Gonzalez & Waddington, Attorneys at Law defend service members worldwide in Article 120 sexual assault and Article 120c indecent conduct cases. In most Article 120 trials, the central question is consent. Military judges play a crucial role in shaping how the panel (jury) understands and applies the concept of consent. This guide explains how consent defenses work, how judges instruct panels, and how the defense can use these rules to its advantage.

What Consent Means Under Article 120

• Affirmative agreement: Consent is a freely given agreement to the conduct at issue.
• Not implied: Silence or lack of resistance is not automatically consent.
• Capacity: A person cannot consent if they are incapacitated due to alcohol, drugs, or unconsciousness.
• Ongoing: Consent can be withdrawn at any time, even during the act.

Mistake of Fact as to Consent

One of the most powerful defenses is arguing that the accused had an honest and reasonable mistake of fact regarding consent.

• Honest belief: The accused genuinely believed the other person consented.
• Reasonable belief: That belief must be reasonable under the circumstances.
• Supported by evidence: Text messages, behavior, or witness testimony can support this defense.

The Role of Military Judges in Consent Defenses

• Jury instructions: Judges instruct panel members on the definition of consent and mistake of fact defenses.
• Admissibility rulings: Judges decide what evidence of consent or behavior can be admitted (MRE 412, 404(b), 513).
• Standard of proof: Judges emphasize that the government must disprove consent beyond a reasonable doubt.
• Case law guidance: Judges apply precedents from military appellate courts interpreting consent defenses.

How Prosecutors Attack Consent Defenses

• Focus on intoxication: Argue the accuser was too drunk to consent, even if they appeared functional.
• Attack reasonableness: Claim no reasonable person could have believed consent existed.
• Use of experts: Introduce psychologists to explain “counterintuitive victim behavior.”
• Highlight inconsistencies: Any change in the accused’s account is used to undermine credibility.

Defense Strategies for Consent Cases

• Digital evidence: Use texts, DMs, and call logs showing friendliness, flirtation, or plans after the alleged event.
• Witnesses: Fellow service members who saw the interaction can testify about consent or the accuser’s behavior.
• Behavior after: Accuser’s continued contact, joking, or normal behavior undermines lack-of-consent claims.
• Cross-examining experts: Challenge “victim behavior” testimony with scientific literature and bias arguments.
• Highlight burden of proof: Remind the panel that the government must prove beyond a reasonable doubt that consent did not exist.

Common Mistakes Defense Teams Make

• Failing to request a mistake of fact instruction from the judge.
• Not litigating MRE 412 motions to admit relevant evidence of consent.
• Allowing prosecutors to frame intoxication as automatic incapacitation.
• Relying solely on testimony without corroborating digital or witness evidence.

Defense Framework for Consent Cases

1. Theme: “This was consensual. The government cannot prove otherwise beyond a reasonable doubt.”
2. Timeline: Establish flirting, contact, and mutual behavior before and after.
3. Digital evidence: Show consent through texts, social media, and calls.
4. Witnesses: Present fact witnesses who saw consensual behavior.
5. Expert support: Use psychologists/toxicologists to counter government experts.
6. Closing: Hammer the burden—government must prove no consent, not the other way around.

Video: Consent Defenses in Military Sexual Assault Trials

We Build Consent-Based Defenses That Win

Consent defenses require digital evidence, witnesses, expert testimony, and surgical cross-examination. Our team builds trial-ready strategies that dismantle weak Article 120 cases and protect careers, reputations, and freedom.

Gonzalez & Waddington — ucmjdefense.com — 1-800-921-8607

FAQs: Consent Defenses in Article 120 Cases