Military Sexual AssaultDefense Lawyers

Rape and Sexual Assault

Current Article 120(a) defines rape through specified means, including unlawful force, force causing or likely to cause death or grievous bodily harm, specified threats or fear, first rendering the person unconscious, or administering a substance by force, threat, or without the person’s knowledge or consent and thereby substantially impairing the person’s ability to appraise or control conduct. Article 120(b) separately defines sexual assault, including a sexual act without consent, specified fraud or threats, or the charged form of unawareness or inability to consent. These accusations may be made by a fellow service member or a civilian.

A sexual act includes:

• Penetration, however slight, of the penis into the vulva, anus or mouth.
• Contact between the mouth and the penis, vulva, scrotum or anus.
• Penetration, however slight, of the vulva, penis or anus of another person by any body part or object, with intent to abuse, humiliate, harass or degrade any person, or to arouse or gratify anyone’s sexual desire.

Marriage is not a defense to any charge under current Article 120. Consent evidence and any applicable mistake-of-fact defense must be assessed against the precise charged theory.

Rape, Sexual Assault and Sexual Abuse of a Child

A military member accused of rape, sexual assault, or sexual abuse of a child may have charges preferred against them under Article 120b UCMJ. For Article 120b, a child is a person under sixteen. The prosecution is not required to prove the accused knew that the alleged victim had not attained the age of 16 years at the time the alleged sexual act or lewd act occurred.

For sexual assault or sexual abuse of a child under Article 120b(b) or (c), reasonable mistake of age is a defense only if the child was at least twelve and the accused reasonably believed the child was at least sixteen. The defense bears the burden of proving that belief by a preponderance of the evidence. This is not a general mistake-of-age defense to rape of a child, and it does not apply when the child was under twelve.

If convicted of an Article 120b offense, you can face severe criminal penalties. Rape or sexual assault of a child carries a statutory minimum of dishonorable discharge or dismissal, subject to the authorized plea-agreement exception; that mandatory minimum does not extend to every sexual-abuse offense. Confinement, forfeitures and reduction of an enlisted member to E-1 depend on the charge and sentence. Registration consequences require their own analysis of the conviction and governing law.

Rape of a child carries a maximum of life without eligibility for parole. Sexual assault of a child carries up to thirty years. Sexual abuse of a child involving sexual contact carries up to twenty years; other sexual abuse of a child carries up to fifteen years. These are the current offense maxima, separate from sentencing parameters and the limits of the court-martial forum.

Aggravated Sexual Contact

Sexual contact under Article 120 means touching, or causing another person to touch, directly or through clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh or buttocks of any person, with intent to abuse, humiliate, harass or degrade any person, or to arouse or gratify anyone’s sexual desire. Touching may be accomplished by any part of the body or by an object.

Sexual contact is aggravated under Article 120(c) when it occurs through circumstances that would constitute rape under Article 120(a) if the contact had been a sexual act. The government must prove the particular rape means charged; a general reference to force, threats or intoxication does not replace those elements.

Aggravated sexual contact carries a maximum of twenty years of confinement, a dishonorable discharge and forfeiture of all pay and allowances. Reduction to E-1 applies to enlisted personnel; a commissioned officer may face dismissal. Sex offender registration depends on the conviction and governing registration law.

Abusive Sexual Contact

Abusive sexual contact under Article 120(d) involves sexual contact in circumstances that would constitute sexual assault under Article 120(b) if the contact had been a sexual act. That distinction matters. The government must prove the particular theory of sexual assault charged; the existence of touching alone does not establish every element of the offense.

The current maximum is seven years of confinement, a dishonorable discharge and forfeiture of all pay and allowances, subject to the applicable law and court-martial forum. Reduction to E-1 applies to enlisted personnel; a commissioned officer may face dismissal.

Indecent Viewing

Indecent viewing under the UCMJ takes place when a service member knowingly and wrongfully looks at another person’s private area without their consent and under circumstances in which they have a reasonable expectation of privacy. The private area in these sexual misconduct cases means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple. If convicted, the maximum sentence is one year of confinement, reduction to E-1 for an enlisted member, forfeiture of all pay and allowances, and a dishonorable discharge.

Indecent Recording

Indecent recording under the UCMJ involves knowingly recording another person’s private area without consent and where they have a reasonable expectation of privacy. If convicted of indecent recording, the maximum sentence is five years of confinement, reduction to E-1 for an enlisted member, forfeiture of all pay and allowances, and a dishonorable discharge.

Broadcasting and Distribution of an Indecent Recording

Broadcasting or distributing an indecent recording under Article 120c requires the government to prove that the accused knowingly broadcast or distributed a recording of another person’s private area and knew or reasonably should have known that the recording was made without that person’s consent and under circumstances in which that person had a reasonable expectation of privacy. The conduct must also be without legal justification or lawful authorization. A later objection to sharing a lawfully made recording does not, by itself, establish this particular offense; other laws may apply. The listed maximum is seven years of confinement, forfeiture of all pay and allowances and a dishonorable discharge, with reduction to E-1 for an enlisted member.

Forcible Pandering

You can face charges if you compel an individual to engage in prostitution with any person. Prostitution means engaging in sexual contact or a sexual act in exchange for anything of value. For the current offense, the listed maximum sentence is twenty years of confinement, reduction to the lowest enlisted rank for an enlisted member, loss of all pay and allowances, and a dishonorable discharge.

Indecent Exposure

Article 120c requires intentional exposure of the genitalia, anus, buttocks, or female areola or nipple in an indecent manner. There is no general exception simply because the person who sees the exposure is a family member. The listed maximum punishment for indecent exposure is one year of confinement, forfeiture of all pay and allowances, and a dishonorable discharge. The law applicable to the alleged conduct and the court-martial forum must be checked before calculating your actual exposure.

Consent

Consent means a freely given agreement to the sexual conduct by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance does not constitute consent. Submission resulting from the use of force, threat of force, or placing another person in fear also does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with you in the conduct at issue does not constitute consent. A “competent person” is a person who possesses the physical and mental ability to consent.

When a Person Cannot Consent

Under Article 120, “incapable of consenting” means that a person is incapable of appraising the nature of the conduct at issue, or physically incapable of declining participation in or communicating unwillingness to engage in the sexual act at issue.

• A sleeping, unconscious or incompetent person cannot consent.
• A person cannot consent to force causing or likely to cause death or grievous bodily harm, or to being rendered unconscious.
• A person cannot consent while under threat or in fear.
• Consent cannot be obtained by falsely representing that the sexual act serves a professional purpose or by inducing the belief that the accused is another person.

All the surrounding circumstances are to be considered in determining whether a person gave consent.

Mistake of Fact as to Consent

Where it applies to the charged offense, “mistake of fact” means the service member held, as a result of ignorance or mistake, an incorrect belief that the other person consented to the sexual conduct. The mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable, the ignorance or mistake must have been based on information, or lack of it, that would indicate to a reasonable person that the other person consented to the sexual conduct.

The mistake cannot be based on the negligent failure to discover the true facts. When an applicable mistake-of-fact defense is raised by the evidence, the prosecution must disprove it beyond a reasonable doubt.

When Consent Is Raised

The charged offense controls the role of consent. Current Article 120(b)(2)(A) expressly covers a sexual act without consent, and Article 120(d) carries the corresponding rule for sexual contact. The government must prove the charged elements beyond a reasonable doubt. The following discussion addresses how consent can also arise in a rape charge under Article 120(a).

Lack of consent to the sexual conduct is not a separate element of rape under Article 120(a). If the government charges administration of a drug, intoxicant or similar substance without the alleged victim’s consent, it must prove lack of consent to that administration. Other charged methods, such as administration by force or threat of force, have their own requirements.

Evidence of the alleged victim’s consent to the sexual conduct may be relevant to whether the government can prove the charged rape method. Generally, Article 120(a) requires the government to prove that the sexual conduct occurred “by” a specified means. That issue must be evaluated against the evidence and the particular charge. It does not mean that a person can legally consent to every kind of force or that evidence of consent automatically defeats a rape allegation.

Alcohol and Consent

Voluntary intoxication is not, by itself, a defense. The law recognizes that a person’s ordinary thought process may be materially affected when under the influence of intoxicants. Evidence that the accused was intoxicated may, either alone or together with other evidence in the case, cause a panel member to have a reasonable doubt that the accused had the required knowledge.

On the other hand, the fact that an accused may have been intoxicated at the time of the offense does not necessarily indicate that he or she was unable to have the required knowledge because a person may be drunk yet still be aware at that time of his or her actions and their probable results.

Where actual knowledge is an issue under the charged theory, voluntary intoxication may be considered in determining whether the accused had actual knowledge that the alleged victim was asleep, unconscious, or otherwise unaware that the sexual act was occurring or was incapable of consenting to the sexual acts due to impairment by a drug, intoxicant, or other similar substance or a mental disease or defect, or physical disability.

However, voluntary intoxication should not be considered in determining whether the accused “reasonably should have known” that the alleged victim was asleep, unconscious, or otherwise unaware that the sexual act was occurring or incapable of consenting to the sexual act due to impairment by a drug, intoxicant, or other similar substance or mental disease or defect, or physical disability.

Represent You Through the Investigation

If you are a service member facing a sexual assault investigation, contact our military defense attorneys before trying to explain the allegation to an investigator. We can help you protect your rights and prepare your defense from the beginning.

Exercise your right to remain silent. You have the right to remain silent during questioning about an offense you are suspected of committing. Ask to speak with a defense attorney before answering questions. We can advise you about any proposed interview and whether providing information would help or harm your defense.

Discuss any proposed polygraph with your attorney first. Investigators may suggest a polygraph during an investigation. Military Rule of Evidence 707 generally excludes polygraph results and the examiner’s opinion, but statements made during the examination may still be admissible. Whether to take a polygraph is a decision to make with counsel after considering the circumstances of your case.

Recognize pretext calls and messages. Sometimes military investigators ask the accuser to contact you as part of the investigation. A call or text may be intended to obtain an admission, and the prosecution may use your response against you. Speak with your attorney before responding. Preserve the messages, do not delete or alter evidence, and comply with any no-contact order.

Examine the digital evidence. Messages, photographs, recordings and other digital material may support or undermine an allegation. We review what investigators collected and pursue the forensic examination the case requires. When expert assistance is needed, we work to obtain it and test whether the government’s conclusions are supported by the underlying material.

Represent You After Charges Are Preferred

Before referral to a general court-martial, an impartial preliminary hearing officer examines probable cause, jurisdiction, the form of the charges and recommended disposition. The hearing is required unless you submit a written waiver and the convening authority or special trial counsel exercising authority determines that it is not required.

We challenge the government’s case within the scope of that hearing and present the defense position. The preliminary hearing officer’s conclusions are advisory. For charges over which special trial counsel exercises authority, special trial counsel decides referral; in other cases, that decision belongs to the proper convening authority. The hearing officer does not decide guilt or dismiss the charges.

Prepare and Fight Your Case at Court-Martial

If your case proceeds to trial, we prepare to make the government prove every element beyond a reasonable doubt. A claim of actual innocence must be investigated. If you were somewhere else when the alleged offense occurred, we pursue the witnesses and records that can establish your alibi. We examine the statements, timeline and forensic evidence, prepare cross-examination and challenge evidence where the facts and law support it.

When the evidence supports consent or an applicable mistake of fact, we prepare that defense against the specific charge. Each military sexual assault case is different. Your defense must address what the government actually alleges and what the witnesses and evidence can establish.