Article 120 | Sexual Offenses

Accused of an Article 120 Charge for Rape or Sexual Assault?  You’re probably worried about your future and what can go wrong.  Don’t go it alone.  Military Law Center can help.

The Manual for Courts-Martial, under Article 120 (10 U.S.C. 920), prohibits any service member from engaging in unlawful sexual intercourse or sexual touching.  The government has four main ways to prove a service member violated Article 120.

Sexual offenses under Article 120 can be proven by the government at court-martial or administrative hearing by showing the service member (1) raped, (2) sexually assaulted, (3) engaged in aggravated sexual contact, or (4) committed abusive sexual contact.

Rape:

Any person subject to the UCMJ who commits a sexual act upon another person by—

1. Using unlawful force against that other person;
2. Using force causing or likely to cause death or grievous bodily harm to any person;
3. Threatening or placing that other person in fear that any person will be subject to death, grievous bodily harm, or kidnapping;
4. First rendering that other person unconscious; or
5. Administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct is guilty of rape and shall be punished as a court-martial may direct.

Sexual Assault:

Any person subject to the UCMJ who—

1. Commits a sexual act upon another person by:
   1. Threatening of placing that other person in fear;
   2. Making a fraudulent representation that the sexual act serves a professional purpose; or
   3. Induing a belief by any artifice, pretense, or concealment that the person is another person;
2. Commits a sexual act upon another person—
   1. Without the consent of the other person; or
   2. When the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring;
3. Commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to—
   1. Impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person; or
   2. A mental disease or defect, or physical disability, and that condition is known or reasonably should be known by the person; is guilty of sexual assault and shall be punished as a court-martial may direct.

Aggravated Sexual Contact:

Any person subject to the UCMJ who commits or causes sexual contact upon or by another person, if to do so would violate subsection (a) (rape) had the sexual contact been a sexual act, is guilty of aggravated sexual contact and shall be punished as a court-martial may direct.

Abusive Sexual Contact:

Any person subject to the UCMJ who commits or causes sexual contact upon or by another person, if to do so would violate subsection (b) (sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct.

The terms found within the elements above in Article 120 have specific definitions.  The following definitions apply:

Sexual Act: The term sexual act means—

• The penetration, however slight, of the penis into the vulva or anus or mouth;
• Contact between the mouth and the penis, vulva, scrotum, or anus; or
• The penetration, however slight, of the vulva or penis or anus of another by any part of the body or any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

Sexual Contact: The term sexual contact means touching, or causing another person to touch, either directly or through the clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.  Touching may be accomplished by any part of the body or an object.

Marriage: Marriage is not a defense for any conduct in issues in any prosecution under Article 120.

Grievous Bodily Harm: The term grievous bodily harm means serious bodily injury.  It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries.  It does not include minor injuries such as a black eye or a bloody nose.

Force: The term force means—

• The use of a weapon;
• The use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or
• Inflicting physical harm sufficient to coerce or compel submission by the victim.

Unlawful Force:  The term unlawful force means an act of force done without legal justification or excuse.

Threatening or Placing That Other Person in Fear:  The term threatening or placing that other person in fear means a communication or action that is of sufficient consequence to cause a reasonable rear that non0complance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action.

Consent:

• Consent is a freely given agreement to the conduct at issue by a competent person.  An expression of lack of consent through words or conduct means there is no consent.  Lack of verbal or physical resistance does not constitute consent.  Submission resulting from the use of force, threat of force, or placing another person in fear also does not constitute consent.  A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue does not constitute consent.
• A sleeping, unconscious, or incompetent person cannot consent.  A person cannot consent to force causing or likely to cause grievous bodily harm or to being rendered unconscious.  A person cannot consent while under threat or in fear.
• All the surrounding circumstances are to be considered in determining whether a person gave consent.

Incapable of Consenting: The term incapable of consenting means the person is—

• Incapable of appraising the nature of the conduct at issue; or
  • Physically incapable of declining participation in, or communicating unwillingness to engage in, the sexual act at issue.

Pursuant to Rule for Court-Martial 305, a Commanding Officer may order a service member into pretrial confinement for allegedly committing a rape, sexual assault, aggravated sexual contact, or abusive sexual contact offense under Article 120.  The Commanding Officer may place the service member in the brig, not as punishment, but to protect society from the necessary risk of the accused committing another offense.

Attorneys at the Military Law Center help those confined in the brig pretrial seek release at their Initial Review Officer (IRO) hearing.  At an IRO hearing, a neutral and detached officer shall review the probable cause determination and necessity for continued pretrial confinement.  The IRO will consider whether:

• An Article 120 offense triable by court-martial has been committed;
• The confine committed it;
• Confinement is necessary because it is foreseeable that:
  • The confine will not appear at trial, pretrial hearing, or preliminary hearing; or
  • The confine will engage in serious criminal misconduct; and
• Less severe forms of restraint are inadequate.

As an accused, you have the right to require your command present a preponderance of evidence at the IRO hearing to prove why you should remain in pretrial confinement.  Working with experienced sexual assault attorneys for IRO hearings is the first step to showing your command you will fight for your freedom!

An Article 120 charge is serious, can stop a military career, and even warrant brig time.  But there are defenses available to fight the accusation:

• Consent:
  Consent is a defense to sexual assault without consent because it negates the unlawfulness of the offense.  Evidence of consent is required to raise this defense.

• Mistake of Fact as to Consent: 
  If a reasonable person would have believed they had consent from the complaining witness, then that person is not guilty of committing a sexual offense.

• Alibi:
  “Alibi” means that the accused could not have committed the offense charged because the accused was at another place when the offense occurred.  As this defense allows the accused to show he or she was not the person who committed the offense at a certain time or place, the government will be unable to meet its burden of proof.  The burden remains on the prosecution to demonstrate the accused’s guilt. 

The maximum punishment for Article 120 is a dishonorable discharge, confinement for life, total forfeitures of pay and allowances, reduction in rank to E-1, and other lawful punishments.

Rape

• Mandatory Dishonorable Discharge or Dismissal (Officers)
• Confinement for Life without Eligibility for Parole
• Total Forfeitures
• Reduction in Rank to E-1

Sexual Assault

• Mandatory Dishonorable Discharge or Dismissal (Officers)
• Confinement for 30 Years
• Total Forfeitures
• Reduction in Rank to E-1

Aggravated Sexual Contact

• Dishonorable Discharge or Dismissal (Officers)
• Confinement for 20 Years
• Total Forfeitures
• Reduction in Rank to E-1

Abusive Sexual Contact

• Dishonorable Discharge or Dismissal (Officers)
• Confinement for 7 Years
• Total Forfeitures
• Reduction in Rank to E-1

The potential penalties for sexual offenses in the military under Article 120 vary on the seriousness of the offense. A court-martial can impose a range of punishments, including:

• Confinement: The accused may face imprisonment for a specific period determined by the court-martial.
• Reduction in rank: This could involve a demotion to a lower enlisted grade or officer rank.
• Forfeiture of pay and allowances: The accused may lose a portion of their military pay and benefits.
• Bad-conduct discharge: This is a less severe form of separation with a negative characterization, potentially impacting future employment opportunities and veteran benefits.
• Reprimand or admonition: These are non-judicial punishments involving official censure of the accused’s actions.

The specific maximum punishment for an Article 120 offense will depend on how the government presents its case and how many separate specifications the accused is facing.  Our sexual assault defense attorneys at the Military Law Center can help provide a maximum punishment for your case during a free consultation.

Sex offender registration in any state in which the accused resides is the most serious collateral consequence of a conviction under Article 120, UCMJ.  Registering as a sex offender has reputational implications, restrictions upon travel, and detrimental privacy concerns for the accused.  Registering as a sex offender is like living life on an installment plan—always subject to government overwatch, strict check-in deadlines, and constant potential to go back to jail for violating a check-in requirement.

In California, for example, an accused convicted under Article 120 would be required to update their information annually with local law enforcement, within five working days before or after their birthday. Some sex offenders must update their information more often: transients must update every 30 days and sexually violent predators must update every 90 days. 

Avoiding a conviction under Article 120 helps an accused avoid lifetime punishment associated with sex offender registration.

The military has the option of charging an accused with sexual assault or other sex offenses at a court martial or choosing to use the administrative separation board process.  All military services prohibit rape, sexual assault, aggravated sexual contact, and abusive sexual contact.  An ADSEP Board for Article 120 offenses is a more challenging environment for an accused to win because the burden of proof is far lower than that required at a court martial.  

Despite the easier burden for the government, attorneys at the Military Law Center have successfully defended service members facing allegations of sex offenses.  With diligent investigation, discovering motives to fabricate (like weaponizing the military justice system to win a civilian divorce or custody battle), and excellent courtroom presence, our attorneys have defeated these allegations in the past.  By strategically planning a defense, preparing early, and critically analyzing the evidence, our ADSEP Board lawyers can help get your military career back on track.

When a service member is arrested for rape or sexual assault or becomes “titled” in a law enforcement investigation, their security clearance may be in jeopardy.  Service members may receive a Request for Supplemental Information (RSI) from the Defense Counterintelligence and Security Agency (DSCA).  DSCA is required to review a service member’s eligibility for an active security clearance when they are charged with or convicted of any criminal offenses (excluding traffic violations that do not involve alcohol or drugs, resulting in fines less than $300) since the last investigation pursuant to DoDM 5200.02. 

As any response to DSCA may be used against a service member later at an ADSEP Board or court martial, it is paramount to consult with a qualified military law attorney with experience with security clearance issues.  Effective responses to a request for supplemental information will use the 2017 National Security Adjudicative Guidelines, Security Executive Agent Directive 4.

An Article 120 arrest and conviction can have devastating consequences beyond the courtroom. It can damage your reputation within the military, stall your career progression, and potentially hinder future job opportunities in the civilian sector.  

Additionally, service members may be precluded from ownership, receipt, or transport of any firearm that has been transported in interstate or foreign commerce under 18 U.S.C. § 922(g)(6) when the accused separates from the military with a dishonorable discharge or is punished with more than one year of confinement.

Facing an Article 120 accusation for sexual assault can be frustrating, stressful, and oftentimes a distressing experience. At Military Law Center, our attorneys understand the challenges you’re facing, and we’re here to help. Here’s what sets us apart:

• Experienced Military Defense Lawyers:
  Our team is comprised of former military judge advocates (JAGs) with a deep understanding of military law and the UCMJ. We’ve successfully defended countless service members facing all kinds of allegations, and we know how to litigate the complexities of military justice from start to finish.
• Personalized Attention:
  We care for every client as an individual. We’ll take the time to understand your specific situation and develop a personalized defense strategy, to include rehabilitation options, designed to achieve the best possible outcome.
• Aggressively Protecting Your Rights:
  We’re committed to fighting for your rights and ensuring you receive fair treatment throughout the legal process. We’ll explore all available defenses and work tirelessly to protect your career and reputation.
• Clear Communication:
  We understand legal terms can be confusing. We’ll keep you informed about the progress of your case and explain everything in clear, understandable terms.
• Free Consultation:
  We offer a free consultation to discuss your situation and answer any questions you may have. This allows you to make informed decisions about your defense strategy.

Don’t Face Article 120 Allegations Alone. Military Law Center Can Help.

An Article 120 charge can take away your gun rights and security clearance, stall your military career, force you to register as a sex offender, and damage your personal and professional reputation. But you don’t have to fight by yourself. Military Law Center has a proven track record of successfully defending service members facing the most serious charges and getting them the rehabilitative help they need. Our experienced military law attorneys understand the military justice system and will work tirelessly to protect your rights and achieve the best possible outcome for your case.

Contact Military Law Center today for a free consultation.
We’ll stand by your side and fight for you.

Call Us Today – (760) 536-9038