Service members accused under Article 120 of the Uniform Code of Military Justice (10 U.S.C. § 920) sometimes assume that if they decline to talk to anyone connected with a sexual assault report, including a Sexual Assault Response Coordinator, that refusal can be turned against them at trial. The reality is reassuring for the accused but requires careful explanation, because the role of a SARC is widely misunderstood. In short, an accused generally cannot be punished or have an adverse inference drawn against him for asserting his right to remain silent, and the SARC is not an investigator who interrogates the accused in the first place. This article clarifies what the SARC does and how the right to silence protects the accused.
What a SARC actually is
A Sexual Assault Response Coordinator, along with a SAPR victim advocate, is part of the military’s Sexual Assault Prevention and Response program. These personnel exist to support and assist victims of sexual assault. They help victims obtain medical care, counseling, and legal and other resources, and they are required to maintain the confidentiality of victim communications in restricted reporting situations. Only a SARC, a SAPR victim advocate, or healthcare personnel may receive a restricted report, which allows a victim to get help without automatically triggering an investigation or command notification.
The key point is that a SARC is a victim-support resource, not a criminal investigator. SARCs do not conduct interrogations of an accused service member. Criminal investigations are handled by military law enforcement organizations such as the Army Criminal Investigation Division, the Naval Criminal Investigative Service, or the Air Force Office of Special Investigations, and by command. Because the SARC’s function is to support victims rather than to question suspects, the premise of an accused being asked to participate in a SARC interview is largely a misunderstanding of how the program works. The accused’s interactions that carry legal weight are with investigators and command, not with the victim-advocacy structure.
The right to remain silent
Even setting aside the SARC’s limited role, the broader principle protects the accused. Article 31(b) of the UCMJ requires that a service member suspected of an offense be advised of the nature of the accusation, of the right to remain silent, and that any statement may be used against him, before being questioned by someone acting in an official law enforcement or disciplinary capacity. An accused has the right to decline to answer questions and to consult counsel. Exercising that right is not misconduct and is not evidence of guilt.
Military law generally prohibits using an accused’s invocation of the right to silence against him. The principle parallels the civilian rule. In Griffin v. California, 380 U.S. 609 (1965), the Supreme Court held that the prosecution may not comment on a defendant’s failure to testify, and that the jury may not be invited to draw an adverse inference from silence. The Supreme Court reinforced the protection in Mitchell v. United States, 526 U.S. 314 (1999), holding that a court may not draw an adverse inference from a defendant’s silence even at sentencing on factual matters relating to the offense. In the court-martial setting, the Military Rules of Evidence likewise restrict comment on and use of an accused’s invocation of rights and refusal to make a statement. Trial counsel cannot ordinarily argue that a refusal to cooperate shows consciousness of guilt.
Why declining to participate is not held against the accused
Putting these principles together, the refusal to participate in questioning, whether framed as a SARC interview or, more accurately, an investigative interview, cannot properly be used as substantive evidence of guilt or as a basis for an adverse inference at an Article 120 court-martial. The government bears the burden of proving each element beyond a reasonable doubt using admissible evidence, and it cannot shift that burden by pointing to the accused’s silence. If trial counsel improperly comments on the accused’s refusal to speak, the defense can object, seek a curative instruction, and preserve the issue for appellate review, and in serious cases such comment can be grounds for relief.
Important practical cautions
A few caveats matter. First, the protection covers the invocation of the right to silence in response to official questioning. It does not transform every refusal in every context into protected silence, so the specific circumstances of any interaction should be reviewed by counsel. Second, while silence cannot be used against the accused, voluntary statements that the accused does make can be used, which is precisely why declining to speak without counsel is so often the prudent course. Third, refusing to obey a lawful order is a different matter from invoking the right to silence. A service member should not confuse the constitutional and statutory right to decline self-incriminating questioning with a refusal to follow lawful directives that have nothing to do with self-incrimination.
What an accused should do
The safest approach for a service member who is a suspect is to politely decline to answer investigative questions, clearly invoke the right to remain silent and the right to counsel, and immediately contact a military defense attorney. The accused should not attempt to explain or argue the case to investigators, command, or anyone else, and should let counsel handle communications. Asserting these rights is lawful and cannot properly be used as evidence of guilt.
The bottom line
A SARC is a victim-support coordinator, not an interrogator of the accused, so the scenario of refusing a SARC interview rests on a misunderstanding of the program. More importantly, an accused’s invocation of the right to remain silent in response to official questioning cannot properly be used against him at an Article 120 court-martial, consistent with Article 31, the Military Rules of Evidence, and Supreme Court decisions such as Griffin v. California and Mitchell v. United States. Anyone facing these charges should invoke the right to counsel, decline to make statements to investigators, and rely on experienced military defense counsel to protect those rights.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.