How Do Military Sexual Assault Cases Get Charged Under Article 120?
Most service members believe that charges are filed only when investigators discover strong evidence. That is not how the military justice system works. Article 120 cases are often charged even when the evidence is weak, contradictory, or entirely based on one person’s changing story. Understanding how sexual assault cases move from allegation to formal charges is essential if you want to protect your career and future. This page explains the Article 120 charging process and how Gonzalez & Waddington defends service members at every step.
Short Answer
Military sexual assault charges are not filed by CID or NCIS. They are filed by your command, based on recommendations from prosecutors, often before the evidence is complete and long before credibility is fully assessed. Commanders can and do prefer charges even in cases with no physical evidence, conflicting statements, or unreliable allegations. You win by understanding how the process works and by having an experienced civilian military defense lawyer who can challenge weaknesses early and aggressively.
How Article 120 Cases Move Through the System
Step 1: The Allegation Is Reported
The process begins when someone reports an alleged sexual assault to SHARP, SAPR, a friend, medical personnel, or directly to command. Regardless of credibility, the report triggers mandatory action. Commands immediately notify law enforcement and begin taking steps that often impact you before you even learn what the allegation is.
Step 2: CID or NCIS Opens an Investigation
Law enforcement collects statements, digital evidence, witness accounts, and forensic reports. However, investigators are not judges. Their job is to build a case, not to determine truth. Even when evidence contradicts the allegation, investigators frequently present the case as if the accusation is credible and consistent.
Step 3: Prosecutors Review the Case File
Once investigators believe they have enough information, they send the case file to military prosecutors. The prosecutors decide whether to recommend charges to your command. They often focus on the accuser’s statement, even when objective evidence is weak. In our experience, prosecutors sometimes recommend charges simply because they fear criticism or political backlash if they decline.
Step 4: The Commanding Officer Prefers Charges
This is one of the most misunderstood parts of the process. Your commander—not CID, not NCIS, not a judge—makes the decision to prefer charges. Commanders often prefer cases they barely understand because they rely heavily on prosecutors and advisors who encourage moving forward. Commands also fear accusations of being “soft” on sexual assault, so borderline cases frequently get charged.
Step 5: The Article 32 Hearing
Before charges are referred to trial, you receive a preliminary hearing where the government’s evidence is presented. This is your chance to attack the government’s case early. Gonzalez & Waddington uses this hearing to expose contradictions, challenge investigators, and weaken the accuser’s credibility. Strong performance at Article 32 can lead to dismissals or negotiated outcomes before trial.
Step 6: Referral to Court-Martial
After the Article 32 hearing, your commander decides whether to refer the case to a general court-martial. Commands frequently refer cases even when the evidence is weak. Their concern is not always whether you are guilty but whether their decision will be politically questioned. This is why your defense must be aggressive from day one—not just at trial.
Aggressive Military Defense Lawyers: Gonzalez & Waddington
Watch the military defense lawyers at Gonzalez & Waddington break down how they defend service members worldwide against UCMJ allegations, CID/NCIS/OSI investigations, court-martials, Article 120 cases, administrative separations, and GOMORs. If you’re under investigation or facing charges, this video explains what your rights are and how experienced civilian military counsel can make the difference.
Why Military Sexual Assault Cases Get Charged with Weak Evidence
Commands Fear Political Backlash
Commands know that declining to prosecute a sexual assault case can lead to criticism, IG complaints, or negative metrics from higher headquarters. To avoid risk, they often send questionable cases forward “for the panel to decide.” This practice results in many service members facing court-martial despite obviously flawed allegations.
Investigators Present a One-Sided Story
Investigators rarely focus on exculpatory evidence. They highlight statements that support the accusation and downplay inconsistencies. Because of this bias, commanders often receive an incomplete and misleading picture of the case. Gonzalez & Waddington identifies these investigative distortions and uses them to undermine the prosecution from the beginning.
Prosecutors Push Cases Even When Evidence Is Weak
Prosecutors face pressure to show they are tough on sexual assault. They sometimes recommend charges even when digital evidence disproves parts of the accusation or when the accuser’s story has changed repeatedly. Our firm exposes these weaknesses at Article 32 hearings and ensures the convening authority sees the full truth rather than the government’s edited version.
The Standard for Charging Is Far Lower Than for Conviction
Charges can be preferred with only probable cause, which is a very low threshold. At trial, however, the government must prove guilt beyond a reasonable doubt. This massive gap explains why many cases with weak evidence still go forward but later result in acquittal when properly defended.
How Gonzalez & Waddington Levels the Playing Field
We expose investigative shortcuts, challenge digital evidence analysis, confront accusers at Article 32 hearings, identify political and command influences, and force the government to justify every step of the charging process. Our firm has prevented countless baseless charges from moving forward and secured acquittals in cases that should never have been referred to trial.
Who Actually Decides Whether to Charge You?
| Actor | Role in Article 120 Charging Decisions |
|---|---|
| CID / NCIS / OSI / CGIS | Investigates and forwards the case but does not charge you. They heavily influence perceptions. |
| Military Prosecutors | Recommend charges to your commander, framing the narrative and shaping expectations. |
| Commanding Officer | Makes the actual decision to prefer charges. Often does so under institutional pressure. |
| Article 32 Preliminary Hearing Officer | Provides recommendations on probable cause. Not binding but influential. |
| General Court-Martial Convening Authority | Decides whether to refer charges to court-martial after Article 32. |
Frequently Asked Questions About Article 120 Charging Decisions
Can I Be Charged Even If There Is No Evidence?
Yes. Many Article 120 cases are charged based solely on the accuser’s statement. Gonzalez & Waddington exposes weaknesses in these cases and challenges credibility at every stage.
Why Would My Command Charge Me If the Accuser Keeps Changing Their Story?
Commands often prefer charges simply to avoid criticism. Story changes do not stop cases from moving forward unless aggressively exposed by the defense.
Does CID Decide Whether I Am Charged?
No. CID only investigates. Charging decisions are made by your commander based on prosecutor recommendations.
What If the Evidence Actually Helps Me?
This happens frequently. However, unless the defense presents this evidence early and effectively, commands may never fully understand its impact.
Can Gonzalez & Waddington Stop Charges Before They Are Filed?
Yes. Through early intervention, pre-charge advocacy, evidence analysis, and strategic engagement at Article 32 hearings, our firm has prevented many baseless cases from moving forward.
The Bottom Line: Charging Decisions Are Not Always About Truth — They Are About Pressure
Military sexual assault charges often move forward even when the evidence is weak, contradictory, or unreliable. Commanders, prosecutors, and investigators operate under pressure that has nothing to do with your innocence. You cannot rely on the system to recognize flaws on its own. Gonzalez & Waddington aggressively challenges every step of the charging process, exposes investigative failures, and builds a powerful defense long before the case ever reaches trial. If you are worried about being charged or if the investigation is already underway, contact our firm immediately. Early defense intervention can determine whether your case gets dismissed or becomes a court-martial that puts your entire future at risk.
