Military Sexual Assault Defense Attorney | Bilecki Law Group
Military Sexual Assault Defense Attorney
Being accused of sexual assault is distressing. With today’s politically charged climate and pressure to prosecute sexual assault claims, your ability to defend yourself from these charges is limited. As a military member, a guilty verdict puts your entire future on the line. You risk facing a lengthy prison sentence, mandatory sex-offender registration, and losing your job. Having an experienced sexual assault defense lawyer representing you is may mean the difference between freedom and prison.
Military sexual assault courts martial can be won – often at trial – but only if you had an attorney who can fight back. Today, sexual assault prosecutions are being ordered at the highest levels of military command.
Today, almost any allegation of sexual assault, no matter how bogus or ridiculous, is being charged and taken to trial. It doesn’t matter that there is evidence that the alleged victim lied about what happened, that they had a motive to fabricate the allegation, or even if the allegations are just plain false. Innocent service members are being prosecuted – and wrongfully convicted – week in and week out in the military. These service members are simply pawns for commanders to show that they are “taking a stand” and “winning the war on sexual assault” regardless of the guilt or innocence of the accused. If you have been accused, then you are in grave danger of losing everything if you’re found guilty.
What is Sexual Assault?
In the United States military, sexual assault is a serious crime defined under Article 120 UCMJ. This statute defines rape, sexual assault, sexual abuse, and wrongful sexual contact. There are also various defenses to sexual assault including consent and mistake of fact as to consent. Sexual assault prosecutions are on the rise, and the military has taken a zero-tolerance stance on anyone accused of sexual assault. If you are an active-duty military service member and you are accused of sexual assault, you will likely have court martial charges preferred against you. A conviction for a sexual assault offense typically involves the following punishments: Reduction to the lowest enlisted rank. Forfeiture of all pay and allowances. Confinement for up to life depending on the offense. Dishonorable discharge from the service and mandatory sex offender registration. To avoid a conviction of sexual assault, you must have an experienced court martial lawyer defending you.
Types of Sexual Assault Charges the Military Can Bring
Rape and Sexual Assault
Under Article 120 of the Uniform Code of Military Justice, a person commits rape or aggravated sexual assault when they engage in a sexual act with a person by exerting unlawful force, threatening to harm the person, rendering the person unconscious, or administering a drug unknowingly. These accusations may be made by a fellow service member or a civilian. A sexual act is defined as the penetration of the penis into the vulva anus or mouth. Contact between the mouth and the penis, vulva, scrotum, or anus. Penetration of the vulva or penis or anus of another by any body part or object, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person. Marriage is not a defense to rape. Consent and mistake of fact as to consent are defenses.
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 him under Article 120b UCMJ. In the military, a “child” or a minor is any person who has not attained the age of 16 years. 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 occurred.
“Mistake of fact as to age” means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct was at least 16 years old. The ignorance or 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, which would indicate to a reasonable person that the alleged victim was at least 16 years old. Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts.
The burden is on the defense to establish the accused was under this mistaken belief, by a preponderance of the evidence.
If convicted of an Article 120b, UCMJ offense, you will face severe criminal penalties. Those will likely include a lengthy prison time, a mandatory dishonorable discharge, reduction to E-1, forfeiture of all pay and allowances, and sex offender registration.
Rape of a child has a maximum prison sentence of life imprisonment without parole, while aggravated sexual abuse and sexual contact of a child has a maximum confinement term of 20 years prison sentence. If you are found guilty of abusive sexual contact with a minor, the maximum prison sentence is 15 years of confinement.
Aggravated Sexual Contact
Aggravated sexual contact under Article 120, UCMJ is the direct or indirect touching of intimate body parts like the genitalia, groin, breast, butt, or inner thigh of another person, with intent to arouse sexual desire, abuse, humiliate, or degrade them.
Sexual contact is considered “aggravated” if you engage or cause sexual contact with another person by use of force, threats, or making them unconscious, or after administering a drug or intoxicant which substantially impaired their facilities.
A conviction of aggravated sexual contact has a maximum prison sentence of 20 years, a dishonorable discharge, reduction to E-1, forfeiture of all pay and allowances, and sexual offender registration.
Abusive Sexual Contact
Sexual contact under Article 120, UCMJ is means touching or causing another person to touch, either directly or through the clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body or an object.
Sexual contact is “abusive” when it is done without consent, through threats, while the alleged victim was asleep, unconscious, or otherwise unaware, or when the alleged victim was incapable of consenting due to alcohol, drugs or another intoxicant.
The maximum punishment for abusive sexual contact in confinement for seven years, reduction to the lowest enlisted grade, loss of all pay, and a dishonorable discharge. You will also be required to register as a sexual offender.
Other Sexual Misconduct Charges – Article 120c
Sexual misconduct charges in the military can be broad and comprehensive. Article 120c of the UCMJ defines the following criminal offenses under other sexual misconduct:
Indecent viewing under the UCMJ takes place when a service member knowingly 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 nipple. If convicted, the maximum sentence is one year confinement, reduction to E-1, forfeiture of all pay and allowances, and a dishonorable discharge.
Indecent recording under the UCMJ involves 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 confinement, reduction to E-1, forfeiture of all pay and allowances, and a dishonorable discharge.
Broadcasting and Distribution of an Indecent Recording
Broadcasting or distributing an indecent recording under the UCMJ takes place when a service member electronically transmits and shares a visual recording of another person’s private area without their consent. If convicted, the maximum sentence is seven years confinement, reduction to E-1, forfeiture of all pay and allowances, and a dishonorable discharge.
You can faces 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. If found guilty, the maximum sentence is twelve years confinement, reduction to the lowest enlisted rank, loss of all pay and allowances, and a dishonorable discharge.
Intentionally exposing your genitalia, anus, buttocks, or nipple to people other than your family can earn you a one-year sentence, forfeiture of full pay, and bad conduct discharge. The maximum punishment for indecent exposure is one-year confinement, reduction to the lowest enlisted rank, loss of all pay and allowances, and a dishonorable discharge.
Defenses to Military Sexual Assault Charges
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.
Legally, an “incompetent person” is a person who 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.
- A person cannot consent to being rendered unconscious.
- A person cannot consent while under threat or in fear.
All the surrounding circumstances are to be considered in determining whether a person gave consent.
Mistake of Fact as to Consent
“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. The prosecution has the burden of proving beyond a reasonable doubt that the defense of mistake of fact did not exist
When Consent is Raised
The issue of consent typically comes up in two ways at a court martial trial.
First, lack of consent is an element when the accused is charged with rape by administering a drug, intoxicant, or similar substance without the consent of the alleged victim. Lack of consent is not an element when the accused is charged with rape by any other method. To include when the accused is charged with administering a drug, intoxicant, or similar substance by force or by the threat of force.
Second, evidence of the alleged victim’s consent to the sexual conduct might be introduced with respect to any rape allegation in order to negate the elements of the offense. Generally, the elements of an Article 120(a) offense require the accused to have committed sexual conduct “by” a certain method. Consent to the sexual conduct logically precludes that causal link. When the alleged victim consented, the sexual conduct occurred because of the consent, not because of the charged method.
Alcohol and Consent
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. This is known as voluntary intoxication – being drunk or high.
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.
Voluntary intoxication should 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.
Consequences of a Sexual Assault Conviction.
Your military career. Your civilian reputation. Your freedoms. Nothing is guaranteed. Everything is on the line. These are the questions you must ask yourself if you have been accused of sexual assault and are considering hiring a civilian defense counsel.
- Would you allow a novice, free lawyer in the JAG Corps to gamble away years of your life in a single hand against veteran JAG “poker players” who know how to work the system and spin the truth?
- After a guilty verdict, you will be branded a sexual pervert and criminal. What will your friends and family think? Even if they tell you’re “innocent,” will they really believe you? Will your wife believe you? Will your children?
- How devastating would it be to be named on a sex offender list? To be denied your dream home because the entire neighborhood revolted against your presence? To not be able to walk your dog out of embarrassment of being seen in public?
Shady Investigators and Dishonest Prosecutors.
Court martial lawyer Tim Bilecki has seen cases where the alleged victim has recanted, and the case still went to trial. Where the alleged victim has been caught perjuring himself or herself and the case still went to trial. Where the alleged victim committed a crime and the accused did nothing wrong, and the case still went to trial. Where the accused has passed multiple polygraphs and the case still went to trial. Despite the odds, we find a way to win.
In each of these cases, the government stacks the deck to win at all costs. The government often uses underhanded law enforcement tactics to obtain coerced confessions. They often fail to test potentially exculpatory forensic evidence. Prosecutors routinely deny defense experts and witnesses. They bring two or three experienced lawyers to prosecute the case while an accused service member is only assigned one. If you want a fair shot at trial, you need to fight back, and you can’t simply bring a knife to a gunfight. You need a trial warrior.
Bilecki Law Group has seen far too many false or unfounded allegations result in the preferral of charges. The Bilecki team will neither tolerate nor permit railroading by the government and will fully investigate your case and zealously advocate your story of innocence.
This is not a discount law firm. However, if your case involves serious sex assault court martial charges, complex and seemingly overwhelming evidence or if you simply need the best defense available, Bilecki Law Group can take on your cause and zealously advocate your story of innocence.