DNA and Military Sexual Assault and Rape Investigations

By Michael Waddington · Published February 28, 2026 · Updated October 28, 2026

Below is a transcript from the YouTube video: Hiring the Best Military Lawyer – What Should I Do If Accused of a Military Crime

If you have been accused of a crime, then the military already believes you’re guilty. So they have people out there investigating prosecutors plotting and getting ready to charge you. So that’s the point time, or you need to get someone involved to represent you and advocate for your rights and tell you what to avoid doing and what to do to possibly get that case dropped before you’re charged.

DNA and Sexual Assault And Rape Investigations

It is considered the most important type of evidence because it is helpful to prove that physical, sexual contact has taken place and identify the perpetrator. This article will explore what types of DNA evidence are used in rape and sexual assault and how the defense can use them. As the use of DNA in trials becomes increasingly complex, those accused of rape or sexual assault will want to consult a sex crimes defense attorney who has experience in this process to ensure that there are no opportunities to be exploited to protect their rights and avoid criminal charges.

DNA classifications of biological material

In cases where the rapist is unknown to the victim, investigators can submit DNA classifications of biological material seized at the crime scene to the Federal Bureau of Investigation’s database of DNA profiles of convicted offenders, unsolved crime scenes, and missing persons. Biological Evidence Collection Biological evidence and DNA studies are useful in ascertaining sexual contact and making suspicious identification. For example, in many sexual assaults, biological evidence left by the perpetrator (semen and saliva) is collected by a doctor in a standardized set of sexual assaults and analyzed for DNA.

In addition, the DNA collected must be known to everyone at the scene, including responding officers and witnesses, and you must have had consensual sexual intercourse within 72 hours. Once the DNA is taken, there are protocols for handling and using the evidence in the investigation.

Biological evidence such as sperm or blood

Biological evidence such as sperm, blood, vaginal secretions, saliva, and vaginal epithelial cells can be identified by the type of criminal laboratory. The information derived from this analysis can help determine whether sexual contact has happened, provide information about the circumstances of the incident, and compare it to reference samples taken by the patient or suspect.

In the United States, the investigation of rape cases is slow, largely because of the difficulty of obtaining DNA results from the evidence of sexual assault (SAKS). There is no doubt that DNA technology can strengthen investigations and prosecutions in sexual violence cases. However, there is a need for training in collecting and preserving evidence, which is an important shortcoming.

Police have used rapid DNA testing to go beyond normal law enforcement practice, analyze crime scene traces and take DNA samples from suspects of minor crimes. An FBI task force monitors how local and state law enforcement agencies are using rapid DNA and crime scene evidence and how technology is improving.

Law enforcement investigates sexual assault

When law enforcement investigates cases of sexual assault, DNA evidence can affect or break the outcome. As a result, the judiciary relies heavily on various types of evidence to link suspects to crime scenes, victims to sexual assault cases, and forensic evidence used to corroborate or refute allegations of fact. Other evidence that can be used along with DNA evidence includes evidence of injuries consistent with rape or sexual assault, phone records, texts, social media posts, and interviews with potential witnesses.

Trained investigators will search for DNA traces at locations relevant to the case, such as the crime scene. Evidence gathered at the scene, and medical examinations of the victim are also crucial to obtain DNA evidence to identify the perpetrator.

DNA evidence can be collected on the body or clothing of a person who has survived an attack or sexual assault during a forensic examination. In most cases, victims’ clothing is searched for evidence of a crime in the hospital.

FBI profiles and CODIS

If the attacker is unknown to the victim, the rape kit returns with usable DNA, and the DNA profile is entered into a large database of FBI profiles called CODIS to try and identify the suspect. If the copy is meaningful, it is matched with a reference sample, which means that the suspect can be identified, making DNA evidence relevant in cases of gang rape and conflict-related violence in which the perpetrator is unknown.

DNA evidence cannot further determine whether sexual contact was consensual, which is one of the most controversial issues in cases of gang rape or conflict-related violence where the perpetrators are often unknown. Biological evidence such as semen may indicate that sexual intercourse has occurred, but this alone does not constitute rape. Many cases of sexual violence are based on first-hand accounts and other evidence that does leave room for interpretation.

Proving a sex crime when pursuing sexual assault cases

In addition to the problems with DNA evidence, cities, states, and the federal government often focus so much on proving a sex crime when pursuing sexual assault cases that the analysis tends toward prosecution. Inconsistencies in state policy have led to incomplete information from law enforcement agencies and a lack of knowledge from survivors, who often do not expect that the evidence collected in their cases will not match reality.

The NAESV supports state and federal policies and laws that require forensic examination kits reported in sexual assault cases to process DNA and other evidence within a reasonable period. Results are recorded in state and national databases.

Tests for SAHs and forensic DNA samples can help connect the dots and give a complete picture of an offender’s behavior than what is documented in criminal records. Testing sexual assault kits (SACs) to examine the rate of DNA matches in cases provides a new way to investigate repeat crimes. However, policies should be considered for reporting DNA matches in older cases, and protocols should be developed that are victim-centered and sensitive to the impact of contact with rape survivors many years later.

Resources: DNA and Sexual Assault and Rape Investigations

endsexualviolence.org/where_we_stand/dna-technology
rainn.org/articles/importance-dna-sexual-assault-cases
openglobalrights.org/DNA-testing-can-help-and-hinder-sexual-violence-prosecutions
police1.com/police-products/investigation/
apa.org/pubs/highlights/spotlight/issue-153
nij.ojp.gov/topics/articles/sexual-assault-cases-exploring-importance-non-dna-forensic-evidence
en.wikipedia.org/wiki/Rape_investigation
ncbi.nlm.nih.gov/pmc/articles/PMC4637504

Related: Best Military Defense Lawyer? Ask Who Is Actually Handling Your Court-Martial

Video transcript

Transcript of the video “Article 120 UCMJ Explained | Rape, Sexual Assault, Consent & Military Defense,” from Gonzalez & Waddington.

Read the full transcript of this video

Article 120 of the UCMJ makes it a crime to commit a sexual act or sexual contact by force, by threat, without consent, or with someone who can’t consent. It’s the most serious charge most service members will ever face, and it’s the charge we defend more than any other. I’m Alexander Gonzalez Wington, civilian military defense lawyer and co-founder of Gonzalez and Washington. In the next few minutes, I’ll explain what Article 120 covers, what it carries, how these cases start, and how they’re won. First, the four offenses.

Article 120 isn’t one crime. It’s four. Rape is a sexual act committed by unlawful force, by force likely to cause death or serious injury, by threats of that kind, by rendering someone unconscious, or by drugging them. Sexual assault is a sexual act without consent, by fraud, by a threat that falls short of rape, or with someone who’s asleep, unconscious, or incapable of consenting. Aggravated sexual contact and abusive sexual contact are the same theories applied to touching rather than a sexual act.

A sexual act means penetration, however slight, or certain contact with the genitals. Sexual contact means touching specific body parts, even through clothing, with intent to arouse, gratify, abuse, humiliate, or degrade. Second, consent, because that’s where most of these cases are fought. The UCMJ defines consent as a freely given agreement to the conduct at issue by a competent person. Lack of resistance isn’t consent.

A prior relationship isn’t consent. What someone wore isn’t consent. And a person who’s asleep, unconscious, or so impaired they can’t understand what’s happening or communicate unwillingness can’t consent at all. That last part is the alcohol case, and it’s the most common Article 120 fact pattern we see. Two people drinking, a sexual encounter, and a dispute the next day about how drunk one of them was.

Third, the punishment. Rape carries up to life without parole. Sexual assault carries up to 30 years. Aggravated sexual contact up to 20. Abusive sexual contact up to seven.

And here’s what people don’t know. A conviction for rape or sexual assault under Article 120 carries a mandatory minimum of a dishonorable discharge or dismissal for an officer. The judge can’t go below that. A conviction also brings sex offender registration under federal and state law, a federal firearms prohibition, and the loss of your VA benefits. That’s why you never treat an Article 120 investigation as something that will blow over.

Fourth, who decides? Since December 28th, 2023, your commander no longer decides whether to prosecute an Article 120 case. The Office of Special Trial Council does. These are specially trained independent military prosecutors and they control the charging decision, the plea deal, and the trial. That matters for strategy.

The arguments that used to work with a commander, your record, your deployments, your value to the unit carry less weight with a prosecutor whose only job is sex crimes. The defense has to be built on the evidence. Fifth, how these cases start. Most begin with an unrestricted report to a sexual assault response coordinator, a sharp or SAPR representative, or law enforcement. Sometimes a friend, a roommate, or a spouse makes the report.

Within days, CI, NCIS, OSI, or CGIS opens an investigation. Then come the standard steps. a forensic interview of the accuser, a request to interview you, a military protective order, a search of your phone, and very often a pretext call or pretext text where the accuser contacts you while an agent listens hoping you’ll apologize or say something that sounds like an admission. I’m sorry about the other night has convicted a lot of people who were sorry about something else entirely. Sixth, what we see over and over, alcohol and a party or a barracks room, dating apps and short relationships, a sexual encounter followed by a boyfriend or girlfriend finding out.

Divorce and custody fights where an old allegation suddenly appears. Regret, embarrassment, and fear of consequences, especially for the accuser if they were also breaking rules that night. None of that means an allegation is false. It means the full story usually isn’t in the first report and the defense’s job is to find it. Seventh, how Article 120 cases are defended.

The defenses depend on the facts. Consent, mistake of fact as to consent, meaning you honestly and reasonably believed the other person consented. Lack of capacity disputes where the evidence shows the person was drinking but still walking, talking, texting, and making decisions. Identity and fabrication in some cases. The evidence that wins these cases is usually digital.

Text messages and Snapchats before and after ride share records, door access logs, bar receipts, location data, and videos from the night. It’s also witnesses. Who saw both of you? how the accuser was acting, what was said the next morning, and in alcohol cases, a forensic toxicologist who can explain what a given amount of alcohol actually does to a person. Military Rule of Evidence 412 limits what you can say about the accuser’s sexual history.

[snorts] So, the defense has to be planned around that rule, not surprised by it. Eighth, what to do right now. One, don’t talk to investigators. your chain of command or anyone else about the allegation. Invoke your Article 31 rights and ask for a lawyer.

Two, don’t contact the accuser directly or through friends. That includes answering a text that seems out of nowhere. Assume it’s a pretext. Three, don’t delete anything. Deleting messages looks like consciousness of guilt and may be a separate crime.

Four, write down for your lawyer and only your lawyer who was there, where you went, and what was said. Five, hire experienced counsel before your phone is searched, and before you’re interviewed, not after charges are preferred. At Gonzalez and Wington, Article 120 cases are the core of our practice. We’ve tried them at installations around the world and we prepare everyone as if it’s going to a contested trial because that preparation is what produces dismissals and acquitt. So what is Article 120 of the UCMJ?

Four sex offenses from abusive sexual contact to rape with a mandatory dishonorable discharge for rape and sexual assault and decisions now made by special trial counsel. Say nothing. Contact no one, preserve everything, and get a lawyer early. I’m civilian military defense lawyer Alexandra Gonzalez Wington with Gonzalez and Wington. We defend service members worldwide.

You can learn more at ucmjdefense. com or call 1 800-921-8607 for a free confidential consultation. >> When the command knows you’ve got real defense, the game changes.

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