Article 120 UCMJ

Attorney Keith Scherer

Keith Scherer, Article 120 Military Trial Attorney.  Call (773) 774-6741 now for a free consultation!

It’s harder than ever for a defendant to get a fair trial in a military sexual assault case. There is unprecedented attention on sexual allegations in the military. Under intense political and media pressure, the military has become extremely aggressive about prosecuting sexual assault cases. This new approach makes it harder than ever for defendants to get a fair trial, which is why it’s critically important to have an attorney who focuses on this kind of case and has a long history of success.

The law is stacked against the defendant

The law of military sexual assault is always changing, and in this new climate the law is stacked against defendants. There is an ongoing effort to shift the burden of proof from the government to the defendant, which means that the defendant would have to prove innocence rather than the prosecution having to prove guilt. Whether or not that’s the state of the law, that’s the message the government wants to send to the jury. The law has changed to make it easier for the government to get convictions. Combined with the misinformation given in training sessions, the changes to the law pose greater threats than ever to innocent defendants.

Under Article 120 of the Uniform Code of Military Justice, and in the courts interpreting Article 120, the definition of sexual assault is expanding all the time. Sexual assault isn’t limited to allegations of rape. An incident a civilian might think of as sexual harassment will often be charged in the military as sexual assault. A night of what used to be called heavy petting can also be charged as sexual assault. It’s not an overstatement to say that in the current climate any sexual activity can be charged as sexual assault, especially if any amount of alcohol is involved.

Because the definition of sexual assault is so broad, and because of the political pressure on the military to bring sexual assault allegations to trial, the military will often pick up cases that have been dropped by civilian agencies.

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How your civilian military attorney can help

Greg Gagne, Military Trial Lawyer

Greg Gagne, Article 120 Military Trial Attorney. Free consultation. Call (773) 774-6741 now!

The defense attorney needs to understand the law and all the methods of reversing the government’s momentum. A defense attorney can fight to have the case dismissed because of the pressure being put on all military members, including jurors, to convict defendants rather than give them a fair trial. At trial, a similar fight will be waged when the judge instructs the jury on the law, the defendant’s rights, and the burden of proof. These issues also need to be attacked during jury selection, to make sure the jury can set aside the political pressures and acquit the defendant if the government doesn’t prove the case beyond a reasonable doubt.

But the battle for a fair trial begins long before you enter the courtroom. Through experience, a good attorney can see the blueprint for defense at trial the first time reviewing the evidence and talking to witnesses. The trial plan should be set up as early as possible, ideally at the Article 32 stage or before. The Article 32 hearing is a midpoint between the day you’re charged and the day of trial. The government has to show that it has enough of a case to justify going forward to trial. This is a great opportunity for the defense to dig into the government’s evidence. The Article 32 can be as important to the outcome of your case as anything else that goes on throughout the trial. It will most likely be your attorney’s only opportunity to talk to the prosecution witnesses before trial. Testimony at the Article 32 can be used to gauge the witnesses’ believability, the reliability of their memory, how they will come across to the jury, whether their testimony seems coached or rehearsed, and whether they are emotional or flat.

But the Article 32 isn’t just a practice run for cross-examination of the prosecution’s witnesses. It’s also a great opportunity for the defense to establish the basis for getting experts appointed – free of charge – as confidential consultants for the defense. An experienced military attorney will be able to draw from a long list of contacts among doctors, nurses, psychologists, and other forensic experts. Filling out the defense team with good experts can be a key to victory in a sexual assault court martial. Finally, the Article 32 is the best chance the defense will have to show that the case is so weak that the charges should be dropped. That doesn’t happen often these days, but it happens.

Read our US military sexual assault success stories

Military leadership is under political pressure to increase convictions

Military leaders are facing pressure from congress, the White House, the media, and hostile advocacy groups. Relying on misleading and selectively-chosen statistics, these special interests have intimidated the service branches into creating policies that are specifically designed to raise the number of convictions in military sexual assault cases, without regard for the due process rights of the military members accused of committing sexual assault.

Public comments from members of congress and the executive branch, including the president himself, have made clear to military leaders that getting more convictions in these cases is, in effect, an order. In response, the military has created training courses with the express purpose of instructing subordinate commanders and noncommissioned officers to increase the rate of convictions. The consequence of these programs and the political scrutiny is that allegations of sexual assault are almost always going to end up being charged. Worse than that, the training programs give incorrect information about the law, leaving the trainees – potential jurors – with the impression that any consumption of alcohol makes it impossible for someone to consent to sexual activity.

The military has developed special prosecution units of JAGs whose sole job is to prosecute sexual assault cases. Alleged victims have programs to compensate them financially. They are allowed to have an advocate present during discussions with defense attorneys. They even have their own JAG. Under certain circumstances, their JAG will be allowed to sit by their side when they testify. These services are given to the alleged victim, regardless of how credible the story is.

Free confidential consultations

We have been successfully defending sexual assault allegations for many years as JAGs and civilian defense counsel, and we have continued winning our sexual assault cases even as the law and political climate have changed for the worse. We’ll be happy to discuss your case with you. Click here to start a conversation