Sexual assault in the military is a significant issue. In fact, sexual assault and other sexual offenses under the UCMJ are arguably the most commonly charged offenses at a court martial. Society, and Congress in turn, have put a spotlight on sexual assault in the military over the past 15 years.
What Does “Sexual Assault in the Military” Refer To?
The term “sexual assault” has become an umbrella term for all sexual offenses in the military. While sexual assault is an offense under the UCMJ, there are many more sex-based UCMJ crimes. Under Article 120, UCMJ, “penetrative” sexual offenses include rape and sexual assault. Article 120 also criminalizes “sexual contact” offenses (sexual touching) known as aggravated sexual contact and abusive sexual contact. When you hear someone refer to sexual assault in the military, they are usually including the entire category of sexual offenses. In the Army, it is also common to refer to these types of crime as SHARP incidents, an acronym for “Sexual Harassment and Assault Response Program,” the Army’s program for combating and responding to sexual offenses.
Military Protections for Victims of Sexual Assault
Over the past 15 years, Congress has implemented many UCMJ reforms to beef-up the protections afforded victims of sexual assault. Criminal offenses have been amended and added to address a growing variety of prohibited sexual behavior. Other reforms are intended to protect alleged victims and provide them resources and encouragement to report misconduct. All of these reforms come at the expense of an accused servicemember’s rights.
Article 120, UCMJ has been amended multiple times since 2007, the end result being an easing of the government’s burden in proving these offenses. Many new UCMJ offenses have been added. Article 120c, UCMJ, is a relatively new offenses involving the crime of “indecent viewing, visual recording, and broadcasting” of another person’s private area. The latest sexual offense added to the UCMJ is Article 117a, referred to as the “revenge porn” offense, which criminalizes the broadcasting of private sexual images and acts.
Congress has given alleged victims of sexual assault several protections, most of which are contained in Article 6b, UCMJ. An alleged victim of sexual assault in the military now has the right to be represented by an attorney, provided for free, known as a Special Victims’ Counsel or SVC (in the Army and Air Force) and Victims’ Legal Counsel or VLC (in the Navy and Marine Corps). The SVC and VLC assist the alleged victim from the moment a report is made through the conclusion of the court martial. The SVC and VLC also help alleged victims enforce another right they have been granted, the right to have their SVC / VLC and the prosecutor present at any interview of the alleged victim by the defense counsel. In fact, the alleged victim is not required to even participate in an interview with the defense counsel prior to trial. Alleged victims also have the right to make sworn or unsworn victim impact statements during the sentencing proceedings of the court martial. In some circumstances, an alleged victim and her SVC or VLC can seek relief from military appellate courts when they disagree with a ruling made by the trial judge in the court martial.
While many of these reforms are admirable in the effort to protect victims of sexual assault, they come with an undesirable erosion of an accused’s rights and the defense’s ability to contest court martial charges. Because alleged victims are now shielded from effective pre-trial interviews with the defense (and, sometimes, even the prosecution), critical facts regarding the alleged offenses are not revealed until the trial is underway. Trial by surprise is not a good way to determine the truth – and determining the truth is the whole purpose of any trial. As I mentioned earlier, the frequent amendments to Article 120, UCMJ, have made it easier for prosecutors to bring and prove charges, all at the expense of the accused servicemember. I discuss the most problematic of those offenses in the next section.
Sexual Assault “Without Consent” in the Military
A very common charge, perhaps the most common, under Article 120 is the offense of sexual assault or sexual contact “without the consent” of the alleged victim. The elements of the offense (what the government must prove) are relatively simple. The government is required to prove that the accused servicemember committed a sexual act or sexual contact and that the sexual act or contact was without the consent of the alleged victim. “Consent” is defined as a freely given agreement.
Prior to 2007, when Congress first amended Article 120, the government’s proof requirement was much different when it came to the issue of consent. Under the pre-2007 version of Article 120, an alleged victim who “fails to make [her] lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances” results in an inference that the victim did consent. In other words, the court martial would infer that an alleged victim consented to the sexual behavior if the victim did not resist, either verbally or physically, in most situations. That inference is no longer a part of the military’s sexual offense statute. As a result, it is now much easier for prosecutors to both bring charges against the accused and to prove the offense.
This change in the law has resulted in many more allegations of sexual assault being sent to trial by court martial than had been prior to 2007. It has also resulted in a predictable increase in acquittals (findings of Not Guilty) in these cases. In fact, the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) recently recommended amending the standard required for sending cases to trial to account for so many of these cases that simply did not have adequate evidence to prove the case. But as of this writing, Congress has not adopted the DAC-IPAD recommendation.
Hire a Military Attorney who Knows about Sexual Assault in the Military
Sexual assault in the military and court martial trials, in general, are complicated matters that most criminal defense attorneys do not understand. If you are under investigation for sexual assault or court martial charges have already been brought, you should hire a military lawyer who has experience with the UCMJ and military matters. At Ganz and Bridges Law Office, we have extensive experience with rape and sexual assault offenses. Mark A. Bridges has been involved in court martial trials and military justice for over 30 years. He has been a part of the military justice system, from all vantage points, for his entire professional career. No one is better qualified to help you fight your court martial charges. Call today if you need help.