An Army Specialist was charged with sexual assault of a minor after he hooked up with his friend’s 15-year-old daughter at a redeployment party. This was a case that, initially, looked nearly impossible to win.
In cases involving a minor, which the UCMJ defines as someone under the age of 16, neither consent nor mistake of fact as to consent are defenses. Under the law, if you are under 16 years of age, you cannot legally consent to having sexual intercourse with an adult. Here, the defense focused directly on the defense of ‘mistake of fact as to age,’ as opposed to ‘mistake of fact as to consent.’
At trial, Tim Bilecki, a noted military defense attorney for UCMJ Article 120 sexual assault cases in Hawaii, showed the panel that the alleged victim, who was an active and willing participant in the sex, appeared much older than 15 years of age; she dressed as an adult, was at a party full of adults, was pouring alcohol for adults and held herself out to be over the age of 16. In addition, Mr. Bilecki brought to light that the alleged victim’s parents never discussed their daughter with our client and never introduced her as such.
While the jury probably disliked that a twenty-something-year-old had sex with a 15-year-old dependent of a Soldier, the law clearly states that if the accused has a reasonable mistake of fact as to her age – that he believed she was 16 or older – he cannot be found guilty of statutory rape. After nearly a week of trial, the panel found our client not guilty of all charges and specifications.
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