The Ultimate Test of Defense Counsel
Article 120b of the UCMJ (Sexual Abuse of a Child) addresses the most sensitive and complex subset of prosecutions in the military justice system. These cases demand an attorney’s highest level of psychological fortitude, scientific expertise, and ethical nuance. The challenges are intensified by the specialized nature of child testimony and the immense social and institutional pressure for a speedy conviction and ruthless punishment.
For over 25 years, our specialization in UCMJ defense has included the most stigmatizing Article 120b matters: defending allegations of sexually abusing a child, often one’s own child, in an age range spanning from infancy to late high school. Our authority is built on our ability to integrate forensic medicine and the volatile psychology of child testimony to challenge the most emotionally powerful evidence.
1. Statutory Elements and Strict Liability
The core structure of UCMJ Article 120b eliminates the central defense mechanism relied upon in adult sexual assault cases: consent. Because of the victim’s age, the law imposes near-absolute liability on the accused.
The Elimination of Consent as a Defense
The most crucial difference between Article 120b and other Article 120 offenses is the concept of statutory rape/abuse. The law presumes that a child under the specified age is incapable of giving consent as the law defines it.
- Mistake of Fact: In borderline cases, a defense based on a reasonable mistake of fact regarding the age of the alleged victim might be in play. In that situation, the battle shifts away from the victim’s age and state of mind, and squarely onto other factors, a much safer place for a defendant in an Article 120b case to be.
2. The Core Evidentiary Challenge: Child Testimony and Memory
In Article 120b prosecutions, the alleged victim’s testimony is often the most powerful and, occasionally, the only direct evidence. This places the issue of child memory and susceptibility at the forefront of the litigation.
Vulnerability and Fragility of Child Memory
A child’s memory is particularly susceptible to external influences. Factors that become key litigation points include:
- Suggestibility: Children might struggle to distinguish between what they experienced and what they were told (suggested, nudged) by parents, therapists, or interviewers, who, almost without exception, autmoatically believe the allegation. This risk of contamination makes the process of the forensic interview the single most critical piece of defense investigation.
- Delayed/Recanted Allegation: The defense must skillfully use expert testimony to explain that these phenomena are often consistent with abuse, but also consistent with suggestion or coaching, requiring a careful, nuanced analysis by the panel.
Forensic Interviews and Defense Strategy
Defense counsel must achieve mastery over child forensic interviewing protocols. The attorney must meticulously dissect the interview tapes and transcripts, looking for moments of: Leading Questions, Coercion or Reinforcement, and Breaks in Protocol.
- Defense Imperative: The ultimate goal is often not to prove the child is lying, but to prove the reporting process was flawed, rendering the resulting testimony unreliable due to various sources of contamination.
3. The Specialized Investigative and Medical Process
The investigation of Article 120b cases is complex, requiring a Multi-Disciplinary Team (MDT) approach that involves law enforcement, medical professionals, and child protective services.
Forensic Medical Examination
The examiner’s testimony must be challenged on the distinction between an injury consistent with abuse (a common finding) and an injury conclusive/diagnostic of abuse (a rare finding). Defense counsel must be fluent in pediatric forensic medicine.
- Differential Diagnoses: Arguing that the injuries are the result of accidental trauma, pre-existing conditions, or other non-abusive conditions, a necessity that requires the defense to retain specialized medical experts.
- Iron Stomach: The defense attorney must have an iron stomach and clinical objectivity in order to analyze the challenging medical and physical evidence the occurs in this kind of case. Very few lawyers can do it well.
4. The Attorney’s Unique Psychological and Tactical Imperative
Defending an Article 120b case demands extraordinary personal and professional qualities from the attorney.
Psychological Fortitude and Ethical Distance
The attorney must maintain an absolute separation between the natural inclination to protect children and the professional duty to defend the client’s rights.
- Evidence Review: Viewing evidence of child sexual and physical assault as a technical task, necessary for due process.
- Victim Impact: Enduring the raw, unfiltered emotional weight of victimimpact testimony from the child and their parents, which often serves as a massive Appeal to Emotion (the logical fallacy of Argumentum ad Misericordiam) to the trier of fact. The attorney’s focus must remain coldly analytical during this phase.
The Requirement for Infinite Tact and Wisdom
The bold, but meticulous, cross-examination required in these cases must be executed with infinite tact. The attorney is placed in an almost impossible position: they must vigorously test the truth-finding function of the court, but any misstep is interpreted as attacking a vulnerable child.
- Reading the Room: The attorney needs a sixth sense for panel/judge sentiment. One must know precisely when to cease a challenging line of questioning to avoid alienating the fact-finder, even if the line of inquiry is legally valid. The cost of pursuing a minor inconsistency might be the entire case.
Mitigation in the Face of Disaster
When the defense fails to secure an acquittal, the attorney must pivot to an expert and compassionate case in mitigation.
- The Unpopular Client: Advocating for leniency for someone convicted of a crime against a child (or fair treatment during the investigative phase) is the ultimate test of counsel’s persuasive ability. The mitigation narrative must demonstrate that the client is not merely “one of those people,” but a product of complex pathologies, and that the requested sentence achieves the goals of public safety and rehabilitation.
Article 120b is the ultimate test of counsel’s integrity and skill. You are fighting an overwhelming tide of moral certainty and institutional pressure. Your defense relies entirely on forensic clarity, not emotion.
Do not hire an attorney who might be overcome psychological, institutional, and social pressures of an Article 120b case. Our firm has mastered the representation of Article 120b clients.Call our experienced UCMJ lawyers for a free consultation: 800-319-3134.