An accusation of sexual assault reaches a service member long before a court martial does. Security clearance review, a no contact order, removal from a duty position, and a flag on favorable personnel actions can all follow within days. That is the part of the process where most of the damage is done, and it is also where the defense has the most room to work.
Start With What Is Actually Happening
Some of the most important defense evidence is easiest to preserve before a charge sheet exists. Mr. Jordan spent his years as an Army prosecutor at Fort Hood, Texas, and with the 2nd Infantry Division in South Korea watching the government assemble exactly this kind of file, and the material that ends up deciding it, messages, location data, the accounts of people who saw the parties before and after, is at its most complete on the first day and degrades from there.
Before anything else, establish which process you are in. The answer changes what you should do next.
Investigation. CID, NCIS, OSI, or CGIS is gathering facts. No charges exist. You have rights under Article 31 and you should exercise them.
Preferral. Charges have been signed and sworn. The case has a charge sheet and specifications you can read.
Article 32 preliminary hearing. A preliminary hearing officer examines whether there is probable cause and makes a recommendation on disposition.
Referral. The convening authority has decided the case goes to a court martial and at what level.
Each stage has different opportunities. Evidence preservation matters most at the first stage, when it is still recoverable.
Preserving What Disappears
Preservation is the part a service member can begin without counsel and should. Devices get wiped, accounts get closed, and installation camera footage is overwritten on a fixed cycle. Joseph L. Jordan, Attorney at Law has tried 181 Article 120 courts martial, and material that existed in the first week and not in the sixth is among the losses that cannot be repaired later.
Digital evidence does not wait. Messages auto-delete, cloud storage is overwritten, and phones are replaced. Steps to take immediately:
- Preserve the full message history with the complainant and with anyone who discussed the events, without editing or deleting anything.
- Note who else was present, who you spoke with afterward, and when.
- Record your own timeline while it is fresh, and give it to your attorney rather than discussing it with others.
- Do not contact the complainant, directly or through a third party. There is no rule that any contact is automatically a second offense, but contact is how additional charges most often arise: violating a military protective order or a no contact order is chargeable, and contact that a factfinder reads as pressure can support obstruction of justice or witness intimidation. If a protective order is in place, read it and follow it exactly. If you believe contact is necessary for some legitimate reason, route it through your attorney.
Where Accounts Are Tested
Testing an account is not the same thing as attacking a person, and the difference matters tactically as well as ethically. A panel that senses an attack stops listening. Mr. Jordan prosecuted cases of this kind before he moved into defense practice, and the questions that test an account are the ones the government asks itself first: what is corroborated, what is only asserted, and what changed between the first telling and the fourth.
A defense is built from the record, not from a theory about motive. The places where an account is tested include:
- Contemporaneous communications. What was said before, during, and after, in the parties’ own words at the time.
- Third party accounts. People who saw the parties that evening and who describe behavior inconsistent with the allegation as charged.
- Physical and forensic evidence. What was collected, what was tested, and what the results actually show as opposed to how they are summarized.
- The investigation itself. Whether Article 31 warnings were given, whether searches were properly authorized, and whether the investigative file reflects leads that were not followed.
What Not to Do
Do not try to explain your way out of it. Investigators are trained to obtain statements. A statement that feels exculpatory when you give it can be used differently at trial.
Do not gather statements yourself. Contact with witnesses by the accused can be characterized as obstruction or witness intimidation. Your attorney can conduct that work through proper channels.
Do not post about it. Social media content is routinely sought in discovery, and a post made while a case is pending can be read against you in ways you did not intend. Privacy settings do not put content beyond reach.
On the Question of False Allegations
False allegations exist, and service members have been acquitted after evidence showed an allegation could not be sustained. That is a fact about individual cases.
What we do not do is generalize from those cases to a claim about how often allegations are false, in the military or anywhere else. Such a claim would require data we do not have, and presenting it without a source would be exactly the kind of unsupported assertion a defense should be attacking, not making.
What matters in your case is your record: what the evidence shows and what the government can prove beyond a reasonable doubt.
Related Case Results
Allegations that do not survive the evidence are defeated case by case. Results include a full acquittal for an Air Force officer facing nine complainants and a not guilty verdict for an Air Force major at Keesler Air Force Base in a nine complainant case.
Past results do not guarantee future outcomes. Every case turns on its own facts.
Speak With a Military Defense Attorney
Joseph L. Jordan, Attorney at Law is a former Army JAG officer whose practice is devoted to military defense. He represents service members in all branches, at installations in the United States and overseas.
If you are under investigation or have been charged, call (888) 643-6254 before you make a statement.