Article 120 UCMJ – Comprehensive 50-Question FAQ for Military Sexual Assault Defense

This standalone FAQ page answers the most common, most urgent, and most complicated questions service members ask when facing military sexual assault allegations. Each answer is written in clear, direct language to help you understand your rights, your risks, and your best defense options under Article 120 UCMJ.

1. What does Article 120 UCMJ cover?

Article 120 covers sexual assault, aggravated sexual assault, abusive sexual contact, and non-consensual sexual acts or touching within the military. It includes cases involving alleged lack of consent, incapacitation, coercion, or fear.

2. Can I be charged with sexual assault in the military without physical evidence?

Yes. Many Article 120 convictions occur with no physical evidence at all. Most cases rely entirely on testimony and perceived credibility.

3. Do investigators automatically believe the accuser?

Often, yes. CID/NCIS/OSI typically begin investigations assuming the accusation is credible and work to build a case.

4. Does alcohol automatically mean someone could not consent?

No. Being drunk does not equal incapacitated. The government must prove impairment so severe that the person could not consent.

5. What exactly is “consent” under Article 120?

Consent is a freely given agreement. It may be verbal, non-verbal, or implied by conduct. Lack of resistance is not lack of consent.

6. What is “mistake of fact as to consent”?

If you reasonably, honestly believed the other person consented—even if mistaken—you must be found not guilty.

7. Should I talk to CID, NCIS, or OSI to clear things up?

No. Speaking to investigators without a lawyer is the number one mistake service members make.

8. Can I refuse to give a statement?

Yes. You have the absolute right to remain silent and request counsel at any time.

9. Should I delete texts or social media posts?

No. Deleting anything creates suspicion and may harm your defense. It may also be recoverable through forensics.

10. How long do Article 120 investigations take?

Most take 6–18 months, depending on digital forensics, witness availability, and command pressure.

11. Can I be placed on legal hold during investigation?

Yes. You may be prevented from PCS, promotion, school attendance, or separation during the case.

12. Will I be flagged?

Almost certainly. A sexual assault allegation triggers a FLAG that pauses all favorable personnel actions.

13. Can I be ordered into pretrial confinement?

Yes, in rare cases. Pretrial confinement depends on risk of flight or further misconduct.

14. What happens at an Article 32 hearing?

The evidence is tested, witnesses may be cross-examined, and major weaknesses in the government’s case can be exposed.

15. Can the government use my text messages against me?

Yes. Anything you say can be taken out of context and used against you at trial.

16. Should I block or confront the accuser?

No. Confrontation or messaging creates evidence the prosecution can exploit.

17. Can consensual sex cause injuries that look like assault?

Yes. Many SANE exam findings occur in consensual encounters.

18. Do SANE nurses testify for the prosecution?

Typically yes, but their conclusions are often medically weak and can be challenged by forensic experts.

19. Can I be prosecuted even if the accuser originally said it was consensual?

Yes. Accusers frequently change their stories under pressure or regret.

20. What if the accuser has no memory?

Lack of memory does not prove non-consent. Memory gaps due to alcohol are common and often misinterpreted.

21. What if the accuser flirted with me earlier?

Prior behavior is relevant to context and reasonableness of your belief in consent.

22. Can the accuser’s friends testify against me?

Yes, but their bias and influence can be exposed on cross-examination.

23. Does the military take anonymous complaints seriously?

Yes. Anonymous allegations often trigger full investigations.

24. Can intoxicated people legally consent in the military?

Yes, unless the prosecution proves incapacitation—not simply impairment.

25. What if the accuser regrets cheating on their spouse?

Regret-driven accusations are extremely common in Article 120 cases.

26. What if the accuser was angry or jealous?

Motive to fabricate is a major credibility issue and a powerful defense point.

27. Can character witnesses help my case?

Yes. They can testify to your honesty, professionalism, sobriety, and past behavior.

28. Can my past relationships be used in my defense?

Sometimes. Your attorney may request admission of prior consensual behavior patterns relevant to the case.

29. Will the command try to separate me even if acquitted?

Yes. Commands may still initiate administrative separation despite not-guilty verdicts.

30. What if the accuser kept texting me after the encounter?

Post-event behavior is powerful evidence contradicting claims of non-consent.

31. What if the accuser initiated contact?

Initiation supports consent or reasonable belief in consent.

32. Are there forensic tests that prove sexual assault?

No. Forensics cannot determine consent and often cannot determine force.

33. Can digital forensics recover deleted messages?

Yes. Many “deleted” messages remain in phone backups or metadata.

34. Does a sexual assault allegation affect my security clearance?

Yes. Clearances are often suspended immediately, even before charges.

35. Can witnesses be forced to testify?

Yes. Military authorities can compel witness testimony.

36. Will I face pretrial restrictions?

Possibly. Liberty restrictions, no-contact orders, and counseling requirements are common.

37. What if the accuser was also intoxicated but participated willingly?

This supports consent and mistake-of-fact defenses.

38. What if the accuser texts their friends a different version of events?

Contradictory outcry is crucial defense evidence.

39. Can the military convict me with inconsistent testimony?

Yes, but contradictions provide strong reasonable-doubt arguments.

40. Is every sexual touching a crime under Article 120?

No. Only touching done without consent and with sexual intent qualifies.

41. What if the accuser lied about details to investigators?

Lies, exaggerations, and omissions undermine credibility and can lead to acquittal.

42. How important is cross-examination?

It is the most important part of trial. Effective cross-exam exposes motive, bias, contradiction, and flawed memory.

43. Can I present expert witnesses in my defense?

Yes. Forensic, psychological, digital, and toxicology experts often decide the outcome.

44. Are false accusations common?

Yes. Many arise from regret, fear of consequences, misinterpretation, or interpersonal conflict.

45. What is “victim advocacy influence”?

Accusers often receive guidance from SAPR/SARC staff that shapes their statements and interpretation of events.

46. What if the accuser apologizes afterward?

Apologies or reconciliatory messages can be powerful exculpatory evidence.

47. Can the accuser drop charges?

No. Once a complaint is made, the government decides whether to prosecute.

48. How long can the military wait before charging me?

There is no strict deadline. Charges may be filed months or years after the alleged event.

49. Can I be convicted without intent?

Intent is required for sexual contact crimes; for sexual acts, the government must prove the act and lack of consent.

50. Should I hire a civilian Article 120 lawyer?

Yes. Civilian military defense attorneys offer independence, deeper trial experience, more time for investigation, and specialized cross-examination skills that often determine the outcome of sexual assault trials.