Bilecki Wins Full Acquittal in Fort Knox Sexual-Contact Case After M.R.E. 412 Ruling

Bilecki Wins Full Acquittal in Fort Knox Sexual-Contact Case After M.R.E. 412 Ruling

April 2022

Fort Knox, Kentucky

Army Sergeant | E-5

Allegations: UCMJ Article 120 Abusive Sexual Contact; UCMJ Article 120c Indecent Exposure

Facts

An Army Sergeant at a Fort Knox training course was charged with Article 120 abusive sexual contact and Article 120c indecent exposure after another Soldier claimed he woke up in an open bay barracks to our client touching him.

The Government wanted the members to hear a simple story: the complaining witness was straight, our client was gay, and our client crawled across the squad bay from his bed to the complaining witness's bed so nobody would see him secretly give the complaining witness a hand job while he slept.

That was the allegation. That was not what happened.

The night started with Soldiers from the course drinking together after duty. The complaining witness, our client, and a female Soldier the complaining witness was involved with, his "battle boo," were part of the same group. The conversation turned sexual. There was talk about the complaining witness, our client, and the female Soldier hooking up together. The threesome conversation was not invented later by the defense. It existed before the allegation, and there were text messages that put it in the record.

The sequence did not end with talk. The group moved through the night, and the complaining witness and our client ended up in the car. In the car, they talked about hooking up, and the complaining witness tried to get oral sex from our client. That fact changed the case. The Government wanted the members to believe that the later allegation in the squad bay came out of nowhere. The defense showed the members what came before it.

Before trial, Bilecki fought the M.R.E. 412 issue and won the ruling that mattered. The Military Judge allowed the defense to present evidence that the complaining witness had expressed interest in a threesome involving our client and the female Soldier shortly before the charged events. That ruling let the defense show the sexual context of the night and explain why our client believed the later encounter was consensual.

At trial, Bilecki cross examined the complaining witness on the drinking, the sexual conversation, the threesome discussion, the car, the attempted hookup, and the later allegation in the open bay barracks. The complaining witness denied the threesome conversation, but the text messages showed the issue had been raised before. That denial mattered. The Government's case depended on the members accepting the complaining witness's version while ignoring the parts of the night that made that version hard to believe.

The battle buddy witness did not fix the case for the Government. He had not seen the alleged contact. He had not heard a struggle. He had not heard a verbal confrontation. He was not there for the key moment. The text traffic also hurt the Government because it showed the threesome issue predated trial and was not something the defense invented after the fact.

The female Soldier, the complaining witness's "battle boo," did not fix the case either. She had been involved with the complaining witness. She knew the group dynamic. She knew our client had stayed out with them. She left the complaining witness and our client alone. She did not see what happened in the car. She did not see what happened later in the barracks. Her testimony showed the members how much of the Government's case depended on what the complaining witness later claimed, not what anyone actually saw.

CID added little. There was no meaningful crime scene evidence. No open bay witness who heard a struggle. No Soldier from the squad bay who saw our client crawl from his bed to the complaining witness's bed. No forensic evidence that turned the allegation into proof. The Government had an accusation, interviews, and a theory.

Bilecki put our client on the stand. He had been drinking, and his memory was imperfect, but the members needed to hear his version of the night in his own words. The direct examination walked the panel through the drinking, the sexual conversation, the threesome discussion, what happened in the car, why he believed the encounter was consensual, and why the Government's squad bay theory was wrong.

The defense tried the case on consent and mistake of fact as to consent. The Government wanted orientation to do work that evidence did not do. The members were not asked to decide whether the complaining witness was straight or whether our client was gay. They were asked whether the Government had proven the charged offenses beyond a reasonable doubt after hearing the whole night.

The members found our client not guilty of every charge and specification.

Result: Full acquittal. Not guilty of all charges and specifications. No SORNA. No federal conviction. No punitive discharge.

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FAQ

Q: What is M.R.E. 412 and why did it matter in this Article 120 case?
Military Rule of Evidence 412 generally limits evidence about an alleged victim's sexual behavior or sexual predisposition. But the rule has a constitutionally required exception when the evidence is necessary to protect the accused's right to present a defense. In this case, the defense won a ruling allowing evidence that the complaining witness had expressed interest in a threesome involving our client and the female Soldier shortly before the charged events. That evidence mattered because it gave the members the sexual context of the night and helped explain our client's understanding of consent.

Q: Why put the accused on the stand in an Article 120 members trial?
Because the members needed to hear his understanding of the night in his own words. He had been drinking and his memory was imperfect, but that was part of the case. The direct examination walked the members through the drinking, the sexual conversation, the threesome discussion, what happened in the car, the awkward decisions, and why he believed the encounter was consensual.

Q: Why did the full acquittal matter beyond avoiding confinement?
An Article 120 abusive sexual contact conviction and an Article 120c indecent exposure conviction can carry consequences far beyond the sentence announced in court. A conviction could have triggered federal sex offender registration, a federal conviction record, and a punitive discharge. The members acquitted our client of every charge and specification, so no conviction, registration obligation or punitive discharge resulted from those charges.