You’re facing the most aggressively prosecuted charge under the UCMJ. Article 120 cases now fall under OSTC’s exclusive jurisdiction, which means a dedicated prosecution office with handpicked trial attorneys is deciding whether to take your case to court-martial. Congress created OSTC because it didn’t think commanders were prosecuting enough sexual assault cases, and it felt the acquittal rate at trial was too high. OSTC exists to increase conviction rates, not to ensure fair trials. The Sexual Assault Response apparatus (SARC/SAPR) runs a parallel operation that goes beyond supporting the accuser: it briefs commanders, trains unit members, and saturates your installation with messaging that contaminates the potential jury pool before you ever see a courtroom. You’re facing a system built to convict you.
What you do in the next few days will affect everything that follows. This guide from Gagne, Scherer & Associates tells you what to do and what not to do, starting right now.
The First 48 Hours
Don’t talk
Don’t make a statement to investigators. Not even a partial statement, not a “my side of the story,” not a clarification. CID, NCIS, OSI, and CGIS are trained to get you talking before you understand the threat you face. They’ll tell you this is your only chance to clear things up. It isn’t. Read the Gagne, Scherer & Associates interrogation survival kit before you sit down with anyone. If you’ve already been contacted by investigators, read our guide to military interrogation tactics and your Article 31(b) rights so you understand what they’re doing and why.
Don’t contact the accuser
Don’t send a text, leave a voicemail, pass a message through a friend, or post anything on social media, even if it doesn’t reference the allegation. Every word you put out there becomes evidence. If a no-contact order hasn’t been issued yet, one is coming. Violating it exposes you to an additional criminal charge and destroys whatever good will with your chain of command.
Don’t try to gather evidence on your own
Don’t ask friends to screenshot the accuser’s social media. Don’t go through old text messages and start forwarding them around. Don’t record conversations with potential witnesses. All of this can be characterized as obstruction or witness tampering. Your attorney will handle evidence collection the right way.
Don’t discuss the facts of the alleged incident with friends, family, or coworkers
Those conversations aren’t privileged. Your internet history isn’t either. Your best friends, girlfriend, coworkers, family members: they can be compelled to testify about what you told them. Your phone data and search history can be recovered or subpoenaed, so whatever question you have about your case, ask your lawyer, not Google.
Don’t delete anything on your phone, computer, or cloud accounts
If you’re under investigation, your devices are going to be searched or seized. Deleting files after you know you’re under investigation is a separate offense and it makes everything worse.
Do back up all helpful evidence to a secure location
Your phone, your laptop, and your computer can all be seized, and once they’re in the investigators’ possession you won’t see them again for months if ever. Get screenshots, texts, photos, and any other evidence that helps you off those devices and into a secure location your attorney can access. Use a personal cloud account, external storage, or some other means, but make sure your attorney will be able to review all helpful evidence.
Do tell your family what’s happening
Service members facing court-martial should tell their families. They need to know, and you need their help. Your parents or your spouse might be the ones who help you afford a civilian attorney. They can’t help if you keep them in the dark. Waiting until charges are preferred to break the bad news, or on your way to jail after a conviction, leaves everyone scrambling at the worst possible time.
Do call an attorney right away
In most branches you won’t get an appointed JAG defense counsel until charges are preferred or a board is convened, which could be months away. The Air Force and Space Force assign counsel earlier, but even those attorneys tend to take a passive approach during the investigation. If you want someone working your case while the investigation is still open, you need to hire a civilian military defense lawyer. Gagne, Scherer & Associates explains why that’s essential and what to look for when choosing the right attorney.
Their Investigation vs. Your Defense
| Stage | What the Government Is Doing | What You Should Be Doing |
|---|---|---|
| Investigation opens | Pulling phone records, internet history, banking, texts. Interviewing witnesses. Collecting surveillance. | Say nothing. Back up helpful evidence. Hire an attorney. |
| SARC/SAPR activates | Coaching the accuser. Arranging Base of Preference transfer. Briefing your commander and OSTC. Saturating your base with messaging. | Tell your family. Stay off social media. Don’t contact the accuser or anyone connected to them. |
| OSTC reviews | Evaluating evidence for trial viability. Deciding whether to prefer charges. Coordinating with investigators for additional evidence. | Your attorney contacts OSTC and investigators, puts favorable evidence in front of them, works to influence the charging decision. |
| Charges preferred | Charge sheet is signed. You’re formally accused. JAG defense counsel assigned (in most branches, this is the first time you get a lawyer). | If you hired early, your attorney already has the case developed. If you waited, you’re starting from zero. |
| Article 32 hearing | Government presents probable cause. PHO evaluates and writes a report. | Your attorney focuses on reasonable doubt, presents favorable evidence, and works to produce a PHO report that gives OSTC a reason to back off. |
What You’re Up Against
The table above shows the timeline. Here’s how the charges work and what to do about them.
Article 120 covers rape, sexual assault, aggravated sexual contact, and abusive sexual contact. The government can charge multiple theories from the same incident. A single night can produce half a dozen specifications on the charge sheet. Gagne, Scherer & Associates has a plain English guide to military sex offense law that explains what these charges mean, how they overlap, and why even prosecutors and judges have trouble understanding them.
For a closer look at how these cases are tried and how the defense fights them, read the Gagne, Scherer & Associates 50 tips for defending an Article 120 case.
Alcohol is a factor in most of these cases. If the allegation involves drinking, the science of how alcohol affects memory, perception, and testimony will be contested at trial. The government will frame the accuser’s gaps in memory as proof of incapacity. The defense must understand the science well enough to challenge that bogus framework. Gagne, Scherer & Associates has a guide on memory, alcohol, and Article 120.
Gagne, Scherer & Associates wait for charges. The firm contacts OSTC and investigators the day the firm is hired and stays in contact, working to influence the trajectory of the case before the government makes its charging decisions. That’s the period when the case can be derailed, deferred, or resolved with an outcome that doesn’t destroy your life and might save your career. Once charges are preferred and referred, that opportunity becomes much more difficult to manufacture. Read more about why early representation and intervention are crucial to your defense and how the firm uses the Article 32 in the OSTC era to fight for a good outcome long before trial.
If you’re under investigation or facing charges under Article 120, call Gagne, Scherer & Associates at (224) 935-6172. You’ll speak with an experienced military lawyer who has tried hundreds of sexual assault cases across every branch of service. Not a paralegal. Not a receptionist. Not a chatbot.