Two sexual assault cases are being reported by female students (Midshipmen) at the U.S. Naval Academy this summer. Both assaults happened during their 8 weeks of summer training with Navy units. The allegations are under investigation by the Naval Criminal Investigative Service (NCIS).

Uniform Code of Military Justice

The Uniform Code of Military Justice (UCMJ) Article 120 addresses all types of sexual assaults, indecent exposure, inappropriate behavior and rape cases. All the services have put programs into place to help counsel the victim and provide an advocate. This procedure provides a safe environment for a military member to report, in these cases, a sexual assault without fear of reprisal or not being taking seriously by their command.

Investigation of Misconduct

When allegations are raised, the commanding officer requests a Command Investigation or an official investigation by the services’ investigative branches. Once an investigation is complete, the commander considers the recommendation along with advice from his or her senior judge advocate (lawyer) and charges are either dropped or served on the accused.

What You Should Do

If you are suspected of an Article 120 charge, we recommend you do not talk to investigators (NCIS in this case) and request a meeting with the defense attorneys on your installation. Reported misconduct between members of different units, services or components, is reviewed, investigated and if substantiated, the accused may be charged under the UCMJ. Perceptions of an event can differ between the willing and unwilling participants. If you are a victim of misconduct in the military, report it to your chain of command. If you are the subject of an accusation of misconduct, maintain your good conduct and your silence with everyone and request to speak to a military attorney. Your actions during an investigation are crucial in helping the military defense attorneys determine the sequence of events.

Commander’s Responsibility

Remember, good order and discipline of a unit is the commander’s responsibility and the ability to work together, unhindered from threats and concerns about conduct require that all misconduct be reviewed and dealt with as required. The military justice system will enforce good order and discipline if Article 120 has been violated.

Military members who get into trouble and are disciplined risk their military pensions, their benefits from the Veterans Administration (VA) or their quality of life in the civilian community. Military criminal defense attorneys analyze the case facts, argue for the most appropriate and just outcome for the member; be that acquittal or a conviction on lesser charges and/or reduced punishment.

Consequences of a Military Conviction

Those in trouble who are retirement eligible or those nearly eligible for retirement (within 2 years) risk losing their retirement at their current grade and most certainly some of their VA benefits. Each case is different, and the law, Presidential orders and federal regulations specify requirements for eligibility for separation, retirement and VA benefits. Quality of life in the civilian community focuses on having to register as a sex offender per federal and state law if you violate Article 120 of the UCMJ.

Military Officer Retirement

Honorable military service for 20 or more years entitles a military member to a pension and full VA benefits. Retirement can be in a grade lower, as per 10 USC 1370, “a military officer be retired in the highest grade in which he or she served on active duty satisfactorily… “ This may be determined by a recommendation by a Board of Inquiry or Show Cause Hearing after an officer has received non-judicial or judicial punishment.

Discharge Characterization

Characterization of a discharge as anything other than “honorable” results in ineligibility for some of the VA benefits. Petitions for exemptions can be made to the VA, outlining the specific facts of a military member and the VA has the authority to award benefits by exemption.

Acquittal and Military Service

It doesn’t seem fair that after being accused of crime and fully acquitted, you could still face being administratively separated from the military or retirement in a reduced rank. The military has full authority to separate anyone in his or her first term for cause. US Code states retirement is awarded based on satisfactory duty. The military defines satisfactory duty based on law and regulations derived from them.

Know Your Rights

Talk with your lawyer about the effects of each of the defense options in terms of lasting effect on your military career, your family and life after the military. Understand your rights and the consequences of the choices you make in your defense.

Press Release:  An Army drill sergeant with 13 years of service is being charged with two counts of rape, by two different accusers.  The “rapes” allegedly happened in the drill sergeant’s office in July 2008.  The two accusers claim to have been raped by this drill sergeant while filing papers in his office – together.   One reported the incident over a month later and only after she was not allowed to march in the basic training graduation ceremony because she was wearing make-up.  The other was contacted by the Army Criminal Investigation Division, (CID), when the first told them the second had sex with the drill sergeant after witnessing the first “rape.”

Military Justice

Once charged with rape in the military system, an Article 32 hearing is held to determine if the actions of the military member warrant further prosecution and trial under the military justice process.  If the Article 32 hearing officer recommends a court-martial, the senior military officer usually orders a court-martial.  A full trial, with all the rules of evidence, is then convened and scheduled.  In the third week of June 2009, Mr. Neal Puckett represented the Army drill sergeant in an Article 32 Hearing where the government sought to minimize his right to a full preliminary hearing at Fort Jackson, SC.

Military Defense Attorney

The Army prosecutor came to the Article 32 Hearing claiming that four of the nine witnesses “could not be located.”  This failure might have limited the ability of the military defense lawyer to bring into the courtroom the defense facts associated with the case and to challenge the government evidence.  Mr. Puckett brought a motion to require the testimony of the other witnesses, and the Investigating Officer granted the motion by finding them himself and making sure they testified by telephone.  Mr. Puckett effectively cross-examined all of the witnesses, including the lead CID agent to prove the investigation process was incomplete and biased in its analysis of the facts.   The next step in the case will likely be a general court-martial of this veteran Army drill sergeant.

Military Court-Martial

The Law Firm of Puckett & Faraj, PC, fights hard to ensure that all of the rights of its clients are protected and effectively used to defend against charges based on shoddy investigations and overzealous prosecutors.  We are confident now that the resulting general court-martial of this client will allow for full disclosure of the truth and reveal that he is innocent of the charges of rape.

Press Release:  A Marine Corps officer is being charged with three counts of rape, with three different accusers.  The Law Firm of Puckett & Faraj, PC represent this Marine against the charges of alleged rape which reportedly happened on temporary duty to New Orleans, LA in 2008.  The three accusers, all friends and including one who was the girlfriend of the defendant, claim to have been raped by this Marine during a night of partying in New Orleans. They reported the incident and the New Orleans district attorney refused to prosecute for lack of evidence.

Military Law and the Court-Martial Process

Civil courts have jurisdiction when military members are in trouble off the base, but the military reserves the right to prosecute through military jurisdiction.  This apparent “double jeopardy” exists to ensure good order and discipline in the military.  This officer called Haytham Faraj, Esq. to help him when, after charges were dropped in New Orleans, the Marine Corps chose to prosecute him for three counts of rape.

Military Justice Process

Once charged with rape in the military system, an Article 32 hearing is held to determine if the actions of the military member warrant further prosecution and trial under the military justice process.  If the Article 32 hearing officer recommends a court-martial, the senior military officer usually orders a court-martial.  A full trial, with all the rules of evidence, is then convened and scheduled.  In the first week of June 2009, Mr. Haytham Faraj represented the Marine officer in an Article 32 Hearing where the government minimized his right to a full preliminary hearing at Marine Corps Recruit Depot, San Diego, CA.

Military Defense in an Article 32 Hearing

The government went through the motions of an Article 32 Hearing, but did not call to the stand any of the accusers or witnesses.  This limits the ability of the military defense lawyer to bring into the courtroom the defense facts associated with the case or to challenge the government evidence.  Realizing the government’s move to preserve their evidence and witness testimony for a general court-martial, Mr. Faraj effectively cross-examined the one government witness, a Naval Criminal Investigative Service (NCIS) agent to prove the investigation process was biased in its analysis and presentation of the facts.   The next step in the case will be a general court-martial of this officer for violation of Article 120.

A Marine Corps officer was acquitted of the charge of aggravated sexual assault in a general court-martial after a two-day trial at Quantico Marine Corps Base on May 19-20, 2009.   Criminal defense attorney and partner of the Law Firm of Puckett & Faraj, PC, Haytham Faraj, stated, “the acquittal was the just outcome given the facts of the case.  Rape or aggravated sexual assault is a very serious accusation with life altering consequences for the accused.”

Military Defense Attorney Strategy

Mr. Faraj identifies the military defense strategy, “I knew we had a tough fight on our hands as these cases always tend to be.  We prevailed because we had the better facts and theory and were able to challenge the government’s theory and demonstrate that it could not be proven.  This was by no means an easy victory because, in these types of cases, you’re almost always dealing with a real victim or someone who believes she is a victim.  Accordingly, the fact finder will have a great deal of empathy for the accuser.  The challenge is to ensure that you present the facts dispassionately without attacking the alleged victim so that the fact finder can neutrally evaluate the evidence for him or herself.  That’s what I did and it resulted in a just outcome, an acquittal.”

Military Law

The military services follow Title 10 law regarding the prosecution of alleged sexual assault and rape cases.  United States Code, Title 10, Section 920, Article 120 defines rape as any person who causes another person of any age to engage in a sexual act by using force, causing bodily harm, threatening, rendering them unconscious, or administering a drug or intoxicant.   Maximum punishment by court-martial is death.

Consequences of Military Rape Conviction

Rape is a sex offense legally punishable by death in the military but most often results in jail time when there is a conviction.  Aggravated sexual assault carries a maximum sentence of 25 years.  When a person is convicted of a sex offense, such as rape or aggravated sexual assault, he or she will be required to register as a sex offender.  Additionally, sex offenses are most often felony offenses.  In many states in the United States felons lose the right to vote, hold a government job or buy a firearm.  Moreover, service members will be denied discharge upgrades and will forfeit VA benefits.  If you find yourself accused of sex offense call us for a free consultation.

The Stars and Stripes is reporting the theater show “Sex Signals,” a Catharsis Production, is touring Air Force bases in Japan with the goal of training Airmen on DoD sexual harassment policy.  The goal is to use “improvisational comedy, education, and audience interaction to provide a provocative look at dating, sex, and the core issue of consent.”   This audience interactive training allows the military members to input scenarios and questions to the actors about the awkward process of dating and what consent means.

Military Training to Prevent Rape

The Airmen get a chance to ask questions about the signals they receive from the opposite sex and whether or not those can be construed as consent to sex.  This upfront discussion allows Airmen to talk about the policy and understand the military law’s definition of rape.  Prevention of rape by teaching the concept of consent is aimed at preventing rape in the military and reducing the military members charged under the Uniform Code of Military Justice.

Consequences of Military Rape Conviction

Rape is a serious charge under military law and follows the federal guidelines. Rape is a sexual offense, legally punishable by death but most often accompanied by jail time.  If a military member is convicted of rape, serves his sentence and is subsequently discharged from the military service with a bad conduct or dishonorable discharge, he must register as a sex offender in his community.  Additionally, he is not eligible to vote, hold a government job, buy a firearm, upgrade his discharge, or receive VA benefits.  The best defense is to not be in the position of being charged with Article 120, “Rape, Sexual Assault and Other Sexual Misconduct.”   As the actors of Catharsis Productions tell the Airmen, “If the person you’re having sex with says, ‘Stop,’ you stop.”