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Thursday, July 17, 2014

CIVILIAN COURT-MARTIAL DEFENSE LAWYERS: Is the Uproar about Alleged Rape/Sexual Assault in the Military Truly Gender Neutral? (UCMJ Article 120)

Military Criminal Defense Lawyer (Former JAG Attorney) News:

The topic of military rape and sexual assault court-martial cases (UCMJ Article 120) continues to dominate the "legal landscape" of the military justice system.  Here is a CAAFlog blog post addressing a case that came before the Navy-Marine Corps Court of Criminal Appeals (NMCCA):

The case addresses, in lay terms, the question of what happens when a drunk guy and a drunk girl have sex (complicated issues of substantial incapacitation aside)...who is the "perpetrator" and who is the "victim?" (Because, of course, drunken sex is now seen as a crime - which it most certainly is not! - so in this brave new military world, there has to be a "perpetrator" and "victim.")

All of the loud voices claiming there's an "epidemic" of rape and sexual assault in the military also claim this is a gender neutral issue - but is it really?  As I remarked in response to this CAAFlog post...

I had a court-martial case in which my male military client was accused of raping a female military member because she was allegedly too drunk (substantially incapitated) to have consented to sex because she had memory issues regarding the events.  This is one of the many myths of the "sexual assault industry" - that drunk sex is a crime.  My client bought the bottle of alcohol with, and at the request of, the female.  They went to the party and the two of them went shot for shot with it – drinking the exact same amount.  Both were drunk and were making out at various locations at the party until they went back into the bedroom together.  She woke up the next day and did not recall what happened between them in the bedroom, just some very spotty recollections and felt like she had had sex.  There were no claims that she protested and he proceeded to have sex with her anyway, just that she didn’t recall so she must have been "too drunk to consent."  During the pretext phone call, he too said he had very little recollection, but what he did recall included her being on top of him and consensually engaging in sex.

My client was charged with rape, the female was labeled a "victim" and the whole enabling culture of the military justice system spun into action.  It was the perfect set up for my motion and argument asking why she wasn’t charged, because they were both drunk, they both had memory issues, and the only difference were their genders – but the motion (selective prosecution and equal protection) failed.  The case was not dismissed.  Ultimately the court members (military "jury") found my client not guilty (full acquittal) and he was returned to duty.  

It was a happy ending to the story, but it begs the question:  Is the Uproar about Alleged Rape/Sexual Assault in the Military Truly Gender Neutral?

For more information about the military justice system, particularly cases alleging rape and/or sexual assault in violation of UCMJ Article 120, Article 125, type “rape” or “sexual assault” into the search bar above the blog posts.  Also, see:

We offer free consultations for a case you may be involved in.  Just call us.

Thank you.    

By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, P.C.

Blog postscript: Attorney Frank J. Spinner and I (attorney Richard V. Stevens) are former active duty military lawyers (JAG). Our perspectives and advice, therefore, are based upon our experience as military defense lawyers and as civilian criminal defense lawyers practicing exclusively in the area of military law and military justice. This blog addresses issues in military law, military justice, military discipline, military defense, court-martial practice, the Uniform Code of Military Justice (UCMJ) and other military and/or legal topics. Nothing posted in this blog should be substituted for legal advice in any particular case. If you seek legal advice for a particular case, please contact The Law Offices of Richard V. Stevens and The Law Office of Frank J. Spinner for a free consultation. These military defense law offices are located in Northern Florida (Pensacola, Ft Walton, Destin, Eglin AFB, Hurlburt Field, Duke Field, Panama City, Tyndall AFB areas) and Colorado Springs, Colorado (FT Carson, Peterson AFB, Air Force Academy, Schriever AFB, Cheyenne Mountain Air Force Station, Buckley AFB areas), but our military defense law practices are worldwide – we travel to wherever our clients are stationed or serving and need us.

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