Written by: Ben Gold & Tim Bilecki.
On November 1st, the Military Times released an article regarding the DoD’s new Safe-to-Report Policy, which grants potential survivors of sexual assault immunity from minor prosecutions when reporting the alleged assault. There is a great deal to unpack but if we are to pursue truth, which is the only real form of justice, we must understand the different between intent and real-world implications.

The best way to jump into this is via a hypothetical:

If a 20-yr-old E-3 was having an affair, and his/her paramour was an O-4, and say one night, while drinking, said E-3 passes out at O-4’s place. While passed out/blacked out, the O-4 paramour decides his/her night is not quite over and sexually assaults the E-3.

If you’re not familiar with the UCMJ or criminal law, there’s a fair amount of crime in both military and criminal law that just took place.

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Adultery (involving actual sex) and fraternization are military specific and relatively serious violations of the UCMJ. While these crimes do not often rise to the level of criminality even at a court martial setting, service members are routinely subject to non-judicial punishment and administrative separation as a result of committing these offenses. Similarly, underage drinking is not generally handled at the military’s criminal/general court martial level. It’s usually restriction, loss of a bar/stripe/…rank, etc. Providing alcohol to a minor may be different story.

What is glaring to you are the words “sexually assaults.” Naturally, that is the big-ticket crime in this scenario the subject of a national campaign that has brought continued congressional oversight and criticism of military leadership. Senior leaders are routinely called into the public forum where politicians aim to score political points at the expense of the military’s handling of this very real issue.

The unintending consequence of those good intentions is that the Bilecki Law Group has become quite astute at defending service members against false and incomplete allegations of sexual assault. Perhaps that is because of the sheer volume that is now coming our way, but we are overwhelmingly successful at defending sexual assaults, more so than any other allegation. We understand the need to pursue justice for every victim but destroying the lives and careers of innocent men and women is not justice.

What these statistics tell us is that the pressure from the top to root out sexual assault in the military is pushing out some misguided and often fictitious allegations on the back end. We are good at what we do, but we shouldn’t be this good and win outright as often as we do. Congress roasts the senior leadership on Monday and by Friday, some Lance Corporal out at Camp Lejeune pays the price, regardless of his/her innocence.

To put it in perspective, despite the high number of cases we have defended, I have never had a case that involved an accused drugging and sexually assaulting/raping someone. Almost all of the cases I can recall involve both parties meeting, having drinks, and spending the night together. Now, from a legal and moral standpoint, consent is consent and assault is assault. We’re not trying to speculate on every case as each case is different and there are objective truths in each case. Consent was or was not established. Assault did or did not take place.

Justice only arrives when the truth is discovered. This is meant to be a pragmatic dialogue and that pragmatism requires a discussion of all truths. Just keep in mind that this is my profession. This is what I have seen with my own eyes and the truth is all I can offer you.

The assertion that false accusations don’t occur frequently is patently false - false accusation are made regularly in the military.

There are cases we win and while I’m thrilled for my client, I can’t help but find myself a little upset because the young man or woman should have never been on trial to begin with. You might ask yourself, “why would someone lie about being sexually assaulted?” If you’ve been in the military or are in the military, you know that it – like any system – can be exploited for personal gain.

Service members (and their spouses) can game every aspect of that system from “do it yourself moves” to BAH fraud. Perhaps it shouldn’t be so, but exploiting the military justice system for personal gain takes place as well. We are used to seeing cases involving alleged victims using a sexual assault accusation to get expedited transfers out of – e.g. – Korea, Afghanistan, and Kansas within a matter of days. Upon transfer, often enough, this alleged “survivor” declines to further cooperate, stating he/she is still “processing” the assault or “doesn’t want to relive the trauma.”

Several other JAG defense attorneys have also noted seeing alleged victims make sexual assault claims in order to preserve 100% VA disability ratings prior to discharge. Finally, and as it pertains to the Military Times article, we have seen a number of sexual assault claims leveled by alleged victims under investigation for minor but career ending offenses such as fraternization, adultery, underage alcohol possession/use and even drug use. 

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Formerly, it was rare to see a sexual assault “survivor” prosecuted for any of these minor offenses after making a sexual assault allegation. This was not a factor driving down sexual assault conviction rates.

Now, as reported by the Military Times in its 01 November article, it is formal DoD policy to not prosecute sexual assault accusers for these minor offenses. The prosecutorial wing of the U.S. Military would call this a sweeping effort to obtain justice for sexual assault victims and that is likely what it was intended to be. However, that doesn’t match what we see on the ground on the front lines of military justice. We see a blanket motive to fabricate. That is, to game the military justice system because an allegation of sexual assault will cover a multitude of lower offenses. If anything, it is going to make the discovery of truth more difficult, and the truth is what matters in justice.

The Military Justice System Routinely Admits the Frequency of Incomplete or False Allegations

Sexual assault is one of the few crimes that doesn’t become a crime until one party says it is. What do I mean by that? Again, let’s look at another hypothetical…or three.

Guy sits down next to girl at the bar. They talk for a while. An hour into the conversation, guy puts his hand on girl’s leg.  She puts her hand on his and 30 minutes later they leave together.  One can only ponder what happens next.

Next scenario: same thing, guy puts his hand on girl’s leg. She brushes his hand off and turns away from him. Her body language is clearly meant to repulse. Guy gets up and awkwardly walks away rejected. Girl’s friends come over and they continue to hang out for the remainder of the night.

Third scenario: scenario 2, plus, the next day, girl reports guy to authorities for what becomes abusive sexual contact, an offense under the Article 120 Sexual Assault umbrella. The guy is prosecuted, and, if the government is successful, he could be subject to prison, reduction in rank, etc., bad conduct discharge, and life-long sexual predator registration.

Shady Investigators and Dishonest Prosecutors

This is the current climate in the military, and this was the real outcome for an Airman who called our office recently to appeal his case. There were several charges – all were dropped save his touching the girl. The other charges were dropped because the Government conceded that Girl’s other allegations appeared to be blatantly fabricated. This case will be public record when the appeal is decided. While acknowledging the crime of touching the girl, the prosecution also acknowledged the propensity and pace of false allegations.

What are we looking at in Sexual Assault Cases?

Wrong or right, it’s virtually impossible to paint someone as a reliable complainant when their allegation simultaneously allows them to sidestep reduction in rank, loss of pay, restriction, and involuntary separation for military crimes. The military justice system exists to provider order and to that end, it will destroy your life for actions that are not considered a crime in any other setting. If you give any member of the military an easy out to escape that punishment, they will take it. It is survival instinct and rightfully so.

You cannot increase the conviction rate for sexual assault in the military while simultaneously advancing the number of self-interested false allegations in order to escape the UCMJ. It’s going to sound great for the Generals to say on Capital Hill, but when it gets to the courtroom and attorneys like me get involved, we’re going to shred the case to pieces. That’s because the allegation is not rooted in truth and justice resides with the truth.

This is what we are seeing on the ground and on the front lines. Sooner or later, the Generals are going to have to address why the lack of conviction rate has jumped from 90% to 91%. You cannot create a blanket motive to escape the harsh and cruel nature of the military justice system and expect someone not to use it. If your career is on the line and the military justice system has now made an allegation of sexual assault the get out of jail free card, it’s going to be exploited.

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The Military Is Inadvertently Training Others How to Make a False Report

That is because military members are being actively trained on sexual assault in order to root out sexual assault. Accusers are astute to the branches’ various sexual assault programs (e.g. SHARP, SAPR). They not only know what constitutes sexual assault under the UCMJ, but also what the outcomes will be for everyone involved. Now, it’s not just the alleged perpetrators who have “forewarning.” It’s also the alleged victims, who know they will now receive their own military lawyer, say in whether the case will be prosecuted at general court martial, an expedited transfer (or the accused’s transfer), 100% VA benefits, and – now – immunity from any ancillary prosecution. The alleged victim receives all of this treatment prior to the investigation’s completion, let alone prior to any conviction of the accused.

And, if the alleged victim chooses not to cooperate further with the investigation after reporting, he/she still may retain the lawyer (Special Victim Counsel/SVC or Victim Legal Counsel/VLC), may still receive a 100% VA disability rating, and generally does not even have to decide on whether to participate until after his/her transfer to one of his/her “top 3” new duty station selections.

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The DoD has now put all members on notice that alleged victims will also receive immunity from prosecutions that could, among other things, lead to the termination of their careers. We have seen any one of these “perks” motivate individuals to fabricate sexual assault allegations, and this does not even touch on the other “human” motives, such as regret or cheating on one’s spouse. As I mentioned earlier, we win far too many of these cases, which means fictional allegations are already rolling through the military justice system with great frequency. The DoD just opened up the flood gates and while it’s going to play well in D.C., not so much for the average service member on the ground.

The Big Picture

This is how sexual assault in the military often unfolds in 2021. It’s not my opinion. It’s not editorialized. It is what the facts on the ground are showing me. Personally, as a defense attorney, it’s going to be great for business. It will bring me a host of new clients who would otherwise not be accused of sexual assault. I pursue truth with unprecedented aggression and we’re going to win these men and women’s lives back.

This is how sexual assault in the military often unfolds in 2021. It’s not my opinion. It’s not editorialized. It is what the facts on the ground are showing me. Personally, as a defense attorney, it’s going to be great for business. It will bring me a host of new clients who would otherwise not be accused of sexual assault. I pursue truth with unprecedented aggression and we’re going to win these men and women’s lives back.

Not when you are dealing with a military justice system that will roll over a Marine for so much as putting his hands in his pockets. Not when a service member with 18 years stands to lose their retirement due to other charges, and they see the “get out of jail free” card that the DoD has just dangled in front of them. Me and my team at Bilecki will be doing our part to pursue truth and justice on the backend of this misguided policy. While we do sincerely hope than an answer to the military’s sexual assault problem is found, truth and justice demand I break the bad news to you, that this is not it.

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