Military Sexual Assault

Sections

• Understanding Military Law Enforcement Interrogations for Article 120, UCMJ Offenses
• False Confessions
• Our Philosophies for Preparing a Military Sexual Assault Defense
• Article 32 Preliminary Hearings
• Basic Defenses
• False Allegations Under Article 120, UCMJ
• Motives to Lie Under Article 120, UCMJ
• How to Evaluate the Credibility and Content of a Complainant’s Statement
• Developing a Theory of the Case in Military Sexual Assault Cases
• The Mistake of Fact Defense Under Article 120, UCMJ
• Alcohol and Blackout Cases
• DNA in Article 120, UCMJ Cases
• Military Rule of Evidence 412 – MRE 412 The Military Rape Shield Law
• Considerations for Deciding Whether to Testify
• Thoughts on the Silence Penalty
• ​​​​​Summaries of Article 120 Cases Before the Court of Appeals for the Armed Forces
• Sample Direct Examination of Defense Expert Used to Counter Government Counterintuitive Behaviors Experts
• Sex Offender Registration
• Sample Government Counterintuitive Behaviors Direct Examination

The law pertaining to sexual assault has undergone near constant revision since 2006—when Congress first began reorganizing Article 120, UCMJ. The law has changed so much that involving counsel early in the process is extremely important. Additionally, the consequences of sex offender registration are increasingly severe.

Looking for a sexual assault court marshal lawyer? Schedule your FREE consultation today!

Some of the changes over the last few years involve Article 32 Investigations. The new rules have rendered them, in some cases, insignificant as a tool of discovery because the complainant is not likely to be present at the hearing for cross-examination. The prosecutors are going to object to defense counsel’s cross-examination and presentation of evidence at every opportunity. The result is that the impact of defense counsel is more important than ever. Nonetheless, the Article 32 Investigation is still an opportunity to attack the government’s case.

UNDERSTANDING MILITARY SEXUAL ASSAULT INTERROGATIONS

When confronted with allegations of sexual assault within the military, it is essential to be aware of the unique aspects surrounding the investigative process. From the moment a complaint is lodged, individuals find themselves thrust into a legal framework that demands a thorough examination of the incident. Here are crucial points to consider:

• Prompt Interrogation: In most cases, expect to undergo interrogation shortly after a complaint is filed. While exceptions exist, law enforcement’s general practice is swift questioning to gather information promptly.
• Distinguishing Interrogation from Interview: Understand the distinction between a law enforcement interview and an interrogation. The former aims to collect facts in a non-accusatory manner, often conducted in a comfortable setting. On the other hand, an interrogation seeks admissions and may involve efforts to corroborate the complainant’s account, potentially aiming for a confession.
• Command Involvement: You might be escorted to law enforcement by a senior command member, introducing an added layer of anxiety. If not under arrest, you retain the freedom to leave. Confirming your status with your command and law enforcement is advisable.
• Legal Labeling: Expect to be officially titled by law enforcement, indicating that you are the subject of an offense under investigation.
• Know Your Rights: Despite the challenging circumstances, you possess constitutional rights that safeguard your interests:
  • The right to remain silent.
  • The right to speak to an attorney.
  • The right to have an attorney present during questioning.
  • The right to refuse a polygraph.
  • The right to refuse to consent to searches.

Being informed and assertive about your rights is crucial during this process, ensuring a fair examination of the allegations.

NAVIGATING THE SEXUAL ASSAULT INTERROGATION PROCESS

Insights into the Sequential Steps of Military Interrogations

Understanding the trajectory of a sexual assault interrogation within the military is vital for individuals navigating such challenging circumstances. Here is an outline of how the process is likely to unfold:

• Notification to Command: Agents typically inform your command of their intent to speak with you, initiating the interrogation process.
• Command Escort: Senior enlisted leadership may escort you to law enforcement offices. Despite this, it’s crucial to recognize that you are not obligated to stay; you can leave without arrest.
• Perception vs. Reality: The escorted nature may create the misconception that you must remain in the law enforcement offices. Confirm your freedom to leave by asking agents directly.
• Waiting Room Period: Expect a potentially lengthy wait in a designated room before the interrogation progresses.
• Biographical Data Collection: Upon moving to another room, agents may gather basic information, including fingerprints, DNA, and photographs, indicating a formal titling. Consult a lawyer promptly if such data collection occurs.
• Rapport Building: Agents may engage in small talk to establish rapport, asking about their background, interests, or military experiences. Remember, despite appearances, they are not your friends.
• Offense Notification: Be attentive as the agent informs you of the suspected offenses. It may need more perfect specificity, but understanding the allegations is crucial.
• Rights Warning Form: Contrary to common belief, the rights warning form may not explicitly mention your freedom to leave. If not under arrest, you are, indeed, free to leave.
• Talking Agreement: If you agree to talk, the agent will commence questioning. However, asserting your right to an attorney will terminate the interrogation.
• Recording Inquiry: If you choose to talk, inquire about the recording status of the interrogation to stay informed about the process.
• Written Statement Process: If a written statement is sought, expect a narrative conversation about the allegations before potentially being asked to type a statement.
• Computer Interaction: Sometimes, you can sit at a computer to type a narrative statement.
• Question and Answer Segment: Narrative portions may be followed by a question and answer phase, where the agent types both the questions and your answers.

Awareness of these steps and your rights during the process is crucial for maintaining a clear understanding and ensuring a fair and just interrogation.

STRATEGIES FOR CRAFTING A STRONG SEXUAL ASSAULT DEFENSE

In the face of evolving legal landscapes, our firm has consistently achieved remarkable success in sexual assault cases. Our triumphs stem from a steadfast commitment to key philosophies developed through years of experience: 

• Establishing Motive or Reason for Misremembering: Military juries, known for their analytical nature, seek explanations for discrepancies in the alleged victim’s account. We emphasize the presentation of evidence demonstrating a motive to lie or a reason for misremembering, recognizing the significance of these factors in swaying opinions.
• Strategic Jury Selection: Identifying jurors sympathetic to our client is paramount. Through thoughtful communication and evidence presentation, we work to secure the necessary votes for an acquittal, recognizing the influence of juror perspectives on case outcomes.
• Collaborative Fact Identification with the Client: A commitment to working closely with the client helps identify key facts that support innocence. Simplifying the narrative is crucial, mainly when critical events are uncorroborated. Military juries favor straightforward, coherent stories.
• Challenging the Accuser’s Story with Tact and Kindness: Aggressively challenging the accuser’s narrative is essential, and we prioritize maintaining the moral high ground. Using kindness as a tool, we examine the alleged victim’s story thoroughly while upholding the dignity of unjustly accused service members.
• Thorough Preparation for Potential Testimony: Recognizing the critical role of the accused’s testimony in sexual assault cases, we meticulously prepare our clients for the possibility of taking the stand. Expert preparation is key to presenting a compelling and credible defense.

While changes in the law often aim to restrict the rights of the accused, bolster the privacy rights of alleged victims, and broaden the scope of punishable offenses, our defense strategies remain resilient. Prosecutorial aggression and increased resources notwithstanding, military juries maintain a healthy skepticism toward false allegations. Though facing accusations of sexual assault can be daunting, our firm believes these cases are defensible.

Further insights into the decision-making process regarding whether the accused should testify are discussed below.

PROTECTING YOUR RIGHTS IN MILITARY JUSTICE CASES

At Daniel Conway & Associates, we understand the unique challenges and complexities involved in military justice cases. Our experienced team of attorneys is dedicated to protecting the rights of service members facing Article 120, UCMJ offenses.

When you choose our law firm, you can expect:

• Expertise in military law: Our attorneys have in-depth knowledge and experience in military justice cases, including Article 120, UCMJ offenses. We stay up-to-date with the latest developments in military law to provide the best possible defense for our clients.
• Personalized approach: We understand that every case is unique, and we take the time to understand your specific circumstances and concerns. Our attorneys will work closely with you to develop a tailored defense strategy that takes into account your individual needs and goals.
• Aggressive advocacy: We are committed to vigorously advocating for our clients’ rights. Our attorneys will thoroughly investigate the allegations against you, challenge any evidence that is unlawfully obtained or unreliable, and present a strong defense on your behalf.
• Compassionate support: We understand that facing military justice proceedings can be stressful and overwhelming. Our team is here to provide you with the support and guidance you need throughout the entire process. We will keep you informed, answer your questions, and provide reassurance during this challenging time.

If you are facing Article 120, UCMJ offenses, don’t navigate the military justice system alone. Contact Daniel Conway & Associates today to schedule a consultation and discuss your case with one of our experienced military law attorneys.

Information on 2019 Changes to the UCMJ