UCMJ Sexual Assault: What Every Service Member Should Know

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If you're a member of the U.S. Armed Forces, you've probably heard of the Uniform Code of Military Justice - the body of federal law that governs military members. You are probably aware that you can face various penalties for violating the UCMJ. Depending on the accusation, the consequences may range from non-judicial punishments (such as extra duties, pay forfeiture and reprimand) to dishonorable discharge to a prison sentence or even the death penalty.

Criminal violations of the UCMJ lead to a court-martial - the military equivalent of criminal court. There are three levels of court-martial:

  • Summary court-martial before a commissioned officer for minor misconduct
  • Special court-martial before a panel of officers, enlisted members and a military judge for intermediate (misdemeanor-level) offenses
  • General court-martial before a panel of officers, enlisted members and a military judge for serious offenses, including those carrying lengthy confinement or the death penalty

The Manual for Courts-Martial, published by the Joint Service Committee on Military Justice, outlines these proceedings in detail.

One of the more serious categories of military crimes is sexual assault. UCMJ article 120 covers these offenses, as explained in more detail below.

The important thing to know is that if you are facing accusations of sexual assault, you might end up facing trial not only before a court-martial, but also in civilian court. State prosecutors can still bring charges against you.

For this reason, you should consult with a private criminal defense attorney as soon as possible - even before civilian charges are filed.

Understanding UCMJ Sexual Assault: What Is It?

If you're facing charges - or potential charges - for a sex offense, you need to know exactly what laws you're accused of breaking. North Carolina law outlines varying degrees of forcible rape and other sex offenses. For military members, the UCMJ establishes its own set of definitions and offenses. And remember - you can face charges for the same act under both military law and civilian law.

UCMJ Article 120 outlines four basic types of adult sex crimes:

  • Rape involves sexual acts committed by using force, by making threats of "grievous bodily harm" (serious injury), or by first rendering the victim unconscious - for example, with the use of "roofies" or date-rape drugs.
  • Sexual assault involves sexual acts committed with threats, the infliction of bodily harm, or the use of fraud or deception. It also includes situations where the victim is unable to consent due to impairment/intoxication (by drugs or alcohol, for example), or because of a physical or mental disability.
  • Aggravated sexual contact involves sexual touching that would amount to rape (under the definition above) had the contact gone further.
  • Abusive sexual contact involves sexual touching that would fit the definition of sexual assault if it involved penetration.

"Sexual acts" involve penetration of any kind, including oral and anal sex. "Sexual contact" involves any other type of sexual touching, whether directly or through the clothes.

In addition to outlining these types of sexual assault, the UCMJ also addresses sex crimes involving children such as rape of a child, sexual assault of a child and sexual abuse of a child.

Accusations of any of these offenses can land you before a general court-martial (which is more serious than a summary or special court-martial), and can lead to harsh punishments as outlined in the Manual for Courts-Martial.

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Understanding Consent Under The UCMJ

Consent is often a critical issue in sexual assault cases between adults. Often these charges arise from social gatherings and parties where alcohol is served. Recreational drug use might also have taken place. As a result, neither party may remember clearly what happened. Miscommunications and misinterpretations can lead to lost careers, damaged reputations and years of life spent behind bars.

Under the UCMJ, as under state law, resistance isn't necessary to prove a lack of consent. Any expression of a lack of consent - whether verbal or physical - is enough.

Someone who is sleeping, unconscious or "incompetent" is unable to consent. However, gray areas often arise when both parties are intoxicated, and it's not clear at what point intoxication becomes incompetence. The UCMJ instructs that all surrounding circumstances should be taken into account when determining consent issues.

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What About Sexual Harassment?

With the growth of the #metoo movement, sexual harassment has become a hot-button issue. There aren't always clear lines around what constitutes sexual harassment. In general, though, it includes uncomfortable jokes, unwanted advances, off-color comments, unwelcome touching, exchanging of sexual favors, and other inappropriate behaviors. Depending on the nature of the physical contact, sexual harassment can cross the line into sexual assault. Investigations that spring from a sexual harassment complaint may pave the way for more serious charges.

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What About Adultery?

Adultery - that is, having sex while you or the other person is married to someone else - is punishable under Article 134 of the UCMJ. But, as expounded upon in the Manual for Courts-Martial, extramarital sexual conduct only becomes an offense when it detrimentally impacts the discipline and "good order" of the arms forces or when it discredits the military. As a result, it's not often prosecuted.

While less serious than other sexual offenses, egregious cases of adultery can lead to dishonorable discharge, loss of military benefits and even imprisonment for up to a year.

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Civilian Sexual Assault Punishments That Might Accompany UCMJ Charges

We've all heard of double jeopardy - the all-important principle that you can't be charged twice for the same crime. What few people know, however, is that double jeopardy only applies to a single sovereign. A single government - for example, the state of North Carolina - can't charge you twice for the same conduct. But a different sovereign or government can.

So people can (and do) face both state and federal charges for the same underlying crime. Likewise, military members can face charges for the same conduct in both military and civilian court. This means facing two separate proceedings - and two separate punishments.

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North Carolina Sex Offense Law

Under North Carolina law, there are multiple levels of sex offenses, including:

  • First-degree forcible rape, the most serious type of sexual assault
  • Second-degree forcible rape
  • First-degree statutory rape (involving minors of a certain age)
  • First-degree forcible sex offense (for sexual contact that falls short of intercourse)
  • Second-degree forcible sex offense

All these offenses are felonies. A conviction could result in repercussions far beyond your military service - including a lengthy prison sentence and mandatory sex offender registration. In cases involving aggravated sexual assault (where the victim is extremely young, for example), the sentence may be even harsher.

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How To Handle Two Sets Of Charges

Getting charged with a crime is scary enough. So, too, is appearing before a court-martial for a criminal accusation. And if you're in the military when the allegations surface, you may very well end up facing both.

It's important to understand that each proceeding will have its own set of rules, and your rights will differ in each. The court-martial will follow military procedure as outlined in the UCMJ and the Manual for Courts-Martial. The civilian proceedings in North Carolina state court will follow state law and rules of procedure.

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Your Right To An Attorney

You have rights under the UCMJ, including the right to a military-appointed defense attorney. This attorney will be a member of the armed forces as a judge advocate general (JAG). He or she can help you navigate the military justice system and represent you in a general court-martial (or other military proceedings). However, there is no guarantee as to how much experience this attorney will have, and he or she will not represent you in state court.

If you're facing sex offense charges in civilian court, you will need another lawyer to fight for you in the North Carolina justice system. This lawyer should have a wealth of experience handling sexual assault cases. They should have experience representing military members in civilian court. And given the harsh potential penalties at stake for a conviction in civilian court, you will want a proven advocate by your side when dealing with these charges.

In sex offense cases, the stakes are so much higher than just dishonorable discharge. The consequences could include years behind bars and lifetime registration as a sex offender. That's why you want the right attorneys by your side in each set of proceedings.

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Defense Against UCMJ Sexual Assault Charges

You're innocent until proven guilty. That's true in both a general court-martial and civilian court. However, in sex offense cases, maintaining that presumption of innocence is often challenging. The mere accusation of sexual assault can result in knee-jerk reactions and emotional reasoning. Your attorneys may have an uphill battle in preparing a strong and effective defense.

However, there are often multiple avenues for defending against these charges, and you should never assume there's no hope. A strong defense starts from day one. That means you should seek legal counsel as soon as:

  • You're asked to come in for questioning by civilian or military law enforcement
  • You become aware that you're under investigation
  • You're summoned for an Article 32 hearing (under the UCMJ)

The sooner you involve defense lawyers on both the military and civilian side, the better.

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Understanding The Process For Defense Against Sexual Assault Charges Brought Under The UCMJ

A sexual assault case in the military begins with an investigation of the alleged crime. Each branch has its own investigative arm:

  • Army Criminal Investigation Command (CID)
  • Air Force Office of Special Investigations (OSI)
  • Navy/Marine Corps Naval Criminal Investigative Services (NCIS)
  • Coast Guard Investigative Services (CGIS)

Regardless of which branch conducts the investigation, the military justice process that follows is the same. First, the appropriate commander and JAG office will review the investigative report and decide whether to proceed to a court-martial.

The next step differs between a special court-martial and general court-martial. Serious charges such as sexual assault are handled by a general court-martial. However, before the case ever goes to trial before a general court-martial, the accused is entitled to an Article 32 hearing - the UCMJ equivalent of a preliminary hearing. During this step in the process, a neutral investigating officer reviews the evidence and ultimately makes recommendations on how the case should proceed. You have important rights during this hearing, including the right to be represented by an attorney.

If the case proceeds to general court-martial, the proceedings that follow are in many ways similar to civilian court. Your lawyer will have the opportunity to challenge evidence and bring other motions before the court.

Should the case move to trial, there are several key differences between military court and civilian court:

  • The accused can opt for trial before a military judge or jury. If proceeding with a jury, at least two-thirds must be enlisted members of the armed forces (who can't be in the same unit as the accused and preferably can't be lower in rank).
  • Jury members aren't selected at random. Instead, the convening authority (commanding officer) appoints them, and both sides have limited opportunities to challenge those appointments.
  • Jury votes are done by secret written ballot.
  • A unanimous verdict is not required. A two-thirds vote is sufficient for a conviction.
  • Sentencing immediately follows a conviction, and the sentence is handed down by the same members or judge who determined guilt.
  • If the sentence includes confinement, the accused is usually taken into custody immediately.

Your rights aren't as strong in military courts as in civilian courts because courts-martial are ultimately part of the legislative branch, not the judicial. They're established by Congress through the UCMJ. Nonetheless, the U.S. Supreme Court has recognized that certain fundamental rights still apply.

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Potential Defenses Against Sexual Assault Charges

As in civilian cases, the general court-martial process offers you a valuable opportunity to make the strongest defense possible. Depending on your situation, that might involve:

  • Undermining the credibility of key witnesses
  • Challenging the handling or integrity of evidence
  • Presenting an alibi
  • Summoning character witnesses
  • Presenting DNA evidence
  • Raising questions about the assumptions and inferences that can be drawn from the evidence

The goal is ultimately to cast reasonable doubt on the charges.

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Contact A Defense Lawyer For Sexual Assault Charges Under The UCMJ And Civilian Law

If you're a military member facing allegations of sexual misconduct, you need to enlist a strong civilian lawyer to defend you against any civilian charges that follow. Your lawyer should have the skills, experience and reputation for success in handling these types of cases. Your lawyer should have a proven record in securing acquittals, dismissals and other positive outcomes.

At Roberts Law Group, our lawyers are no strangers to high-stakes, high-profile sex offense cases. We know how difficult these cases are, and we repeatedly rise to the challenge. Among our many success stories:

  • We won a not-guilty verdict in a sexual battery case that would have cost our client his top-secret security clearance.
  • We negotiated a dismissal of all charges in a case involving 10 counts of indecent liberties with a minor.
  • We worked to prevent charges in a case involving allegations of a sexual offense with a child.
  • We negotiated a deferred prosecution in a sexual battery case, meaning our client wouldn't have to serve time or register as a sex offender.

Our attorneys have represented numerous members of the U.S. Armed Forces in serious cases. We represent members from all branches of the military. Our firm has convenient offices near military bases in Fayetteville, Jacksonville, Charlotte, Greensboro, Raleigh and Wilmington, and we handle cases in all 100 North Carolina counties.

Get started today with a free initial consultation. Call 877-880-5753 or reach out online and take the first step toward protecting your rights, freedoms and future.