Attorney R. Davis Younts, Esquire
I recently had the privilege of defending a Lieutenant Colonel who was falsely accused of sexual assault.
At his court-martial our combination of independent investigation and strategic questioning of witnesses resulted in the complaining witness admitting on the stand that she did not believe she was sexually assaulted and that she was not a victim. As a result of these stunning revelations during my cross-examination of this witness our client was acquitted.
As I was flying home from Germany after this important victory, I started thinking about the changing landscape of military justice in the past several years and what it takes to successfully defend sexual assault in today’s military.
In the case of United States v. Wilkerson.
A highly respected Air Force Officer was wrongfully convicted of sexual assault. Upon review of the case pursuant to his authority as the Commander and court-martial convening authority Air Force Lieutenant General Craig Franklin made the decision to overturn the conviction in accordance with military law, due process, and justice. His decision was met with a firestorm of criticism and backlash.
In the aftermath
Multiple military commanders including Lieutenant General Susan Helms had her promotion held up when she made a similar decision to overturn a conviction that was not supported by the evidence.
Due to the perceived public outcry and the alleged “rape culture” in the military, legislation was passed in 2014 and signed into law by President Obama, that made radical changes to the Uniform Code of Military Justice (UCMJ). As a result of changes to UCMJ, Convening Authorities have had their ability to act to correct unjust courts-martial stripped away and military members facing allegations of sexual assault now face mandatory minimum punishments and the possibility of lifelong registration as a sex offender.
UCMJ Changes under Obama Good or Bad for Military?
All of this may seem like very bad news for military members facing allegations of misconduct like sexual assault, but there is good news. Military members can and do receive a fair trial when their case is properly presented to an impartial court-martial panel that is willing to keep an open mind and follow the law. Military court-martial panel members (juries in the military system) can keep an open mind and we have repeatedly won acquittals for our Air Force, Army, Marine, Navy, and Coast Guard clients in sexual assault, abusive sexual contact, and similar cases.
The Constitution matters
Despite the politically correct world we live and the impact of hot button political issues on military justice, the Constitution still matters. While military members have the right to a trial by a jury of their peers, these cases can be fought and won with experienced, aggressive counsel and effective trial strategies.
Based on the ever-increasing challenge of ensuring military members rights are protected in the current political environment, military members should always keep these basic principles in mind.
1. Remember your Article 31 Rights. You can remain silent! Anything you say to any military or civilian law enforcement officer can and will be used against you during the investigation and at trial.
2. Remember your Article 31 Rights. You can remain silent! Anything you say to any fellow military member or anyone in your chain of command can and will be used against you during the investigation and at trial.
3. Anything you say in an email, text message, on Facebook messenger or any other social media platform can and will be used against you during the investigation and at trial.
4. Use a knowledgeable defense attorney. Defending Sexual Assault cases effectively requires an attorney with a complete understanding of and experience dealing with complex legal issues, expert witnesses, and forensic evidence.
5. Your decisions will impact your career. Regardless or your rank, proven record in combat, or reputation in the military, if you are facing allegations of sexual harassment, fraternization, or sexual assault every decision you make throughout the process will have a lasting impact on your future and your career.
6. Never waive any of your rights or your right to a trial by court-martial members (Jury) without the advice and guidance of an experienced criminal defense attorney that understands the military system and all your options. While every case is unique and the legal and political landscape changes, Thomas Jefferson’s wise words still ring true.
“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
–Thomas Jefferson to Thomas Paine, 1789.
If you or someone you know is facing allegations of misconduct, make sure that your rights are protected and that you consult with an experienced attorney that has the knowledge and expertise to ensure your rights are protected.