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Can a command prosecute under article 134 if the only proof…

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Can a command prosecute under...
Can a command prosecute under article 134 if the only proof they have is text messeges, and in such text messeges, there is no proof of sexual relations?
Submitted: 4 months ago.Category: Military Law
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12/12/2017
Military Lawyer: Allen M., Esq., Lawyer replied 4 months ago
Allen M., Esq.
Category: Military Law
Satisfied Customers: 20,122
Experience: Lawyer and current JAG officer.
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Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

Text messages can be considered admissions which are circumstantial evidence of sex. If the text messages are clear enough, then they can certainly constitute sufficient evidence for any level of legal punishment, from non-judicial punishment through court martial.

There is nothing in the law requiring any specific type of evidence of an offense, like eye witnesses or pictures.

If you have any further questions or other facts that you would like me to consider, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a three, a four or preferably a five star rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Also, feel free to request me in the future, if you have questions concerning a different matter.

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Customer reply replied 4 months ago
Ok. The messeges have zero talk of sexual intercourse but do have admissions of love. Under UCMJ it says there HAS to be proof of sexual intercourse which the texts do not provide any indication of sexual intercourse. Is it safe to say that this is insuffient evidence? Thank you sir.
Military Lawyer: Allen M., Esq., Lawyer replied 4 months ago

Under the UCMJ, there has to be proof of intercourse for a court martial. The texts can certainly be used to suggest intercourse, but that is a much weaker position than if it were admitted to in the texts. A commander could still try, but would likely fail.

However, at lower levels of punishment, like Article 15 or administrative separation, the burden of proof is much lower and those texts could be sufficient evidence for those.

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Military Lawyer: Allen M., Esq., Lawyer replied 4 months ago

Hello, I wanted to check in and make sure that there was not any additional information that you required after the response I previously provided to you. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.

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