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What to Expect: Military Legal Defense in Sexual Assault Cases

November 17, 2020

Rape and sexual assault charges can be serious and life-changing for anyone, especially if you’re in the military. You risk losing your career, ranking, allowances, and pay if you are convicted. You may even have to register as a sex offender or end up in prison. Unlike civilians who are tried in civilian court, on-duty members of the Armed Forces usually face a court martial.

If you have been charged with an offense under Article 120 of the Uniform Code of Military Justice (UCMJ), rest assured that you are presumed innocent until proven guilty. Here’s what to expect if you’re looking to defend yourself against military sexual assault allegations.

What Constitutes Sexual Assault?

The UCMJ criminalizes sexual assault, rape, and other sexual misconduct under Article 120. It defines sexual assault as an unwanted sexual act upon another person that involves:

  • Threatening or inflicting fear, with or without carrying out the threat
  • Causing bodily harm
  • Falsely representing the act as necessary for serving a professional purpose
  • Pretending to be another person
  • Acting upon the person while they are asleep, drugged, or otherwise incapable of providing consent

Rape is unwanted sexual acts. The charge is similar to sexual assault but with a few more grievous elements, including:

  • Using unlawful force
  • Causing or likely causing serious bodily harm or death
  • Threatening to subject the person to death, serious bodily harm, or kidnapping
  • Rendering the person unconscious or unable to provide consent before acting upon them

Aggravated sexual assault may be categorized as unwanted sexual contact that:

  • Wounds or disfigures the victim
  • Involves a physically or mentally incapacitated victim
  • Is performed through the use of force or fear using a deadly weapon
  • Occurs while committing another crime

Article 120 defines sexual act as the penetration, however slight, of the penis into the vulva, anus or mouth.  The law further states that a sexual act is any contact between the mouth and the penis, vulva, scrotum or anus. Finally, a sexual act also occurs when the penetration of the vulva, penis or anus is done by another by any part of the body or any object with intent to abuse, humiliate, harass or degrade any person or arouse the gratification of any person.

Article 120 defines sexual contact as touching, or causing another person to touch, the genitalia or other sexual parts of the body, either directly or through clothing, with the intent to abuse, humiliate, or degrade a person. Another type of sexual contact is touching any part of another person’s body with the intent to arouse or gratify their sexual desire.

Aggravated sexual contact is any sexual contact that would meet the requirements for rape had the sexual contact been a sexual act. Similarly, abusive sexual contact is any sexual contact that would meet the requirements for sexual assault had the sexual contact been a sexual act.

These accusations stand whether the accused was on-duty or off. The alleged victim may be an enlisted individual or a civilian. Sexual assault of a child is another possible charge if the alleged victim is under 16 years old.  Rape of a child is another charge if the alleged victim is under the age of 12.

Sexual Assault Crime Reporting Procedures

Following several high-profile military sexual assault cases in recent years, the Department of Defense (DOD) made reporting these crimes easier. Alleged victims can now file either a “restricted” or “unrestricted” report.

A restricted report is made confidentially to a healthcare provider, member of the clergy, or Sexual Assault Response Coordinator (SARC). This reporting method provides the alleged victim with medical treatment and counseling, but it doesn’t initiate prosecution. Still, restricted reports are an important part of giving military commanders a clearer picture of sexual assault trends within their command.

An unrestricted report is made when the alleged victim alerts their chain of command, military investigators, the police, or a friend. Only unrestricted reports can be investigated and lead to a criminal charge for the accused.

Once the alleged victim makes an unrestricted report, the accused’s immediate commanding officer conducts an inquiry. The commander has the discretion to take no action, impose non-judicial punishment, or advance the matter to a higher authority.

Common Penalties for Military Sexual Assault

The House of Representatives recently passed a measure to enforce a mandatory minimum sentence for service members convicted of sexual assault or rape under Article 120. These penalties consist of an automatic dishonorable discharge from the military. Other punishments may include:

  • Forfeiture of all allowances and military pay
  • Additional military charges, such as “conduct unbecoming of an officer”
  • The requirement to register as a convicted sex offender
  • Confinement for up to 30 years
  • Lifetime incarceration or capital punishment (possible sentences for rape charges)

Defending Yourself Against Military Sexual Assault Charges

With increased pressure to convict military sex criminals, there has been a decrease in efforts to prove false allegations. The mere accusation of sexual assault can result in knee-jerk reactions and emotional reasoning, creating an uphill battle when preparing a strong, effective defense.

Still, you should never assume there’s no hope. After all, you have multiple avenues for defending against sexual assault charges. Here are some possible techniques your military attorney may use in your case:

  • Present an alibi
  • Show that it’s a case of mistaken identity
  • Underscore the lack of convincing evidence
  • Provide DNA evidence that clears your name
  • Undermine the credibility of the witness
  • Summon character witnesses
  • Prove that the alleged victim consented
  • Plead not guilty by reason of insanity

If your attorney can cast reasonable doubt on the charges, you may be able to prove your innocence or soften the ruling.

Get Help from a Military Defense Lawyer

Joseph L. Jordan, Attorney at Law is here to provide expert legal defense. The unwavering support of an experienced military lawyer will prove invaluable in helping you defend yourself against sexual assault allegations. Rest assured that our lead attorney has prior experience in the military and served as an Army JAG officer. We’ll defend you against false accusations, manipulation of facts, dishonest witnesses, and any other unique situations that may apply in your case.

If you or someone you love has been accused of sexual assault or rape, call us toll free at 800-580-8034 or 254-221-6411 today to speak directly with Joseph L. Jordan about your case.

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