Short Answer

Mistaken consent occurs when one person reasonably believes the other consented to sexual activity, but the other later claims they did not. Under Article 120, mistaken consent can be a powerful defense when the evidence shows mutual participation, ambiguous communication, alcohol involvement, or conduct that reasonably signaled willingness. These cases are won by focusing on what was communicated at the time, not on regret or reinterpretation after the fact, and Gonzalez & Waddington specializes in exposing how misunderstanding becomes criminalized.

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 Mistaken Consent Cases Are So Common in the Military

Alcohol and Ambiguous Communication

Alcohol is present in a majority of mistaken consent cases. Drinking lowers inhibitions, affects perception, and leads to nonverbal communication rather than explicit verbal consent. Smiling, flirting, touching, reciprocation, and continued engagement are often interpreted as willingness in real time, even if one party later feels uncomfortable or regretful. The military justice system often ignores how alcohol-driven social environments actually function.

Nonverbal Signals and Assumptions

Consent is rarely communicated with formal words. It is usually inferred from behavior, tone, and context. Leaning in, reciprocating physical contact, undressing, remaining present, or initiating intimacy are commonly understood as consent in everyday interactions. When one party later claims those signals did not reflect their intent, the case becomes a dispute about interpretation rather than force.

Regret After the Encounter

Regret is one of the most common drivers of mistaken consent allegations. Relationship fallout, embarrassment, fear of consequences, or outside pressure can cause someone to reinterpret a consensual encounter as unwanted. The law does not criminalize regret, but investigators often treat regret as evidence of nonconsent unless challenged aggressively.

Pressure From Friends, Advocates, or Command

After an encounter, the complaining party may speak with friends, family, SHARP or SAPR personnel, or command members who strongly frame the experience as assault. Over time, the narrative hardens. What began as uncertainty becomes certainty, and what began as discomfort becomes a criminal allegation. This evolution is a hallmark of mistaken consent cases.

How Article 120 Treats Mistaken Consent

Consent Is Evaluated at the Time of the Act

The law looks at what was communicated during the encounter, not how someone felt days or weeks later. Later regret, confusion, or emotional distress does not automatically negate consent that existed at the time. The defense must focus the panel on contemporaneous conduct rather than retrospective feelings.

Reasonableness Matters

In mistaken consent cases, the question often becomes whether it was reasonable for the accused to believe consent existed. Reasonableness is assessed based on behavior, communication, context, and surrounding circumstances. When actions reasonably signaled willingness, criminal liability should not attach.

Silence or Passive Behavior Is Often Misinterpreted

The government frequently argues that silence or lack of verbal enthusiasm equals nonconsent. This oversimplifies human behavior. Many people communicate consent nonverbally or do not verbalize discomfort in the moment. Treating silence as criminal nonconsent ignores reality and must be challenged at trial.

Investigators Often Apply a Hindsight Lens

Investigators commonly evaluate consent based on how the accuser feels later rather than what occurred in real time. This hindsight bias distorts the analysis and unfairly criminalizes misunderstandings. A strong defense reframes the case around contemporaneous evidence.

How Gonzalez & Waddington Defends Mistaken Consent Cases

We Reconstruct the Encounter Moment by Moment

Our firm rebuilds the encounter using texts, timelines, witness observations, alcohol consumption, movements, and behavior before, during, and after the event. This reconstruction often shows mutual participation and signals of consent that investigators ignored.

We Use Digital Evidence to Show Context

Messages before and after the encounter frequently contradict later claims of nonconsent. Flirtation, planning, affectionate messages, continued contact, or apologies for regret rather than harm all support a mistaken consent defense. We present full message histories, not cherry-picked excerpts.

We Expose the Difference Between Discomfort and Nonconsent

Feeling awkward, conflicted, or emotionally uncertain does not equal refusal. Gonzalez & Waddington educates panels on the difference between discomfort, ambivalence, and actual nonconsent, using evidence and common-sense reasoning grounded in real-world behavior.

We Attack Investigator Assumptions

Investigators often assume that if someone later says they did not want sex, then no consent existed. We challenge this assumption by showing how narratives evolve and how investigators ignore evidence that contradicts the final story.

We Create Reasonable Doubt Through Ambiguity

Criminal convictions require certainty, not ambiguity. When evidence shows mixed signals, unclear communication, and reasonable misunderstanding, the government cannot meet its burden. Our defense strategy highlights this ambiguity until reasonable doubt becomes unavoidable.

Mistaken Consent vs. Nonconsent Under Article 120

Frequently Asked Questions About Mistaken Consent

The Bottom Line: Mistaken Consent Is Not a Crime

Article 120 does not criminalize misunderstanding, ambiguity, or regret. It criminalizes nonconsensual sexual acts proven beyond a reasonable doubt. When evidence shows mixed signals, alcohol-driven confusion, or reasonable belief in consent, the government’s case collapses under scrutiny. Gonzalez & Waddington has defended service members across the globe in mistaken consent cases and understands how to expose the difference between a misunderstanding and a crime. If your case involves disputed consent rather than force, you need a defense team that knows how to turn ambiguity into acquittal.