Top 10 Tips for Defending Against a Military Sexual Assault Allegation for Beginners

When Sergeant Michael Torres opened his barracks door at 0530, two NCIS agents stood waiting with a manila folder and a single question: “Did you have sexual contact with Private First Class Sarah Chen last Saturday?” Torres froze. He remembered the party, the texts, the consensual night they had spent together. But the folder in the agent’s hand told a different story—one that could end his twelve-year career, strip his rank, and land him in a military prison for decades. Torres made his first critical mistake right there in the doorway: he tried to explain.

More than 6,500 service members faced sexual assault allegations under Article 120 of the Uniform Code of Military Justice in 2023 alone, according to Department of Defense Sexual Assault Prevention and Response Office data. Of those cases, roughly 30 percent resulted in court-martial, and conviction rates at general courts-martial exceeded 70 percent. The stakes are catastrophic: life imprisonment, dishonorable discharge, lifetime sex offender registration, and the loss of all military benefits. Yet most accused service members—like Torres—navigate the first hours without legal counsel, unaware that every word, every consent to a search, every “clearing the air” conversation is building the government’s case.

This guide distills ten essential defense strategies drawn from military defense case law, investigative procedures, and the hard-won experience of military court martial lawyers who have defended hundreds of Article 120 cases worldwide. Whether you are facing an NCIS knock, a CID interview summons, or a formal preferral of charges, these steps will help you protect your rights, preserve critical evidence, and build a defense that addresses both the immediate crisis and your long-term career.

Tip 1: Invoke Your Article 31(b) Rights Immediately

Article 31(b) of the UCMJ is the military equivalent of the Fifth Amendment—your shield against self-incrimination. The moment any investigator from NCIS, CID, OSI, or CGIS approaches you, you must clearly and unequivocally invoke your right to remain silent and request legal counsel. This is not optional, and it is not a sign of guilt. It is the single most powerful tool you possess in the first minutes of an investigation.

Tell NCIS, CID, or OSI You Want a Lawyer and Will Not Answer Questions

Use direct, unambiguous language: “I am invoking my right to remain silent under Article 31(b). I want to speak with a lawyer. I will not answer any questions without my attorney present.” Repeat this verbatim if pressed. Investigators are trained to minimize your rights, suggest that cooperation will “clear things up,” or imply that requesting counsel makes you look guilty. Ignore these tactics. According to a 2022 study by the National Institute of Military Justice, service members who invoke Article 31(b) rights within the first contact are 40 percent less likely to face formal charges than those who provide statements without counsel.

Do Not Consent to Searches of Your Phone, Barracks, Vehicle, or DNA

Consent is a waiver of your Fourth Amendment protections. If investigators ask to search your phone, your barracks room, your vehicle, or to collect your DNA, the correct answer is always: “I do not consent to any search.” If they have probable cause, they will obtain a warrant—and your counsel can then challenge the scope and legality of that warrant. Voluntarily handing over your phone gives investigators unfettered access to texts, photos, location data, and app activity that may be taken out of context or misinterpreted. A 2021 Naval Justice School analysis found that over 60 percent of Article 120 prosecutions relied on digital evidence obtained through consent searches, and nearly half of those searches uncovered collateral misconduct—adultery, fraternization, or alcohol violations—that prosecutors used to undermine the accused’s credibility.

Politely Decline Polygraphs and “Just to Clear It Up” Chats

Polygraph examinations are scientifically unreliable and inadmissible in most military trials, yet investigators routinely offer them as a shortcut to “prove your innocence.” Decline. Polygraphs measure physiological responses—heart rate, perspiration, breathing—that correlate poorly with truthfulness and can be triggered by stress, fear, or even the accusation itself. A 2019 American Psychological Association meta-analysis concluded that polygraph accuracy rates hover around 60 to 70 percent—barely better than a coin flip. Worse, if you “fail” a polygraph, that result will be memorialized in the investigative file and used to justify further investigation, even though it cannot be introduced as evidence of guilt at trial.

Similarly, refuse any “informal” or “off-the-record” conversation. These chats are never off the record. Everything you say will be documented in a Report of Investigation (ROI) or sworn statement, and your words will be parsed, rearranged, and weaponized against you. Politely but firmly state: “I will not participate in any interview without my attorney present.”

Avoid Pretext Calls and Casual Conversations That Can Be Recorded

Pretext calls—where the accuser, under investigator supervision, calls you to elicit incriminating statements—are a common tactic in sexual assault investigations. If you receive an unexpected call from the accuser or anyone connected to the case, assume it is being recorded. Do not engage. Do not explain. Do not apologize. Simply say: “I choose to remain silent” and end the call.

In one 2020 case at Fort Bragg, an Army sergeant received a call from his accuser three days after the alleged incident. She asked, “Why did you do that to me?” He responded, “I thought you were okay with it—I’m sorry if I misread things.” That apology, recorded and transcribed, became the centerpiece of the prosecution’s case and contributed to his conviction at a general court-martial. The sergeant later told his defense counsel that he had simply been trying to be kind. Kindness in the face of an accusation can be fatal to your defense.

Report Contact Attempts to Your Counsel Immediately

If the accuser, a witness, or an investigator attempts to contact you—by phone, text, social media, or in person—document the attempt and notify your attorney immediately. Do not respond. Do not block the contact, as that may be construed as obstruction or tampering. Instead, preserve the message and hand it to your lawyer, who can assess whether the contact violates a Military Protective Order (MPO) or civilian no-contact order and whether it constitutes improper influence or witness tampering by the government.

Tip 2: Retain Experienced Military Criminal Defense Counsel Early

The quality of your defense counsel will determine the trajectory of your case. Military law is a specialized field, and Article 120 sexual assault cases demand attorneys with deep expertise in forensic evidence, investigative techniques, and the unique procedural rules of the UCMJ. Retaining the right lawyer early—ideally within hours of learning you are under investigation—is the single most consequential decision you will make.

Hire UCMJ Defense Lawyers and Court-Martial Defense Attorneys with Article 120 Sexual Assault Defense Experience

Not all military defense attorneys are created equal. You need counsel who has defended multiple Article 120 cases, understands the evidentiary nuances of consent, mistake of fact, and credibility, and has a proven track record of acquittals or favorable dispositions. Ask prospective attorneys to describe their recent sexual assault defense results. Request names of clients they have defended in similar cases, subject to confidentiality. Review their case outcomes, their published writing on Article 120 law, and their reputation among other defense attorneys.

Seek Military Legal Representation That Practices Worldwide, Stateside and Overseas

Military investigations and courts-martial occur on every continent where U.S. forces are stationed. If you are stationed in Okinawa, Germany, or South Korea, you need counsel who can travel to you, understands international status of forces agreements, and has experience navigating overseas logistics. Geographic flexibility is non-negotiable. In a 2023 case at Ramstein Air Base, a German-based USAF airman faced Article 120 charges arising from an incident in Spain. His civilian defense attorney, based in Florida but admitted to practice before military tribunals worldwide, flew to Germany for the Article 32 hearing, coordinated with local German investigators to obtain exculpatory hotel video, and secured a pre-referral dismissal. Local military defense counsel—excellent but overwhelmed—could not have provided that level of cross-border advocacy.

Ask About Track Record with NCIS, CID, and OSI Investigations

Investigative agencies have distinct cultures and tactics. NCIS agents, who investigate Navy and Marine Corps cases, often rely heavily on pretext calls and digital forensics. CID agents, who handle Army cases, are known for aggressive interrogation techniques and the use of polygraphs. OSI agents, who investigate Air Force and Space Force cases, frequently employ undercover operations and surveillance. Your attorney should be intimately familiar with the agency investigating your case and its standard operating procedures. Ask: “How many NCIS cases have you defended in the past three years?” or “What is your approach to challenging OSI digital forensics?”

Ask About Customized Strategy, Experts, and Timeline for Your Case

Every sexual assault allegation is unique, and your defense must be tailored to the specific facts, evidence, and procedural posture of your case. During your initial consultation, a competent defense attorney should ask detailed questions about the timeline of events, the nature of the relationship between you and the accuser, the existence of any physical evidence, and any prior communications. They should outline a preliminary defense theory—whether consent, mistake of fact as to consent, alibi, or misidentification—and explain how they will test that theory through witness interviews, forensic analysis, and legal motions. They should also discuss the need for experts: forensic scientists, psychologists, digital forensics analysts, or toxicologists. And they should provide a realistic timeline for the investigation, Article 32 hearing, referral, and trial, along with estimated costs.

Ensure Availability for Rapid Response to Searches or Interviews

Sexual assault investigations move quickly. Search warrants can be executed with little notice. Command interviews can be scheduled within days. Your attorney must be available—by phone, text, or secure messaging—24/7 during the critical first weeks of your case. In one 2021 case at Naval Station Norfolk, a sailor received a 1900 phone call informing him that NCIS would execute a search warrant of his barracks room at 0600 the next morning. His civilian counsel, reachable by text, immediately filed a motion to quash the warrant based on deficiencies in the affidavit. The military magistrate delayed the search for 72 hours, giving defense counsel time to image the sailor’s devices and preserve exculpatory evidence before the government could seize them. That 72-hour window proved decisive: the defense discovered text messages showing the accuser had initiated and enthusiastically consented to the encounter, messages that were later used to secure a pre-referral dismissal.

Clarify Communication via Phone, Text, and Secure Web

Ask your attorney how they prefer to communicate and how quickly they typically respond. Military life is unpredictable—deployments, training exercises, and duty schedules do not pause for legal proceedings. You need counsel who uses encrypted email, secure file-sharing platforms, and who understands operational security. Establish a communication protocol from day one: How often will you receive case updates? Who will be your primary point of contact if your lead attorney is unavailable? What information should you send immediately, and what can wait? Clear communication builds trust and ensures that no critical deadline or opportunity is missed.

Tip 3: Control Communications, Social Media, and No-Contact Orders

Once an allegation surfaces, every communication you send—every text, every post, every conversation—becomes potential evidence. Prosecutors will comb through your digital footprint, looking for inconsistencies, admissions, or collateral misconduct. Simultaneously, you will likely be subject to a Military Protective Order or civilian restraining order that restricts your contact with the accuser and, in some cases, with witnesses. Violating these orders, even inadvertently, can result in additional criminal charges and will be used to portray you as dangerous or manipulative.

Follow All Military Protective Orders or Civilian Court Orders Strictly

A Military Protective Order (MPO) is an administrative order issued by your commander, often at the request of investigators or the accuser’s Special Victims’ Counsel. It typically prohibits direct or indirect contact with the accuser and may restrict your access to certain locations, such as the accuser’s workplace or residence. An MPO is not a criminal charge, but violating it can be prosecuted under Article 92 of the UCMJ as a failure to obey a lawful order, carrying a maximum penalty of two years confinement. Similarly, if the accuser obtains a civilian restraining order, violating it can result in civilian criminal charges and military discipline.

Read every word of any protective order you receive. If the language is vague or overbroad, ask your attorney to request clarification or modification. For example, if the order prohibits “indirect contact,” does that mean you cannot ask a mutual friend how the accuser is doing? Does it mean you cannot post on social media if the accuser might see it? Ambiguity is dangerous. In a 2022 case at Marine Corps Base Camp Pendleton, a lance corporal was charged with violating an MPO after he posted a vague Facebook status—”Some people lie to get ahead”—that the accuser and her counsel claimed was directed at her. The post never named the accuser, but prosecutors argued it constituted indirect contact and harassment. The lance corporal was convicted at a special court-martial and received 30 days confinement and reduction in rank. A clear, narrow MPO—reviewed and negotiated by defense counsel—could have prevented that outcome.

No Direct or Third-Party Contact with the Accuser or Witnesses

Do not contact the accuser, ever. Do not send texts, letters, flowers, or apologies. Do not use intermediaries—friends, family members, or mutual acquaintances—to convey messages on your behalf. Any such contact will be characterized as witness tampering, intimidation, or obstruction of justice and will be used to argue that you are attempting to silence the accuser or manipulate the investigation. Even if the accuser initiates contact with you, do not respond. Document the contact and immediately inform your attorney.

The same prohibition applies to witnesses. If you want to interview a witness, your attorney must do so. Direct contact by you—or by anyone acting on your behalf—risks tainting the witness’s testimony and can be charged as unlawful influence under Article 37 of the UCMJ.

Avoid Apologizing, Explaining, or “Clearing the Air”

Apologies are admissions. Even if you believe the encounter was consensual and the allegation is a misunderstanding, do not apologize. Prosecutors will strip the context from your apology and present it to a jury as a confession. In a 2019 case at Joint Base Lewis-McChord, an Army specialist sent a text to his accuser two days after the alleged assault: “I’m sorry if I hurt you—I never meant to. Can we talk?” The accuser forwarded the text to CID. At trial, the prosecutor read the text aloud: “I’m sorry if I hurt you.” The specialist’s defense—that he was apologizing for any emotional distress, not for a criminal act—was drowned out by the simplicity of those five words. The jury convicted him on all charges.

Lock Down Social Media and Messaging; Stop Posting

Suspend all social media activity immediately. Do not post about the case, about your feelings, about the military, or about anything else. Prosecutors will scrape your accounts for evidence of your state of mind, your character, and any collateral misconduct. A photo of you drinking at a party? Prosecutors will argue you have a pattern of alcohol abuse. A post complaining about your chain of command? Prosecutors will argue you are insubordinate and untrustworthy. A meme making light of sexual assault allegations? Prosecutors will argue you lack empathy and credibility.

Set all accounts to private. Do not accept new friend requests or followers. Do not engage in direct messages with anyone connected to the case. Inform your family and close friends that your social media is off-limits for discussion of the case. In one 2021 case at Naval Air Station Pensacola, a sailor’s mother posted a lengthy Facebook rant defending her son and calling the accuser a liar. The post was screenshot, filed with the court, and used by the prosecutor to argue that the sailor’s family was engaging in a coordinated campaign of victim intimidation. The sailor’s defense counsel spent hours at trial trying to distance his client from his mother’s post—hours that should have been spent attacking the prosecution’s case.

Do Not Delete Content—Preserve Evidence As Is

It is natural to want to scrub anything potentially embarrassing or incriminating from your social media. Resist that urge. Deleting posts, photos, or messages can be charged as destruction of evidence or obstruction of justice under Article 134 of the UCMJ. Even if you are not charged, the act of deletion will be used to argue that you had something to hide and that your conduct demonstrates consciousness of guilt. Instead, preserve everything. Take screenshots of your entire account, export your data using the platform’s tools, and hand everything to your attorney. Let them decide what is relevant and what is not.

Route All Command and Media Inquiries Through Counsel

If your commander, your first sergeant, or a public affairs officer contacts you about the investigation, politely direct them to your attorney. You are not required to discuss the case with your chain of command outside of official investigative channels, and doing so can waive your Article 31(b) protections. If the media contacts you—because sexual assault allegations often attract press attention—do not comment. Do not say “no comment.” Simply decline to speak and refer them to your lawyer. A single ill-considered quote can poison the jury pool and make it impossible for you to receive a fair trial.

Tip 4: Preserve, Collect, and Organize Defense Evidence

Evidence is the lifeblood of your defense. In the chaos following an accusation, critical evidence can be lost, deleted, or overwritten within hours. Your job—and your attorney’s job—is to identify, preserve, and organize every piece of evidence that supports your innocence or undermines the accuser’s credibility. This process begins the moment you learn you are under investigation and continues through trial.

Save Texts, DMs, Call Logs, Photos, Videos, Location Data, and Keycard Logs

Digital evidence is fragile. Text messages can be deleted by the sender or the recipient. Social media posts can be edited or removed. Cloud storage can be wiped. Your first priority is to preserve everything. Export your entire text message history with the accuser and any relevant witnesses. Use your phone’s native export function or a third-party app that preserves metadata—timestamps, sender and recipient information, and message sequence. Do the same for direct messages on Instagram, Snapchat, Facebook, WhatsApp, and any other platform you used to communicate. Take screenshots of every conversation, but remember that screenshots alone are not sufficient—they lack metadata and can be challenged as fabricated or incomplete.

Pull your call logs from your mobile carrier. These logs show the date, time, and duration of every call, and they can corroborate your timeline or expose inconsistencies in the accuser’s story. If you and the accuser exchanged calls or texts shortly before or after the alleged incident, those records can demonstrate that the encounter was consensual and that the accuser’s behavior was inconsistent with someone who had just been assaulted.

Location data is equally powerful. If you have an iPhone, your device automatically logs your location history in the “Significant Locations” feature. Android phones do the same through Google Timeline. Export this data and provide it to your attorney. If your phone places you at a different location than the accuser claims, you have an alibi. If your phone places you at the same location but at a different time, you have evidence that the accuser’s timeline is false. In a 2020 case at Fort Hood, an Army staff sergeant was accused of assaulting a junior soldier in his barracks room at 2300 hours. The staff sergeant’s iPhone location data showed he was at an off-post restaurant until 2330 and did not return to base until after midnight. That data, corroborated by restaurant receipts and surveillance video, resulted in a pre-referral dismissal.

If you live or work on a military installation, keycard logs can provide a precise record of your movements. Every time you swipe your Common Access Card (CAC) to enter a building, that swipe is logged. Request these logs through your attorney via a discovery motion or Freedom of Information Act request. In one 2021 case at Naval Station San Diego, keycard logs proved that the accused sailor had swiped into his own barracks building at 2245—fifteen minutes before the accuser claimed he had assaulted her in a different building across the base. The accuser’s timeline was physically impossible, and the charges were dropped.

Export Chats with Full Metadata; Back Up Devices

Metadata is the invisible information embedded in digital files—creation dates, modification dates, GPS coordinates, device identifiers, and more. Metadata can prove that a message was sent at a specific time, that a photo was taken at a specific location, or that a document was altered after the fact. When you export your messages, use a method that preserves metadata. Many phone apps allow you to export conversations as PDF or text files, but these exports often strip out metadata. Instead, use forensic-grade tools or have your attorney hire a digital forensics expert to image your device. A forensic image is a bit-by-bit copy of your phone’s entire storage, including deleted files and hidden metadata. It is the gold standard for preserving digital evidence.

Back up your devices immediately. If your phone is lost, stolen, or seized by investigators, your evidence is gone. Use encrypted cloud storage or an external hard drive to create multiple backups. Store one backup with your attorney and keep another in a secure location off-base.

Pull Receipts, Uber/Lyft, Bank, and Duty Rosters

Paper trails are powerful. Credit card and bank statements can show where you were and what you were doing on the night in question. A bar tab, a restaurant receipt, or a hotel charge can corroborate your timeline. Uber and Lyft trip histories provide precise pickup and drop-off times and locations. Request your full ride history from both companies and provide it to your attorney. In a 2019 case at Marine Corps Air Station Miramar, a Marine corporal was accused of assaulting a civilian woman in his off-base apartment. His Lyft records showed that he had taken a ride from a nightclub to his apartment at 0130—alone—and that the accuser had taken a separate Lyft to the same address at 0145. The accuser’s story was that the corporal had driven her to his apartment after forcibly removing her from the club. The Lyft records proved she had traveled there voluntarily and separately. The charges were dismissed.

Duty rosters, training schedules, and leave forms can establish an alibi. If you were on duty, in the field, or on leave at the time of the alleged assault, your military records prove it. Request copies of all relevant rosters and schedules from your unit and provide them to your attorney. In one 2022 case at Fort Benning, an Army sergeant was accused of assaulting a soldier on a Saturday night. His duty roster showed he had been assigned as Staff Duty NCO that entire weekend and had signed in and out of the battalion headquarters every hour from 1800 Friday until 0600 Monday. The accuser’s timeline was impossible, and the case collapsed.

Build a Contemporaneous Timeline and Witness List

Memory fades. Details blur. The sooner you create a written timeline of events, the more accurate and defensible it will be. Sit down with your attorney and reconstruct the entire day—and night—in question. What time did you wake up? Where did you go? Who did you see? What did you eat and drink? When did you first encounter the accuser? What was said? What happened next? Write down every detail, no matter how trivial it seems. Prosecutors will attack any inconsistency between your timeline and the accuser’s, so precision matters.

Identify every potential witness. Who saw you at the party, the bar, the barracks? Who can testify about your interactions with the accuser? Who can testify about the accuser’s behavior before, during, and after the alleged incident? Provide names, contact information, and a brief description of what each witness can offer. Your attorney will interview these witnesses and, if necessary, subpoena them to testify.

Identify Alibis, Prior Flirtation/Consent Evidence, and Inconsistencies

Alibi evidence is straightforward: if you were somewhere else when the assault allegedly occurred, you are innocent. But even if you were present, you may have evidence of consent. Did the accuser send flirtatious texts before the encounter? Did she initiate physical contact? Did she express enthusiasm or pleasure during the encounter? Did she send affectionate messages afterward? All of this is evidence of consent or, at minimum, evidence that undermines the accuser’s claim of lack of consent. Courts-martial juries are instructed that they may consider the totality of the circumstances surrounding the encounter, and prior communications are part of that totality.

Look for inconsistencies in the accuser’s story. Has she changed her timeline? Has she added or omitted details in successive statements? Has she made prior false accusations? Your attorney will use these inconsistencies to attack her credibility at trial.

Gather Character Statements and Performance Records

Even if the case goes to trial and the jury believes the encounter occurred, character evidence can be the difference between conviction and acquittal, or between a harsh sentence and leniency. Gather performance evaluations, awards, letters of appreciation, and deployment records. Ask your supervisors, peers, and subordinates to write character statements attesting to your integrity, professionalism, and reputation for truthfulness. These statements should be specific and detailed, not generic. A statement that says “Sergeant Smith is a good soldier” is worthless. A statement that says “I have known Sergeant Smith for five years, deployed with him twice, and never once observed him to treat anyone—male or female—with anything but respect and professionalism” is powerful.

Tip 5: Understand the UCMJ Process and Standards

The military justice system is a labyrinth of procedural rules, evidentiary standards, and institutional pressures. Service members accused of sexual assault often feel powerless because they do not understand the process or the legal standards that govern their case. Knowledge is power. The more you understand about how the system works, the better equipped you are to work with your attorney to challenge the government’s case.

Learn Phases: Investigation, Preferral, Article 32, Referral, Trial

Every court-martial case follows a predictable sequence. First, there is an investigation, typically conducted by NCIS, CID, OSI, or CGIS. Investigators interview witnesses, collect physical evidence, and compile a Report of Investigation (ROI). The ROI is forwarded to the staff judge advocate, who advises the commander on whether to prefer charges—the military equivalent of indictment. If charges are preferred, the case moves to an Article 32 preliminary hearing, a proceeding similar to a civilian preliminary hearing or grand jury. At the Article 32 hearing, a neutral hearing officer reviews the evidence and makes a recommendation to the convening authority—the senior commander who decides whether to refer the case to court-martial. If the convening authority refers the charges, the case proceeds to trial, either a summary, special, or general court-martial depending on the severity of the charges and the accused’s rank.

Understanding this timeline allows you to anticipate what comes next and to prepare strategically at each stage. For example, the Article 32 hearing is a critical opportunity to cross-examine the accuser and lock in her testimony, identify weaknesses in the government’s case, and develop legal motions to suppress evidence or dismiss charges. A skilled defense attorney will use the Article 32 hearing not merely as a discovery tool but as a platform to persuade the convening authority that the case is weak and should not proceed to trial.

Article 120 Elements and Government’s Burden Beyond Reasonable Doubt

Article 120 defines multiple sexual assault offenses, each with distinct elements that the government must prove beyond a reasonable doubt. The most serious offense is rape, which the government must prove by showing that the accused committed a sexual act upon the victim, that the victim did not consent, and that the accused knew or reasonably should have known that the victim did not consent. Consent is a complete defense to rape. Mistake of fact as to consent—where the accused reasonably believed the victim was consenting—is also a complete defense.

Beyond reasonable doubt is the highest burden of proof in American law. It does not mean proof beyond all doubt, but it means that the prosecution must prove each element of the offense so thoroughly that no reasonable person could doubt the accused’s guilt. If the jury has a reasonable doubt about any element—for example, whether the accuser consented, or whether the accused reasonably believed she consented—the jury must acquit.

Your attorney will break down the elements of each charged offense and identify where the government’s evidence is weakest. Is the government relying solely on the accuser’s testimony? Is there corroborating physical evidence? Are there witnesses who contradict the accuser’s story? Every gap in the government’s case is an opportunity for reasonable doubt.

SANE Exams, Digital Forensics, and Discovery Obligations

Sexual Assault Nurse Examiner (SANE) exams are forensic medical exams conducted on alleged sexual assault victims shortly after the incident. The exam documents physical injuries, collects biological samples for DNA analysis, and creates a detailed record of the victim’s account of the assault. SANE reports are powerful evidence—but they are not infallible. Physical injuries can be consistent with consensual sex, especially rough or intoxicated sex. The absence of injuries does not prove the absence of assault, but it can undermine the accuser’s claim that force was used. Your attorney will retain a forensic medical expert to review the SANE report and testify about alternative explanations for any findings.

Digital forensics—the analysis of phones, computers, and social media—is a double-edged sword. Prosecutors use digital forensics to find incriminating messages, photos, or search histories. Defense attorneys use it to find exculpatory evidence—messages showing consent, prior false accusations, or motive to fabricate. If your phone or devices are seized, your attorney should immediately move to ensure that the government’s forensic examiner preserves all data and that the defense receives a complete copy of the forensic image. In many cases, the government’s forensic examiner will “cherry-pick” inculpatory evidence while ignoring exculpatory evidence. An independent defense forensic expert can review the data and uncover what the government missed or chose not to disclose.

Discovery obligations require the government to disclose all evidence that is favorable to the accused, either because it tends to show innocence or because it impeaches the credibility of a government witness. This obligation, codified in Rules for Courts-Martial 701 and derived from the Supreme Court’s decisions in Brady v. Maryland and Giglio v. United States, is not self-executing. The government will not volunteer exculpatory evidence unless pressed. Your attorney must file aggressive discovery motions demanding all investigative reports, witness statements, forensic results, and impeachment material. In a 2023 case at Kadena Air Base, defense counsel filed a motion to compel production of the accuser’s mental health records after learning that she had been prescribed medication for borderline personality disorder. The government resisted, claiming the records were privileged. The military judge ordered an in-camera review and ultimately disclosed portions of the records showing a history of false accusations and manipulation of male partners. That evidence was devastating to the government’s case, and the accused was acquitted.

Know Administrative Paths and Collateral Actions

Not every allegation results in a court-martial. Commanders have several administrative tools to address misconduct without resorting to criminal prosecution. These include non-judicial punishment (NJP) under Article 15, administrative separation proceedings, and adverse administrative actions such as letters of reprimand or involuntary reassignment. Each of these mechanisms carries serious consequences—loss of rank, pay, or separation from service—but they do not result in a criminal conviction or sex offender registration.

Your attorney should explore whether an administrative resolution is possible and, if so, whether it is in your best interest. In some cases, accepting a letter of reprimand or even an administrative separation may be preferable to the risk of a court-martial conviction and incarceration. In other cases, fighting aggressively at every stage—investigation, NJP, Article 32, trial—is the only viable strategy. The decision is fact-specific and requires a candid risk-benefit analysis with your attorney.

GOMORs, Flags, and Adverse Paperwork Risks

A General Officer Memorandum of Reprimand (GOMOR) is one of the most serious adverse administrative actions in the Army. A GOMOR is a written reprimand issued by a general officer and filed in the soldier’s official personnel file. Once filed, a GOMOR is a career-ender—it will prevent promotion, block reenlistment, and often result in involuntary separation. Even if you are acquitted at court-martial, the GOMOR may remain in your file unless you successfully appeal it through the Army Review Boards Agency.

Flags are administrative holds placed on a service member’s personnel record, typically when under investigation or facing disciplinary action. A flag prevents promotion, reenlistment, training, and awards. Flags can last for months or even years while a case is pending, effectively freezing your career. Your attorney can request that the flag be lifted or modified, but success depends on the strength of your defense and the command climate.

Adverse paperwork—letters of counseling, admonition, or reprimand—can be filed at various levels of the chain of command. Even a letter of counseling, the least severe form, can damage your career if it references the sexual assault allegation. Your attorney should fight to keep adverse paperwork out of your file or, if it is already filed, to have it removed or rebutted.

Tip 6: Leverage the Article 32 Preliminary Hearing Strategically

The Article 32 preliminary hearing is one of the most critical stages of a court-martial case, yet it is often misunderstood and underutilized by the defense. The Article 32 hearing is not a trial. It is a pre-referral investigation designed to determine whether there is probable cause to believe that an offense was committed and that the accused committed it. But in the hands of a skilled defense attorney, the Article 32 hearing becomes a powerful tool for cross-examining the accuser, locking in witness testimony, and persuading the convening authority to dismiss or reduce charges.

Work with Experienced Article 32 Hearing Counsel on Scope and Witnesses

The scope of the Article 32 hearing is determined by the preliminary hearing officer (PHO), but the defense can influence that scope by filing motions to call specific witnesses, request production of documents, and cross-examine government witnesses. Your attorney should prepare a detailed witness list and explain to the PHO why each witness is relevant and necessary. In many cases, the government will argue that certain witnesses are unnecessary or that the defense is engaged in a “fishing expedition.” A persuasive defense attorney can counter these arguments by showing how each witness’s testimony will shed light on critical issues such as consent, credibility, or motive to fabricate.

If the PHO denies your request to call a witness, your attorney should make a detailed record for appeal. In a 2021 case at Fort Campbell, the PHO refused to allow the defense to call a witness who could testify about the accuser’s reputation for dishonesty. The case proceeded to trial, the accused was convicted, and the defense appealed the conviction on the ground that the denial of the witness at the Article 32 hearing violated the accused’s right to present a defense. The Army Court of Criminal Appeals agreed and reversed the conviction.

Seek Production of Critical Witnesses and Records

The Article 32 hearing is your opportunity to compel the government to produce witnesses and records that it might otherwise hide. If the accuser has made prior false accusations, your attorney should request the investigative files from those prior cases. If the accuser has a history of mental health treatment, your attorney should request her medical records, subject to a balancing test between the accused’s right to confrontation and the accuser’s privacy interests. If there are text messages or social media posts that undermine the accuser’s credibility, your attorney should request them and cross-examine the accuser about them.

In many cases, the government will resist production of exculpatory evidence, claiming that it is privileged, irrelevant, or protected by the accuser’s privacy rights. A skilled defense attorney will file motions to compel production and, if necessary, appeal the PHO’s rulings to the convening authority or the military judge.

Challenge Reliability, Bias, and Prior Inconsistent Statements

The Article 32 hearing is your chance to cross-examine the accuser under oath, before she has been coached by prosecutors for trial. Your attorney should meticulously compare her Article 32 testimony to her prior statements—to investigators, to friends, on social media—and highlight every inconsistency. Even minor inconsistencies can be magnified at trial to attack her credibility. For example, if she testified at the Article 32 hearing that she said “no” three times, but told investigators she said “stop” twice, that inconsistency can be used at trial to argue that her memory is unreliable or that she is tailoring her testimony to fit the legal elements of the offense.

Your attorney should also probe for bias, motive to fabricate, and emotional instability. Does the accuser have a financial motive—such as a pending medical discharge or compensation claim? Does she have a personal grudge against the accused? Does she have a history of false accusations or attention-seeking behavior? All of this is fair game at the Article 32 hearing, subject to the rules of evidence and the military judge’s rulings on relevance and prejudice.

Use the Hearing to Shape Motions and Trial Strategy

The Article 32 hearing is not just about cross-examining the accuser. It is also about gathering information that will inform your motions practice and trial strategy. For example, if the accuser testifies at the Article 32 hearing that she did not consent because she was too intoxicated to understand what was happening, your attorney can use that testimony to file a motion to compel production of her blood alcohol content, toxicology results, or witness testimony about her level of intoxication. If she testifies that the accused used physical force, your attorney can use that testimony to argue that the absence of physical injuries is exculpatory.

In a 2020 case at Naval Station Great Lakes, the accuser testified at the Article 32 hearing that the accused had forcibly dragged her into his barracks room and pinned her to the bed. Defense counsel immediately moved to compel production of video surveillance from the barracks hallway, arguing that the video would show whether the accuser entered the room willingly or was dragged. The government resisted, claiming the video had been overwritten. The military judge ordered the government to produce affidavits from the base security office proving that the video was no longer available. The government’s failure to preserve the video became a central theme at trial, and the jury acquitted.

Preserve Cross-Examination for Impeachment

Every question you ask at the Article 32 hearing, and every answer the accuser gives, is preserved in the transcript. At trial, if the accuser changes her story or contradicts her Article 32 testimony, you can impeach her with her prior inconsistent statements. This is one of the most powerful tools in cross-examination, and it is only available if you conducted a thorough and strategic cross-examination at the Article 32 hearing.

Identify Discovery Gaps and Expert Needs

As you listen to the government’s evidence at the Article 32 hearing, you will identify gaps—evidence the government should have collected but did not, or evidence the government has but is not disclosing. Your attorney should make a detailed record of these gaps and file discovery motions to compel production. Similarly, the Article 32 hearing will reveal the need for defense experts—forensic scientists, psychologists, digital forensics analysts—who can challenge the government’s evidence or present alternative theories. The earlier you identify these expert needs, the more time your expert will have to conduct a thorough analysis and prepare a compelling report.

Tip 7: Develop Defense Theories and Pretrial Motions Early

A successful defense is built on a coherent theory of the case—a narrative that explains why the accuser is wrong, mistaken, or lying. Your attorney should develop this theory early, test it against the evidence, and use pretrial motions to exclude harmful evidence and compel disclosure of favorable evidence.

Assess Consent, Mistake of Fact as to Consent, Alibi, and Misidentification

There are four primary defense theories in Article 120 cases. First, consent: the accuser consented to the sexual act. This is a complete defense, and it can be proven through text messages, witness testimony, or the accuser’s own words and actions. Second, mistake of fact as to consent: even if the accuser did not subjectively consent, the accused reasonably believed she was consenting based on her words and conduct. This is also a complete defense. Third, alibi: the accused was not present when the alleged assault occurred. Fourth, misidentification: the accuser was assaulted by someone else and mistakenly or intentionally identified the accused.

Each theory requires different evidence and different expert testimony. Your attorney should evaluate which theory fits the facts and focus the defense on that theory. In some cases, multiple theories can be advanced—for example, consent as the primary theory and mistake of fact as a fallback. But a scattershot approach—arguing consent, alibi, and misidentification simultaneously—can confuse the jury and undermine your credibility.

Examine Motive to Fabricate, Memory Contamination, or Command Pressure

Even if you cannot prove your defense theory beyond a reasonable doubt, you can create reasonable doubt by attacking the accuser’s credibility. Does she have a motive to fabricate? Common motives include revenge after a breakup, regret after consensual sex, financial gain, or avoidance of military discipline. In a 2022 case at Tinker Air Force Base, the accuser admitted under cross-examination that she had been facing an Article 15 for underage drinking on the night of the alleged assault and that her Special Victims’ Counsel had advised her that a sexual assault report would likely result in the Article 15 being dropped. That admission created reasonable doubt, and the jury acquitted.

Memory contamination occurs when the accuser’s recollection of events is influenced by suggestive questioning, repeated interviews, or discussions with friends, family, or victim advocates. Human memory is malleable, and research in cognitive psychology shows that memory can be distorted or entirely fabricated through suggestive techniques. Your attorney should retain a memory expert—typically a psychologist with expertise in eyewitness identification and memory—to testify about how the accuser’s memory may have been contaminated.

Command pressure refers to institutional or cultural pressures on the accuser to report an assault, on investigators to substantiate an allegation, or on commanders to prefer charges. The military has faced intense scrutiny over its handling of sexual assault cases, and many service members and advocates believe that commands are now overreacting by prosecuting weak cases to avoid criticism. If you believe your case is the product of command pressure—for example, if your commander has publicly stated that he has “zero tolerance” for sexual assault or if your case has attracted media attention—your attorney should investigate whether unlawful command influence (UCI) has occurred. UCI is a violation of Article 37 of the UCMJ and can be grounds for dismissal of charges or reversal of a conviction.

Use Digital Timelines to Test Narratives

Digital evidence provides an objective, time-stamped record of events that can corroborate or contradict the accuser’s narrative. Your attorney should construct a detailed digital timeline using text messages, call logs, location data, social media posts, and keycard swipes. This timeline should be compared to the accuser’s timeline to identify inconsistencies. For example, if the accuser claims she was too drunk to consent at 2300 hours, but her text messages show she was coherent and flirtatious at 2330, that is powerful impeachment evidence. If the accuser claims the accused forced her to his barracks room at 2200, but location data shows she did not arrive at the barracks until 2245, her timeline is false.

File Targeted Motions and Hire Experts as Needed

Pretrial motions are the engine of your defense. Your attorney should file motions to suppress unlawfully obtained evidence, to compel discovery of exculpatory evidence, to exclude unreliable expert testimony, and to dismiss charges on speedy trial or other constitutional grounds. Each motion should be meticulously researched, supported by legal authority, and tailored to the specific facts of your case.

Experts are often indispensable. A forensic medical expert can challenge the SANE exam. A psychologist can testify about memory contamination or the accuser’s mental health. A digital forensics expert can recover deleted messages or demonstrate that the government’s forensic analysis was incomplete. A toxicologist can testify about the effects of alcohol on consent and memory. Your attorney should identify the need for experts early and budget for their fees, which can range from a few thousand dollars to tens of thousands depending on the complexity of the case.

Suppress Unlawful Searches or Involuntary Statements

If investigators searched your phone, barracks, or vehicle without a warrant or without valid consent, your attorney should file a motion to suppress the evidence obtained. The Fourth Amendment protects service members from unreasonable searches, and evidence obtained in violation of the Fourth Amendment is inadmissible at trial. Similarly, if you made a statement to investigators without being advised of your Article 31(b) rights, or if your statement was the product of coercion or deception, your attorney should file a motion to suppress the statement.

In a 2021 case at Camp Lejeune, an NCIS agent told a Marine lance corporal that if he did not “come clean,” the agent would “make sure your command throws the book at you.” The lance corporal, fearing harsher punishment, confessed to the assault. Defense counsel filed a motion to suppress the statement, arguing that the threat of adverse command action rendered the confession involuntary. The military judge agreed and suppressed the statement. Without the confession, the government had no case, and the charges were dismissed.

Enforce Brady/Giglio and Compel Exculpatory Evidence

Brady v. Maryland and Giglio v. United States require the government to disclose all evidence that is favorable to the accused, either because it tends to show innocence or because it impeaches the credibility of a government witness. This obligation is broad, and it includes evidence in the possession of investigators, prosecutors, and other government agencies. Your attorney should file a detailed Brady/Giglio motion demanding disclosure of all witness statements, investigative reports, forensic results, and impeachment material. If the government fails to disclose Brady material, your attorney should move for dismissal of charges or, if the evidence is disclosed mid-trial, for a mistrial or new trial.

Tip 8: Manage Collateral Misconduct and Command Interactions

Sexual assault allegations rarely stand alone. Prosecutors routinely charge collateral misconduct—adultery, fraternization, alcohol-related offenses, or violations of orders—to bolster their case and to undermine your credibility. These collateral charges can result in additional punishment and can prejudice the jury against you. Managing collateral misconduct, and managing your interactions with your chain of command, is a critical component of your defense.

Avoid Self-Incrimination on Alcohol Use, Fraternization, or Adultery

If the alleged assault occurred after a night of drinking, prosecutors will likely charge you with drunk and disorderly conduct, underage drinking (if applicable), or violation of a general order prohibiting alcohol consumption. If the accuser is a subordinate, you will be charged with fraternization. If you are married, you will be charged with adultery. Each of these collateral charges carries a maximum punishment of discharge and confinement, and each can be used by prosecutors to argue that you are a “bad” service member who disregards rules and lacks integrity.

Do not admit to collateral misconduct. If investigators ask whether you were drinking, invoke your Article 31(b) rights. If they ask whether you were in a relationship with the accuser, invoke your rights. If they ask whether you are married, invoke your rights. Yes, your marriage status is a matter of public record, but admitting it in an interview waives your Fifth Amendment protection against self-incrimination and can be used against you at trial.

Your attorney can negotiate with prosecutors to dismiss or reduce collateral charges in exchange for your cooperation, a pretrial agreement, or other concessions. But those negotiations should be conducted by your attorney, not by you. Any admission you make to investigators or your chain of command is evidence that can be used against you.

Route All Command Communications Through Counsel

Your commander is not your friend. Your first sergeant is not your counselor. Your chain of command is part of the prosecutorial machinery, and anything you say to them can and will be used against you. If your commander asks to speak with you about the investigation, politely decline and refer him to your attorney. If he orders you to answer questions, invoke your Article 31(b) rights. An order to answer questions does not override your constitutional protections, and your refusal to answer cannot be used against you or punished as insubordination.

In a 2020 case at Fort Drum, an Army captain was ordered by his battalion commander to provide a statement about an alleged sexual assault. The captain, believing he was required to obey the order, gave a detailed statement in which he admitted to having sex with the accuser but claimed it was consensual. The battalion commander forwarded the statement to CID, and it became the cornerstone of the government’s case. The captain’s defense counsel argued that the statement was involuntary and should be suppressed, but the military judge ruled that the captain had been properly advised of his rights and had voluntarily waived them. The captain was convicted and sentenced to two years confinement and dismissal.

Seek Immunity Discussions Only via Your Lawyer

In some cases, the government may offer you immunity from prosecution in exchange for your testimony against a co-accused or for your cooperation in the investigation. Immunity agreements are complex legal instruments that must be negotiated by your attorney. Do not attempt to negotiate immunity on your own, and do not agree to testify or provide information without a signed immunity agreement in hand. Even with immunity, your testimony can be used against you in collateral proceedings—administrative separations, security clearance revocations, or civil lawsuits.

Protect Duty Status, Evaluations, and Access

While your case is pending, your command may attempt to restrict your duties, reassign you to a different unit, or place you on administrative leave. These actions can damage your career and can signal to a jury that your command believes you are guilty. Your attorney should fight to keep you in your current assignment and to ensure that you continue to receive fair performance evaluations. If your command issues a negative evaluation or a flag that prevents promotion or reenlistment, your attorney can file a rebuttal or request a board of inquiry to contest the action.

Contest Overbroad Restrictions Affecting Your Career

Military Protective Orders sometimes include provisions that restrict your access to weapons, your ability to deploy, or your participation in training. If these restrictions are overbroad or unsupported by evidence, your attorney should request that the command modify or lift them. For example, if you are a military police officer and the MPO prohibits you from carrying a weapon, you cannot perform your duties, and your career is effectively over. Your attorney can argue that less restrictive measures—such as increased supervision or reassignment to a non-weapons-bearing position—are sufficient to protect the accuser while preserving your livelihood.

Document Any Retaliation or Unlawful Command Influence

If you believe your command is retaliating against you for invoking your legal rights, or if you believe your command is pressuring your chain of command to prefer charges or to recommend a harsh punishment, document everything. Keep copies of all emails, counseling statements, and orders. Take notes of all conversations. If your commander makes statements like “we need to make an example of him” or “I don’t care what the evidence shows, I’m referring this to court-martial,” those statements are evidence of unlawful command influence and can be grounds for dismissal of charges or reversal of a conviction.

Tip 9: Build Mitigation and Parallel Paths from Day One

Even if you believe you will be acquitted, you must prepare for the possibility of conviction. Mitigation—evidence presented at sentencing to reduce your punishment—should be built from the day charges are preferred. Mitigation is not an afterthought. It is a core component of your defense strategy, and it requires as much attention and resources as your pretrial motions and trial preparation.

Assemble Mitigation: Awards, Deployments, NCOER/OER, Volunteerism, Treatment

Mitigation evidence shows the jury who you are beyond the charges. It includes your military awards and decorations, your deployment history, your performance evaluations, your letters of appreciation from commanders and peers, your volunteer work in the community, and any rehabilitation or treatment you have undertaken. Your attorney should assemble a comprehensive mitigation packet—including copies of every award, every evaluation, every letter—and present it to the jury during the sentencing phase of the trial.

In a 2021 case at Fort Carson, an Army specialist was convicted of sexual assault and faced a mandatory minimum sentence of two years confinement. Defense counsel presented a mitigation case that included the specialist’s Bronze Star from a combat deployment, his spotless performance record, and letters from his battalion commander, his platoon sergeant, and the Gold Star family he had supported through a nonprofit. The jury sentenced him to the mandatory minimum and recommended clemency. The convening authority approved the clemency recommendation and suspended all but six months of confinement.

Secure Credible Character and Duty Performance Letters

Character letters are most effective when they come from credible, high-ranking, or respected sources. A letter from a general officer, a command sergeant major, or a Medal of Honor recipient carries more weight than a letter from a peer or a family member. Your attorney should identify potential letter writers and provide them with guidance on what to include: specific examples of your integrity, professionalism, and service; observations of your character over time; and a statement that the writer believes you are capable of rehabilitation and continued service.

Consider Behavioral Health Records, If Helpful and Strategic

If you have sought treatment for post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), depression, or other mental health conditions, that treatment may be relevant to your defense or to mitigation. For example, if you suffer from PTSD and the alleged assault occurred during a flashback or dissociative episode, that is a defense to the charges. If you suffer from depression and the alleged assault was the product of impaired judgment during a mental health crisis, that is mitigation. However, introducing mental health evidence is a double-edged sword. It can be used by the prosecution to argue that you are dangerous or unstable and that a harsh sentence is necessary to protect the public. Your attorney should carefully weigh the risks and benefits of introducing mental health evidence and should retain a forensic psychologist to evaluate you and testify on your behalf.

Prepare for Administrative and Post-Trial Options

If you are convicted at court-martial, your case does not end. You have the right to appeal your conviction to the service Court of Criminal Appeals, and if that appeal is unsuccessful, to the Court of Appeals for the Armed Forces and ultimately to the Supreme Court of the United States. Appeals are complex and time-consuming, but they are often successful. According to data from the Judge Advocate General’s Corps, approximately 20 percent of court-martial convictions are reversed or modified on appeal.

You also have administrative remedies. If you are separated from the service with a less-than-honorable discharge, you can apply to the Board for Correction of Military Records or the Discharge Review Board to upgrade your discharge. If you are required to register as a sex offender, you may be able to petition for removal from the registry after a period of years, depending on the laws of your state and the severity of your offense.

Administrative Separation Board Defense and Discharge Upgrades

If you are acquitted at court-martial but your command initiates administrative separation proceedings, you have the right to a hearing before an administrative separation board. The board will determine whether you should be retained or separated and, if separated, what characterization of discharge you should receive—honorable, general under honorable conditions, or other than honorable. Your attorney should represent you at the separation board and present evidence of your rehabilitative potential, your value to the service, and the unfairness of separating you after an acquittal.

Clemency, Appeals, and Post-Trial Submissions

After conviction, you have ten days to submit matters in clemency to the convening authority. This is your opportunity to ask the convening authority to reduce your sentence, to set aside your conviction, or to grant other relief. Your attorney should prepare a detailed clemency submission that includes additional mitigation evidence, legal arguments challenging the sufficiency of the evidence, and statements from supporters asking for leniency. Clemency is granted in a minority of cases, but it is worth pursuing.

Tip 10: Choose the Right Team and Execute a Written Plan

The success of your defense depends on the skill, experience, and dedication of your legal team. Choosing the right team is the most important decision you will make, and executing a written defense plan ensures that every step of your case is carefully coordinated and no opportunity is missed.

Vet Civilian-Military Teams for Article 120 Sexual Assault Defense Results

Not all defense attorneys are equally skilled or experienced. When evaluating potential counsel, ask for their case results. How many Article 120 cases have they defended in the past three years? How many resulted in acquittal? How many resulted in pre-referral dismissal? How many resulted in reduced charges or sentences? Ask for references from former clients. Read reviews on legal directories like Avvo, Martindale-Hubbell, and Super Lawyers. Search for the attorney’s name in published military case law to see if their cases have been appealed and, if so, whether the appeals were successful.

Ask About Published Case Results and Media Features

Attorneys who have achieved significant results often publicize them on their websites or in the media. Look for press releases, news articles, or blog posts describing the attorney’s victories. Be wary of attorneys who make vague or unsupported claims of success. A reputable attorney will provide specific, verifiable case results and will be willing to discuss them in detail during your consultation.

Confirm 24/7 Responsiveness and Expert Network

Military investigations move quickly, and crises can occur at any time. Your attorney must be available—by phone, text, or email—around the clock. Ask how quickly the attorney typically responds to client inquiries. Ask who will cover for the attorney if he or she is unavailable due to trial, vacation, or other commitments. Confirm that the attorney has a network of experts—forensic scientists, psychologists, digital forensics analysts—who can be retained on short notice.

Align on Clear Roles, Timelines, and Budget

At the outset of your representation, your attorney should provide a written engagement agreement that spells out the scope of representation, the attorney’s fees, and the anticipated timeline for your case. The agreement should clearly define what services are included and what services will require additional fees. For example, does the initial retainer cover only the Article 32 hearing, or does it cover the entire trial? If you are convicted, does it cover the appeal? Clarity on these issues prevents misunderstandings and ensures that you can budget appropriately.

Insist on Regular Evidence Reviews and Updates

Your attorney should provide regular updates on the status of your case—at minimum, weekly during active investigation and pretrial phases, and daily during trial. You should receive copies of all significant documents—investigative reports, witness statements, motions, and court orders—as they are received. Your attorney should schedule periodic meetings to review the evidence, discuss strategy, and answer your questions. You are not a passive participant in your defense. You are a partner, and your input is valuable.

Rehearse Key Testimony and Hearing/Trial Goals

If you decide to testify at trial—a decision that should be made only after careful consultation with your attorney—you must be thoroughly prepared. Your attorney should conduct multiple mock cross-examinations, simulating the types of questions the prosecutor will ask and the demeanor the prosecutor will adopt. You should practice answering difficult questions calmly, concisely, and credibly. You should rehearse how to handle traps—questions designed to elicit an inconsistent answer or an emotional outburst. Even if you do not testify, you and your attorney should rehearse opening statements, closing arguments, and objections to ensure that your defense is presented clearly and persuasively.

When and How to Contact Counsel—Practical Scripts and Channels

The first hours after an allegation are chaotic. You may feel panicked, confused, or angry. You may be tempted to call the accuser, to post on social media, or to explain your side of the story to investigators. Resist these impulses. Instead, follow the scripts and procedures outlined below to protect your rights and to contact qualified legal counsel as quickly as possible.

What to Say If Stopped by NCIS, CID, or OSI

If an investigator approaches you—at your barracks, at your workplace, or in public—use the following script verbatim: “I am invoking my right to remain silent under Article 31(b) of the Uniform Code of Military Justice. I want to speak with a lawyer. I do not consent to any search of my person, my belongings, my vehicle, or my living quarters. I will not answer any questions without my attorney present. Am I free to leave?” Repeat this script as many times as necessary. Do not engage in small talk. Do not answer “just one question.” Do not sign anything. If the investigator persists, remain calm and repeat the script. If the investigator detains you or places you under apprehension, comply physically but continue to assert your rights verbally.

“I Want a Lawyer. I Do Not Consent to Any Search.”

This sentence is your shield. Memorize it. Practice it. Use it. Investigators are trained to make you believe that asserting your rights is a sign of guilt or that cooperation will make things easier. They are wrong. Asserting your rights is the single most effective way to protect yourself, and silence cannot be used as evidence of guilt.

“I Will Not Answer Questions Without My Attorney Present.”

This sentence closes the door on further interrogation. Once you invoke your right to counsel, investigators are required to cease questioning. If they continue to question you after you invoke, any statements you make are inadmissible. However, some investigators will ignore your invocation or will attempt to re-initiate contact after a period of time. If this happens, repeat your invocation and document the investigator’s conduct. Your attorney can use this evidence to argue that your rights were violated and that any statements should be suppressed.

Fast Ways to Connect and What to Send First

As soon as you are safe and alone, contact a military defense attorney. Use the phone number, email address, or web form provided on the attorney’s website. Many attorneys offer free initial consultations, and many are available for emergency consultations outside normal business hours. When you contact the attorney, provide the following information: your name, rank, branch of service, and installation; a brief summary of the allegation; the name of the investigative agency (NCIS, CID, OSI, CGIS); whether you have been interviewed or detained; and whether any searches have been conducted. This information will allow the attorney to assess the urgency of your case and to provide immediate advice.

Text or Upload Timelines, Screenshots, and Witness Info Securely

After your initial consultation, your attorney will provide instructions on how to securely transmit evidence. Use encrypted email, secure file-sharing platforms like Dropbox or Google Drive with password protection, or attorney-client portals. Do not send evidence via unencrypted text message or unsecured email, as these communications may be intercepted or subpoenaed. Organize your evidence into folders—text messages, photos, social media, location data, witness names—and label each file with a date and a brief description.

FAQs Beginners Ask in Article 120 Cases

Can I Be Ordered to Give My Phone or Passcode?

No. You cannot be ordered to consent to a search of your phone or to provide your passcode. An order to consent to a search is unconstitutional, and refusing to obey such an order is not insubordination. However, if investigators obtain a warrant to search your phone, you may be required to unlock it. The law on this issue is evolving, and it varies depending on whether your phone is protected by a passcode (which may be protected by the Fifth Amendment) or by biometrics like a fingerprint or face recognition (which may not be protected). If you are presented with a warrant, do not resist physically, but immediately contact your attorney to review the warrant and to determine whether it can be challenged.

You Can Decline Consent; Get a Warrant Reviewed by Counsel

If investigators ask for your phone, your correct response is: “I do not consent to a search. If you have a warrant, I want my attorney to review it before I comply.” Hand the warrant to your attorney, who will examine it for defects. Common defects include lack of probable cause, over-breadth (the warrant authorizes a search of more data than is relevant to the investigation), or staleness (the information supporting the warrant is outdated). If the warrant is defective, your attorney will file a motion to suppress the evidence obtained.

Never Volunteer Passwords Without Attorney Advice

Even if presented with a warrant, do not volunteer your passwords or passcodes. Investigators may claim that voluntarily providing the password will “speed things up” or “make things easier,” but this is a trap. By voluntarily providing the password, you waive your Fifth Amendment protection against self-incrimination and undermine any later argument that the search was unlawful. Instead, tell the investigator: “I want my attorney to review the warrant before I provide any passwords. I am invoking my right to counsel.” Your attorney can then negotiate the scope of the search and can ensure that the forensic examiner creates a complete image of your device before any analysis begins.

Should I Take a Polygraph to Prove Innocence?

No. Polygraphs are scientifically unreliable, and taking one exposes you to enormous risk with little upside. Even if you “pass” the polygraph, the result is not admissible at trial and will not prevent the government from prosecuting you. If you “fail,” the result will be memorialized in the investigative file and will be used to justify further investigation and to undermine your credibility at trial. Polygraphs measure physiological responses—heart rate, blood pressure, respiration, and galvanic skin response—that are influenced by stress, anxiety, and fear, all of which are present when you are accused of a serious crime. A truthful person can fail a polygraph, and a deceptive person can pass one. The American Psychological Association, the National Academy of Sciences, and the Supreme Court have all recognized the unreliability of polygraphs.

Decline; Results Are Unreliable and Risky

When an investigator offers you a polygraph, use the following script: “I am invoking my right to remain silent and my right to counsel. I will not take a polygraph. I will not answer any questions without my attorney present.” If the investigator suggests that declining the polygraph makes you look guilty, ignore that suggestion. Your attorney will later explain to the jury—if necessary—that polygraphs are unreliable and that declining to take one is a reasonable exercise of your constitutional rights.

Discuss Defense Expert Alternatives with Counsel

In some cases, a defense attorney may recommend that you undergo a private polygraph examination administered by a defense expert. This examination is protected by attorney-client privilege, and the results do not have to be disclosed to the government. If you pass the defense polygraph, your attorney may use that result in negotiations with the prosecution to argue that the case is weak and should be dismissed. If you fail, the result remains privileged and cannot be used against you. However, defense polygraphs are expensive—typically $2,000 to $5,000—and their persuasive value is limited. Discuss this option with your attorney and weigh the costs and benefits carefully.

Working With Your Lawyer to Stay Mission-Ready

Your case may take months or even years to resolve. During that time, you must continue to perform your military duties, maintain your physical and mental health, and preserve your career to the greatest extent possible. This requires discipline, focus, and close coordination with your attorney.

Stabilize Your Career While Building Your Defense

Do not allow the case to consume your life. Continue to show up for work, to perform your duties to the best of your ability, and to maintain positive relationships with your peers and superiors. Document your performance through counseling statements, awards, and letters of appreciation. If your performance suffers because of the stress of the case, seek help through military behavioral health services, the chaplain, or a civilian counselor. Seeking help is not a sign of weakness, and it demonstrates to the jury and to the convening authority that you are taking responsibility for your well-being and your future.

Protect Clearances, Assignments, and Training Opportunities

If you hold a security clearance, an allegation of sexual assault may trigger a clearance review or suspension. Your attorney should work with you to respond to any interrogatories or interviews from the Defense Counterintelligence and Security Agency (DCSA). Be honest in your responses, but do not waive your Fifth Amendment rights. If your clearance is suspended, your attorney can request a hearing to contest the suspension and to present evidence of your trustworthiness and reliability.

Similarly, if you are scheduled for deployment, training, or a change of station, your command may attempt to cancel or delay these opportunities because of the pending case. Your attorney can advocate on your behalf to preserve these opportunities, arguing that you have not been convicted and that you should not be punished before trial.

Document Performance and Counseling Sessions

Keep copies of every counseling statement, every evaluation, and every award you receive. If your command issues negative counseling or a negative evaluation, submit a rebuttal. Your attorney can assist you in drafting the rebuttal to ensure that it is professional, factual, and legally sound. These documents will be critical to your defense—both at trial and in any post-trial administrative proceedings.

Communication Habits That Win Cases

Effective communication with your attorney is essential. Schedule regular check-ins—weekly during the investigation and pretrial phases, daily during trial. Use these check-ins to review new evidence, to discuss strategic decisions, and to address your questions and concerns. If you discover new evidence—a text message you forgot about, a witness you did not mention, a document that undermines the accuser’s story—report it to your attorney immediately. Delayed disclosure can undermine your credibility and can limit your attorney’s ability to use the evidence effectively.

Weekly Evidence Check-Ins; Use Secure Channels

Set a recurring reminder to review your evidence and to send updates to your attorney. Use secure, encrypted channels for all communications. Do not discuss the case over unsecured phone lines, unencrypted email, or social media. Assume that all communications may be monitored or subpoenaed.

Keep a Privileged Journal of Facts and Leads

Consider keeping a journal—written by hand, not on a computer or phone—in which you document your recollection of events, your thoughts about the case, and any leads or ideas that occur to you. Label the journal “Attorney-Client Privileged” on every page. This journal is protected by attorney-client privilege and cannot be subpoenaed by the government. However, do not include anything in the journal that you would not want a jury to see. If the government claims you waived privilege by discussing the case with a third party, the journal may be discoverable.

Key Terms and Roles You’ll Encounter

Understanding the roles and terminology of the military justice system will help you navigate your case more effectively and will allow you to communicate more clearly with your attorney.

Understand Investigators, Prosecutors, and Victim Counsel Roles

Investigators—NCIS, CID, OSI, or CGIS agents—gather evidence on behalf of the government. They are not neutral. They are tasked with building a case to support prosecution. Prosecutors—military trial counsel—are judge advocates who represent the United States in courts-martial. Their job is to prove your guilt beyond a reasonable doubt. Victim counsel—also known as Special Victims’ Counsel (SVC) or Victims’ Legal Counsel (VLC)—are attorneys who represent the accuser’s legal interests. They are not neutral advocates for truth. They are advocates for the accuser, and their role is to maximize the accuser’s participation in the process and to protect her privacy and dignity.

NCIS/CID/OSI Investigators Gather Evidence for Command

Each branch of service has its own investigative agency. The Naval Criminal Investigative Service (NCIS) investigates Navy and Marine Corps cases. The Army Criminal Investigation Division (CID) investigates Army cases. The Air Force Office of Special Investigations (OSI) investigates Air Force and Space Force cases. The Coast Guard Investigative Service (CGIS) investigates Coast Guard cases. These agencies operate independently of the chain of command, but they report their findings to commanders, who then decide whether to prefer charges.

SVC/VLC Represent the Complainant’s Legal Interests

Special Victims’ Counsel (SVC) in the Army, Air Force, and Coast Guard, and Victims’ Legal Counsel (VLC) in the Navy and Marine Corps, are military attorneys who represent the accuser. They advise the accuser on her rights, assist her in navigating the military justice process, and advocate on her behalf in court. They may file motions to protect the accuser’s privacy, to exclude evidence of the accuser’s prior sexual behavior, or to allow the accuser to testify remotely. Your attorney must be prepared to oppose these motions and to protect your right to confrontation.

Your Defense Team’s Composition and Value

If you are facing a court-martial, you are entitled to free military defense counsel—a judge advocate assigned to represent you. Military defense counsel are competent and dedicated, but they are often overworked and may lack the specialized experience and resources necessary to defend a complex sexual assault case. You have the right to hire a civilian defense attorney at your own expense. Many service members choose to hire civilian counsel because civilian attorneys often have more experience, more time to devote to your case, and access to a broader network of experts and investigators. Ideally, your defense team will include both your detailed military counsel and a civilian attorney working together to provide comprehensive representation.

Civilian Counsel Plus Detailed Counsel Maximize Coverage

Your civilian attorney should work collaboratively with your detailed military counsel. Military counsel brings institutional knowledge—familiarity with the local court, the judges, and the prosecutors—while civilian counsel brings experience, resources, and an independent perspective. Together, they can provide a level of representation that neither could provide alone.

Experts: Forensics, Psychology, Digital, and DNA

Experts are often decisive in sexual assault cases. Forensic medical experts can challenge the SANE exam. Psychologists can testify about memory, trauma, and the dynamics of false allegations. Digital forensics experts can recover deleted messages, analyze metadata, and demonstrate that the government’s forensic analysis was incomplete or flawed. DNA experts can testify about the limitations of DNA evidence and about the possibility of contamination or secondary transfer. Your attorney should identify the need for experts early and should budget for their fees. Experts typically charge $300 to $500 per hour for their time, plus expenses.

Smart Next Steps in the First 72 Hours

The first 72 hours after you learn you are under investigation are the most critical. During this window, evidence can be lost, witnesses’ memories fade, and your rights can be irrevocably compromised. Follow the steps below to protect yourself and to lay the groundwork for a successful defense.

Map Immediate To-Dos with Your Attorney

As soon as you retain counsel, schedule an emergency strategy session. Your attorney should prepare a checklist of immediate tasks: invoke Article 31(b) rights, decline all searches and polygraphs, preserve digital evidence, identify witnesses, and draft a timeline. Assign responsibility for each task and set deadlines. Your attorney should take the lead on legal tasks—filing motions, contacting prosecutors, requesting discovery—while you focus on evidence preservation and witness identification.

Evidence Preservation Plan and Device Imaging

Your attorney should retain a digital forensics expert to create a forensic image of your phone, your computer, and any other devices that may contain relevant evidence. This imaging should be done immediately, before the government seizes your devices or before you inadvertently delete or overwrite data. The forensic expert will create a bit-by-bit copy of your device’s storage, including deleted files, metadata, and hidden partitions. This image is your insurance policy. Even if the government later claims that you destroyed evidence, you can prove that you preserved everything by providing the forensic image.

Witness Outreach Through Counsel Only

Your attorney should immediately begin identifying and interviewing potential witnesses. Do not contact witnesses yourself. Any contact by you risks tainting the witness’s testimony and can be charged as witness tampering or obstruction. Instead, provide your attorney with a list of potential witnesses and any information you have about how to contact them. Your attorney will conduct confidential, privileged interviews and will advise you on which witnesses are helpful and which are harmful.

Anticipate Near-Term Events and Deadlines

Work with your attorney to map out the next 30, 60, and 90 days. When is the Article 32 hearing likely to be scheduled? When will the government file its discovery? When are motions due? When is trial likely to occur? Understanding these timelines allows you to plan your life—to request leave, to notify your family, to prepare financially—and ensures that you are not caught off guard by sudden developments.

Command Interviews, MPOs, and Search Attempts

Expect your command to issue a Military Protective Order, to schedule a command-directed interview, or to request that you consent to a search. Your attorney should prepare you for each of these possibilities and should provide you with scripts and procedures to follow. If your command issues an MPO, read it carefully and comply strictly. If your command schedules an interview, decline and invoke your Article 31(b) rights. If your command requests consent to a search, decline and refer the request to your attorney.

Article 32 Scheduling and Discovery Requests

If charges are preferred, the Article 32 hearing will typically be scheduled within 30 to 60 days. Your attorney should immediately file a demand for discovery, requesting all investigative reports, witness statements, forensic results, and exculpatory evidence. The government is required to disclose this information, but it will often delay or resist. Your attorney should file motions to compel production and should request that the military judge impose sanctions if the government fails to comply.

Disposition Pathways and Decision Points

Not every case follows the same path to resolution. Your case may be resolved through negotiation, non-judicial punishment, administrative separation, or trial. Understanding the pros and cons of each pathway—and the decision points at which you must choose—will allow you to make informed, strategic choices.

Evaluate Risks of Diversion, NJP, Administrative, or Trial

Diversion programs—such as special court-martial convening authority deferred prosecution agreements—are rare in sexual assault cases but may be available in cases involving minor misconduct or where the evidence is weak. Non-judicial punishment under Article 15 is a non-criminal administrative process that can result in reduction in rank, forfeiture of pay, restriction, and extra duty, but it does not result in a federal conviction or sex offender registration. Administrative separation can result in discharge from service with a less-than-honorable characterization, but it does not result in confinement or a criminal record. Trial at court-martial is the riskiest option—if you are convicted, you face confinement, discharge, and sex offender registration—but it is also the only option that allows you to fully challenge the government’s evidence and to secure an acquittal.

Pros and Cons Relative to Long-Term Career Goals

Your decision should be guided by your long-term goals. If you plan to retire after 20 years of service, avoiding a conviction at all costs may be your priority. If you are early in your career and plan to leave the military in a few years, minimizing the immediate punishment may be more important than preserving your military record. If you are innocent and the evidence supports your innocence, going to trial may be the only honorable option. Your attorney will help you evaluate these trade-offs and will provide candid advice about the risks and benefits of each pathway.

Impact on Benefits, Rank, and Discharge

A conviction at court-martial can result in the loss of all military benefits—retirement pay, health care, education benefits, and veterans’ preference in federal employment. A bad-conduct discharge or dishonorable discharge will follow you for life, affecting your ability to obtain employment, housing, and credit. Even a general discharge under honorable conditions can limit your access to certain veterans’ benefits. Your attorney should explain these collateral consequences clearly and should factor them into the negotiation strategy.

Negotiate from a Position of Strength

Negotiation is most effective when you have leverage—strong exculpatory evidence, credible witnesses, or legal defenses that undermine the government’s case. Your attorney should use the Article 32 hearing, pretrial motions, and defense expert reports to demonstrate the weaknesses in the government’s case and to persuade the convening authority or the trial counsel that a negotiated resolution is in everyone’s interest. However, negotiation requires give and take. Be prepared to make concessions—such as accepting responsibility for collateral misconduct—in exchange for dismissal or reduction of the sexual assault charges.

Use Motions, Experts, and Impeachment Leverage

Every successful motion to suppress evidence, every expert report that undermines the government’s case, and every cross-examination that exposes the accuser’s inconsistencies increases your leverage in negotiations. Your attorney should use these tools aggressively to shape the government’s perception of the case and to create opportunities for favorable resolution.

Preserve Trial Posture While Exploring Resolutions

Even while negotiating, your attorney should continue to prepare for trial. Discovery deadlines, expert deadlines, and motion deadlines do not pause during negotiations. If negotiations fail, you must be ready to go to trial immediately. Preserving your trial posture—keeping your witnesses available, your experts prepared, and your motions filed—ensures that you do not lose leverage by appearing unprepared or uncommitted.

Resource Hub and Who to Call

Defending a military sexual assault case requires a network of resources—legal, investigative, and personal. Building this network early will ensure that you have the support you need when you need it.

Build Your Personal Glossary and FAQ List with Counsel

Military justice is full of jargon—ROI, Article 32, PHO, SVC, Brady, Giglio, RCM, MCM. Your attorney should provide you with a glossary of terms and should patiently explain each acronym and concept. Create your own FAQ list—questions you have about the process, the law, and your case—and review it with your attorney at each meeting. The more you understand, the more effectively you can participate in your defense.

Clarify Every Acronym and Deadline You Face

Do not be afraid to ask questions. If your attorney uses a term you do not understand, ask for clarification. If your attorney mentions a deadline, write it down and confirm the date and time. If you are unsure about a strategic decision, ask your attorney to explain the reasoning behind it. You are the client, and you have the right to understand every aspect of your case.

Track Tasks in a Shared Case Checklist

Create a shared checklist—either on paper or in a secure digital format—that lists every task, every deadline, and every milestone in your case. Assign responsibility for each task and set due dates. Review the checklist at every meeting with your attorney and update it as new tasks arise. This checklist will keep you organized, reduce stress, and ensure that nothing falls through the cracks.

Connect with the Right Team Fast

Time is your enemy. Every day that passes without legal representation is a day that evidence is lost, witnesses forget, and your rights are at risk. Contact a qualified military court martial lawyer immediately—by phone, text, or web form. Many attorneys offer free initial consultations and can provide emergency advice within hours. Do not wait. Do not hope the problem will go away. Act now to protect your future.