Ways to Defend Yourself Against Sexual Assault allegations in the Military
There are several defenses to a sexual assault allegation in the military. We do our best to categorize those defenses because they tend to reappear in case-after-case, but the truth is that each case is unique and the defense for each case shifts and merges with the multiple approaches we can take to establish our client’s innocence.
Whether Sex Even Happened
One of the least common defenses is that the sexual act didn’t happen. Denying that the sex act happened is limited in its use because there is generally some evidence of the sexual act. It could be in the form of DNA, a confession, or text messages between the Accused and the alleged victim that admits to sex having had occurred.
In the right case, even a reasonable doubt about whether sex acts actually occurred could be enough for an acquittal. We see this defense most often used when an alleged victim is directly framing an accused person or deeply mistaken about the nature of the events (generally because of shoddy memory).
Establishing the Sexual Acts Were Consensual
Another common defense is that the sexual act was consensual. In order for a sexual assault to be proven in a court-martial, the Prosecution has to prove BEYOND A REASONABLE DOUBT that the alleged victim did not actually consent to the sex act.
Our cases are generally built around this very issue. If the Government is able to establish that sex occurred, the next question is all about consent. Although the media would like to place the responsibility on the accused person to prove consent, it is the prosecution that has to disprove it. Usually this evidence comes down to the credibility of the accuser and the version of events as told by the Accused if they testify.
We often see cases in which there is solid evidence of consent or the unreliability of the alleged victim’s claim that she did not consent.
Mistake of Fact About Consent
A mistake of fact case is one in which the accuser believes that they did not consent to the sexual act, but the accused thought that the sexual act was consensual. Under the law, the accused person’s belief that it was consensual would have to be reasonable. In other words, a reasonable person in the same or similar circumstance would have thought the same way that the accused did.
In defending any case, our goal is to look at whether or not the government can prove that sex or a sexual act actually occurred. If the accused claims that a sexual act did occur but that it was consensual, then we will point out all the facts that show that it was a consensual act. It is also important—in every case—to challenge the accuser’s credibility, challenge the sufficiency of the investigation, and challenge the evidence (if there is “evidence”). Most often, the defenses in a sexual assault case revolve around whether the act actually occurred, and if so, whether or not it was consensual.
Our attorneys aren’t just skilled in the actual litigation of sexual assault defense in the courtroom, we have been recognized around the world as leading voices in how best to defense sexual assault cases. Our attorneys have taught national conferences on sexual assault defense, been published in major news outlets and on major cable news networks, and anticipating a nationally best selling book on the topic.
