If you are a service member facing an investigation or charge under Article 120 of the UCMJ (Sexual Assault, Rape), you are fighting the single most serious charge in military law. Your freedom, your career, and your future are on the line. The system is built to assume the worst and pressure for maximum accountability.
For over 25 years, we have specialized in this battlefield, prosecuting these cases first and then defending them for over two decades. Our history allows us to analyze every Article 120 matter with absolute objectivity, securing acquittals in unwinnable cases by completely mastering the forensic and psychological vulnerabilities inherent in these prosecutions. Defending cases brought under Article 120, 120b, 134, and more, by using our approach we have won acquittals in military courtrooms from coast to coast and overseas; in spring, summer, fall, and winter; and in every branch of service.
The Legal Cornerstone: Lack of Consent
Article 120 is the umbrella statute for all sex offenses. The entire prosecution hinges on one issue: Consent.
Was the Light Red or Green?
Under the UCMJ, consent is defined as a freely given, knowledgeable agreement. A green light.
- Failure to Resist is NOT Consent: A person’s lack of physical resistance or verbal protest is never, by itself, consent.
- Past Conduct is NOT Consent: Consent to a prior act or with another person does not matter. The burden is on the accused to ensure affirmative, knowledgeable agreement.
The Problem of Incapacity
Consent is legally impossible if the person is unable to give it. This is the government’s primary tool for proving the crime and arises from:
- Impairment by Drugs or Alcohol: A person who is incapable of appraising the nature of the sexual act due to intoxication cannot legally consent. This is the critical legal standard in almost every case involving intoxication.
- Physical Helplessness: Being unconscious, asleep, or physically unable to communicate unwillingness.
Part I: The Core Defense: Mistake of Fact
The Mistake of Fact Defense is the heart of the reasonable doubt argument and is raised in almost every Article 120 case. This defense attacks the prosecution’s burden of proof directly.
The Key Battleground: Mental State
The prosecution must prove you knew or reasonably should have known that the act was done without consent. This is a difficult element for the government to prove without engaging mind-reading.
- The Defense: We argue the evidence shows your client honestly and reasonably believed consent had been given. If the panel believes your client made an honest, reasonable mistake about consent, you are Not Guilty.
- Willing Participation: We fight to establish evidence of willing participation up to the point of the act (texts, witness accounts) to support the Mistake of Fact defense, forcing the fact-finder to consider the circumstances from your perspective.
Part II: The New Reality of OSTC Prosecution
The decision to charge is now made by the specialized Office of Special Trial Counsel (OSTC), not the local commander.
The Defense Mandate: Early Intervention
The OSTC is not under pressure to run up a tally of convictions. Their mandate is to maximize their conviction success rate. They will not carry a weak case to trial if it threatens their data. This is the most critical strategic point: we must convince the OSTC that the case presents an unnecessary risk of acquittal.
- The New Timeline: The days of holding helpful information until trial comes along are over. With the OSTC, the defense must bring evidence early to create a high-risk scenario for them.
- The Outcomes of Doubt: When the OSTC sees a case a potential loss, they might kill it case entirely, negotiate a charge reduction, or defer it back to the commander for a lesser action. Our goal is to persuade them into a non-General Court-Martial outcome.
Part III: The Forensic and Digital Counterpunch
Cases are now won or lost in the lab and on the hard drive. We focus on dismantling the government’s technical evidence.
Memory Science is the Weapon
The defense usually (not always) must pivot the fight from “who is lying” to “what does science say about human memory?”
- Confabulation: Memory is a reconstructive process, magnified by alcohol or trauma. The brain might invent details to fill gaps, known as confabulation, resulting in a sincere but factually inaccurate account.
- Hindsight Bias: We expose how current feelings of distress are incorrectly imputed back into a memory of an initially ambiguous encounter.
- Contamination: We expose how post-event information, SARC coaching, or therapeutic suggestion might have contaminated the memory trace.
Dissecting the SAFE Exam and Digital Evidence
The Sexual Assault Forensic Exam (SAFE) report and digital data are battle maps, not conclusions.
- Expert Review: We immediately hire defense-funded experts to review the SAFE report and methodology.
- Alternate Source: If DNA is present, it only proves contact, not assault. We work to establish an alternative, innocent source for the DNA.
- Digital Defense: We analyze electronic data (texts, social media, geo-location) for context and contradiction, searching for evidence that contradicts the prosecution’s narrative of immediate trauma.
Part IV: The Systemic and Tactical Defense
The Attorney’s Clinical Competence
The expert defense counsel cannot afford to assume the allegations are true or false. You need to clinically assess all evidence and probabilities to provide an unclouded, objective assessment of the high consequences.
- Expert-Level Cross-Examination: We execute a tactful, patient, and scientifically informed cross-examination. The goal is to expose the fragility of memory without appearing unduly aggressive or insensitive. There are times when killing with kindness is the better play.
The SARC/SAPR Systemic Risk
The military’s support infrastructure is weaponized against the accused. We must engage early to prevent catastrophic mistakes.
Witness Tampering Risk
Any communication you or your family has with the victim, their advocate, or even mutual friends can be interpreted as obstruction of justice. We immediately counsel our clients and their families to prevent these mistakes.
Fighting the Administrative Side
Even if you are acquitted, the Command will often immediately pursue Administrative Separation (discharge) under the premise that you are no longer fit to serve.
- The Dual Fight: We fight the court-martial and the administrative separation simultaneously. We leverage our court-martial success to demonstrate the evidence is insufficient for discharge.
Pigs Get Fat, Hogs Get Slaughtered: Advanced UCMJ Cross-Examination Strategy
The majority of lawyers handling serious Article 120 matters mistake courtroom combativeness for legal effectiveness. They rely on outdated, cinematic tactics. A lawyer who employs a bullying, “sledgehammer” style often makes a crucial logical error: confusing correlation with causation (Post hoc ergo propter hoc).
They did not win because they were a “rabid bulldog”; they won because the evidence was weak, and the acquittal happened despite their abrasive theatrics.
The Risks of Bullying
A defense built on saliva, barking, and snark carries severe risks:
- Judge and Panel Alienation: The judge and panel might turn on the attorney, subconsciously protecting the witness and voting to convict, even if they harbor doubts about the testimony.
- Ethical Folly: Attacking a witness who is sincere (due to confabulation or cognitive bias) is tactically foolish. It results in the witness fighting back, cementing the jury’s sympathy, and bogging down the defense.
Any case won with theatrics can be won more cleanly, ethically, and decisively with a tactical conversation. Strange but true: we have had many cases where our approach won the accuser over so much that she ended up throwing the fight right there on the stand.
The skillful pickpocket is already in the next town before the victim realizes his wallet’s missing; the gun-toting bank robber has a die pack blow up in his face in the getaway car.
The Cross-Examiner’s Edge: Meticulous Control
What truly separates a successful UCMJ trial lawyer is the ability to maintain meticulous control and detect scientific and logical fraud in a witness’s testimony. Our approach utilizes two distinct modes to defeat both the sincere, biased person and the knowing malicious liar.
1. Constructive Cross (The Default Strategy)
This is the advanced technique, which is polite, firm, and calculated. It is the default mode of operation for a seasoned expert.
- Objective: The goal is to make the witness talk, moving them beyond simple “yes” or “no” answers (panels aren’t stupid; they’re hip to this technique) to actively expose the fragility of the memory.
- Method: We use logic to show the panel that the witness’s memory is flawed by cognitive biases (such as hindsight bias) or alcohol-induced confabulation. We defeat the reliability of the memory without attacking the witness’s character or sincerity. If a witness really deserves to be called out for lying to the court, you don’t yell. You demonstrate it firmly, more than once. The panel will get it.
- Outcome: This technique earns respect from the judge and panel because you are seen as the expert seeking the truth, not the bully seeking a brawl.
2. Destructive Cross (The Reserved Tool)
The fundamental skills pertaining to destructive cross (how to destroy, corral, pin down, and control a witness) are foundational. A trial needs those arrows in the quiver. But a quality cross-examination knows this tool is reserved for specific, rare situations.
- When Deployed: Destructive cross is used only when the witness is proven to be stubbornly deceptive or demonstrably unreliable on a foundational, provable fact.
- Exposing the Liar: If the witness is deliberately lying, the controlled, conversational style forces them to hang themselves with their own rope. The attorney simply underscores the lies for the panel, then allows the witness to continue the self-destruction.
Attorneys are taught that you want to limit the witness to Yes/No answers, but panels don’t like this. They know it’s a stunt that comes across as desperate and overly controlling. They know that some witnesses will just go along with whatever the attorney says, just to get off the witness stand.
A skilled cross-examiner knows how to achieve the exact same control with much greater force while maintaining the high ground. By keeping this high ground, you secure the panel’s trust. Rookie trial lawyers (even “amateurs” who’ve been at the craft for decades) confuse aggressiveness with effectiveness; experts know precision and restraint are the true separators.
No penalty for a phone call: The call is free, the case evaluation is free
If you are facing Article 120, you need the civilian attorney who has the forensic expertise and the established trust and reputation to take the fight directly to the OSTC. Call our attorneys directly right now for an case evaluation: 800-319-3134