Sexual Abuse of a Child Defense Attorneys | Military Sex Crime Lawyers

Sexual Abuse of a Child Defense Attorneys Article 120b UCMJ

(For offenses committed after 1 January 2019)

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A sexual crime is a criminal offense that occurs when a military service member sexually abuses or instigates a forced sexual encounter through psychological and physical force. 

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There are four types of Sexual Abuse of a Child under Article 120b:

  • Sexual Abuse of a Child Involving Sexual Contact
  • Sexual Abuse of a Child Involving Indecent Exposure
  • Sexual Abuse of a Child Involving Indecent Communication
  • Sexual Abuse of a Child Involving Indecent Conduct

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The Maximum Punishment for Sexual Abuse of a Child, Article 120b, in cases involving sexual contact:

  • Dishonorable Discharge
  • Total Forfeiture of all pay and allowances
  • Confinement for 20 years
  • Reduction to the grade of E-1
  • If convicted of Sexual Abuse of a Child, the service member will also have to register as a sex offender.

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The Maximum Punishment for Sexual Abuse of a Child, Article 120b, in cases not involving sexual contact:

  • Dishonorable Discharge
  • Total Forfeiture of all pay and allowances
  • Confinement for 15 years
  • Reduction to the grade of E-1
  • If convicted of Sexual Abuse of a Child, the service member will also have to register as a sex offender.

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Sample Specification for Sexual Abuse of a Child Involving Sexual Contact, Article 120b, UCMJ:

In that SGT Bill Skeen, US Army, did at or near Fort Lewis, WA, on or about May 2, 2022, commit a lewd act upon Tammy Doe, a child who had not attained the age of 16 years, by touching the vulva of Tammy Doe, with SGT Bill Skeen’s fingers, with an intent to abuse Tammy Doe.

Sample Specification for Sexual Abuse of a Child Involving Indecent Exposure, Article 120b, UCMJ:

In that SPC Will Dill, US Army, did at or near Fort Polk, LA, on or about June 7, 2021, commit a lewd act upon Susan Doe, a child who had not attained the age of 16 years, by intentionally exposing his genitalia to Susan Doe, with an intent to gratify the sexual desire of SPC Will Dill.

Sample Specification for Sexual Abuse of a Child Involving Indecent Communication, Article 120b, UCMJ:

In that SrA Gil Lopo, US Air Force, did at or near Tinker Air Force Base, OK, on or about March 1, 2023, commit a lewd act upon Becca Doe, a child who had not attained the age of 16 years, by intentionally communicating to Becca Doe indecent language to wit: “I want to &%^*% you,” with an intent to arouse the sexual desire of SrA Gil Lopo.

Sample Specification for Sexual Abuse of a Child Involving Indecent Conduct, Article 120b, UCMJ:

In that Sergeant Skip Skolly, US Marine Corps, did at or near Camp Foster, Japan, on or about October 19, 2021, commit a lewd act upon Tom Doe, a child who had not attained the age of 16 years, by engaging in indecent conduct, to wit: masturbate while naked, intentionally done in the presence of Tom Doe, which conduct amounted to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

Military sex crimes include:

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Elements of Sexual Abuse of a Child Involving Sexual Contact,:

Each element must be proven beyond a reasonable doubt by the prosecution.
(1) That (state the time and place alleged), the accused committed a lewd act upon (state the name of the alleged victim), by (state the alleged sexual contact); and
(2) That at the time of the lewd act (state the name of the alleged victim) had not attained the age of 16 years.

Elements of Sexual Abuse of a Child Involving Indecent Exposure:

Each element must be proven beyond a reasonable doubt by the prosecution.
(1) That (state the time and place alleged), the accused committed a lewd act upon (state the name of the alleged victim), by intentionally (state the alleged exposure or communication); and
(2) That at the time of the lewd act (state the name of the alleged victim) had not attained the age of 16 years.

Elements of Sexual Abuse of a Child Involving Indecent Communication:

Each element must be proven beyond a reasonable doubt by the prosecution.
(1) That (state the time and place alleged), the accused committed a lewd act upon (state the name of the alleged victim), by intentionally (state the alleged exposure or communication); and
(2) That at the time of the lewd act (state the name of the alleged victim) had not attained the age of 16 years.

Elements of Sexual Abuse of a Child Involving Indecent Conduct:

Each element must be proven beyond a reasonable doubt by the prosecution.
(1) That (state the time and place alleged), the accused committed a lewd act upon (state the name of the alleged victim), by engaging in indecent conduct, to wit: (state the alleged indecent conduct); and
(2) That at the time of the lewd act (state the name of the alleged victim) had not attained the age of 16 years.

Definitions and Other Instructions for :

“Lewd act” means:

(A) any sexual contact with a child;

(B) intentionally exposing one’s genitalia, anus, buttocks, or female areola or nipple to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person;

(C) intentionally communicating indecent language to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or

(D) any indecent conduct, intentionally done with or in the presence of a child, including via any communication technology, that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

“Sexual contact” means touching, or causing another person to touch, either directly or through the clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body or an object.

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“Child” means any person who has not attained the age of 16 years.

The prosecution is not required to prove the accused knew the age of (state the name of the alleged victim) at the time the alleged sexual act(s) occurred.

NOTE 1: Mistake of fact as to age.

Mistake of fact as to age is an affirmative defense to sexual abuse of a child, if the child had in fact attained the age of 12 years. If raised by some evidence, the military judge must advise the members that the defense has the burden of proving by a preponderance of the evidence that mistake existed. When mistake of fact as to age has been raised, include the following instruction. The burden of proof in the instruction below is as provided in the statute.

The evidence has raised the issue of mistake on the part of the accused concerning the offense(s) of sexual abuse of a child, as alleged in (the) Specification(s) (___) of (the) (ADishonorable Dischargeitional) Charge (___). Specifically, the mistake concerns the accused’s belief that (state the name of the alleged victim) was at least 16 years of age, when the alleged lewd act(s) occurred.

First, if you find beyond a reasonable doubt that (state the name of the alleged victim) had not attained the age of 12 years, the defense of mistake of fact does not exist. The defense of mistake of fact can only be considered, as described below, if you find beyond a reasonable doubt that (state the name of the alleged victim) had attained the age of 12 but had not attained the age of 16.

The prosecution is not required to prove the accused knew that (state the name of the alleged victim) had not attained the age of 16 years at the time the alleged lewd act(s) occurred. However, an honest and reasonable mistake of fact as to (state the name of the alleged victim)’s age is a defense to (that) (those) charged offense(s).

“Mistake of fact as to age” means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct was at least 16 years old. The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable the ignorance or mistake must have been based on information, or lack of it, which would indicate to a reasonable person that (state the name of the alleged victim) was at least 16 years old. (Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances.)

The burden is on the defense to establish the accused was under this mistaken belief, by a preponderance of the evidence. A “preponderance” means more likely than not. If you are not convinced by a preponderance of the evidence that, at the time of the charged sexual abuse of a child, the accused was under a mistaken belief that (state the name of the alleged victim) was at least 16 years old, the defense does not exist. Even if you conclude the accused was under the honest and mistaken belief that (state the name of the alleged victim) was at least 16 years old, if you are not convinced by preponderance of the evidence that, at the time of the charged sexual abuse of a child, the accused’s mistake was reasonable, the defense does not exist.

NOTE 2: Voluntary intoxication and mistake of fact as to age. If there is evidence of the accused’s voluntary intoxication, the following instruction is appropriate:

There is evidence in this case that indicates that, at the time of the alleged sexual abuse of a child, the accused may have been under the influence of (alcohol) (drugs). The accused’s state of voluntary intoxication, if any, at the time of the offense is not relevant to mistake of fact. A mistaken belief that (state the name of the alleged victim) was at least 16 years of age must be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense. Voluntary intoxication does not permit what would be an unreasonable belief in the mind of a sober person to be considered reasonable because the person is intoxicated.

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NOTE 3: Marriage. Marriage is an affirmative defense to sexual abuse of a child. If raised by some evidence, the military judge must advise the members that the defense has the burden of proving by a preponderance of the evidence that a marriage existed. When marriage between the accused and the alleged victim of the sexual abuse of a child has been raised, include the following instruction:

The evidence has raised the issue of marriage between the accused and (state the name of the alleged victim) concerning the offense(s) of sexual abuse of a child, as alleged in (the) Specification(s) (___) of (the) (Additional) Charge (___).

It is a defense to (that) (those) charged offense(s) that the accused and (state the name of the alleged victim) were married to each other when the lewd act(s) occurred. A “marriage” is a relationship, recognized by the laws of a competent State or foreign jurisdiction, between the accused and (state the name of the alleged victim) as spouses. A marriage exists until it is dissolved in accordance with the laws of a competent State or foreign jurisdiction.

The defense of marriage does not exist where the accused commits the alleged lewd act(s) upon (state the name of the alleged victim) when the accused knows or reasonably should know that she / he is asleep, unconscious or otherwise unaware that the lewd act(s) (is) (are) occurring or when she / he is incapable of consenting to the lewd act(s) due to impairment by any drug, intoxicant or other similar substance, and that condition was known or reasonably should have been known by the accused.

The defense has the burden of proving by a preponderance of the evidence that the defense of marriage exists. The term “preponderance” means more likely than not. Therefore, unless you are convinced by a preponderance of the evidence that at the time of the lewd act(s) alleged, the accused and (state the name of the alleged victim) were married to each other, the defense of marriage does not exist.

Even if you are convinced by a preponderance of the evidence that at the time of the lewd act(s) alleged, the accused and (state the name of the alleged victim) were married to each other, if you are not also convinced by a preponderance of the evidence that (state the name of the alleged victim) was not (asleep, unconscious or otherwise unaware of the lewd act(s) occurring) (incapable of consenting to the lewd act(s) due to impairment by any drug, intoxicant or other similar substance) or that the accused was not aware of and should not have been aware of such condition, the defense of marriage does not exist.

NOTE 4: Other instructions.
Instruction 7-3, Circumstantial Evidence (Intent)
Instruction 6-5, Partial Mental Responsibility
Instruction 5-17, Evidence Negating Mens Rea
Instruction 5-12, Voluntary Intoxication, may be appropriate, as bearing on the issue of intent, if the intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person is in issue.

Sexual Abuse of a Child Military Lawyers

Our firm’s founding partners, Michael Waddington and Alexandra Gonzalez-Waddington, graduated from Temple Law School in Philadelphia, PA. In addition, Mr. Waddington is a member of the American Board of Criminal Lawyers. The ABCL is known as one of the most prestigious legal organizations comprised of some high-powered defense attorneys in the USA. Entry is by invitation only and is limited to extremely qualified criminal attorneys with a decade of experience defending criminal trials. In addition, they must have defended 50 or more felony trials and must have won 35 or more jury trials during this time.

Also, he was voted a “Super Lawyer” in Georgia and is ranked Superb on AVVO.com. A few of Michael Waddington’s cases were made into television shows, such as “Taxi to the Dark Side.” He also regularly instructs defense attorneys on trial law.
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Military Sex Crimes, Penalties, & Legal Defenses

Our aggressive civilian attorneys and their outcomes set us apart from less seasoned attorneys.

If you or a family member are facing a court-martial for a military sexual assault or if you are facing an administrative discharge, NJP, show cause board, letter of reprimand, then contact our military defense attorneys now.

Sexual Abuse of a Child – Sexual Behavior in the Military

Military laws include numerous sexual offenses. Military laws try to capture every possible human activity related to sexual misconduct and deviance. However, military sex crimes can be broken down into rape, aggravated sexual assault, abusive sexual contact, child sex crimes, obscenity, and child pornography crimes.

Our hard-hitting civilian lawyers and their victories speak for themselves from less aggressive attorneys.

If you or a loved one are suspected of a military Article 120 crime or if you are facing an administrative separation, NJP, show cause board, letter of reprimand, then reach out to our defense attorneys now.

The accused service member and his or her desired outcome is our main concern. Our military defense attorneys maintain lighter caseloads than the typical free military defense attorney so that we can concentrate on every case individually. Your case will not be outsourced to a random lawyer, and we will not intimidate you into taking a dive at the eleventh hour. Our military defense lawyers have successfully fought US Army court-martial and ADSEP cases in the United States and worldwide.

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