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DO YOU HAVE A LESS THAN HONORABLE DISCHARGE FROM THE MILITARY?

How to Fight Allegations of Sexual Assault

How to Fight Allegations of Sexual Assault

The media reports constantly about victims of sexual assault in the military, but those falsely accused of sexual assault will feel every bit the victim as their lives comes to a screeching halt and they face repercussions that may be with them for the rest of their lives. If this is you, you’ll be ostracized within your unit, blamed and not believed.  Stress, uncertainty, and emotional and mental depression will be powerful and difficult to overcome. But you CAN fight back! 

False Military Sexual Assault Allegations

There is no doubt…false sexual allegations do happen in the military. A report on the Marine Corps Association website indicates that 7% of sexual assault allegations are not true. In fact, the DOD did a study in 2020 where it looked at 7,816 allegations of sexual assault and found that as many as 782 of those accused were actually innocent. My experience is that this number is actually higher. As the article hyperlinked above indicates, the DoD has “incentivized” servicemembers to make false sexual assault allegations, allowing those who claim to have been sexually assaulted the opportunity to avoid discipline for “collateral misconduct,” avoid deployments, and even demand to be relocated within the military. This incentivization has created an atmosphere rife with false allegations of sexual assault. So this makes knowing what to do if you’re accused of sexual assault required learning

What to do if You’re Accused of Sexual Assault

Protect Yourself

First and foremost, protect yourself before it happens. It may sound silly, but I’ve been telling my sons since they’ve been in high school to RECORD CONSENT. That is even more important for one of them now as he serves in the military. If you intend to get physical with another person, pull out your phone and record that person saying that it’s okay. I know it may be a buzz kill, but it could save you from doing twenty years in prison. DO IT! Take screenshots of your Tinder or Snapchat messages showing that the other person has consented to the contact. Save those screenshots for as long as you need to. I can’t tell you how many junior clients have told me they “hooked up” on Tinder but couldn’t prove that. If you can prove the other party consented, that will kill any allegations before they become investigations. Record consent–DO IT!

Remain Silent

If the cops (or the command) do come knocking, the WORST thing you could do is speak to them, even to deny the allegations. The investigation is a complex game where the investigators can be highly trained and you are not. Despite what they tell you, you cannot “clear the air,” and the investigators at CID, NCIS, CGIS or AFOSI are not there to just “get your side of the story.” They are there to get your confession and to collect evidence for other crimes, such as false official statement, or violation of a lawful order, or drinking underage, or providing alcohol to a minor, etc. Often, you’ll be just having a chat with the friendly CID agent when, next thing you know, you’re being arrested for telling that “friend” that you had sex with someone. Cops investigating you for sexual assault ARE NOT YOUR FRIENDS! Don’t let them fool you into thinking otherwise. Remain silent and demand an attorney. Doing so will not make you “look guilty” or “get you into trouble with your command.”  Those are just what they will tell you. Be smarter than they think you are. Just say these magic words: “I decline to answer any questions without an attorney, and I want an attorney now.”  

Similarly, DO NOT agree to give them your phone, or even look at it. Again, even though you may not have any evidence of sexual assault in your phone, giving it to law enforcement is inviting them to (a) keep it for months, if not years, (b) look into every dark corner and crack of your phone for evidence of ANY crime (they’ll analyze your internet activity, they’ll know (and call and interview) your contacts, and look at every picture, text and post you’ve made inside your phone.  No one should have that kind of access into your life, especially not an organization trying to put you in jail). In fact, refuse to consent to a search or seizure of ANYTHING—your urine, your DNA, your car, your barracks room, ANYTHING.  Again, these are not your friends, and you have constitutional rights for a reason. Exercise them.

Get a Lawyer

Immediately. Right Away. Now. Don’t wait. 

A good military lawyer will start his or her own investigation right away and may be able to prevent you from ever being charged. Do NOT wait until law enforcement has already spoken to all of the witnesses and completed its investigation. That’s too late for us to do all that we can for you. Bring us onboard RIGHT AWAY. Moreover, law enforcement is sneaky—agents will dig into your life, try to seize your property, and even have others call you on a recorded line and try to get you to say things that will hurt you. All of this while you’re going about your life, oblivious as to what law enforcement is doing in the shadows.

You need a lawyer to help protect you from all of this. 

Don King reading papers at a desk

And don’t just call your Dad’s lawyer. You need a specialist. Find a lawyer that specializes in military criminal law. Find someone who has significant experience in not only defending sexual assault cases, but prosecuting them as well. Better yet, try to find someone who has served as a military judge and presided over sexual assault cases. Why? Because you want someone who knows this system inside and out. Winning in this system is part science and part art and the more experience one has the better.

Google things like “military criminal lawyer” and focus your search in the big military cities like San Diego, CA; Norfolk, VA, Wash D.C., etc. There is absolutely no reason your lawyer needs to be in the same city as you nor even close to you. Find the most experience you can, wherever they are.

Prepare Yourself

If you are under investigation for sexual assault, you’re in for some difficult times, there is no way around it. You’ll be ordered to stay away from people. You may have your security clearance suspended or be moved to a “scut” job where you’re picking up cigarette butts for several months. Worse case, you may even be confined in the military brig (jail) until your trial is over. Prepare yourself for any of this. Another good thing about having a GOOD lawyer at this stage is that we know how to fight to help you avoid these ramifications and to ensure you are not “punished” or treated unfairly as you await the end of the investigation. We’ll also make sure you know what is going to happen next and this helps keep the anxiety level down.

Final Thoughts

Facing and having to fight false sexual assault allegations while in the military is a war and can be a life-changing experience. You’ll never be the same. The good news is that you can win the war, you just have to be informed and know how to fight.

Hope this helps!

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