A military service member accused of a sexual assault of a child can face imprisonment for life without the possibility of parole (known as LWOP).  Decades of imprisonment is not uncommon for sex crimes against a minor.     

The Age of Consent In the Military is 16

A lot of people believe that the age of consent in the military is 18. It’s not. Under the UCMJ, a service member may legally have sex with a consenting 16 year old. 

Mistake of Fact as to Age Is a Defense

People lie about their age all of the time. Many times a girl looks and acts a lot older than she is. You may have even met her in a bar or some other location where she was drinking alcohol. 

So sometimes a Soldier, Sailor, Marine or Airman ends up having sexual contact with a girl who says she is older than 16, looks and acts older than 16, but is actually only 15, 14, or younger.

It won’t matter to the government prosecutors that she lied. They won’t care about the circumstances—that she looked and acted much older than she really was while also consuming alcohol like an adult. They will likely charge you with sexual assault of a minor and do everything in their power to convict you, brand you as a sexual predator, a child molester, a criminal.

Luckily, there is a defense.  Under the UCMJ it is a defense to a charge of sexual assault of a child that the service member reasonably believed that she was at least 16 years old. This is the “mistake of fact as to age” defense.     

Under the mistake of fact as to age defense, the government must prove beyond a reasonable doubt that the accused had actual knowledge that the girl was not 16 years old or older. 

Liebenguth Law has experience defending and winning these types of cases.  It starts with an exhaustive investigation so we can prove to a jury why the military accused reasonably believed the girl was at least 16 years old.

Proof comes in many forms. There is almost always some type of electronic evidence that needs investigating, be it text messages, emails, Facebook posts, tweets, TikTok videos, and so on. Within this media, and countless other sources, we often discover evidence of the girl indicating her age to be older than 16.       

Without credible evidence and credible witnesses painting a picture for the jury that it was reasonable for the service member to believe the girl to be over 16, a not guilty verdict is hard to come by.    

Under the Age of 12

If the child is under 12 years of age, the mistake-of-fact-as-to-age defense does not apply.  The government will come after you with everything it has to win a conviction and obtain a severe sentence against you. Most times, the best defense in these types of cases is to hire an experienced court-marital lawyer that can persuasively show the jury that no sexual intercourse or other sexual contact ever happened.    

What if the Girl Consented to the Sexual Act?

When it comes to sex or sexual contact with a child under the age of 16, consent is irrelevant because, under the law, a person of that age is legally incapable of giving consent.    

Even if the girl is just days away from turning 16 and she is a willing participant in the sex, it does not matter.  The government views you as a sexual deviant that preys on children and its prosecutors want you convicted, in prison, dishonorably discharged, and required to register as a sex offender for the rest of your life. 

Falsely Accused by a Step-Child

Want to know why these types of allegation under Article 120(b) of the UCMJ are so scary? Because the nature and circumstances of the allegations make government prosecutors think they are true regardless of other facts. The child lives with the step-father, so there is easy opportunity to commit the sexual assault. The child is not the step-father’s own blood, making it more likely that he would commit a sex crime against her. Most importantly, the government prosecutors often think that no child would make up such an allegation because, “Why would she?”

We can think of a lot of reasons that a step-child would make up allegations of sexual assault against the step-parent. Maybe the step-father is the disciplinarian and the step-daughter wants revenge for some punishment she was given. Maybe she is mad at her

mother and attacking the step-father with false accusations of sexual assault is a way of getting back at her. Maybe she wants to break up the marriage or just wants attention and this is one way of getting it. Maybe she is suffering from psychological issues which manifest themselves in a false accusation. Or maybe her mother is the one that has planted the false-accusation seed. And on it goes.    

Whatever the reason for the false accusation, exoneration can be incredibly difficult to obtain without an aggressive and seasoned court-martial lawyer. 

Once allegations are made, your life with be put under a microscope.  Interactions with the child that were once viewed as innocent and fun (tickling, play wrestling, night-time hugs) are now going to be twisted to show that you are a sexual deviant that groomed the child for sexual molestation.   

At the request of law enforcement, the child will probably undergo a child forensic interview. In these videotaped interviews, a specially trained interviewer will attempt to obtain evidence from the child that will result in the military member’s conviction. The interviews are often done with a preset agenda that is determined in collaboration with military investigators and law enforcement agents.  

The alleged victim is also likely to undergo a Sexual Assault Forensic Examination (SAFE), the purpose of which is to obtain DNA evidence and evidence of sexual activity or sexual abuse.  

Normally, Child Protective Services (CPS) then shows up and the accused military member is forcibly taken from his home and banned from seeing his children until trial (which may be over a year away). The member can then only sit helplessly as the alleged victim’s memories and testimony are shaped into a story of the accused’s guilt.  

When trial finally comes, there will be an army of government personnel dedicated to convicting you: law enforcement agents (CID, NCIS, OSI, CGIS), the forensic interviewer, a sexual assault nurse examiner (SANE), a child psychologist, a DNA expert, and the government’s A-Team prosecutors that specialize in prosecuting Article 120(b) sexual assaults of minors. 

Stated plainly, the government will not be messing around. And not only do they want a conviction, they want you to serve perhaps decades in prison and have to register as sex offender for the rest of your life. 

Winning or losing these cases requires having a dedicated defense team that will leave no stone unturned in its investigation. Your defense team needs to establish why the alleged victim would lie—what is her motive to make a false accusation against you? Your defense team needs to gather and analyze all of the physical and forensic evidence and then present it in a convincing story of innocence. And your court-martial defense team needs to incorporate expert consultants, witness preparation strategies, and aggressive motions practice—from beginning to end. 

We understand that false allegations are commonplace. If you’re ready to fight the allegations against you, Liebenguth Law is ready to talk to you about your case. 

Presumed Innocent – Yeah, Right

Every American is familiar with the notion that an accused is presumed innocent. But believing in that principle when you’re a military service member accused of a child sex crime is a terrible idea.

If you simply sit back and remain in a reactive status, the government is probably going to run right over you to your own conviction.  You need to act—you need to go on the offensive because military members are generally treated as being guilty until they show otherwise, especially when charged with a sexual crime against a child. 

An experienced court-martial lawyer knows that children do lie, and they do it a lot.  And the type of defense attorney you need is one that can convince a jury of that fact.   

Sexual Assault Court Martial Defense Practice Areas

• Military Sexual Assault Attorney
• Rape & Sexual Assault Defense
• Sting Operations
• Child Pornography Defense
• DNA Cases
• SHARP/SAPR
• Sexual Offender Registration
• Male on Male Sexual Crime