UCMJ Article 128b Strangulation Military Court Martial Defense
To the outside observer, in all things Uniform Code of Military Justice, dedicating a page to the defense of service members charged with strangulation under Article 128b may seem odd. It is not that we are sitting around waiting for Jack the Ripper to give us a call. It is that we are seeing more and more strangulation cases built around private conduct in the bedroom later repackaged as criminal assault.
People call it choking. More clinically, it is often described as erotic asphyxiation. Whatever label you use, it is not new, it is not rare, and it is not confined to any one age bracket or to civilians. It happens in barracks rooms, off-post apartments, hotel rooms, and every other place where adults make messy decisions. The military is no exception.
The problem is what happens later.
In the military, a bedroom allegation does not stay in the bedroom. It becomes a CID problem, an NCIS problem, an OSI problem, depending on the branch. It becomes a command problem. It becomes a SHARP problem or a SAPR problem, depending on the service. It becomes a clearance problem and often a career problem before anyone has done the hard work of separating accusation from proof. Once the word “strangulation” lands in the file, the label starts doing work that the evidence may not.
That is not proof. That is momentum.
And in today’s military, it can become something even worse: a covered-offense prosecution run by specially trained, independent prosecutors. Article 128b is a covered offense. Across the services, those cases are now pushed into specialized prosecution channels. You are no longer dealing with some random prosecutor dabbling in domestic violence. You are dealing with the military’s hand-picked covered-offense prosecutors. If you let them define the case early, they will bury you.
Is Erotic Asphyxiation a Crime Under UCMJ Article 128b?
Yes, if it is done without consent.
General James Mattis once said, “Frankly, Senator, I have never cared much about two consenting adults and who they go to bed with.” Fair enough. We agree. What two consenting adults do in bed is none of our business and should not be the business of the UCMJ either. The problem comes later, when one of those two consenting adults says it was not consensual after all. That is when a private sexual encounter becomes a strangulation case.
Former First Lady Eleanor Roosevelt is rumored to have said that the Marines had the cleanest bodies and the filthiest minds. Rumored or not, the point lands. Service members are adults. They get into relationships. They do embarrassing things. They do kinky things. None of that makes it automatically criminal.
It is a discernible truth that erotic asphyxiation, aka choking, is not a crime under the UCMJ when it is consensual sexual activity. In that regard, it 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 it is not a crime.
That does not mean every allegation is false. It means the government does not get to skip straight from a loaded label to a conviction. The legal question is not whether the conduct sounds rough, weird, embarrassing, or outside the mainstream. The legal question is whether the government can prove beyond a reasonable doubt that there was strangulation or suffocation, that any force used was unlawful, and that the allegation is true as framed by the prosecution.
That is where the real fight is.
The government loves the word “strangulation” because it sounds dispositive. It is not. The label is not the proof. And in a surprising number of these cases, the government is trying to transform a later accusation into certainty without doing the hard evidentiary work needed to prove what actually happened.
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.
What you do in your own bedroom with a consensual lover should not be the subject of the UCMJ. It should not become a felony-level military case simply because the relationship later imploded and the other side found a better narrative. A service member asking a partner to dress up like Abraham Lincoln before sex is odd. A partner asking to be choked during sex is odd to some people too. Fine. Odd is not criminal. Kinky is not criminal. Embarrassing is not criminal. The issue is whether the government can prove a crime, not whether it can make a panel uncomfortable.
Why These Allegations Are Showing Up More Often
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 feel that it is their obligation 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 cause 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 brought BDSM into the mainstream. Vanilla sex was instantly out and the kinky was somehow normalized. You can reenact every scene with your lover all you want and it is not illegal.
That matters because these allegations so often arise out of consensual sexual relationships and only later get reframed as criminal.
How These Cases Actually Arise
When a charge of strangulation under Article 128b comes up, it is never the case that the alleged victim was sitting in their barracks room reading their Bible when the accused walked in and started to choke them.
That is not how these cases usually come in.
Usually there is a relationship. Usually there is alcohol. Usually there is prior sexual history. Usually there are messages before the encounter and messages after it. Often there is fantasy talk, rough-sex talk, jealousy, cheating, retaliation, a breakup, or some other emotional detonation after the fact. It is only later, sometimes months and even a year later, that the alleged victim comes forward and says the choking was not consensual.
In the era of SHARP, SAPR, and OSTC, these delayed allegations are too often treated as if they happened yesterday and were caught on video.
The allegation may come about because the alleged victim found out the accused was simultaneously banging the rest of the battalion. It may have come about because the alleged victim got into their own trouble with the UCMJ and made the allegation to stop that investigation in its tracks. It may come about because a private act became a public weapon after the relationship imploded. In the current military climate, it takes very little for a service member to see the benefit of making a false allegation and very little for the system to credit it.
What the Government Actually Has to Prove
To convict a service member of assault by strangulation or suffocation under Article 128b, the prosecution still has to prove the elements:
- That the accused assaulted a spouse, intimate partner, or immediate family member of the accused.
- That the accused did so by strangulation or suffocation.
- That the strangulation or suffocation was done with unlawful force or violence.
Sometimes the relationship is obvious. Sometimes the act is admitted. Plenty of times it is not. No witness. No photograph. No contemporaneous message. No meaningful corroboration. Just a later allegation and a prosecution system eager to credit it.
There may not be a single shred of corroborating evidence. No photograph. No witness. No contemporaneous complaint. No medical finding that cleanly proves what the government says happened. That is why these cases have to be fought, not assumed.
Sometimes the accused is honest and says, “yeah, but she asked me to choke her,” thinking honesty will preserve the context. Usually it does the opposite. The investigator keeps the act and discards the context.
So the fight is not merely whether these two people had sex. That is not the point. This is not just an intimate-partner case. The fight is whether there was choking at all, whether it was asked for, whether it was consensual, whether the allegation changed over time, what the messages show, what the photos show, what the apps show, what the deleted texts show, what the medical evidence shows, and why the allegation surfaced when it did.
That is the case.
Fighting Charges of Strangulation in the Era of SHARP, SAPR, and OSTC
If a civilian were accused of choking a consensual sexual partner and the allegation surfaced months later with little or no corroboration, that case would often never see the light of day. Unfortunately, service members are fighting more than the ordinary military justice system. They are fighting commands and Office of the Special Trial Counsel prosecutors under enormous pressure to prove to elected officials and senior leaders that they are taking SHARP and SAPR seriously and prosecuting these cases aggressively.
That pressure matters.
The deck is more stacked than it used to be. These are not casual prosecutions. These are the kinds of cases that can get picked up by specially trained prosecutors whose job is to prosecute exactly this kind of allegation. If the government gains momentum early, you will be in for a fight.
Putting an innocent service member in the brig can look like the lesser institutional evil to them than having an alleged victim complain later that nobody believed them. That is how weak cases gain traction. That is how careers die even where the proof is thin.
How Bilecki Law Group Actually Fights These Cases
These cases are not won by hand-wringing. They are won by getting into the facts early and refusing to let the government tell the story unopposed.
That starts with digital forensics.
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.
That is how cases get turned.
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.
That matters because prosecutors love an easy win. They love a label that sounds inherently awful. They love a case where the accused made a partial admission and the rest can be filled in by indignation. What Bilecki Law Group does is deny them that easy win.
We test the allegation. We test the timeline. We test the motive. We test the messages, the photos, the app data, the deleted communications, and the medical theory. We test whether the complaining witness is telling the same story now that they told before. And we test whether the government can actually prove that what happened was criminal rather than consensual conduct later rebranded as assault.
Fighting Back Before the Military Buries You Administratively
A service member in one of these cases is often fighting more than a prosecutor. He is fighting a command climate that may already be planning discharge, adverse action, clearance consequences, and reputation damage before the evidence has even been sorted out. Your career can die administratively even where the proof is thin.
That is why waiting is a mistake.
How to beat a strangulation charge under the UCMJ is not by hoping the system will be fair on its own. It is by fighting like hell and ceding nothing to the prosecution. Tim Bilecki spent years inside the military justice system as a senior Army defense counsel. He knows how fast commands move, how investigators think, and how quickly an ugly allegation can harden into institutional certainty if nobody hits back early.
Contact Bilecki Law Group
If you are facing charges of strangulation or suffocation under Article 128b, reach out to us for a free strategy session.
Yes, you are going to have to talk about private facts. Fine. We have defended enough service members to know that embarrassment is not a defense strategy, and silence is not a plan. There is nothing you are going to tell us that is going to shock us. What matters now is protecting your freedom, your career, your retirement, and your name.
What they are doing to you is not right. We will fight like hell on your behalf.