Military Sexual Assault: The Basics
Sexual assault is a serious crime in the U.S. Armed Forces. But while civilians are tried in civilian courts, on-duty military service members normally face charges via the court-martial process. Reported instances of military sexual assault rose 6 percent to 3,374 in 2012, but an anonymous survey of military personnel indicated that as many as 26,000 men and women were victims that year. Several high-profile sexual assault cases prompted the Department of Defense (DOD) to better enforce the law, make it easier to report such crimes, and provide better access to victim services.
This article covers the basics of sexual assault in the military, including reporting procedures, common penalties, and possible defenses to charges. See FindLaw's Sex Crimes section to learn about sexual assault, rape, and related crimes in the civilian world.
If you are the victim of sexual assault by a member of the U.S. military and require immediate assistance, call the DoD Safe Helpline at 877-995-5247.
What Is Sexual Assault?
A definition of sexual assault can be found in Article 120 of the Uniform Code of Military Justice. The law states that sexual assault occurs when someone commits a sexual act upon another person by:
- Threatening or inflicting fear;
- Causing bodily harm;
- Using the false pretense that the sexual act serves a professional purpose; or
- Pretending to be another person
It includes unwanted sexual conduct upon a sleeping or otherwise unaware person, or one who is incapable of providing consent.
A service member who commits unwanted sexual conduct upon another through the use of force or fear may be charged with aggravated sexual assault. This charge is similar to rape, but without evidence of penetration. Additionally, the threat of sexual violence -- whether or not the threat is actually carried out -- is enough to warrant sexual assault charges.
If You Are the Victim of Military Sexual Assault
Rape and other types of sexual assault often leave the victim feeling helpless and alone. But the DoD has provided a number of resources to help you report the crime and get the help you need. The DoD recommends the following for anyone who believes they have been sexually assaulted:
- Go to a safe place, away from the alleged attacker.
- Seek medical care as soon as possible; ask for a sexual assault forensic examination (SAFE) and request a urine sample if you suspect you were drugged.
- Preserve evidence by not bathing, washing hands, eating, brushing your teeth, or straightening up the crime scene until evidence is gathered.
- Write down or record any details you may recall about the alleged assault and assailant.
Victims of sexual assault may contact the DoD Safe Helpline to communicate with a trained Helpline staff member and to get in touch with the nearest Sexual Assault Response Coordinator (SARC). Learn more about reporting options at MyDuty.mil.
If You Are Charged with Military Sexual Assault
Service members charged with sexual assault are presumed innocent until proven guilty. The court-martial process is different than criminal trials in civilian courts, but you still have the right to counsel, the right to confront evidence and witnesses, and the right to appeal a decision or have it reviewed by an attorney.
After the alleged victim of sexual assault reports the incident, the accused's immediate commander conducts an inquiry (which may involve military and civilian police staff). As of now, the commander then has discretion to take no action, impose administrative or non-judicial punishment, or forward the matter to a higher authority (but this process is under review and subject to revision).
Punishments for sexual assault in the military range from dismissal and dishonorable discharge to confinement in a military prison. However, the crime of rape can carry a lifetime prison term or even execution. On top of any sexual assault charges, you may face additional military charges such as "conduct unbecoming of an officer." And those convicted of sex crimes must register as sex offenders.
Defenses to Sexual Assault Charges
As in civilian trials, the accused will have the opportunity to defend against charges of sexual assault through the court-martial process. Some possible defenses include having an alibi, being misidentified as the assailant, or the lack of a convincing prosecution. Other defenses to sexual assault charges include consent and insanity.
Alcohol consumption plays a role in about half of all sexual assault cases, according to the National Institute on Alcohol Abuse and Alcoholism. But claiming that alcohol clouded one's judgment is not a valid defense. Additionally, being married to the alleged victim also is not a valid defense to sexual assault charges.
Getting Legal Help with a Sexual Assault Charge
If you’ve been the victim of sexual assault while serving in the military, in addition to legal assistance offered to you through the military, you should also consider speaking with a civilian attorney specializing in military law. A civilian attorney can be a helpful advocate through the process. In addition, if you want your matter to remain confidential, civilian attorney is not required to report your case to your chain of command, as may be the case with a military lawyer. Also, if you’ve been charged with a sexual assault crime, a civilian attorney can also help to represent you during the military justice process.
To find a civilian attorney near you that specializes in military law, see FindLaw’s lawyer directory.