Sexual Assault

Sunday, June 18, 2017

Navy SEAL Claims Unlawful Command Influence Impacted Court-Martial Outcome

Q: Can I appeal a court-martial sex assault conviction due to unlawful command influence?

Military sexual assault appeal attorneys have their work cut out for them because such convictions are serious and lead to harsh penalties which include prison time and dishonorable discharge.

In recent years the military has cracked down hard on sexual assault and numerous revisions and amendments to the Uniform Code of Military Justice (“UCMJ”) have made it easier to obtain convictions. That's why it's important for those defending a court-martial for sexual assault or for those appealing such a conviction to get an independent civilian attorney with military trial experience.
Read more . . .

Monday, May 29, 2017

Reining in “Revenge Porn” in the Military

Q: Is the wrongful distribution or broadcasting of intimate images by military members criminally punishable?

We've all heard the expression about those facing criminal charges having "the book thrown at them". Well, for Navy and Marine Corps members "the book" just got a little bit bigger as the distribution of nude or intimate photos without permission has been added as a criminal offense violation of which may require a court-martial defense.

An interim update to the official book of Navy regulations prohibiting what's known as “revenge porn” has been added in pending its next publication and applies to members of both the Navy and Marine Corps.
Read more . . .

Sunday, April 30, 2017

Beating a Court-Martial for Rape

Q: Are there mandatory minimum sentences for sexual assault offenses if convicted?

Article 120 of the Uniform Code of Military Justice (“UCMJ”) governs the multiple types of sexual assault in the military. In recent years, military sexual assault policies have undergone many changes and that has led to more service members being charged and longer, harsher punishments and additional penalties for those who are convicted.

Soldiers convicted of sexual assault offenses face mandatory minimum sentences such as dismissal or dishonorable discharge.
Read more . . .

Tuesday, February 28, 2017

Defending a Sexual Assault on a Child in Military Court

Q: What is the age of sexual consent under military law?

A highly–decorated military police officer assigned to the 759th Military Police Battalion at Fort Carson, in Colorado was arrested and charged with a crime involving a minor--sexual assault on a child under the age of 15.

Because the soldier’s entire future rests on a successful court martial defense against these charges, he’d be wise to engage the services of an independent, highly-experienced, civilian Child-Related Military Criminal Defense attorney.

The 26-year-old officer has been in the military for 7-1/2 years and has reportedly received 11 awards, including two Army Good Conduct Medals, Army Commendation Medal, National Defense Service Medal, Afghanistan Campaign Medal with Campaign Star, Global War on Terrorism Service Medal, NATO Medal, Combat Action Badge, and more.
Read more . . .

Friday, April 15, 2016

U.S. Military Cracks Down on Sex Crimes

What is being done about sexual misconduct in the U.S. military?

The U.S. military is ramping up its efforts to handle Read more . . .

Wednesday, March 9, 2016

West Point Cadet Acquitted of Sexual Assault

Is sexual misconduct a problem in the U.S. military?

A court-martial proceeding has resulted in an acquittal of West Point Cadet Lucas Saul on charges of sexual assault and sodomy. Despite the verdict in this case, many military observers still believe there is widespread sexual misconduct in the service.

The cadet had been charged with sexually assaulting a female cadet by engaging in inappropriate sexual conduct without her consent on three occasions in 2012. The incidents allegedly occurred both on and off West Point property. In particular, Saul was charged with aggravated sexual assault and sexual assault under Article 120 of the UCMJ, and sodomy (UCMJ Article 125).

In response to the acquittal, a spokesperson  for West Point stated that the academy takes sexual misconduct allegations "very seriously," but that the court-martial panel determined Saul was innocent of the charges.

"All the facts were presented in a full and open hearing and the issue was resolved in a manner consistent with military law and due process requirements," he said.

Sexual Misconduct is a Lingering Problem in the U.S. Military

Despite efforts to address the problem by military brass, sexual misconduct continues to plague the service. As we have previously reported, the Military Justice Improvement Act of 2016 contains provisions that are designed for sexual assault incidents. The reform measure also calls for changes in the jury and conviction requirements.

The issue has also been taken up by Congressional lawmakers, in particular, Sen. Kirsten Gillibrand (D-NY).  Ms. Gillebrand has been championing legislation that would directly address the issue of sexual misconduct and protect those who bring charges from retaliation.

The senator has reported that 62 percent of women in the military who report an assault are subjected to some form of retaliation and that there are 52 new cases of unwanted sexual contacts every day. Victims of these assaults believe that the military justice system is unfair and that they are often denied advancement or forced out of the service after bringing charges.

The case involving Cadet Saul has only added to the controversy about how the military handles incidents of sexual misconduct and its failure to address the epidemic of assaults. In the meantime, Saul has been on administrative leave since August 2015 and it is unclear whether he will return to the academy.

While the military has faced criticism for not adequately addressing the problem, sexual misconduct is a serious offense that can lead to a court-martial. If you are facing sexual assault charges, you should consult with a military court-martial attorney.

Friday, July 31, 2015

Air Force Searching for Missing Airman Facing Court Martial for Sex Abuse

What is the protocol if a service member disappears with a pending court martial?

One of the worst ways to exacerbate an otherwise manageable situation is to abscond while under pending U.S. court martial. Not only will the military work overtime to locate a fugitive, it will tack on severe additional penalties to address the defendant’s decision to flee. 

In June 2015, the U.S. Air Force announced it was diligently searching for an airman accused of multiple counts of sexual abuse under the military’s penal code. According to reports, the military was set to conduct a court martial on Monday, June 8 to determine whether Technical Sgt. David Helm was guilty of sexual assault, sexual abuse of a child, simple assault and indecent photographing of the private area of another person without consent. However, Helm has been missing since May 29, at which time he informed other airmen of his intention to travel to Tennessee to visit his family. 

Penalties issued by the military after a fugitive absconds can be especially severe – sometimes more serious than the penalty for the original misconduct.. Failure to appear for a court martial is considered a crime in and of itself, and usually results in immediate remand, additional fines, penalties and increased jail time.  In addition, there are various laws in place to address this situation, on both the state and federal levels and in other countries that have extradition policies with the United States. Fleeing from a pending court martial is a very serious offense and those accused of a violation of the military penal code are best served by appearing and defending themselves against any pending charges. To do otherwise almost always ensures that the service member will face more dire consequences. 

If you are facing a pending court martial and are nervous about what to expect, the safest option is to speak to an experienced and reputable court martial attorney today. For more information or to set up a consultation, please contact Elkus, Sisson & Rosenstein in Denver and Colorado Springs, Colorado today: 719-247-3111. 

Sunday, July 19, 2015

Three Airmen Face Court Martial Following Alleged Rape of Fourth Airman

How does intoxication factor into a sexual assault court martial? 

According to recent reports from the U.S. Air Force, three Airmen First Class are set for court martial on November 9, 2015 following allegations of the gang rape of a fourth airman while she was intoxicated. Allegedly, the four were partying on the evening of May 30, 2014 in the vicinity of the Joint Base San Antonio-Lackland, Texas. The defendants – one of whom was under the age of 21 – are also believed to have been engaging in illicit drug use involving commonly-abused prescription medications. During the time span in question, it is alleged that all three defendants engaged in non-consensual sexual intercourse with the victim while she was highly intoxicated.

For any specific-intent crime, the prosecution must prove the requisite mental intent to commit the offense, along with the other required elements listed in the penal code. Under the military penal code, rape is defined as follows:

A) Any person subject to this chapter who commits a sexual act upon another person by—

  • using unlawful force against that other person;
  • using force causing or likely to cause death or grievous bodily harm to any person;
  • threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;
  • first rendering that other person unconscious; or
  • administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct; is guilty of rape and shall be punished as a court-martial may direct.

Here, while the facts suggest that the offenders may have been heavily under the influence of drugs and/or alcohol at the time of the attack, the language of the penal code does not make mention of any sort of requisite mental intent for the commission of this type of crime, meaning an intoxication defense will not be available to these defendants. While the released details do not specify precisely which of the above factors was in play at the time of the incident, it is possible that the victim was unknowingly administered intoxicants, or was otherwise the victim of unlawful force or threats prior to the incident.

If you are a member of the United States military and are facing sexual assault, rape or similar charges, please contact the experienced court martial attorneys at Aviso Law LLC right away by calling (719)247-3111 for an initial consultation. 

Monday, June 15, 2015

U.S. Army Releases March 2015 Court Martial Statistics

What is the status of ongoing court martial cases within the U.S. Army branch? 

As you are likely aware, the U.S. military maintains its own separate and distinct jurisdiction from the federal and state courts. The military has its own penal code, set of laws, sentencing guidelines, and judicial process – known as a court martial. Moreover, the military recruits its attorneys and judges from a pool of candidates with both a legal and military background, known more common as the Judge Advocate General (J.A.G.) Division. 

In April, 2015, the Army released a comprehensive set of statistics detailing the recently-concluded matters before its court martials across the U.S. The following details some of the more high-profile matters resolved in each of the five judicial circuits covered by the Army’s tribunals, including the sentences rendered against each offender. 

Homicide & Sex Crimes Cases

All five circuits were faced with allegations of homicide and sexually-based offenses. For instance, one officer was sentenced to five years’ confinement and discharged dishonorably from the service for engaging in sexual abuse and several counts of assault. In the Third Judicial Circuit, a Sergeant was convicted of one specification of desertion, one specification of drunken operation of a vehicle, and two specifications of negligent homicide – all of which were entered pursuant to a guilty plea. This particular service member was downgraded to a status of E-1, sentenced to 33 months’ confinement, and dishonorably discharged. 

Larceny & Theft Crimes

Under military law, the degree of larceny charge depends on the value of the item stolen – with higher-value items resulting in possible felony convictions. In the Fourth Judicial District, four separate individuals were charged with larceny crimes, all of which received a conviction and penalties. Of the four, just one avoided a dishonorable discharge, and all were required to submit to confinement ranging from three months to 11 years. 

Controlled Substance Offenses

Although not as common within this particular set of data, four separate cases were resolved involving the alleged possession and/or use of controlled substances by military members on base. Of the four offenders, all were convicted of their charges and released from the military on a “bad conduct” discharge. 

If you are a member of the military and are facing a current court martial, we encourage you to immediately contact the Denver and Colorado Springs, CO attorneys at Aviso Law LLC by calling (719)247-3111 today! 

Wednesday, May 6, 2015

Sex Crimes and Court Martial Proceedings in the Military

Do You Have Legal Options Following a Conviction and Failed Appeals? 

If you or a loved one face criminal charges as a member of the military, you are likely aware that this branch of the government has the legal power to investigate alleged crimes.  They also have the ability to convict a military member and to decide on punishments ranging from pay suspension and pay grade reduction to dishonorable discharge, long-term prison sentences and even capital punishment. 

Fortunately, if a conviction occurs, a service member has the right to appeal the decision, and at any point during the military criminal law process, the accused service person has the right to representation by a civilian military defense attorney or organization.  A recent sex crimes case demonstrates that using legal help from outside the military justice system can strengthen a service member’s defense. 

In 2008, Air Force Sergeant Danny Wyatt Newton was accused of engaging in sexual acts with his eight-year-old stepdaughter. An investigation ensued, and in December of 2010, Newton was found guilty of attempted sodomy upon a child less than 12 years of age, conspiracy to obstruct justice, indecent liberties and sodomy upon a child under 12. His punishment included:

• A 25-year prison sentence;
• A dishonorable discharge;
• Forfeiture of all pay and allowances; and 
• A reduction in rank.

All of his appeals failed, and The Midwest Innocence Project, which investigates and attempts to exonerate wrongfully convicted men and women, has taken the case. Civilian law enforcement officials are also involved in clearing Newton’s name and overturning his conviction. One police officer notes that errors and questions in the case against Newton include:

• Jurisdiction errors (The alleged crime occurred in Virginia but was tried in Illinois);
• Gross lack of follow through by Child and Family Services;
• Failure by investigators to interview the alleged victim’s teachers and other care givers; and
• That Newton passed two polygraph tests.

The law enforcement official is organizing a clemency initiative for Newton, and The Midwest Innocence Project’s pending attempt at exoneration has been confirmed. 

If you face criminal charges as a member of the armed services, now is the time to start working to avoid, not overturn, a conviction. Contact Denver, Colorado, court martial defense attorney Ryan Coward for experienced representation. Call (303)567-7981.

Friday, February 20, 2015

Prominent Advocate For Gay Rights in Military Faces Court Martial for Sexual Assault

Is the recommendation of an Article 32 investigating officer final?

Air Force Lt. Joshua Seefried, founder of the gay service member advocacy group OutServe, was charged last year with sexually assaulting a male U.S. Marine lieutenant in a hotel room in New York City in 2012. In December 2014, a military judge ruled that a pre-court martial proceeding (an Article 32 hearing) should be reopened.

The alleged victim claims Seefried, who became known as an advocate for the rights of gays in the military, performed sexual acts on him while he was too intoxicated to give consent. In the hearing in August, the investigating officer questioned the Marine’s credibility and recommended against a court-martial. The officer stated there were insufficient grounds to obtain a conviction.

Despite the recommendation of the Article 32 investigating officer, the commanding Air Force General, overruled the recommendation that the case not go forward and ordered that Seefried go to trial in a full court martial.

Upon review, however, the presiding military judge ordered that the Article 32 investigation be re-opened.  This action is considered a victory for Seefried because re-opening the Article 32 investigation indefinitely postpones the court martial, which was scheduled for late January in Maryland.

Perkins ordered prosecutors to reopen the hearing for the “limited purpose” of calling one witness, a U.S. Coast Guard lieutenant commander who had also been charged with sexually assaulting the Marine in the same hotel room. Those charges were dropped.

One of Seefried’s attorneys stated the defense was denied an opportunity to cross examine the Coast Guard lieutenant commander during the first Article 32 hearing in 2014. The goal of the cross exam was to challenge the credibility of the Marine, Seefried’s sole accuser.

This could lead the way to different outcomes, including: the charges being dismissed; a plea bargain arrangement in which prosecutors offer a defendant the chance to plead guilty to a less serious charge; or, an offer by prosecutors to drop the charge or charges in exchange for a defendant's agreement to leave the military under a general discharge.

The allegations against Seefried and the Coast Guard officer arose from a May 2012 gathering of seven gay officers from different branches of the military in New York City. They were reportedly celebrating both Fleet Week, an annual event in which Navy and Coast Guard ships dock in a major U.S. city, and the repeal of the "Don’t Ask, Don’t Tell" law. The Marine said he became intoxicated, blacked out and woke up naked and disoriented in Seefried’s hotel room. Seefried and the Coast Guard officer were with him when he woke up.

This case shows the court martial process can take a very long time and take many twists and turns along the way. If you or a loved one is in Denver, Colorado Springs, or stationed somewhere else across the globe, and is facing a possible court martial, the court martial defense attorneys at Elkus, Sisson & Rosenstein are available at (303)567-7981. Call for a free consultation today.

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