Military Sexual Assault: Expert Defense and Mst Victim Rights Guide

UCMJ Article 120 defines sexual assault as sexual contact or penetration committed without consent or by force, and the article covers a range of specific offenses including aggravated sexual assault, sexual assault, abusive sexual contact, and aggravated sexual contact, each carrying different maximum punishments that can include dishonorable discharge and imprisonment for periods ranging from five years to life depending on the specific offense charged, and the accused service member who is being investigated for an Article 120 offense should obtain qualified military defense counsel before making any statement to investigators. Ucmj and sexual-assault counsel can evaluate whether the specific alleged conduct satisfies the legal elements of a sexual assault offense under UCMJ Article 120, assess whether the available evidence is sufficient to support a court-martial prosecution to the beyond a reasonable doubt standard, and advise the accused on the most effective legal strategy for the Article 32 preliminary hearing and any subsequent court-martial proceedings.

The most significant procedural change in the military justice system in decades is the transfer of prosecution authority from military commanders to the Office of Special Trial Counsel, which was established by the NDAA for Fiscal Year 2022 and fully operational in 2023, and the OSTC is an independent prosecutorial office staffed by senior judge advocate officers who have the sole authority to decide whether to prefer and refer charges in cases involving covered offenses including all UCMJ Article 120 offenses, and the accused whose case is under OSTC review must be represented by a military defense attorney who understands the OSTC's charging standards and processes. Criminal-defense and criminal-defense-consultation counsel can advise the accused on the specific rights available at each stage of the military justice process under the NDAA FY2022 and FY2023 reforms, assess whether the OSTC's charging decision is adequately supported by the available evidence, and develop the defense strategy from the initial command investigation through any post-trial relief.

The restricted reporting option allows a military sexual assault survivor to disclose the assault to a confidential resource such as a SARC, a SANE examiner, a healthcare provider, or a chaplain without triggering an official investigation or notifying the chain of command, and the restricted report allows the survivor to access medical treatment, counseling, and a Special Victim Counsel without the chain of command becoming involved in the case, and the unrestricted reporting option triggers a full criminal investigation by the Criminal Investigation Division and requires notification of the unit commander. Sexual-violence-laws and civil-rights-litigation counsel can advise an MST survivor on the specific legal framework applicable to the restricted and unrestricted reporting options, assess whether the survivor's restricted report has been respected by the command chain and not converted to an unrestricted investigation without consent, and develop the legal strategy for protecting the survivor's reporting choice rights.

The table below identifies the four principal legal issues that arise in military sexual assault cases, the governing federal authority applicable to each issue, the key legal right or protection at stake, and the law firm's targeted legal focus for each issue.

False-accusation and criminal-evidence counsel can advise the accused on the specific evidentiary standards applicable to the OSTC's charging decision, assess whether the available evidence falls below the legal threshold required for a court-martial conviction and whether the OSTC's charging decision is supported by the record, and develop the legal strategy for challenging the charges through the Article 32 hearing and pre-trial motions.

VA benefits for military sexual trauma are available to veterans who experienced MST during military service and who suffer from mental or physical health conditions that are related to the MST experience, and the VA's special evidentiary standard for MST-related claims is more flexible than the standard applicable to other disability claims because the VA regulations recognize that MST is frequently not documented in official service records, and the VA is required to accept the veteran's lay statement about the MST experience as sufficient to establish the in-service occurrence if the statement is credible and consistent with the circumstances of the veteran's service. Domestic-violence-crime and civil-lawsuit-for-sexual-assault counsel can advise an MST survivor on the specific VA benefits available for military sexual trauma, assess whether the survivor's current service-connected disability rating for MST-related conditions reflects the full extent of the trauma's impact, and develop the VA benefits claim strategy for obtaining the maximum available compensation and treatment benefits.

The Military Whistleblower Protection Act, codified at 10 U.S.C. Section 1034, prohibits any military member or federal employee from taking or threatening to take an unfavorable personnel action against a service member because the service member made a protected communication to a member of Congress, an inspector general, a member of a DoD audit, inspection, investigation, or law enforcement organization, or any other person or organization designated under federal law, and a protected communication includes any communication regarding sexual assault, MST, or any other allegation of misconduct. Sexual-abuse and criminal-complaint-defense counsel can advise an MST survivor who has experienced retaliation on the specific legal protections applicable under 10 U.S.C. Section 1034 and the NDAA reforms, assess whether the adverse actions taken after the report constitute prohibited retaliation, and develop the legal strategy for documenting and reporting the retaliation to the appropriate military and congressional oversight bodies.

The service member convicted of a UCMJ Article 120 offense has the right to appeal the conviction to the Court of Criminal Appeals for the applicable branch of service, and if the appeal is unsuccessful at the branch Court of Criminal Appeals, the convicted service member may petition the Court of Appeals for the Armed Forces for review, and in cases involving significant constitutional or legal issues the convicted service member may ultimately petition the Supreme Court of the United States for certiorari, and at each stage of the appellate process the accused may raise legal errors that occurred at the trial court level that affected the outcome of the case. Post-conviction-relief and criminal-record-expungement counsel can advise a service member convicted of a UCMJ Article 120 offense on the specific post-trial and appellate remedies available, assess whether any legal error in the investigation or court-martial provides a basis for setting aside the findings or sentence, and develop the appellate strategy for the Court of Criminal Appeals and the Court of Appeals for the Armed Forces.

The primary affirmative defenses available to a service member charged with UCMJ Article 120 include the defense of consent, under which the accused argues that the alleged victim actually consented to the sexual contact or act, the defense of mistake of fact as to consent, under which the accused argues that the accused reasonably but mistakenly believed the alleged victim consented, and the defense that the alleged contact or act did not occur at all, and each of these defenses requires different evidentiary support and presents distinct strategic opportunities and risks that must be evaluated carefully by the defense counsel. Federal-criminal-defense and criminal-appeals counsel can advise on the full range of legal options available to a service member facing a UCMJ Article 120 charge, assess whether the specific facts support any affirmative defenses including consent, mistaken belief as to consent, or the absence of a prohibited sexual act, and develop the integrated defense strategy that most effectively protects the accused's legal rights.