The military has aggressively increased efforts to bring charges against military members accused of sexual assaults allegedly committed against civilians or fellow military members. However, in order to convict someone of sexual assault1 or similar misconduct under the UCMJ, the military must present evidence to the jury or judge supporting the allegations at court-martial. As with any other criminal charge, an allegation of sexual assault must be proven beyond any reasonable doubt. However, the military at all echelons of command has been tainting the minds of potential jurors through ill-informed, mandatory training on issues related to sexual assault, especially alcohol-related incidents. The scariest consequence of this training is that there is now a mentality of “strict liability” rather than a legal burden of proof. If any alcohol was involved, even one drink, the training openly suggests that sexual was much more likely. This climate has essentially turned the burden of proof upside-down, so that the accused feels that he needs to disprove the allegation beyond a reasonable doubt.
Many sexual assault cases are “he said, she said.” What some defendants fail to understand is that it’s possible for a person to be convicted of a sex offense based solely on the word of the accuser. The following is some information regarding physical evidence commonly used in military sex offense cases, in addition to the accusation made by the alleged victim.
Defending cases involving a rape kit
If the alleged victim went to the hospital or to the authorities shortly after the alleged assault, they may have undergone testing from a rape kit.2 In addition to other forms of bodily evidence, these tests seek to obtain any possible DNA evidence from the alleged victim and must be performed within 72 hours. Though a DNA match from a rape kit is often seen as one of the most concrete pieces of evidence a prosecutor can have, there are ways to defend against this evidence, including:
- The test was performed incorrectly or the samples were contaminated by the lab;
- The alleged victim engaged in activities that may have affected the results, including bathing or showering, using the bathroom, brushing hair or changing clothes;
- There is another explanation for the DNA match, including a consensual relationship or sexual encounter.
There are often other ways to challenge the results of a rape kit and our attorneys will conduct a thorough investigation to ensure we identify any possible defenses against the physical evidence in your case. Also of tremendous importance is the record of what the alleged victim said before and during the examination.
Contact a highly experienced civilian military criminal defense attorney as soon as possible
If you are facing allegations of sexual assault or any other type of sex offense in the military, you should never delay in discussing your case with a skilled civilian defense attorney who understands how to defend against such charges. At the law office of Gagne, Scherer & Associates, LLC, our civilian criminal defense lawyers are former members of the JAG Corps and have successfully represented a significant number of members of all branches of the U.S. military. If you are facing charges, you should call our office immediately at 877-867-5247 to find out more about how we can help you.
References:
1https://www.sapr.mil/sites/default/files/DoD_Annual_Report_on_Sexual_Assault_in_the_Military.pdf
2https://rainn.org/get-information/sexual-assault-recovery/rape-kit