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P. Simmons, Military Lawyer
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Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Military Rape Questions

Military rape is an issue that is not handled lightly by the military. If found guilty, a soldier can face many charges, loss of rank, dishonorable discharge, prison, as well as a felony conviction that will follow them after they leave the military. Below are five of the top military rape related legal questions answered by Experts.

If a soldier is found not guilty by a civilian court for rape by using the no penetration defense, can the USMC charge the soldier with adultery?

If you were found not guilty in a civilian court based on the no penetration defense, you should use that as your defense if you are charged with adultery. In order to commit adultery, you would have to have sexual intercourse, which would require penetration. Without penetration, there would be no sex, and without sex, there cannot be a charge of adultery. However, it is not common, the military could prosecute an adultery charge if you admitted it happened but it was consensual. Other charges may also add on if you were drinking when the incident took place, as well as fraternization, if the person was a junior soldier under your command.

Can a soldier have a rape charge removed from their record? The soldier was sentenced in courts martial for the charge and given an honorable discharge?

Usually, the only way to have a charge like this "removed" would be to appeal the case and no trial is reset, having the conviction set aside. In a court martial situation, there is not removal procedure. If you were charged with a rape, this is a felony conviction which will remain in the NCIC. If enough time has passed since the conviction, it is possible to request a Presidential pardon. You will have the option to ask for a pardon five years after your conviction, only after you have completed all requirements of the conviction. This includes any jail time, fines, counseling and/or parole. You will also need to register as a sex offender as one of the requirements from the Department of Defense. Presidential pardons are not usually given to people who commit such acts.

If NCIC shows that an old charge of rape is still pending, how can a person get the file corrected or updated?

Your first step would be to fill out a Freedom of Information Act form (FOIA) and send the request to the Air Force Office of Special Investigations (AFOSI). In the request, you will need to ask them to either correct or update the information on your case. You can go back at a later date and check your status on the NCIC. If the charge is listed as a conviction, contact the AFOSI office and remind them that an ART 15 is not a conviction and request that the changes be made to your status.

Can a person, who was charged with rape 40 years ago, be allowed to have firearms? The charge happened while in the Army and the soldier was given a dishonorable discharge.

The law reads that in order to have a conviction (such as a rape) removed from your record; you will require a Presidential pardon to retain your right to carry a firearm. Anyone who has a felony conviction is prohibited from owning guns. Because you were convicted of a felony charge, you will need to seek an action that only a presidential pardon will secure.

If a person is in the Air force and is a victim of same sex rape, can they sue the military for the physiological and emotional problems that resulted from the rape?

Because of the Feres doctrine, anyone who is injured in active duty is not allowed to sue the military. However, your situation would make you a good candidate for VA benefits. Because your emotional issues were a result of an action that occurred during your active duty in the military, the VA will cover any medical needs as well as provide you with monthly compensations checks. You can apply for VA benefits at a VA clinic in your area. The members of the DAV or VFW can offer assistance in filling out the appropriate forms at no cost.

Rape in the military can be a devastating experience for the victim and a career ender for the person who commits the act. The penalties alone for rape in the military are severe. There are situation that arise when a soldier may be wrongly accused of rape. If you find yourself in a situation similar to these, you should probably seek legal counsel. If you are wanting information and legal insight about military rape, you can ask a Military Lawyer for answers to your questions based on an analysis of your case particulars.

Ask a Military Lawyer

P. Simmons
P. Simmons, Military Lawyer
Category: General
Satisfied Customers: 11868
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
11181181
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Recent Rape Questions

  • If an Air National Guard military member (Lt. Col) has an affair

    If an Air National Guard military member (Lt. Col) has an affair with a Major in his unit, and that Major moves to another unit, (not because of the affair, as it continues,) can both still be prosecuted under Article 134? Additionally, if the Lt Col retires, but the Major stays in, if prosecuted, will the charges only affect the Major? (i.e. the retirement benefits of the Lt Col will not be affected - (seemed to be the case per another question you recently answered.)
  • I want to know if the military finds out a field grade officer

    I want to know if the military finds out a field grade officer has an affair while on active duty with a soldier would they revoke an honorable discharge after retirement?
  • Sir/Mam: Does it violate the UCMJ for a military leader in

    Sir/Mam:
    Does it violate the UCMJ for a military leader in Iraq (2003 - 2006) to organize a group of young military men and women to write a novel (Springtime in Babylon) that was published under the author's name, D.G. Burns?
    The book is full of “The glorification of sexual and physical violence and abuse of women…” The activities described in explicit detail throughout the book “… include violent sexual acts, rape, orgies, incest and murder.”
    In the newspaper article (Salem, OR, Statesman Journal, 10-11-0014) ***** ***** is quoted explaining why the military supported these Guardsmen joining together to write this book in the middle of a Muslim country during a war. “These were young men and women stationed in Iraq in the middle of a war zone, putting their lives on the line for their country,” Evans said. ”We needed a way to keep their minds occupied between attacks, and several of them wanted to try writing a book.”
    I’m posting a web page where you can read some of the writings these young people wrote under the leadership of their US military leader.
    https://www.scribd.com/doc/242559449/Paul-Evans-book-excerpts
    A couple of retired military friends and I think besides this being a creepy book, it could be possible the activity violated UCMJ.
    Thank you for considering my question.
    Marylin Shannon
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