Sexual Assault in the Military

The law and the rules related to the prosecution of Sexual Assault in the military have evolved rapidly over the last several years. Congress and the President, through the annual National Defense Authorization Act, have sought to make significant changes to the prosecution of Sexual Assault in the military. Now more than ever it is critical that military members accused of sexual assault have dedicated and experienced defense counsel. Under the rapidly changing Article 120 of the Uniform Code of Military Justice, Sexual Assault allegations in the military often involve complex factual scenarios and circumstances where the chain of command will feel tremendous pressure to push the case to a trial by court-martial based on allegations rather than an independent evaluation of the facts of a particular case.

Any member of the military facing an allegation of sexual assault faces the harsh reality of a political and command climate that make it very difficult for a commander to do anything other then push the case forward to trial.

An experienced trial attorney knows that sexual assault cases must be carefully managed from as early on in the case as possible. For members of the National Guard accused of sexual assault it is now equally important to have counsel with military experience involved in the allegation because National Guard members may be investigated by both civilian law enforcement and military investigators from the Office of Complex Investigations (OCI).

What to expect if you are accused of sexual assault in the military:

1. Criminal Investigation. Your chain of command will refer any allegation of sexual assault, no matter the merits, to law enforcement for investigation. If you have been accused of sexual assault it is critical to have defense counsel involved from the very beginning. Whether CID, OSI or NCIS investigates you, the Agents all receive the same training and approach the case from the same perspective. They typically interview everyone except you first. It is important that you have experienced counsel to assist in making requests to law enforcement to preserve critical evidence from the beginning. The attorneys at Military Trial Defenders have successfully prevented more than a dozen investigations from going to trial by ensuring that critical forensic and digital evidence of innocence was preserved for our clients. In many of these cases, if not for the efforts of defense counsel the evidence would not have been preserved by law enforcement and our clients may have been wrongfully convicted.

2. Preferral of Charges. If you are accused of sexual assault in the military you should expect the investigators to substantiate the allegations and for charges to be preferred against you by your commander. This process involves a formal session with your commander when you will be formally read the charges against you. If you have counsel they can be engaged with the chain of command and provide additional information that might alter the charges or convince the commander to avoid prefferal. In our experience, with the right evidence and carefully crafted documentation of the real facts of your case, a commander—especially one that is concerned that you might actually be innocent—can be dissuaded from charging you. While this is rare, it is worth having experienced counsel at your side to fight for you and potentially save your career, before trial.

3. Pre-Trial Hearing. The “Article 32 Hearing” process has changed. These changes mean that you have a limited opportunity to confront your accuser and your counsel need to be involved to ensure that the limited options now available are not squandered. The hearing often frames the battlefield for trial and critical strategic and tactical decisions must be made at the hearing to ensure that your courts-martial defense is not impacted negatively. Our attorneys know what it takes to convince the hearing officer to recommend dismissing the charges and also know how to preserve your rights and your case for trial.

4. Discovery and Expert Witnesses. As your trial date approaches, the evidence and the witnesses against you are being compiled and prepped by the government and the prosecutors. They will seek to use every tool they can, including forensic and psychological evidence, to bolster the allegations against you. Our experienced attorneys have been to the United States Army Criminal Investigations Lab (USACIL) where all of the forensic and DNA testing for all branches of the military occurs. We know the experts at the lab; we know how they prepare and how they testify. We also know the mistakes and occasional fraud that has occurred at the lab and how it might impact your case. Our attorneys have cross-examined DNA, forensic, fingerprint, firearms, and every other type of expert at the lab and know the government’s playbook. Discovery from the lab and pre-trial interviews are vital to ensure the court-martial panel “jury” in your case hears the truth and the government’s experts feet are held to the fire and stick to the latest scientific standards, not speculation. Only experienced defense counsel that stay current on the scientific trends and the methods used by military scientists can ensure that you receive the best possible defense.

5. Trial. During the course of your trial you will be in a fight for your career and your future. Under the new law if you are convicted of sexual assault you will receive a mandatory minimum sentence that includes a Dishonorable Discharge. Your trial will be the most important event in your life. Your defense counsel need to understand that, and to have been there many times before, fighting with all of their passion and energy to ensure you are protected. At the end of your trial, the prosecutors go home, but if you are convicted you will leave the courtroom in handcuffs. You cannot afford to leave anything to chance. From filing motions, picking a jury, cross-examination to closing argument you need attorneys like the team at Military Trial Defenders that have the experience, training and motivation to outwork and outmaneuver the government.

Facing a sexual assault allegation in the military justice system is challenging. Military Trial Defenders brings a team to the fight. But not just any team. Our attorneys have not only prosecuted and defended these cases, they have been and continue to be sought after instructors and trainers for military trial advocacy training that is attended by JAGs from all branches of the services. The Military Trial Defenders team includes two former number one rated Senior Defense Counsel in the Air Force and the Senior Trial Counsel that was called upon to prosecute more cases than any of his peers. If you are facing an allegation of sexual assault, call Military Trial Defenders for a free consultation and learn what it means to have team of passionate experienced litigators on your side.