A confession can look like it ends a case before the defense ever gets a chance to fight it. That is what the government believed in one of our recent cases, a military sexting matter involving a nineteen-year-old Soldier. It was not what actually happened.
At Law Office of Patrick J. McLain, PLLC, we handle these types of cases regularly, particularly among young service members. We asked Brad Sauer, an associate attorney at our firm and a former Air Force judge advocate, to walk through how the case unfolded and what changed the government’s position.
A Relationship That Was Legal. Messages That Weren’t.
Some state close-in-age laws, often called “Romeo and Juliet” provisions, may permit sexual conduct between teenagers and young adults who are only a few years apart. But those protections do not necessarily extend to sexually explicit photographs or videos exchanged by the same couple. For a service member, that distinction can lead to an investigation under the Uniform Code of Military Justice even when the underlying physical relationship was not prohibited by state law.
We are contacted regularly by young service members, usually eighteen to twenty-two years old, who exchanged sexually explicit messages or images with someone they know personally and who is slightly under eighteen. Often the two are in a real relationship, one that would be entirely legal under their home state’s age-gap exception. Depending on the content and circumstances, sexually explicit images can support charges involving the possession, receipt, distribution, or production of child pornography. Messages may create separate exposure under military, federal, or applicable state law, but the exact offense depends on what was communicated and why.
The misconception, Brad explains, is assuming that the legality of the physical relationship determines the legality of everything the couple does electronically. Close-in-age provisions and laws governing sexually explicit images address different conduct and may use different age thresholds.
That gap is what most general explanations of these charges miss, and it is where we start with nearly every service member who comes to us with this situation.
The Case: A Confession That Looked Like It Ended the Fight
One case shows how much this gap can cost a service member if the charge is not fought.
Our client was a nineteen-year-old Soldier who had exchanged sexually explicit messages and photos with a partner he knew personally, who was slightly under eighteen. Investigators built a strong case, including what looked on its face like a full confession.
Based on that evidence, the government’s plea offer reflected how strong it believed its case to be: a court-martial conviction, five months of confinement, and a dishonorable discharge, a military-specific punishment with consequences that follow a service member for life. Brad understood that the proposed conviction would also require our client to register as a sex offender for life in most states.
The offer treated the case as a foregone conclusion. We did not think it was one.
The Statement at the Center of the Case
Roughly thirty minutes into the interview, our client told investigators:
“I just think having a lawyer’s a good idea, because I don’t know if I’m gonna say anything that’s incriminating in any way.”
That statement did not automatically end the interrogation, and it did not automatically invalidate everything that came after it. Our position was that, in the context of how investigators responded, it amounted to a request for counsel, or at minimum showed that agents had steered our client away from getting legal advice before he kept talking. The government could argue the wording was ambiguous, which made suppression a contested issue rather than a certainty.
His admissions came later, and they became the core of the government’s case.
Suppressing the Confession Would Change What the Government Had to Prove
That gave us grounds to move to suppress the confession entirely. Without it, the government’s proof problem changed. Brad’s assessment was that prosecutors would still need testimony from the young woman they characterized as the victim, which meant asking a private citizen to appear, testify under oath, and be available for cross-examination.
Brad has observed a pattern that also plays into these decisions:
"I have noticed that private citizens are becoming less and less amenable to being involved in criminal prosecutions. I have a lot of theories about why that may be, but the important takeaway is that their reticence can frequently be leveraged to help get a favorable offer from the government. The difficulty is the uncertainty associated with making decisions based on trends or gut feelings rather than data and evidence."
That reluctance is not a defense by itself, and no attorney can guarantee that a witness will refuse to appear. In this case, it added uncertainty the government had mostly avoided while it believed the confession was admissible.
We filed the motion. Before the judge ruled on it, the government came back with a new offer: no conviction, no sex offender registration, and an administrative separation from the United States Army instead of a court-martial. Our client accepted it and moved on with his life.
The First Offer Did Not Account for the Government’s Risk
Brad does not advise every client to reject the government’s first offer. He asks whether the offer reflects the government’s actual evidentiary risks, and whether the client can tolerate the consequences of testing them.
“There are three types of criminal defense attorneys: those who can’t fight, those who won’t fight, and those who are itching for a fight. We are itching for a fight. When the government is in the wrong, we are ready to hold it accountable.”
“A client must often take calculated risks in order to leverage his or her constitutional rights to achieve a result that is fair. The government is rarely able, let alone willing, to make an offer of its own accord which fully accounts for the weaknesses in its case.”
We encourage clients to evaluate the realistic range of outcomes rather than the theoretical extremes. The best and worst results that are merely possible are often too remote to support a useful decision. The important questions are what is realistically likely to happen if the client accepts the offer, files a motion, proceeds to trial, or pursues another resolution.
The Mistakes We See Before We’re Ever Called
By the time most clients reach us, two things have usually already happened.
- They already spoke to investigators. This happens in nearly every case we take on, almost always before an attorney was ever involved.
- They assumed the mistake could not be fixed. Believing a case is unwinnable leads people to accept the first offer instead of finding an attorney willing to look for the flaw in the government’s case.
Brad also points to a misconception specific to this charge:
“The biggest misconception young people facing this type of charge have is that the life they had envisioned for themselves is no longer possible. This leads to feelings of resignation and despondency which make it difficult to make the tough decision to fight for themselves.”
What We Want You to Remember If You’re Facing These Allegations
Brad’s advice to anyone in this position comes down to one point:
“Keep an open mind about taking risk. Taking a risk may not be the right approach in a given case for a given client, but if someone facing these allegations is not open to the idea of doing so, he or she will accept the first offer that comes along. Usually that offer will have lifelong consequences which frequently could have been avoided.”
Talk to Us Before You Accept an Offer
A court-martial conviction, a dishonorable discharge, and lifetime sex offender registration are not outcomes to accept because a case looks strong on paper. If you or someone you know is under investigation or facing charges connected to sexting involving someone under eighteen, the earlier we’re involved, the more options we have to work with.
Call (888) 606-3385 or contact us online to speak with a lawyer.
About Brad Sauer
Brad Sauer is an associate attorney at Law Office of Patrick J. McLain, PLLC. He spent thirteen years as a judge advocate in the U.S. Air Force, including five years as a military defense counsel, and finished his active-duty career as Chief Circuit Defense Counsel at Kadena Air Base, Japan, where he led a team of sixteen defense attorneys and paralegals. He continues to serve as a major in the Air Force Reserve. Brad has handled nearly one hundred criminal trials and hundreds of additional criminal and administrative matters across every branch of service.
