At Bilecki Law Group, We believe every service member has earned their right to an aggressive defense on their day in court. We specialize in taking the fight to the prosecution and winning cases that others said were unwinnable.
Military Sexual Assault Defense Attorney
Court Martial Defense for Sexual Offenses Having a skilled defense attorney for sexual assault on your side could mean the difference between freedom and incarceration. Being accused of sexual assault is distressing. The accusation is serious, and your defense needs to start with the evidence and the exact offense alleged. As a military member, a guilty verdict puts your entire future on the line. Depending on the offense and governing law, you risk a lengthy prison sentence, sex-offender registration and losing your military career. Having an experienced sexual assault defense lawyer representing you can make a critical difference in how your case is prepared and fought.
Military sexual assault courts-martial can be won, including at trial. That takes preparation: testing the government’s theory, finding the evidence it overlooks and challenging testimony that does not hold up.
An allegation is not proof. If messages, witnesses or other evidence show that an account is false or that someone had a reason to fabricate it, we will take that evidence into the fight. The government still has to prove its case. If you have been accused, your freedom and career may be at stake; do not assume that the weaknesses in the allegation will expose themselves.
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What is Sexual Assault?
In the United States military, sexual assault is a serious crime defined under Article 120 UCMJ. Current Article 120 defines rape, sexual assault, aggravated sexual contact and abusive sexual contact. Article 120b separately addresses child sexual offenses, and Article 120c addresses other sexual misconduct. There are also various defenses to sexual assault including consent and mistake of fact as to consent. The exact charge matters. The government must prove its elements, and the possible punishment depends on the offense, applicable law and court-martial forum. The table below separates those maxima from the sentencing parameters. Registration consequences also require analysis of the particular conviction and governing law.
Types of Sexual Assault Charges the Military Can Bring
Rape and Sexual Assault
Current Article 120(a) defines rape through specified means, including unlawful force, force causing or likely to cause death or grievous bodily harm, specified threats or fear, first rendering the person unconscious, or administering a substance by force, threat, or without the person’s knowledge or consent and thereby substantially impairing the person’s ability to appraise or control conduct. Article 120(b) separately defines sexual assault, including a sexual act without consent, specified fraud or threats, or the charged form of unawareness or inability to consent. 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, harass, or degrade any person or to arouse or gratify the sexual desire of any person. Marriage is not a defense to any charge under current Article 120. Consent evidence and any applicable mistake-of-fact defense must be assessed against the precise charged theory.
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. For Article 120b, a child is a person under sixteen. 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.
For sexual assault or sexual abuse of a child under Article 120b(b) or (c), reasonable mistake of age is a defense only if the child was at least twelve and the accused reasonably believed the child was at least sixteen. The defense bears the burden of proving that belief by a preponderance of the evidence. This is not a general mistake-of-age defense to rape of a child, and it does not apply when the child was under twelve.
If convicted of an Article 120b offense, you can face severe criminal penalties. Rape or sexual assault of a child carries a statutory minimum of dishonorable discharge or dismissal, subject to the authorized plea-agreement exception; that mandatory minimum does not extend to every sexual-abuse offense. Confinement, forfeitures and reduction of an enlisted member to E-1 depend on the charge and sentence. Registration consequences require their own analysis of the conviction and governing law.
Rape of a child carries a maximum of life without eligibility for parole. Sexual assault of a child carries up to thirty years. Sexual abuse of a child involving sexual contact carries up to twenty years; other sexual abuse of a child carries up to fifteen years. These are the current offense maxima, separate from sentencing parameters and the limits of the court-martial forum.
Aggravated Sexual Contact
Sexual contact under Article 120 means touching, or causing another person to touch, directly or through clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh or buttocks of any person, with intent to abuse, humiliate, harass or degrade any person, or to arouse or gratify anyone’s sexual desire. Touching may be accomplished by any part of the body or by an object.
Sexual contact is aggravated under Article 120(c) when it occurs through circumstances that would constitute rape under Article 120(a) if the contact had been a sexual act. The government must prove the particular rape means charged; a general reference to force, threats or intoxication does not replace those elements.
Aggravated sexual contact carries a maximum of twenty years of confinement, a dishonorable discharge and forfeiture of all pay and allowances. Reduction to E-1 applies to enlisted personnel; a commissioned officer may face dismissal. Sex offender registration depends on the conviction and governing registration law.
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
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 female areola 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
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 Article 120c requires the government to prove that the accused knowingly broadcast or distributed a recording of another person’s private area and knew or reasonably should have known that the recording was made without that person’s consent and under circumstances in which that person had a reasonable expectation of privacy. The conduct must also be without legal justification or lawful authorization. A later objection to sharing a lawfully made recording does not, by itself, establish this particular offense; other laws may apply. The listed maximum is seven years of confinement, forfeiture of all pay and allowances and a dishonorable discharge, with reduction to E-1 for an enlisted member.
Forcible Pandering
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. For the current offense, the listed maximum sentence is twenty years confinement, reduction to the lowest enlisted rank, loss of all pay and allowances, and a dishonorable discharge.
Indecent Exposure
Article 120c requires intentional exposure of the genitalia, anus, buttocks, or female areola or nipple in an indecent manner. There is no general exception simply because the person who sees the exposure is a family member. The listed maximum punishment for indecent exposure is one year of confinement, forfeiture of all pay and allowances, and a dishonorable discharge. The law applicable to the alleged conduct and the court-martial forum must be checked before calculating your actual exposure.
Maximum Punishments and Sentencing Parameters
For noncapital general and special courts-martial, the sentencing parameter system applies when every offense of conviction occurred on or after 28 December 2023. The military judge must sentence within the applicable confinement range unless specific facts justify a departure. If the judge departs, the record must contain a written statement explaining the factual basis. These ranges do not replace the lawful maximum punishment for the offense or the court-martial’s jurisdictional limits. For offenses assigned sentencing criteria instead of a category, the judge must consider those criteria.
| Offense | Maximum confinement | Category | Confinement range in months |
|---|---|---|---|
| Rape under Article 120(a) | Life without eligibility for parole | Category 4 | 120–240 |
| Sexual assault under Article 120(b) | 30 years | Category 3 | 30–120 |
| Aggravated sexual contact under Article 120(c) | 20 years | Category 3 | 30–120 |
| Abusive sexual contact under Article 120(d) | 7 years | Category 2 | 1–36 |
| Rape of a child under Article 120b(a) | Life without eligibility for parole | Category 5 | 240–480 |
| Sexual assault of a child under Article 120b(b) | 30 years | Category 4 | 120–240 |
| Sexual abuse of a child involving sexual contact under Article 120b(c) | 20 years | Category 3 | 30–120 |
| Other sexual abuse of a child under Article 120b(c) | 15 years | Category 3 | 30–120 |
| Indecent viewing under Article 120c | 1 year | Category 1 | 0–12 |
| Indecent recording under Article 120c | 5 years | Category 2 | 1–36 |
| Broadcasting or distributing an indecent recording under Article 120c | 7 years | Category 2 | 1–36 |
| Forcible pandering under Article 120c | 20 years | Category 3 | 30–120 |
| Indecent exposure under Article 120c | 1 year | Category 1 | 0–12 |
These are current offense maxima. Earlier conduct requires the law in effect on the alleged offense date. The court-martial’s jurisdiction and any applicable plea agreement may further limit the punishment. Rape and sexual assault under Articles 120 and 120b carry a statutory minimum of dishonorable discharge or dismissal, subject to the authorized Article 53a plea-agreement exception. That minimum does not apply to every sexual-contact or other sexual-misconduct offense.
Reduction to E-1 applies to enlisted personnel. Dismissal applies to commissioned officers, including commissioned warrant officers, and cadets and midshipmen; a dishonorable discharge applies to enlisted members and uncommissioned warrant officers, and a bad-conduct discharge applies only to enlisted members. A confinement range does not predict the sentence or decide registration consequences.
Defenses to Military Sexual Assault Charges
Consent
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.
No 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 charged offense controls the role of consent. Current Article 120(b)(2)(A) expressly covers a sexual act without consent, and Article 120(d) carries the corresponding rule for sexual contact. The government must prove the charged elements beyond a reasonable doubt. The following discussion addresses how consent can also arise in a rape charge under Article 120(a).
For rape under Article 120(a), lack of consent to administration is an element when the charged theory is administration of a drug, intoxicant or similar substance without the alleged victim’s consent. 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.
- Who will prepare and try your case? What experience do those lawyers have with the charge, the forensic evidence and the witnesses you face?
- A conviction can damage your reputation and relationships as well as your career. Who will help you understand those consequences while you prepare your defense?
- Could the particular conviction require sex-offender registration, and what restrictions would apply where you plan to live and work?
Make the Government Prove Its Case
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. We prepare those cases for trial and fight for the accused.
A coerced statement, untested forensic evidence or a denied defense request can matter to the outcome. We examine how the government obtained its evidence, pursue the witnesses and expert assistance the defense needs, and challenge the case where the record supports it. 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.
Why Us
Bilecki Law Group has seen far too many false or unfounded allegations result in the preferral of charges. The Bilecki team will challenge any attempt to railroad you, 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.
Sexual Assault Court Martial Defense Practice Areas
False Accusations In The Military
Male on male sexual assault