable by up to 20 years in prison and a dishonorable discharge. It is classified as a Category 3 offense with an advisory sentence range of 30 to 120 months in prison.
Abusive sexual contact is punishable by up to 7 years in prison and a dishonorable discharge. It is classified as a Category 2 offense with an advisory sentence range of 1 to 36 months in prison.
Sexual assault defense strategies that work.
The burden is always on the prosecution to prove guilt, even in a sexual assault court-martial. But it often doesn't feel that way. Military leaders and investigators are ordered to believe the alleged victim since the moment an unrestricted report of sexual assault is made. The military gives the alleged sexual assault victim an advocate, a lawyer, counselors, and an army of investigators. The military gives the member accused of sexual assault nothing. Military JAG defense lawyers are prohibited from getting involved until charges are filed.
Because of the political environment, investigators don’t challenge the credibility of alleged victims; they don’t seek out exculpatory evidence or evidence showing the alleged victim is not credible. Every piece of evidence overlooked undermines the assertion that investigators engaged in a truth-seeking mission.
Every alleged victim has a motive to lie and fabricate. Even if an assault actually occurred, because of the way they are treated, alleged victims exaggerate the incident, add untrue aggravating details, and lie to protect relationships, hide their own misconduct, or save their reputation. Regardless of the reason, a lie is a lie and now one should be convicted on the word of a liar.
99% of reported sexual assaults are based on the reporting of an alleged victim with no video or other corroborating evidence. Law enforcement will seek to bolster the statement of the alleged victim by taking statements from people the alleged victim told the same story to. Just because a story is repeated doesn’t make it more true. In almost all military sexual assaults, the evidence gathered is consistent with wholly consensual sexual activity.
Military sexual assaults are not often “jump out of the bushes” allegations. Nevertheless, if the suspect doesn’t make any statements and there is no evidence linking the suspect to the alleged victim, misidentification is a viable defense strategy.
Free Military Sexual Assault Defense Case Consultation
Accused of sexual assault? Let Korody Law provide you a free case consultation.
How is alcohol a factor in military sexual assaults?
How is DNA evidence a factor in military sexual assaults?
Alcohol and intoxication is not an excuse or defense to an Article 120 UCMJ offense. However, an alleged victim’s intoxication can absolutely be helpful to challenging the alleged victim’s ability to remember and accurately depict the events, i.e. memory issues. Blackouts are widely misunderstood – a person can absolute consent but have no memory of the consent. Beware that under the law there is a point where a person becomes so intoxicated that the person is incapable of consenting to sexual activity – this is more of falling over drunk than someone who is intoxicated but still talking, walking, and making decisions. Because many military sexual assaults involve alcohol and there is a fine line between a blackout and incapacitation, a suspect should make no statements to anyone once he or she knows that there has been an allegation made.
DNA evidence is biological evidence that supports a person with the identified DNA profile was or was not present at a certain place within a generalized period of time. Semen is distinct from “touch DNA” because laboratories can identify semen and male sperm cells. DNA is never conclusive regarding the issue of consent and it cannot explain how the DNA came to be where it was found. Because virtually every alleged victim who timely reports a sexual assault in the military undergoes a sexual assault forensic examination, it is imperative that a suspect make no statements. Even a denial of ever being with the alleged victim can become a focus of a trial if DNA evidnece is later found indicating the suspect was with the victim.
How do i protect myself from being charged with an Article 120, UCMJ rape or sexual assault?
The strategy to avoid being charged is the same for virtually any criminal case.
- Rule #1 - No Statements to Anyone.
- Rule #2 -Do Not to Consent to Any Search or Seizure.
- Rule #3 -Hire a Lawyer.
What is the "Office of Special Trial Counsel" and how does it impact sexual assault prosecutions in the military?
After years of debate, Congress finally removed rape, sexual assault, and certain other felony cases from military commanders. In other words, military commanders no longer decide who will face court-martial for these offenses. This is another response to the cries from “victims” and victim rights advocates that the military is not doing enough to combat sexual misconduct in the military. Now, JAG lawyers assigned to the Office of Special Trial Counsel (“OSTC”) are supposed to make the decisions regarding whether a military member will face court-martial “free from outside influence.” OSTC will also be responsible for approving any plea agreements in those cases. OSTC will handle all cases involving the covered offenses that occured on or about December 28, 2023.
Each service set up an OSTC led by a one-star flag officer. They then took who they believe are the best trial lawyers in the services and assigned them to OSTC, trying to once again stack the deck against the accused service member. OSTC has made it more important than ever for a military member to hire an experienced military civilian defense lawyer.
What is the process for a sexual assault report in the military?
If an unrestricted report of sexual assault is made, it must be reported to the military investigative organization for the service – NCIS, CID, CGIS, or AF OSI. Depending on the timing of the report, they may respond to a crime scene to secure evidence or they may interview the alleged victim. They often will do a controlled call or controlled text message to try and obtain admissions from the suspect. They will then question any witnesses and seize any evidence, such as a cell phone or Facebook account. The last step in the investigation is normally interrogating the suspect. After the investigation is complete, it’s forwarded to the trial counsel (prosecutor) for a “prosecutorial merit review.” The trial counsel will make a recommendation to the commander as to whether the suspect should be charged.
Without a statement by a suspect, it is often very difficult to charge an Article 120, UCMJ crime.