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Defending Against the UCMJ Article 120 charge of rape

Written by: Federal Practice Group
Written by: Federal Practice Group

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The Manual for Court Martial (2008), Article 120, UCMJ, defines rape, generally, as a sexual act where one person causes another person to engage in a sexual act by 1) force, 2) causing grievous bodily harm, 3) threat or fear of death, 4) rendering them unconscious, or 5) administering drugs without their knowledge which substantially impair their ability to appraise their conduct. The maximum punishment for rape is death or life confinement, dishonorable discharge, and total forfeitures. Another form of punishment is state sex offender registration. Sexual offenders are severely limited by where they can live, work, and travel. As such, any charges involving rape and sex crimes can carry very serious consequences.

While this is the law, factually, in a military environment, alcohol and 'his word against her word' are often two factors that are almost always present in alleged rape cases. Below are some of the examples which may lead to rape accusations:

  • People who are drunk are more likely to engage in conduct in which they would not normally engage in. Once they sober up, they regret what they did and attempt to explain it, often accusing someone of raping them. It's her word against his word and it is left to panel members to figure it out.
  • Underage drinking in the military is a violation of the UCMJ. In order to avoid the punishment for underage drinking, one Servicemember may accuse another of rape. The chain of command of the allegedly raped Servicemember almost never punishes him or her for drinking.
  • There are other reasons such as trying to avoid deployment, embarrassment, or need of attention.

When facing rape charges, each accused Servicemember must retain an attorney who is aware of the dynamics that exist in the military. Getting to the bottom of each accusation takes time and is fact-intensive. But the end result is that there are facts that undermine the credibility of the alleged victim. For example, in U.S. v. Tollinchi, the attorneys defending Sergeant Tollinchi accused of rape, were able to establish that 1) while intoxicated, 2) the alleged victim was fully aware of her sexual acts, 3) she could have manifested lack of her consent on numerous occasions, 4) she undressed herself, did not say 'no', and 5) Sergeant Tollinchi had no way of knowing that she did not want to be penetrated when he penetrated her. Based on these facts, the United States Court of Appeals for the Armed Forces found that the evidence was insufficient for the charge of rape.

The Federal Practice Group is ready to represent Servicemembers charged with military crimes under the UCMJ, including rape. Our military attorneys have years of experience in trying cases in military courts, know how to develop the facts, and are aware the dynamics, motives, and excuses that may lead some Servicemembers to make rape accusations against others. Contact us for a consultation.

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