Many service members come into the military young, sexually inexperienced, and with sexual expectations shaped more by porn than by real life. That may sound like a harmless reality of the internet age, but it is not. For some service members, that skewed baseline is leading directly to trouble under the UCMJ.
One of the clearest examples is choking, more clinically described as erotic asphyxiation. Service members have seen it so many times in porn that they assume it is normal. They assume that is just how sex happens now. The partner may even have been into it at the time and said “choke me more” with what breath they had left. Then the next day, the next month, or the next year, that same partner can say it was never consensual at all, and the service member is left trying to explain what happened while the government calls it strangulation.
That is how a private sexual encounter turns into a UCMJ problem.
Is Erotic Asphyxiation a Crime Under UCMJ Article 128b?
Yes, if it is done without consent.
If it is consensual sexual activity, erotic asphyxiation is not automatically a crime under the UCMJ just because it sounds rough, weird, embarrassing, or outside the mainstream. In that regard, what consenting adults do in their own bedroom is none of the UCMJ’s business. A female asking a service member to “choke me” is no more a violation than when a service member asks the female to dress up like Abraham Lincoln before engaging in sex. Sure, not everyone is into it, but that does not make it a crime.
The problem comes later, when one of the two consenting adults says it was not consensual after all.
That is where the whole case changes. The government does not care how the encounter started. It cares how the allegation sounds once it reaches CID, NCIS, OSI, command, and the prosecution. Once the word “strangulation” lands in the file, the label starts doing work that the evidence may not.
The government loves that word because it sounds dispositive. It is not. The label is not the proof. The real fight is whether there was choking at all, whether it was asked for, whether it was consensual, what the messages show, what the photos show, what the deleted texts show, what the medical evidence shows, and why the allegation surfaced when it did.
A lover who willingly engaged in erotic asphyxiation can very easily claim strangulation later when they become a lover scorned. That is not a throwaway line. That is motive to fabricate. That is the theory of defense in a real number of cases.
Erotic Asphyxiation in the Era of SHARP, SAPR, and OSTC
The military has been engaged in a years-long campaign to root out sexual misconduct. The intent behind that effort is understandable. The execution has often been an unmitigated disaster.
Commands are under enormous pressure to show that they are taking SHARP and SAPR seriously. Mere rumor and scuttlebutt can be enough to destroy a career in today’s military. Even when there is not enough evidence to convict at a court-martial, there is often still more than enough institutional appetite to sideline the service member and start looking for ways to bury them administratively.
Unfortunately, service members are fighting a two-front war. On the criminal side, they are fighting Office of the Special Trial Counsel prosecutors whose job is to prosecute exactly these kinds of allegations. On the command side, they are fighting leaders who may sideline them, freeze their career, make life hell while the case is pending, and, if OSTC declines to prosecute or the case falls short of trial, still try to bury them with adverse paperwork, a GOMOR, or an administrative separation board.
And that is what a lot of service members do not understand until it is too late. Even before trial, the allegation alone can stop the career cold. Schools dry up. PCS moves get disrupted. Favorable action disappears. Assignments get derailed. Reputations get wrecked. Even if OSTC does not convict, command can still spend the next year trying to end the career anyway.
That means when a sexual partner later says the choking was not consensual, OSTC is primed to treat it as a covered offense and command is primed to assume the worst. It could be months later. It could be a year later. It could come after a breakup, after jealousy, after retaliation, or after somebody suddenly realizes they have a lot to gain by changing the story. It is not right, and it sure as hell is not justice for real victims of sexual violence, but it is the reality service members are facing.
The Weaponization of SHARP and SAPR Has Become Commonplace
Unfortunately, it did not take long for service members to realize how to take advantage of this system.
The junior ranks are full of men and women in their sexual prime. They are in close quarters and often one dumb decision away from disaster. That means there are often two service members involved in any given sexual encounter, both of whom fully understand SHARP, SAPR, and what an allegation can do.
So when the relationship goes sour, or when fantasy collides with disappointment, the other partner may know exactly how to ruin the other’s life. Any claim of sexual misconduct can be enough to destroy a career. That makes the consensual act of choking a perilous affair.
Choking is violent by nature, and that is part of the appeal for some people. The lack of oxygen is thought to enhance climax. Porn has normalized it. A lot of service members assume this is just what sex is supposed to look like now. It is all fun and games until a lover scorned uses that for payback.
It is also true that service members have figured out that making an allegation can stop their own trouble with the UCMJ in its tracks. The choking may have taken place after a night of mutual cocaine use, stealing the battalion commander’s car, or some other idiotic misconduct. But once one service member makes an allegation, the focus shifts. For a service member staring down real consequences, that can look like a very convenient get-out-of-jail-free card.
Why Porn Is Driving This
Porn is normalizing this behavior. The amount of porn that a service member has at their fingertips is skewing the norms of sexual interactions. Young men often think this is what sex is supposed to look like thanks to porn, and young women often feel that they are expected to oblige. This is not healthy for a variety of reasons, but it is not illegal.
The perceived benefits of erotic asphyxiation are also part of it. Those who engage in this behavior report increased pleasure because restricting oxygen can create a rush of dopamine and endorphins, intensifying orgasm. Some couples believe that risky behavior increases trust and intimacy. Maybe that is true. Maybe it is not. What is certain is that it is not illegal.
Then there is the 50 Shades of Grey effect. Beyond porn, the erotic BDSM thriller movie and book 50 Shades of Grey dragged BDSM further into the mainstream and sold it as edgy, erotic, and fashionable. Vanilla sex was suddenly out and the kinky was somehow normalized. You can reenact every scene with your lover all you want and it is still not illegal.
That is why these allegations are showing up more often. Not because service members suddenly became monsters. Because porn, culture, and bad judgment have normalized conduct that can very easily be repackaged later as criminal.
Guarding Yourself from Charges of Strangulation Under UCMJ Article 128b
You may feel as if there is no recourse for a service member accused if the accuser’s word is going to be taken for gold. Unfortunately, that is part of the sexual reality in the era of SHARP, SAPR, and OSTC. Still, there are things a service member can do to protect themselves on the off chance a consensual encounter heads in this direction.
First, understand that it is entirely possible to enjoy sex without the act of choking. Just because you have liked every strangulation video on PornHub ten times over does not mean this is what sex is supposed to look like. If you do not know the partner very well, or if you think there is any instability in their conduct or behavior, maybe go for a good old-fashioned slap on the ass instead of choking. Still a little rough. Still memorable. Does not have its own article under the UCMJ.
Next, consider some kind of text trail that documents the consent. We are not saying secretly record anyone. That can create a different set of problems. But a flirty text the next morning saying “last night was fun” may get a response that confirms the partner was fine with what happened. Now you have something showing that the act was treated as consensual at the time. That can become very important if the accusation comes months later after the relationship blows up.
Finally, only conduct actual consensual activity. If your partner is not into it, do not do it. Do not be an asshole. Understand that you have more to lose than gain over a five-minute romp in the back of supply. If you are a Staff Sergeant, you have no business running around with a female PFC who just got assigned. Use good judgment. Be rank appropriate. Be consensual.
Fight Back Against Charges Stemming from Erotic Asphyxiation
Now let’s talk about how to fight the charges if they are indeed coming your way.
The reality is that you may very well love the military, but you simply cannot peacefully coexist with a military justice system that is out to destroy you. You are going to have to fight back and fight like hell to save your reputation, career, retirement, and freedom.
The team here at Bilecki Law Group flies in hard-hitting attorneys from the United States to locations all over the world to defend service members from these charges. We put together a defense that is aggressive from the start and we take the fight to the prosecution throughout the entire process. We fight during the investigation. We fight at the Article 32 hearing and can sometimes win the case right there. If they want to take it to trial, we will fight them there too.
That fight starts with getting into the facts early and refusing to let the government tell the story unopposed.
In many of these cases, the most important evidence is sitting in a phone, a cloud account, deleted messages, photos, app data, a text chain, a Signal thread, or metadata showing when things were sent, deleted, or changed. We work with digital forensic examiners to preserve and analyze communications before and after the alleged incident, recover deleted material where possible, and test whether the complaining witness’s story actually matches the messages and other evidence. In some cases, the messages show fantasy talk about choking, rough sex, prior consensual conduct, or post-encounter communications that look nothing like someone describing a criminal assault. In some cases, the alleged victim later denies those communications existed. The extraction proves otherwise.
We have handled and won these cases, including cases where digital extractions exposed prior consensual choking talk, post-incident messaging inconsistent with assault, and medical theories that did not hold up under expert review.
We also use medical expertise where it matters. A forensic nurse examiner, sexual-assault forensic examiner, or other qualified medical expert can review records, photographs, timing, symptom descriptions, and claimed injuries to assess whether the evidence is actually consistent with strangulation, inconsistent with strangulation, or too thin to support the narrative the government is trying to sell. Things like voice changes, swallowing changes, breathing changes, neck tenderness, petechiae, subconjunctival hemorrhage, neurologic findings, vomiting, and other symptoms matter. Just as important, the absence of visible external injury does not automatically answer the question one way or the other. That is why these cases require real expert review, not guesswork by investigators.
Military prosecutors love an easy win, and that is exactly what we deny them. The military justice system stacks the deck heavily in favor of the prosecution. If you play by their rules, you will lose. Your only chance to save everything is to fight.
If you are facing an investigation or court-martial for charges of strangulation under Article 128b, reach out to us. We will shoot you straight on exactly what you are facing with a free defense strategy session. Then, as long as you are willing to fight like hell, so are we. Reach out to us and get us into the fight, regardless of where you may be stationed around the world.
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