What do I do if I’m being Accused of Sexual Assault in the Military
“I’ve been accused of sexual assault or rape, what do I do?” This is by far the most frequent question I get, and it comes in all sorts of different forms. Typically, I find that those accused of sexual assault are absolutely shocked that the female is saying that a consensual encounter is now being considered sexual assault. With all of the attention from the media, command, and congress, the next most frequent question is “how can I expect a fair trial?”. I can answer both of these questions.
A Good Defense to Sexual Assault Allegation
Under the current political pressures, an accusation of sexual assault will not be closed without a full investigation, and almost always, an Article 32 preliminary hearing. When I get that call asking “what do I do?,” here is the advice I give.
Assert your rights. You have an absolute right to remain silent and to be represented by an attorney. I cannot think of a single occasion where a client’s statements early in a sexual assault investigation turned out to be beneficial. In fact, a statistical analysis of the sexual assault cases I have dealt with reveal that the acquittal rate in cases in which the accused made no statements before trial is significantly higher than when there were pretrial statements. Every case is different, and the advice of counsel is really the only way to make a truly informed decision, but you must assert your rights so that you can take the time to intelligently make this decision.
“But if I explain what happened, they’ll understand.” Even if the investigators, your supervisors, or immediate commanders “understand”, your case still isn’t going away. Clients frequently talk to me about their accuser’s history. “She is lying because she was cheating on her boyfriend or husband.” “She sleeps with everyone in the unit.” “She was all over me that night.”
All of this may matter at trial, but it won’t kill the case. I have found the only way to kill a case early is to prove lies regarding a critical issue in the alleged sexual assault. Examples of this would be her having sent text messages that she deleted and hid from investigators, past consensual sex with the accused that she denies and you can prove. Even presenting this information can be very difficult and is often not properly investigated by command or the special agents on your case.
Experienced Sexual Assault Defense Lawyer
Instead, you need to work with an attorney experienced in military sexual assault cases. Defense attorneys win cases by having the experience to know when to implement case strategy. Government investigators cannot be trusted to effectively challenge the lies of an accuser. In fact, the investigative agencies in the military aren’t even permitted to re-question an accuser without special permission — and that is rare.
In addition to finding an attorney experienced enough to handle such serious cases, you want an attorney that cares about you. Perhaps the most difficult part of the process is following the advice to “keep you mouth shut” while the investigation rolls on. It’s so important to follow this advice because the friend you thought you could trust will turn around and report your statements, which will likely be misconstrued. Your attorney is the only person you can trust. Your attorney should be willing to answer their phone any time of day, and happy to talk about what’s on your mind. Your free military counsel isn’t going to give you their cell phone number or frequent appointments. When you are about to pay for a lawyer, make sure they’re going to be there for you. Layers of paralegals, generic email accounts answered by anonymous staff, and cookie cutter case strategy is NOT your answer.
Can I get a Fair Trial in the Military?
With all of the comments from the president, congress, and higher command, I don’t think your chances are high that you’ll get a fair trial. In fact, the best defense attorneys are filing motions left and right to have cases dismissed or jurors thrown off the panel for improper influence. In addition to these standard efforts, I have filed a number of original motions seeking to have the process declared unfair due to the inability to receive fair clemency consideration in the current climate.
As the rhetoric increases on Capitol Hill, military judges are increasingly skeptical of your chances to a fair trial. That is good news for the sake of justice, but what if you get one of the judges who isn’t going to risk their career to dismiss an unfair case?
The first step is finding sympathetic jurors. Picking a jury is an art. Balancing information about a person’s career, family background, level of education, personal experiences with the criminal justice system, prior jury experience, and involvement in military discipline lead to the task of determining what jurors are most friendly to the defense.
The next step is determining whether you testify. The instructions given to the jury at the end of a court-martial essentially say “if a reasonable alternate explanation besides guilt, you must acquit.” This means that an accuser’s story may seem logical, may seem like is even the likely version of events, but if that juror thinks it is reasonably possible that she consented or that you were reasonably mistaken about whether she was consenting, they must find you not-guilty. By testifying on your own behalf, you are giving an explanation other than guilt. The difficult decision you will have to discuss with your attorney is whether the facts as you remember them sound “reasonable,” whether you have a history of other misconduct that the prosecutors would use against you, and whether you could be impeached by the prosecutors and made out to be a liar.
The last step I will discuss in this post is investigating all of the potential avenues to prove the accuser is lying or that she has a motive to lie. When she is the only witness to an accused sexual assault, the jury must be convinced beyond a reasonable doubt that the accuser is credible. Nobody is perfect, and any prosecutor worth their weight will present a strong case that even “imperfect people” can be victimized. While this may be true, it is your defense attorney’s job to show that this particular accuser’s story has too many holes, is tainted by too many lies in the past, is motivated by genuine reasons to fabricate, and is the result of political promises in a military driven to hysteric treatment of sexual assault victims.
I’m Getting Court-Martial for Sexual Assault
The truth is most cases with an allegation of sexual assault will be taken to court-martial. The lesson of this article is to prepare your best defense as early as possible. Sexual assault defense is not a job for rookies or for the un-impassioned. Even in cases where you have a “golden ticket” — the cases in which there is a text message that proves your innocence, a past sexual relationship, or other unique facts that should ensure your acquittal, you need a truly skilled attorney to present your case.
Right now, in every branch of service, the top JAG is assigning their best litigators to the special prosecution unit in charge of securing convictions in sexual assault cases. These prosecutors use every trick in the book, and sometimes outside the book, to secure convictions. I have seen it all, from jumping up and down in front of the jury, to swearing at witnesses, to screaming their point. If the best litigators are the prosecutors against you, your free counsel is nothing but second best.