Call us today to get more information UCMJ Article 120 Military Sexual Assault Defenses
In a military sexual assault case, there are multiple defenses that you can raise. One of the most important defenses in a military sexual assault case is mistake of fact as to consent. Mistake of fact is a defense to Article 120, UCMJ sexual assault, rape, aggravated sexual contact, and other military sex crimes.
Updated UCMJ Maximum Punishments Chart – All UCMJ Offenses (2024)
In an Article 120 UCMJ military sexual assault case, the prosecution must prove the offense beyond a reasonable doubt. For example, if you are accused of military sexual assault or rape, the prosecution must prove that you committed that offense beyond a reasonable doubt. This means that the government must confirm every element of the sexual assault allegation beyond a reasonable doubt. In an Article 120 UCMJ case, The defense can raise mistake of fact on behalf of the accused at trial.
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This means the government must prove beyond a reasonable that the offense was committed by the accused. They must also prove beyond a reasonable doubt that the defendant did not have a mistaken belief that the alleged victim was consenting. For a defendant to be held criminally liable for a military sexual assault, they must know that they are committing a crime. They must understand that the victim is not consenting or is incapable of consent. If the defendant has a reasonable but mistaken belief that the victim is consenting, they are not guilty of the sex crime.
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Here is an example of a reasonable mistake of fact in a military sexual assault case. Let’s say I’m in college, and I meet someone in the dorm, and we go to lunch, we hang out, I think she likes me, she flirts with me. We watch movies in her bed late at night, and we kiss a few times. Let’s say I then invite her to the movies. And I take this woman on this date to the film, and we’re sitting there watching a romantic movie, and she’s cuddling into me. And I think everything’s great. And I put my hand on her leg, and I start rubbing her leg, and I start caressing her inner thigh. She doesn’t say “stop.” She does not move your hand. She doesn’t say anything. And, she’s smiling and making soft sounds, consensual sounds. Then, two weeks later, the woman claims that she was sexually assaulted at the movie theater.
In the court-martial trial, we will present evidence on cross-examination and through our client to show that the defendant believed that she was consenting.
He’s thinking:
To win a conviction at a court-martial, military prosecutors must prove that you committed the crime beyond a reasonable doubt. But, in addition, they must also prove beyond a reasonable doubt that you did not have a mistake of fact in your mind as to whether the alleged victim was consenting. So it’s a double hurdle for the prosecution.
If you are falsely accused of a military sexual assault, speak to a lawyer experienced in military sexual assault defense. A military defense lawyer can advise you on your defenses to sexual assault in the military. Mistake of fact is one of the best defenses to raise in a military sexual assault court-martial.
A court-martial defense lawyer can advise you on your options and present that defense to military sexual assault at a trial. However, if someone falsely accuses you of military sexual assault, do not speak to the police. Instead, hire an aggressive military defense attorney. By talking to the police without a lawyer, you may be doing shutting down potential defenses. Often the truth is the best defense. Believe it or not, in cases where there’s a mistake about whether a person is consenting or not consenting, the truth can set you free.
You shouldn’t be sexually assaulting people or touching people that you don’t know. That is a crime. When I talk about mistake of fact as a defense, I’m talking about situations where the people know each other. There should be a history of consensual sexual behavior. There is touching and consensual behavior that would lead a reasonable person to believe that the person they’re touching is consenting to sex.
Let’s say you’re a sergeant, and a recruit comes into your office. You don’t know her. But, she is attractive, and you think she’s sexy. So, she smiles and flirts with you, so you walk up to her and put your hand on her buttocks. Here, there is no mistake of fact. Flirting, smiling at someone, or being friendly will not raise a mistake of fact as a defense. Why? The answer is obvious. There has to be a reasonable expectation that the person will consent, such as a pre-existing relationship or some sort of pre-existing sexual history between you.
There doesn’t have to be a long-standing history. It could be someone you met at the bar that night. However, flirting, grinding, dancing, kissing, sexual discussions, and agreeing to go back to your place can raise mistake of fact. Even better, if the alleged victim goes back to your apartment and starts engaging in sexual behavior, that would likely raise a mistake of fact as a defense to military sexual assault.
The bottom line is before you hook up with people you do not know or people that have been drinking, be careful. Make sure you get explicit consent to avoid being falsely accused of military sexual assault or any type of sexual assault. Suppose you do happen to be falsely accused of military sexual assault. In that case, you need to talk to a court-martial lawyer who has experience defending military sexual assault cases to advise and defend you.
Military Defense Lawyer Michael Waddington explains Military Sexual Assault Defenses: Mistake of Fact as to Consent. In the military, “Mistake of fact” means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person consented to the sexual conduct. Call 1-800-921-8607 to speak with a sexual assault defense attorney today. #sexualassault #criminaldefense #falseaccusation #fakesexualassault
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Everyone knows that when you get caught up in a legal nightmare, you are technically “innocent until proven guilty.” However, there is this unflattering presumption about service members being guilty when the news breaks about military sexual assault. Why does this happen?
The military tends to believe that if an allegation comes to light, it must be true. So military prosecutors and the command will mark you off as collateral damage to keep their slate clean, and your life will be left in shambles.
Your military defense lawyers will do everything in their power to clear your name so that you can get back to your life. While it may not feel that same afterward, you will at least be able to start over.
Continue reading to learn more about military sexual assault and what these accusations might mean for service members.
The Uniform Code of Military Justice (UCMJ) is the military’s law code. It ensures that all military personnel are held accountable for their actions. Generally, being in the military means that criminal behavior sees harsher, more severe consequences.
There are Article 120 lawyers who can help you fight back against allegations of rape or sexual assault.
Before 2007, the prosecution had to prove that the alleged event occurred without the accuser’s consent. Congress removed this element because consent is always an issue in these cases. Your military defense attorney will know how to bring up discrepancies via evidence of consent and mistake of fact during false allegations.
A 2012 update to the UCMJ, Article 120, identifies rape or sexual assault as a forced sexual act between individuals involving penetration of the mouth, vulva, or anus. In addition, the action may involve degradation, humiliation, harassment, or abuse.
There must be proof that the accused performed sexual acts through unlawful force or threats of harm to their loved ones without getting consent from their sexual partner. It also includes sexual contact with an individual who is unconscious or has been drugged. Aggravated sexual contact involves direct or indirect touching of genitalia.
The UCMJ also breaks down the subsections of Article 120 a little further.
The UCMJ, Article 120a was amended to include stalking. Stalking offenses include behaviors that allow the perpetrator to monitor the victim’s physical and online activity. It also covers verbal and written threats that promise bodily harm to the victim.
Article 120b involves the rape, sexual assault, or inappropriate touching of a minor, including children less than sixteen years old and those with intellectual disabilities, meaning that their mental ability falls below that of an adult. Children are mentally incapable of consenting to sexual acts because their brains haven’t finished developing yet.
Article 120c involves other sexual misconduct charges, including:
Watching someone in the nude or performing sexual acts is against the law (indecent viewing). To make matters worse, recording and/or broadcasting the indecent act is quite common. The charges might include child pornography and voyeurism.
Indecent exposure can refer to the perpetrator exposing himself/herself to others on purpose. It can also refer to sexually exposing someone else to humiliate or degrade them.
Forcible pandering refers to the act of being compelled to participate in prostitution.
All of these acts are meant to be degrading, humiliating, or abusive towards the individuals involved. If you get accused of causing someone to do so, you may be looking at serious consequences. If you didn’t do what they are accusing you of, it’s crucial to prove your innocence to avoid them.
A sexual assault investigation begins with a report of the incident to law enforcement. The victim or a mandated reporter generally makes this report. The law enforcement supervisor who gets the call will determine which branch of the military will handle the case, including:
The specified branch of the military will then take over and perform a preliminary investigation. The Article 32 investigation will take place to determine if the report is credible. Then, a Report of Investigation will get initiated, meaning that:
The case may get terminated if the facts don’t line up via probable cause or lack of evidence.
Every allegation of Article 120 UCMJ rape and sexual assault is taken seriously by the military and by law enforcement. Until something doesn’t add up, they will do whatever they can to pin the crime on someone to close the case.
The allegation will get examined for credibility. In general, an allegation is going to be:
When the details don’t make sense or keep changing, the alleged victim might be unsure of the narrative. Then, if they need to be prompted to answer the questions, they may be unable to keep all of the details straight because the event never happened.
A legitimate allegation will be descriptive yet simple enough for the witnesses to corroborate without much effort. Witnesses will reproduce the events that took place without sounding scripted. When there are issues with corroborating the narrative, this is where one might start looking at discrepancies.
Sometimes, witnesses may accidentally get facts wrong, incriminating themselves and the alleged victim. It’s a punishable offense to give a false allegation.
There are several reasons that someone might make false allegations against you, including:
This type of accusation is relatively common because once the story breaks about how you supposedly committed a crime, the military branch’s reputation is on the line. In addition, your commanding officer may not be willing to put their career at risk even if they believe that you’re innocent.
Due to this, you may find yourself thrown to the wolves. Your defense attorney will do whatever they can to prove your innocence and salvage what’s left of your career and reputation. However, the reason for false allegations can be complex, and motivation may not be clear.
If you had consensual relations with this person, it’s possible that they lied so they could preserve their marriage, gain custody of your mutual children, further their career, or ruin your life.
Consensual, extramarital sex (adultery) amongst military members is a criminal offense. If the alleged victim started to feel guilty about cheating, they might’ve told their spouse that it was rape or sexual assault to protect their marriage and avoid the consequences. From there, their spouse may push them to file a complaint.
The alleged victim may be accusing you so that they don’t get in trouble and negatively impact their career.
If you are married to another service member, your spouse may be using the case as a way to gain custody of your mutual children in a custody battle. However, rape and sexual assault can occur even if the interaction was with your husband or wife.
If the perpetrator used alcohol to get someone to perform sexual acts, they’ve committed a crime. Alcohol-facilitated sexual assault in the military refers to the link between alcohol consumption and becoming more aggressive while drinking.
There is also a connection between alcohol consumption and aggressive behavior. It’s possible that drinking alcohol caused the perpetrator to rape or sexually assault someone. Drinking too much alcohol is not an excuse for their actions, but it’s a possibility of explaining why it happened.
When accused of taking advantage of an intoxicated individual, it stands to reason that the individual hadn’t drunk enough alcohol to blackout.
There’s also a chance that inconsistencies in a victim’s memory mean that they are lying. for example, if a victim remembers the act of penetration but doesn’t remember if they gave consent, it may cause some doubt in jury members. It’s possible that they didn’t drink enough alcohol to blackout, and they are deceptive.
Even consensual sex involving alcohol is a criminal offense if it involves an underage individual.
You will learn of the accusations when the law enforcement officers notify your commanding officer that they’d like to talk to you. Your commanding officer will put things in motion to escort you to their law enforcement officers. You can leave, but it might make you look guilty.
When you arrive at the precinct, you will probably spend a lot of time in the waiting room. Then, military law enforcement investigators (CID, OSI, NCIS, or CGIS)’ll take you into a room for the collection of your biographical data (fingerprints, DNA, pictures). If this happens, you need to contact your attorney.
The law enforcement officers will try to make small talk so that you become comfortable talking to them. Then, they’ll ask personal questions like:
It’s important to remember that they aren’t your friends. They aren’t just making conversation. They want to get you talking.
After a while, the officers will list your offenses. Make sure that you pay attention to what they say because your lawyer will need to know. It’s possible that military law enforcement investigators won’t list all of the offenses to make you more comfortable.
You’re still free to leave at this point. However, agreeing to talk to military law enforcement may make you feel better. But, don’t talk to investigators. If you decide to speak with law enforcement, you can request a military defense lawyer at any time. If you ask for a military defense attorney, the interrogation must stop.
You mustn’t say anything that might incriminate you when you interact with the alleged victim after hearing about the allegations placed against you. They may be working with the police to get you to admit to something that you didn’t do. So instead, politely tell that you can’t talk because you have to get to the gym, run some errands, or make your way home.
Several things factor into giving a false confession, including:
External pressure refers to the coercion that comes from the law enforcement officials. In contrast, internal pressure refers to your feelings of guilt and the possible relief you may get from confessing.
The officers handling your case will push you to confess to the crime whether you did it or not. They work towards:
Law enforcement officers use tactics to get you to give a false confession, including:
When suspects are stuck in the interrogation room for a lengthy period, they may become withdrawn and listen to what the interrogators say. As a result, they may get emotional and stress out. Unfortunately, breaking down and crying can be misconstrued as guilt.
Certain personality traits can cause the accused to confess to a crime that they didn’t commit. for example, people who are likely to make a false confession include individuals who trust authority figures, distrust their memory or are swayed by suggestion.
Once you start hearing about the evidence they are compiling against you, you may feel like there is no way out. They may be exaggerating the facts to get you to break down. At this point, you may confess because they’ve convinced you that their evidence is fool-proof.
Law enforcement officials may use your interactions with the victim/accuser against you to pin the crime on you.
As a suspect in a sexual assault case, you don’t have to say anything because you still have rights. So, it’s important to make sure that you don’t say anything that might incriminate yourself. Your rights include:
When you get arrested, law enforcement will read your Miranda rights. Once you’ve been Mirandized, anything that you say can get held against you in the investigation. So in most cases, it’s best to invoke that right and sit tight until your attorney can help you with your defense (even if you’re innocent).
You can have a lawyer present during any interrogation, even if you’re told it’s not an actual interrogation. Your military defense lawyer will be able to recommend which questions to answer and how to answer them.
Polygraphs tend to flag people for lying because it picks up on nervousness and hesitation. Being in this situation is stressful, even when you are innocent. Taking tests like this isn’t an exact science and should be avoided if you are an anxious person in general.
You don’t have to allow anyone access to your belongings or property without your consent. However, if you let law enforcement officials onto your property, you can even take back your consent, and the officers will have to leave your property until they can get a warrant.
Always remember to be respectful when invoking your rights. It’s understandable that you are under a lot of stress and have many fears for the future. Tell the officers that you would like to cooperate, but you’re invoking your Article 31 and 5th Amendment rights.
Article 31 states that compulsory self-incrimination is prohibited. The officers cannot get you to incriminate yourself, especially if they haven’t informed you of the nature of the allegations (plus the circumstances surrounding the allegations).
The 5th Amendment states that you have the right to remain silent. Once you’ve been Mirandized, the officers can use anything you say against you to build the case against you. Honestly, remaining silent is the best thing that you can do until you speak with your attorney.
Those facing trial may undergo pretrial confinement as ordered by their commanding officer. Due to the confinement, they:
Once an unbiased officer can review the case, you may be eligible for release. In some cases, a military judge can choose to release you. If a service member is unlawfully confined, they may be eligible to receive sentencing credit and back pay for the time lost due to confinement.
Your military defense lawyers can use only certain things as valid, admissible evidence under the Rape Shield Law. The defense can’t dig into the alleged victim’s past to prove that they have a sexual predisposition, except in certain situations. After that, the defense can present evidence that is relevant to proving their innocence.
Evidence that would normally be considered inadmissible can be brought to light when it:
This rule is in place to protect the alleged victim from undue examination of past relations that they may have had.
Committing a crime of any degree should be punished to the fullest extent of the law. As a service member, you might notice that these consequences are more severe than they would be for a civilian. Military law can be more severe because service members are supposed to be upstanding citizens who always follow the rules even when they don’t agree.
If charged with sexual assault, military members will receive severe criminal penalties, including:
There are several consequences of sexual assault charges that depend on the specifics of the case.
No doubt, getting convicted of a crime can ruin your life. for example, prison sentences for sexual assault convictions range from seven years to life in prison without a chance of parole.
Stalking (under Article 120a) can cost you up to three years in confinement.
Sexual assault against minors (Article 120b) includes definite prison time:
The other acts of sexual misconduct (mentioned in Article 120c) can result in imprisonment, including:
Going to jail for a conviction of this degree will ruin your life, even if you are later acquitted as new evidence comes to light. therefore, you will want to have an experienced military defense lawyer on your legal team.
Getting discharged from the military due to dishonorable behavior will negatively impact your life. This occurs when you violate the code that you took on when you joined the military. When you are dishonorably discharged due to a rape or sexual assault conviction, you may:
Of course, other behaviors might cause this type of discharge, including committing murder, being rebellious, or going AWOL. However, you give up these rights when you turn against the military in any capacity.
A rape or sexual assault conviction means that you forfeit your right to accept any pay, allowances, or benefits from joining the military. The military will no longer be covering your healthcare costs, providing your employment opportunities, or paying for your schooling.
Getting convicted of rape or sexual assault means that you will become a registered sex offender. The Sex Offender Registry and Notification Act (SORNA) for military convictions may also include:
As of 2015, SORNA requires that the Department of Defense (DOD) submit all information acquired through courts-martial or incarceration at a military corrections facility for these offenses to the National Sex Offender Registry and the National Sex Offender Public Website.
Getting this conviction on your criminal record can ruin your life in more ways than just losing your job and your reputation. Being on a sex offender registry affects where you live, what you do for a living, and how you interact with people. In addition, it can be humiliating and degrading.
If you are innocent, you will need a highly experienced lawyer who focuses on these types of cases on your side to help you create a valid defense against the charges.
When services members face sexual assault charges, everything is on the line: your job, reputation, and livelihood. Relying on a military defense lawyer is your best bet to getting this resolved, especially if you’re innocent. It’s important to remember that these cases can still go to trial even if:
From there, it’s up to the judge and the jury to decide your fate.
Alleged accusers who are lying are sure to have inconsistencies in their stories. for example, an accuser might say that they had too much to drink, making them unable to consent. However, their blood level suggests that they didn’t have enough alcohol in their system to cause them to blackout.
Extramarital relations are forbidden amongst service members. However, when evidence comes to light regarding sexual relations of married individuals, an alleged accuser may claim that it happened against their will to protect their marriage. As a result, their spouse may push for them to press charges.
The steps of a court-martial include several events in the timeline:
Preferral/referral of charges pertains to the investigation process that comes before the trial process starts. Once that is done, the military judge assigned to your case will have an arraignment and set the timeline for the court proceedings. The jury panel selection (voir dire) takes place after that.
When the trial begins, the prosecution and the defense will give opening statements. Once opening statements are made, the U.S. government (prosecution) will provide evidence where they disclose all of the information they have on the case (evidence, expert witnesses, etc.).
The court-martial defense attorneys will then have the opportunity to present their evidence after they cross-examine the prosecution.
Once the evidence gets presented to the judge and the jury, the jury will be given parameters to apply to the evidence (jury instructions). Then, the prosecution and defense will provide their closing arguments before jury deliberation takes place. Once the jury determines guilt or innocence, the judge will move forward with sentencing proceedings.
If you are going to trial, you might be stuck between a rock and a hard place for several months. In some cases, it may take more than a year to get through all of the steps of court-martial.
Your court-martial defense attorney will do whatever they can to get you prepared for the upcoming trial, but they have to consider all of the facts before they can begin building a solid defense in your favor.
They will help you to put together a defense and get you prepared to testify. The best military defense lawyers will choose experts and have them look at the court’s forensic evidence against you. They will also prepare you for anything that might come up in cross-examination.
When it comes to preparing your defense, your lawyer will help you figure out why the alleged victim lied and what they gained from lying. They will be able to determine which jurors may be more sympathetic to you. They will be able to examine and challenge the victim’s supposed narrative.
Your military defense attorney will help you develop a solid defense to get your charges dropped. Common defenses to sexual assault allegations are:
It’s possible that the sexual encounter never happened. If you never had sexual relations with the accuser, there won’t be much by way of evidence. But you will still have to prove that you were nowhere near the scene of the assault.
Having a strong alibi is one of the simplest defenses. If you were not anywhere near the accuser at the time of the assault, you could prove it by having witnesses who place you somewhere else entirely during the alleged time of the attack.
If the encounter was consensual, you must prove that your partner was all for the sexual encounter. You can do this by providing proof of the relation. for example, you can show text messages and pictures, as well as asking whoever may have been with you to corroborate your story.
The Rule of Courts-Martial 916 states mistake of fact as to consent evidence comes from an ignorance/mistake on the suspect’s part. This is where “I thought it was consensual” comes into play. therefore, the ruling is “not guilty” when they genuinely didn’t know or mistakenly believed that they had consent AND that the ignorance/belief is reasonable.
This defense is not based on negligence or simply not caring that consent was not given. The defendant’s age, education, and experience levels should all be considered when determining this. It’s possible that the defendant was also intoxicated during the assault and unable to consent before acting.
Even though you will begin preparing to testify initially, you may not have to take the stand. Half of the defendants will take the stand to attempt to clear their names.
There are a few instances where testifying might help your case. First, juries want to hear the defense from the person who is accused of committing the crime.
Though you have the right to remain silent, there may be a penalty for refusing to testify. In cases where the defendant testified, the defendant had a 40% chance of getting convicted. When the defendant doesn’t testify, conviction rates were approximately 70%
However, it boils down to a cost-benefit analysis of the case, including:
You and your military defense attorney may agree that testifying may jeopardize your case, especially if you have previous convictions that might hinder the defense.
Military personnel officials are thoroughly vetted before they can join the military. Having a commanding officer deliver a character witness statement about the accused can help them seem more credible.
Calling an expert witness to the stand for any part of the defense needs to have the right experience and knowledge to present the evidence in a light that benefits you. You don’t want an expert witness who doesn’t know what they are talking about in your specific case.
DNA is not a surefire thing when it comes to pinning a crime on the accused. If your DNA shares markers with someone else, it’s possible that you may be identified as the suspect and still be innocent.
False DNA identification is possible when you share DNA with the accused individual through kinship or a DNA profile that is very similar to yours without being related. for example, if the assault happened at your residence and your DNA was collected as a part of the investigation, it’s possible.
When you partner with a military defense attorney, you can have all forensic evidence gone over by DNA consultants and other medical experts.
If you get arrested for this crime, it can take years to be acquitted for the charges. But, then, even if your get exonerated, your life has already been ruined by the allegations held against you.
If your case goes to trial, you have to be prepared for anything the prosecutor might ask you. The prosecutor will do everything that they can to prove that there are discrepancies in your narrative. The JAG prosecutor will ask their questions in a way that makes it seem like you:
To do this, they will highlight your alleged offenses making the allegations seem very realistic. If this doesn’t work for them, they will focus on the probable factors, including pretext phone calls, DNA evidence, and your previous admissions to law enforcement.
By preparing you for a cross-examination, your military sexual assault lawyers will be able to find weaknesses and pinholes in your testimony. As a result, they will be better able to prepare your testimony by solidifying your defense.
If you do end up getting convicted, your military defense attorney will be able to seek out a lesser punishment. for example, we can help you get an administrative discharge versus a punitive one. As a result, you may be able to spend fewer years in jail than your sentence suggested.
We have had several high-profile military defense cases over the years. Many of our cases have been highlighted on 60 Minutes, ABC’s Nightline, CNN, CBS, Fox News, and the BBC. We’ve even given consultation to a TV show on CBS, “the Good Wife,” to help the show portray more realistic insight into military court-martial.
Not only are we very experienced with this type of case, but we also teach other leading military defense attorneys of our methods. We’ve also written some of the best books regarding cross-examination and closing arguments and sexual assault defenses. Long story short, we know what we are talking about.
Our case results speak for themselves. Check out our previous cases for more information.
If you find yourself facing military sexual assault charges, you need to hire a military defense attorney as soon as possible. However, you shouldn’t take chances with trying to defend yourself in a case of this severity. Failing to accurately get your point across could compromise your career, ruin your reputation, and impede your freedom.
At Gonzalez & Waddington, Attorneys at Law, we’re devoted to helping service members present their defenses for any military sex crimes they’re accused of. We can handle gathering evidence, protecting your rights, and returning you to duty.
Contact González & Waddington, Attorneys at Law, today for more information.