Article 120 Investigation — What Happens When You Are Accused of Military Sexual Assault

You just found out you are under investigation for sexual assault. Someone made an allegation — to your command, to SHARP/SARC, to law enforcement — and now the machinery of the military justice system is moving. It was moving before you knew. That is the point.

Military investigators are not neutral. They are not seeking the truth. They are building a case against you, and they may already have gathered substantial evidence before anyone contacted you. The investigation phase — before any charges are preferred — is often the most dangerous and the most consequential. It is also the phase where experienced defense counsel can have the greatest impact.

Call 202.931.8509 and we can set up a call immediately.

How a Military Sexual Assault Investigation Begins

An Article 120 investigation does not begin with an arrest or a formal charge. It begins the moment an accuser makes an unrestricted report.

Under military policy and federal law, an unrestricted report of sexual assault — made to a commander, law enforcement, a Sexual Assault Response Coordinator (SARC), or any other official — triggers a mandatory criminal investigation. There is no discretion. The command cannot decide it is not serious enough. The chain of command cannot slow-walk it. CID, NCIS, OSI, or CGIS is notified, and the investigation begins.

A restricted report, by contrast, does not trigger a mandatory investigation. But restricted reports can be — and are — converted to unrestricted reports. Once that conversion happens, the investigation machinery activates.

The investigating agency depends on your branch:

• Army: Criminal Investigation Division (CID)
• Navy and Marines: Naval Criminal Investigative Service (NCIS)
• Air Force and Space Force: Office of Special Investigations (OSI)
• Coast Guard: Coast Guard Investigative Service (CGIS)

From the beginning, the SARC and a victim advocate are involved — not just to support the accuser, but to coordinate with investigators and prosecutors. The Special Victims’ Investigation and Prosecution (SVIP) concept, implemented across the services, means investigators, special victim prosecutors, and victim advocates are coordinating from day one. This is not a routine investigation. It is a coordinated team effort aimed at building a prosecution.

And since December 2023, every allegation must be reported to the Office of Special Trial Counsel (OSTC). Prosecution is involved from the earliest stages.

The First 72 Hours — What Is Already Happening

In the first 72 hours after a report is made, investigators move fast. While you may not even know you are under investigation, here is what is happening:

• The accuser has been interviewed — often with a SARC or victim advocate present — and a detailed statement has been taken
• If the report is recent, a Sexual Assault Forensic Exam (SAFE kit) has been administered and the evidence preserved
• Investigators are seeking search authorizations to seize your digital devices — your phone, your computer, your tablet, your cloud accounts
• Witnesses identified by the accuser are being interviewed
• Command leadership has been briefed
• A pretext phone call may be orchestrated — the accuser calling you while investigators record the conversation
• Your barracks, on-base housing, vehicle, or personal property may be searched under a military search authorization

By the time investigators contact you — if they contact you at all before arresting you — they may already have the accuser’s statement, forensic evidence, digital communications, and witness interviews. They are not coming to hear your side of the story. They are coming to get you to say something they can use.

Your Rights Under Article 31(b), UCMJ

Article 31(b) of the Uniform Code of Military Justice is your military Miranda. It gives you the right to know the nature of the accusation, the right to remain silent, and the right to counsel — before any military member questions you in connection with an offense you are suspected of committing.

These rights do not evaporate for “informal” conversations. They do not disappear because an investigator frames it as a “preliminary chat.” If you are suspected of an offense and a military member is asking you questions related to that offense — Article 31 applies.

Your rights:

• You have the right to be informed of the nature of the accusation before questioning
• Any statement you make can and will be used against you in a court-martial
• You have the right to consult with and be represented by counsel before and during questioning
• You have the right to refuse consent to any search of your person, property, or quarters
• You have the right to say nothing — and saying nothing cannot be used against you

Civilian agents of NCIS, CID, OSI, and CGIS are not required to give Article 31 warnings — but they frequently work alongside military members who are. Do not assume the absence of a formal warning means you have no rights.

Invoke your rights immediately and say nothing further.

What Investigators Will Not Tell You

Investigators are trained to get you talking before you invoke your rights. They are trained in rapport-building techniques designed to make you feel comfortable, cooperative, and safe — because the moment you feel those things, you say things you should not say.

Here is what they will not tell you:

They are building a case against you, not seeking the truth. The investigator’s job is to close the case with a substantiated finding and a referral for prosecution. Your explanation, your context, your side of the story — these are only useful to them if they can find something in your statement to contradict or to corroborate their theory.

They may already have the accuser’s statement and digital evidence. Investigators routinely contact an accused only after they have gathered substantial evidence. You have no way of knowing what they already have.

They may use pretext calls. Military investigators regularly arrange for the accuser to call you while the conversation is recorded. They are listening. If you apologize — even out of decency or confusion — that apology will be used as an admission of guilt. If you express anger, that will be characterized as consciousness of guilt. There is no version of that call that helps you.

They may have already talked to your friends, colleagues, roommates, and fellow unit members. By the time you find out you are under investigation, the people around you may have already been interviewed. Some will have said things they did not realize were harmful. Some may have been misquoted or mischaracterized in an investigative report.

They are coordinating with OSTC prosecutors. Since December 2023, all covered sexual assault offenses must be reported to the OSTC. That means a special trial counsel is involved from the beginning — shaping the investigation, guiding evidence collection, and building a prosecution narrative before you have even spoken to a defense lawyer.

Cooperation does not make this go away. Investigators and sometimes even commanders will tell you that cooperation will help your case. It will not. Every statement you make is a gift to the prosecution.

The OSTC’s Role During the Investigation

The Office of Special Trial Counsel was created by Congress in the Military Justice Improvement and Increasing Prevention Act of 2022. It began operations in December 2023. It fundamentally changed who controls Article 120 prosecutions — and it changed when prosecution involvement begins.

Under the old system, the decision to prefer charges was a commander’s decision. Prosecutors were brought in later. Defense counsel had a window — often months — to work the case before the prosecution machinery was fully engaged.

That window is smaller now.

OSTC special trial counsel are involved from the moment an allegation is reported. The STC will evaluate whether the offense is a “covered offense” under their authority. If it is — and Article 120 rape and sexual assault are covered offenses — the OSTC exercises exclusive authority to prefer, refer, and prosecute the case.

This means:

• The prosecution narrative is being built from the start of the investigation
• Investigators and prosecutors are coordinating in real time
• The commander’s historical role as a check on overreaching prosecution has been substantially diminished
• The window to intervene before charges are preferred is compressed — but it still exists, and it still matters

An experienced civilian defense attorney who understands OSTC procedures, relationships, and internal processes can still intervene during the investigation phase. We have seen this work. A Chief Warrant Officer 4 accused of sexual assault years in the past came to us during the investigation phase. No trial. No conviction. No federal record. Resolved before charges were ever preferred. Early intervention is not just possible — in some cases, it is the difference between a court-martial and walking away.

From Investigation to Charging — The Process

Understanding the pipeline helps you understand where the critical windows are.

The path from allegation to court-martial typically follows this sequence:

Report made → Criminal investigation opens (CID/NCIS/OSI/CGIS) → OSTC notified → Investigation concludes → Investigative report sent to OSTC → OSTC determines coverage → Preferral of charges → Article 32 preliminary hearing → OSTC refers charges to General Court-Martial → Arraignment

At every stage, there are opportunities — and vulnerabilities.

During the investigation, an experienced defense attorney can:

• Identify and preserve favorable evidence before it disappears
• Identify and interview favorable witnesses before they are coached or intimidated
• Challenge the adequacy and fairness of the investigation in a formal submission
• Present exculpatory evidence directly to investigators or the OSTC
• Work to prevent titling and adverse credentialing actions
• Position the case for favorable consideration before charges are ever preferred

At the Article 32 hearing, a skilled defense lawyer locks in testimony, exposes inconsistencies in the government’s case, and sets up motions practice for trial. We represented an E-8 and an E-9 who were jointly accused of sexually assaulting another E-8. Our pre-hearing investigation exposed serious deficiencies in the government’s investigation. We used a pretext phone call to strengthen our clients’ position. After the Article 32, prosecutors themselves recommended dismissal of the charges.

A reserve Navy O-3 with sufficient enlisted time to be retirement-eligible was accused of sexual assault. We preserved his retirement, avoided sex offender registration, and prevented a federal conviction — without a trial. Cases like these are won during the investigation and pre-trial phases, not always at trial.

An O-8 investigated for serious sexual assault offenses — at the general officer level, where institutional pressure is enormous — saw the matter resolved with a Secretarial letter rather than a court-martial. Results like these require experienced counsel engaged from the earliest possible stage.

What to Do Right Now

If you have just learned you are under investigation for sexual assault, every decision you make in the next 24 to 48 hours matters. The investigation is already underway. Evidence is being collected. Witnesses are being interviewed. The prosecution team is already thinking about your case.

Here is what you must do:

• Do not speak to investigators. Not NCIS. Not CID. Not OSI. Not CGIS. Not your commanding officer acting as an informal intermediary. Not anyone.
• Do not consent to searches. Not of your phone. Not of your computer. Not of your barracks room. Not of your vehicle or personal property. You have the right to refuse.
• Do not contact the accuser. Any communication — even a text saying you are confused or that you are sorry for any misunderstanding — will be used against you. Do not call. Do not text. Do not reach out through mutual friends.
• Do not discuss the case with anyone in your unit. Your first sergeant, your squad leader, your battle buddy, your roommate — none of them are privileged. Everything they hear from you can be subpoenaed and used against you.
• Do not post on social media. Not about the situation, not about your mood, not about anything that can be construed as relevant. Social media posts have destroyed defenses in cases where the underlying evidence was weak.
• Invoke your right to counsel immediately. Say these words and nothing else: “I am invoking my right to counsel and I will not answer any questions without an attorney present.”
• Contact experienced civilian defense counsel immediately.

An E-5 investigated for sexual assault and domestic violence retained us early — before charges were preferred, before the case reached a courtroom. His career was saved. That result was only possible because he acted immediately.

Speak With an Article 120 Defense Lawyer Now

Philip Cave and Nathan Freeburg have a combined 65+ years of experience defending military sexual assault cases across every branch. We have handled Article 120 investigations, Article 32 hearings, and contested trials worldwide — from Fort Drum and Fort Bragg to Camp Lejeune, Dyess AFB, and installations overseas.

We know how OSTC builds these cases. We know how CID, NCIS, OSI, and CGIS investigate. We know how to intervene before charges are preferred, how to challenge the investigation, and how to position a case for the best possible outcome at every stage.

Your military defense counsel — if one has been appointed — is doing their best. They are also carrying a caseload you cannot imagine, without the resources or independence that your situation demands. Experienced civilian counsel, engaged from the first moment of investigation, gives you the best chance of a result that preserves your career, your freedom, and your future.

Call 800-401-1583 or 202.931.8509

Article 120 Investigation — Frequently Asked Questions

What triggers a military sexual assault investigation?
An unrestricted report of sexual assault — made to a commander, law enforcement, SARC, or other military official — triggers a mandatory criminal investigation. The command has no discretion to delay or decline to investigate. A restricted report does not trigger a mandatory investigation, but can be converted to unrestricted at any time by the reporting person, at which point the mandatory investigation requirement activates.

Do I have to answer investigators’ questions?
No. Article 31(b) of the UCMJ guarantees your right to remain silent. Any military member questioning you about an offense you are suspected of committing must advise you of this right first. You are not required to cooperate, explain yourself, or provide any statement. Invoke your right to counsel and say nothing further. Civilian investigative agents — NCIS special agents, for example — are not legally required to give Article 31 warnings, but the right to remain silent applies regardless.

When should I hire a civilian defense attorney?
The moment you learn you are under investigation — not when charges are preferred, not after the Article 32 hearing, not on the eve of trial. The investigation phase is often the most important phase of the case. Evidence is being gathered, witnesses are being interviewed, and the prosecution narrative is being constructed. Experienced counsel engaged early can intervene to shape the outcome before charges are ever preferred. Waiting costs you options you cannot recover.

What happens after the investigation is complete?
The investigating agency (CID, NCIS, OSI, or CGIS) submits an investigative report to the OSTC. The OSTC reviews the case to determine whether the offense qualifies as a covered offense under their authority. If it does, the STC decides whether to prefer charges. If charges are preferred, an Article 32 preliminary hearing is typically held, after which the OSTC decides whether to refer the case to a general court-martial. The chain from completed investigation to referral can take months — and it is a chain with multiple points where experienced defense intervention can change the outcome.

How long does a military sexual assault investigation take?
Investigations vary significantly. Some conclude in weeks; others take months or years, particularly when the alleged conduct occurred in the past, involves multiple accusers, or requires extensive digital forensics. There is no set deadline that forces investigators to close a case. During a prolonged investigation, you remain exposed — to adverse administrative action, to OMPF annotations, to restrictions on your duties — even without formal charges. Active defense engagement during this period is not just useful; it is essential.

Can I be investigated for something that allegedly happened years ago?
Yes. There is no statute of limitations for most Article 120 offenses — rape, sexual assault, and related offenses can be investigated and prosecuted regardless of when the alleged conduct occurred. We have defended cases where allegations surfaced years or even decades after the alleged events. A Chief Warrant Officer 4 was investigated for sexual assault alleged to have occurred years in the past — we resolved the case during the investigation phase, with no trial and no conviction. Old allegations are not weak allegations, and the passage of time does not protect you.

Can investigators search my phone or computer without my consent?
In the military, investigators can seek a search authorization from a military magistrate or a commander with authority to grant one — without your consent. You have the right to refuse consent to any search. Refusing consent does not mean investigators cannot search; it means they must seek legal authorization. Do not consent. Consenting eliminates a potential challenge to the search. Refusing preserves it.

What if the accuser does not want to press charges or has recanted?
The OSTC can — and regularly does — proceed with prosecution regardless of whether the accuser wants to go forward. Military prosecutors operate under institutional pressure to take covered sexual assault cases to trial. A recantation will be scrutinized for signs of pressure or coercion, and may itself become a factual issue at trial. Do not assume that a reluctant or recanting accuser means the case goes away. Contact experienced counsel immediately.

By Philip Cave and Nathan Freeburg at www.court-martial.com. (Last reviewed, March 26, 2026.)

Related Pages:

• Sexual Assault Court-Martial Defense (UCMJ Article 120)
• The Office of Special Trial Counsel (OSTC) — What It Means for Your Defense
• Under Investigation
• UCMJ Appeals: Protect Your Rights with Proven Military Appellate Defense
• Alcohol and Intoxication in UCMJ Article 120 Cases
• Consent Under Article 120, UCMJ — Military Sexual Assault Defense