Written by attorney Matthew Scott James

7 Common Myths: Military Sexual Assaults (Article 120 UCMJ)

Military Sexual Assaults are a hot issue in Congress and with senior commanders. Not surprisingly, a lot of bad information has infected military culture. If you are a military member, you owe it to yourself to know the facts.

1. If some one says they are raped or sexually assaulted, they are telling the truth.

False. Sexual assault or rape allegations are easy to make up. You don’t need any injuries or other evidence to prove your claim.

Many Sexual Assault Response Coordinators (“SARCs") teach that most sexual assault claims are true. However, they have no facts or data to support this. According to the Innocence Project, 75% of the cases that courts overturned based on DNA evidence involved eyewitness testimony. This means, simply put, that eyewitnesses get it wrong— even when they believe they are telling the truth.

With military sexual assault, people making claims often have many reasons to lie. The most common cases involve a person cheating on her spouse or boyfriend then claiming rape later. Another common case involves a husband and wife going through a divorce or a custody battle.

2. Sexual assault investigations and prosecutions are about finding the truth.

False. Most law enforcement members have a “guilty until proven innocent" mentality. They will go to great lengths to prove someone guilty, but rarely attempt to find evidence that will prove someone innocent.

Military prosecutors or “trial counsel" often have a similar attitude. Unfortunately, some trial counsel are often more eager to win than get to the truth. In part, this is due to their inexperience. Yet even senior prosecutors claim that their “job is prosecuting sexual assaults." I would have hoped that senior prosecutors would see their job as getting to the truth and providing a fair trial.

Sadly, I have defended sexual assault cases that were investigated at an Article 32 and the investigating officer found there wasn’t enough evidence to go forward. Commanders sometimes decide to go forward anyway. Again, the amount of proof you need to take some one to court-martial is very low.

3. I should cooperate with law enforcement.

False. Law enforcement works for the commander. They will usually be looking to prove their case and find evidence that you did something wrong. If you are innocent, they won’t believe you. Often, they may twist your words or statements to make you look guilty when you are not. Even worse, they can even lie to people to try to get them to confess.

You should always remain silent or make a statement through your military defense lawyer. I’ve been involved in criminal trials for over a decade. 99% of the time, making a statement to law enforcement hurts more than it helps.

4. If a man and a woman are both drunk and have sex, the man raped the woman.

False. This is also a myth unfortunately being spread by Sexual Assault Response Coordinators (SARCs). The law typically requires two things: bad acts (“actus reus") and a guilty mind (“mens rea"). Typically, that means you have to do something wrong and know that you are doing something wrong. As of this post, there is no law that says that having sex while drunk is either a bad act or a guilty mind.

Article 120 of the UMCJ says a person cannot consent if they are asleep or unconscious. It also says that a person may be incapable of consent due to “impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person." Again, this requires two parts: a bad act (sex with some one too drunk to be able to consent) and a guilty mind (the person knows or should have known the person is too drunk to consent).

The key question in these cases is not whether the people were drunk. The question is not whether people do things when they’re drunk that they regret. The question is whether one was too drunk to know what he/she was doing and the other person knew that.

Bottom line, you can still be drunk and consent to sex, whether you are a man or a woman.

5. People who make false sexual assault or rape claims go to jail.

False. Perjury or making a false official statement is a very difficult thing to prove regarding false sexual assault claims. In addition, there is no public outrage at false sexual assault claims.

Most of the time, nothing happens to the person who makes the false allegations.

6. You should talk to your friends and family.

False. Friends and family are often turned into witnesses for the Government, whether they want to or not. If you are facing military court-martial charges, the only person you should be discussing your case with is your lawyer. You should let your legal defense team talk to witnesses and gather evidence.

7. There is no way to protect yourself from false claims.

False. In my experience, false claims usually come when the complaining witness has sex and then regrets it or when the complaining witness has mental problems. In either case, decent behavior and common sense would have led to another outcome.

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