Article 120b | Rape and Sexual Assault of a Child

Accused of an Article 120b Charge for Rape or Sexual Assault of a Child?  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 120b (10 U.S.C. 920b), prohibits any service member from engaging in unlawful sexual intercourse or sexual touching.  The government has three main ways to prove a service member violated Article 120b.

Child sexual offenses under Article 120b can be proven by the government at court-martial or administrative hearing by showing the service member (1) raped, (2) sexually assaulted, (3) abused a child.

Rape of a Child:

Any person subject to the UCMJ who 

1. commits a sexual act upon a child who has not attained the age of 12 years; or
2. Commits a sexual act upon a child who has attained the age of 12 years by —
   1. Using force against any person;
   2. Threatening or placing that child in fear;
   3. Rendering that child unconscious; or
   4. Administering to that child a drug, intoxicant, or other similar substance

is guilty of rape and shall be punished as a court-martial may direct.

Sexual Assault of a Child:

Any person subject to the UCMJ who commits a sexual act upon a child who has attained the age of 12 years is guilty of sexual assault of a child and shall be punished as a court-martial may direct.

Sexual Abuse of a Child:

Any person subject to the UCMJ who commits a lewd act upon a child is guilty of sexual abuse of a child and shall be punished as a court-martial may direct.

The terms found within the elements above in Article 120b 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.
• This term also refers to the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or 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 who has not attained the age of 16 years, 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.

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 child; or
• Inflicting physical harm.
• In the case of a parent-child or similar relationship, the use or abuse of parental or similar authority is sufficient to constitute the use of force.

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

Child:  The term “child” means any person who has not attained the age of 16 years.

Lewd Act:  The term “lewd act” means—

• Any sexual contact with a child;
• Intentionally exposing one’s genitalia, anus, buttocks, or female areola or nipple to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person;
• Intentionally communicating indecent language to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person;
• Any indecent conduct, intentionally done with or in the presence of a child, including via any communication technology, that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

Threatening or Placing That Child in Fear:  The term threatening or placing that child in fear means a communication or action that is of sufficient consequence to cause the child to fear that non-compliance will result in the child or another person being subjected to the action contemplated by the communication or action.

Pursuant to Rule for Court-Martial 305, a Commanding Officer may order a service member into pretrial confinement for allegedly committing a rape of a child, sexual assault of a child, or sexual abuse of a child under Article 120b.  The Commanding Officer may place the service member in the brig, not as punishment, but to protect society from the foreseeable 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 120b offense triable by court-martial has been committed;
• The confinee committed it;
• Confinement is necessary because it is foreseeable that:
  • The confinee will not appear at trial, pretrial hearing, or preliminary hearing; or
  • The confinee 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!

Are you facing an Article 120b accusation? The Military Law Center can help. Our experienced team of attorneys understands the unique challenges faced by those serving in the military. We are dedicated to protecting your rights and fighting for the best possible outcome in your case. Contact us today for a free consultation and discuss your case with an experienced military defense attorney.

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

• Mistake of Fact as to Age:  If a reasonable person would have believed the person they had sexual relations with was over the age of 16, then that person is not guilty of committing a sexual offense against the child.
• 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. 
• Consent: Consent is a defense to sexual assault of a child or sexual abuse of a child when the accused and victim are married.  This is fairly rare as the term child refers to a person under the age of 16 years old.
• Marriage: Marriage is a defense for allegations of sexual abuse of a child or sexual assault of a child when the accused and victim are married.  Again, this is fairly rare as this would require a child under the age of 16 to be married to a service member.

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

Rape of a Child

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

Sexual Assault of a Child

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

Sexual Abuse of a Child

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

The potential penalties for sexual offenses in the military under Article 120b 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.  This only applies to Sexual Abuse of a Child.
• Reprimand or admonition: These are non-judicial punishments involving official censure of the accused’s actions.

The specific maximum punishment for an Article 120b 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 120b, 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 120b 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 120b helps an accused avoid lifetime punishment associated with sex offender registration.

The military has the option of charging an accused with sexual assault of a child or other sex offenses at a court martial or choosing to use the administrative separation board process.  All military services prohibit rape of a child, sexual assault of a child, and sexual abuse of a child.  An ADSEP Board for Article 120b 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 at discharge boards.  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 attorneys in California can help get your military career back on track.

When a service member is arrested for rape or sexual assault of a child 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 120b 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.  Friends and family may turn their backs on you.

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 exposed to more than one year of confinement at trial.

Facing an Article 120b accusation for sexual assault of a child can be debilitating, 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 120b Allegations Alone. Military Law Center Can Help.

An Article 120b 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