Article 32 Sexual Assault Defense

Article 32 Hearing: Why You Should Not Automatically Waive It

There has been significant commentary in the military justice community about whether it is worth participating in an Article 32 hearing, particularly in military sexual assault cases.

In 2014, Congress fundamentally changed the Article 32 process. What was once an investigative hearing became a preliminary hearing designed primarily to determine probable cause. The change was intended to limit the defense’s ability to use the proceeding as a broad discovery tool or to extensively cross-examine witnesses—especially alleged sexual assault victims.

Congress went further and gave alleged sexual assault victims the right to decline to testify at an Article 32 hearing, even if they appear and observe the proceedings.

These changes led many defense counsel to question whether it is worthwhile to contest an Article 32 hearing at all. In my experience, it is rarely beneficial—especially in sexual assault cases—to waive the Article 32 preliminary hearing. Here’s why.

1) An Article 32 Hearing Is Still a Real Opportunity to Defeat Baseless Charges

Even under the revised structure, an Article 32 hearing remains the government’s first formal test of probable cause. The prosecution must still present sufficient evidence to establish each element of every charged offense with competent and reliable evidence.

Many cases forwarded to an Article 32 hearing are weak, poorly investigated, or unsupported by reliable evidence. If the Preliminary Hearing Officer (PHO) makes favorable findings regarding probable cause—or recommends dismissal of certain specifications—the defense is in a significantly stronger position moving forward.

A strong showing at the Article 32 hearing can also create meaningful leverage during plea negotiations. Demonstrating weaknesses in the government’s case early may influence charging decisions, referral decisions, and the overall posture of the prosecution.

2) The Article 32 Hearing Still Provides Valuable Discovery

Although the 2014 amendments limited the scope of the hearing, it remains an important discovery opportunity. Defense counsel may still request production of relevant evidence, identify weaknesses in the government’s theory, examine investigative deficiencies, call certain witnesses (subject to limitations), and preserve objections for later litigation.

In many cases, the Article 32 hearing reveals inconsistencies in investigative reports, weaknesses in forensic evidence, or credibility issues that become critical at trial. Even when alleged victims decline to testify, the government may rely on documentary evidence, prior statements, or investigative summaries—all of which can be scrutinized and challenged.

3) The Law Surrounding Article 32 Hearings Is Still Developing

The modern Article 32 process remains relatively new in its current form. There is limited appellate guidance interpreting the precise standard of probable cause, the weight later decision-makers must give PHO recommendations, the scope of permissible defense participation, and the remedies available for procedural error.

Raising objections, challenging procedure, and litigating statutory and regulatory compliance can preserve issues for motion practice before the military judge. The Article 32 hearing is not just about probable cause—it is about building the litigation record.

4) The Role of OSTC in Reviewing Article 32 Hearings

In many serious offenses, including sexual assault cases, charging and referral decisions are now handled by the Office of Special Trial Counsel (OSTC).

The OSTC reviews the Article 32 hearing report, the PHO’s findings and recommendations, and the evidentiary record developed during the hearing. A well-developed defense presentation can meaningfully influence how the case is evaluated by OSTC prosecutors.

A strong defense at the Article 32 hearing can impact whether charges are pursued as drafted, modified, or potentially resolved through negotiated disposition. Early leverage matters.

5) Sexual Assault Cases Require Strategic Article 32 Litigation

In military sexual assault cases, the Article 32 hearing takes on additional importance. Special Victims’ Counsel (SVC) or Victims’ Legal Counsel (VLC) may advise alleged victims regarding participation. Trial counsel assigned to the Office of Special Trial Counsel (OSTC) approach these cases with structured prosecution strategies.

The defense must respond with equal preparation and precision. An Article 32 hearing in a sexual assault case may be the first meaningful opportunity to challenge forensic assumptions, highlight inconsistencies in statements, expose investigative bias, and begin shaping the narrative for trial.

Should You Waive an Article 32 Hearing?

Every case is different. There may be strategic reasons to waive an Article 32 hearing in limited circumstances. However, in most contested felony-level cases, participation provides meaningful strategic value.

An Article 32 hearing is a litigation event that can influence charging posture, plea negotiations, motion practice, and overall trial strategy. The decision to waive should only be made after careful analysis with experienced military defense counsel.

Experienced Article 32 Hearing Defense

Korody Law represents service members worldwide who are under investigation or have been charged with violations of the UCMJ, including serious felony allegations proceeding through an Article 32 hearing.

Patrick Korody is a former Navy JAG recognized for his military justice expertise. He has represented officers and enlisted members in complex cases involving sexual assault allegations, drug offenses, fraud, and other serious charges.

Worldwide Representation

Korody Law is based in Jacksonville, Florida, and represents military members worldwide. The office is located near Naval Air Station Jacksonville (NAS Jacksonville), Naval Station Mayport, and Naval Submarine Base Kings Bay.

If you are facing an Article 32 hearing, early and strategic representation is critical.