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Abusive Sexual Contact – Article 120, UCMJ

(For offenses committed after 1 January 2019)

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There are five types of Abusive Sexual Contact under Article 120:

Abusive Sexual Contact by Threat/Fear, Fraudulent Representation, or Artifice
Abusive Sexual Contact by False Pretense
Abusive Sexual Contact Without Consent
Abusive Sexual Contact when Victim is Asleep, Unconscious, or Otherwise Unaware the Act is Occurring
Abusive Sexual Contact When Victim is Incapable of Consenting

The Maximum Punishment for Abusive Sexual Contact, Article 120, UCMJ is:

Dishonorable Discharge
Total Forfeiture of all pay and allowances
Confinement for 7 years
Reduction to the grade of E-1
If convicted of Abusive Sexual Contact, the service member will also have to register as a sex offender.

Military sex crimes include:

Sample Specification for Abusive Sexual Contact by Threatening or Placing That Other Person in Fear:

In that Captain Rick Doe, US Navy, NAS Pensacola, on or about 4 July 2021, touch the anus of Robin Hood, with Captain Rick Doe’s’s penis with an intent to arouse the sexual desire of Captain Rick Doe, by placing Robin Hood in fear.

Sample Specification for Abusive Sexual Contact by Fraudulent Representation:

In that Captain Rick Doe, US Navy, NAS Pensacola, on or about 4 July 2021, touched the breast of Robin Hood, with his hand, with an intent to degrade Robin Hood, by making a fraudulent representation that the sexual contact served a professional purpose, to wit: it was part of Navy recruiting physical examination.

Sample Specification for Abusive Sexual Contact by False Pretense:

In that Captain Rick Doe, US Navy, NAS Pensacola, on or about 4 July 2021, touch the inner thigh of Robin Hood, with Captain Rick Doe’s tongue, with an intent to harass Robin Hood, by inducing a belief by pretense that the said accused was another person.

Sample Specification for Abusive Sexual Contact Without Consent:

In that Captain Rick Doe, US Navy, NAS Pensacola, on or about 4 July 2021, touch the vulva of Robin Hood, with his penis, with an intent to arouse the sexual desire of Captain Rick Doe, without the consent of Robin Hood.

Sample Specification for Abusive Sexual Contact when Victim is Asleep, Unconscious, or Otherwise Unaware the Act is Occurring:

In that Captain Rick Doe, US Navy, NAS Pensacola, on or about 4 July 2021, touch the inner thigh of Robin Hood, with a dildo, with an intent to arouse the sexual desire of Captain Rick Doe, when he reasonably should have known that Robin Hood was unconscious.

Sample Specification for Abusive Sexual Contact when Victim is Incapable of Consenting:

In that Captain Rick Doe, US Navy, NAS Pensacola, on or about 4 July 2021, touch the vulva of Robin Hood, with Captain Rick Doe’s hand, with an intent to degrade Robin Hood, when Robin Hood was incapable of consenting to the sexual contact because she had a physical disability, to wit: she was in a coma, and the accused reasonably should have known of that condition.

Military Sexual Assault Defenses: Mistake of Fact Explained by Military Defense Lawyer

Elements of Abusive Sexual Contact by Threat/Fear, Fraudulent Representation, or Artifice:

Each element must be proven beyond a reasonable doubt by the prosecution.

(1) That (state the time and place alleged), the accused [committed sexual contact upon] [caused ________ to commit sexual contact upon] (state the name of the alleged victim) by (state the alleged sexual contact); and
(2) That the accused did so by
(a) threatening or placing (state the name of the alleged victim) in fear;
(b) making a fraudulent representation that the sexual contact served a professional purpose;
(c) inducing a belief by artifice, pretense, or concealment that the accused was another person.

Elements of Abusive Sexual Contact Without Consent:

(1) That (state the time and place alleged), the accused [committed sexual contact upon] [caused ________ to commit sexual contact upon] (state the name of the alleged victim) by (state the alleged sexual contact); and
(2) That the accused did so without the consent of (state the name of the alleged victim).

Elements of Abusive Sexual Contact When Victim is Asleep, Unconscious, or Otherwise Unaware:

(1) That (state the time and place alleged), the accused [committed sexual contact upon] [caused ________ to commit sexual contact upon] (state the name of the alleged victim) by (state the alleged sexual contact);
(2) That the accused did so when (state the name of the alleged victim) was asleep, unconscious, or otherwise unaware that the sexual contact was occurring; and
(3) That the accused knew or reasonably should have known that (state the name of the alleged victim) was asleep, unconscious, or otherwise unaware that the sexual contact was occurring.

Elements of Abusive Sexual Contact When Victim is Incapable of Consenting:

(1) That (state the time and place alleged), the accused [committed sexual contact upon] [caused ________ to commit sexual contact upon] (state the name of the alleged victim) by (state the alleged sexual contact);
(2) That the accused did so when (state the name of the alleged victim) was incapable of consenting to the sexual contact due to (impairment by a drug, intoxicant, or other similar substance) (a mental disease or defect, or physical disability); and
(3) That the accused knew or reasonably should have known (state the name of the alleged victim) was incapable of consenting to the sexual contact due to (impairment by a drug, intoxicant, or other similar substance) (a mental disease or defect, or physical disability).

Definitions and Other Instructions for Abusive Sexual Contact, Article 120, UCMJ:

“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.

NOTE 1: Threat or placing in fear. When the sexual contact is alleged by threat or by placing in fear, include the following instruction:

“Threatening or placing a person in fear” means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action.

“Wrongful action,” as used here, includes an abuse of military rank, position, or authority in order to engage in a sexual contact with a victim. This includes, but is not limited to, threats to initiate an adverse personnel action or withhold a favorable personnel action unless the victim submits to the accused’s requested sexual contact. Superiority in rank is a factor in, but not dispositive of, whether a reasonable person in the position of the victim would fear that his or her noncompliance with the accused’s desired sexual contact would result in the threatened wrongful action contemplated by the communication or action.

In proving that a person made a threat, it need not be proven that the person actually intended to carry out the threat or had the ability to carry out the threat. The threat or fear in this case must be that the alleged victim or another person would be subjected to the wrongful action.

NOTE 2: Fraudulent representation. When the sexual contact is alleged by making a fraudulent representation that it serves a professional purpose, the following may be appropriate:

A “fraudulent representation” is a representation of fact, which the accused knows to be untrue, which is intended to deceive, which does in fact deceive, and which causes the other person to engage in the sexual contact. The fraudulent representation that the sexual contact served a professional purpose need not have been made by the accused to (state the name of the alleged victim). It is sufficient if the accused made such a fraudulent representation to any person, which thereby caused (state the name of the alleged victim) to engage in the sexual contact.

NOTE 3: Incapable of consenting. When the offense alleges the victim was incapable of consenting, include the following instruction:
“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 contact at issue.

NOTE 4: Marriage. Marriage is not a defense to any offense in violation of Article 120. If necessary, include the following instruction:
Marriage is not a defense to this offense.

NOTE 5: Without consent. When the sexual contact is alleged to be without consent, include the following instruction.

“Consent” means 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 death or grievous bodily harm or to being rendered unconscious.
A person cannot consent while under threat or in fear.
A person cannot consent when believing, due to a fraudulent representation, that the sexual contact served a professional purpose, or when believing, due to artifice, pretense, or concealment that the accused was another person.

All the surrounding circumstances are to be considered in determining whether a person gave consent.

NOTE 6: Evidence of consent.

Evidence of the alleged victim’s consent to the sexual conduct may be relevant, even for offenses that do not include “lack of consent” as an element. Evidence of the alleged victim’s consent to the sexual conduct might be introduced with respect to any abusive sexual contact allegation in order to negate the elements of the offense. Generally, the elements of an Article 120(d) offense require the accused to have committed sexual conduct “by” a certain method, or “when” the alleged victim was in a certain state. Stated another way, “by” means the sexual conduct occurred because of that method, and “when” means the sexual conduct occurred while the alleged victim was in a state that precluded consent. Consent to the sexual conduct logically precludes these causal links; when the alleged victim consented, the sexual conduct occurred because of the consent, not because of the charged method.

Accordingly, evidence that the alleged victim consented to the sexual conduct may be relevant to negate an element, even though lack of consent may not be a separate element. In such situations the following instruction, properly tailored, would be appropriate.

The evidence has raised the issue of whether (state the alleged victim’s name) consented to the sexual conduct listed in (The) Specification(s) (__________) of (The) (Additional Charge (___). All of the evidence concerning consent to the sexual conduct is relevant and must be considered in determining whether the government has proven (the elements of the offense) (that the sexual conduct was done by state the element(s) to which the evidence concerning consent relates) beyond a reasonable doubt. Stated another way, evidence the alleged victim consented to the sexual conduct, either alone or in conjunction with the other evidence in this case, may cause you to have a reasonable doubt as to whether the government has proven (every element of the offense) (that the sexual conduct was done by state the element(s) to which the evidence concerning consent relates).

“Consent” means 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 death or grievous bodily harm or to being rendered unconscious.

A person cannot consent while under threat or in fear.

A person cannot consent when believing, due to a fraudulent representation, that the sexual contact served a professional purpose, or when believing, due to artifice, pretense, or concealment that the accused was another person.

A “competent person” is a person who possesses the physical and mental ability to consent.

An “incompetent person” is a person who 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.

All the surrounding circumstances are to be considered in determining whether a person gave consent.

NOTE 7: Mistake of fact. The military judge must determine whether a mistake of fact has been raised by the evidence. See RCM 916(j). When the evidence has reasonably raised mistake of fact (e.g., mistake of fact as to consent to the sexual conduct), include the following instruction on honest and reasonable mistake of fact. The judge must carefully evaluate the evidence presented by both sides in such cases to determine the applicability of the following instruction. If instructing on an attempted offense, the honest mistake of fact instruction in Instruction 5-11-1 should be given instead of this instruction.

The evidence has raised the issue of mistake of fact in relation to the offense(s) of (state the alleged offense(s)), as alleged in (the) specification(s) (___) of (the) (additional) Charge (___).

There has been (evidence) (testimony) tending to show that, at the time of the alleged offense(s), the accused mistakenly believed that [(state the name of the victim) consented to the sexual conduct alleged] [__________] concerning (this) (these) offense(s).

Mistake of fact is a defense to (that) (those) charged offense(s). “Mistake of fact” means the accused held, as a result of ignorance or mistake, an incorrect belief that [the other person consented to the sexual conduct] [__________].

The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable, the ignorance or mistake must have been based on information, or lack of it, that would indicate to a reasonable person that [the other person consented to the sexual conduct] [__________]. (Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts.

“Negligence” is the absence of due care.

“Due care” is what a reasonably careful person would do under the same or similar circumstances.)
You should consider the inherent probability or improbability of the evidence presented on this matter. You should consider the accused’s (age) (education) (experience) (__________), along with the other evidence in this case (including, but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).

The prosecution has the burden of proving beyond a reasonable doubt that the defense of mistake of fact did not exist. If you are convinced beyond a reasonable doubt that, at the time of the charged offense(s), the accused did not believe that [the alleged victim consented to the sexual conduct] [__________], the defense does not exist. Furthermore, even if you conclude the accused was under a mistaken belief that [the alleged victim consented to the sexual conduct] [__________], if you are convinced beyond a reasonable doubt that at the time of the charged offense(s) the accused’s mistake was unreasonable, the defense does not exist.

NOTE 8: Voluntary intoxication and mistake of fact. If there is evidence of the accused’s voluntary intoxication, the following instruction is appropriate in conjunction with a mistake of fact instruction:

There has been some evidence concerning the accused’s state of intoxication at the time of the alleged offense. On the question of whether the accused’s (ignorance) (belief) was reasonable, you may not consider the accused’s intoxication, if any, because a reasonable (ignorance) (belief) is one that an ordinary, prudent, sober adult would have under the circumstances of this case. Voluntary intoxication does not permit what would be an unreasonable (ignorance) (belief) in the mind of a sober person to be considered reasonable because the person is intoxicated.

NOTE 9: Voluntary intoxication and “knew or reasonably should have known.” When the accused is charged with abusive sexual contact of a person who was asleep, unconscious, or otherwise unaware that the sexual contact was occurring, or a person who was incapable of consenting to the sexual contact, and there is evidence that the accused was intoxicated, the following instruction may be appropriate with respect to whether the accused “knew or reasonably should have known” the alleged victim’s state.

The evidence has raised the issue of voluntary intoxication in relation to the offense(s) of (state the alleged offense(s)). With respect to (that) (those) offense(s), I advised you earlier that the government is required to prove that the accused knew or reasonably should have known that (state the name of the alleged victim) was [asleep, unconscious, or otherwise unaware that the sexual contact was occurring] [incapable of consenting to the sexual contact(s) due to (impairment by a drug, intoxicant, or other similar substance) (a mental disease or defect, or physical disability)].

In deciding whether the accused had such knowledge, you should consider the evidence of voluntary intoxication.

The law recognizes that a person’s ordinary thought process may be materially affected when under the influence of intoxicants. Thus, evidence that the accused was intoxicated may, either alone or together with other evidence in the case, cause you to have a reasonable doubt that the accused had the required knowledge.

On the other hand, the fact that the accused may have been intoxicated at the time of the offense(s) does not necessarily indicate that he/she was unable to have the required knowledge because a person may be drunk yet still be aware at that time of his/her actions and their probable results.

In deciding whether the accused had the required knowledge, you should consider the effect of intoxication, if any, as well as the other evidence in the case.

The burden of proof is on the prosecution to establish the guilt of the accused. If you are convinced beyond a reasonable doubt that the accused in fact had the required knowledge, the accused will not avoid criminal responsibility because of voluntary intoxication.

However, on the question of whether the accused “reasonably should have known” that (state the name of the person alleged) was [asleep, unconscious, or otherwise unaware that the sexual contact was occurring] [incapable of consenting to the sexual contact(s) due to (impairment by a drug, intoxicant, or other similar substance) (a mental disease or defect, or physical disability)], you may not consider the accused’s intoxication, if any, because what a person reasonably should have known refers to what an ordinary, prudent, sober adult would have reasonably known under the circumstances of this case.

In summary, voluntary intoxication should be considered in determining whether the accused had actual knowledge that (state the name of the person alleged) was [asleep, unconscious, or otherwise unaware that the sexual contact was occurring] [incapable of consenting to the sexual contact(s) due to (impairment by a drug, intoxicant, or other similar substance) (a mental disease or defect, or physical disability)]. Voluntary intoxication should not be considered in determining whether the accused “reasonably should have known” that (state the name of the person alleged) was [asleep, unconscious, or otherwise unaware that the sexual contact was occurring] [incapable of consenting to the sexual contact(s) due to (impairment by a drug, intoxicant, or other similar substance) (a mental disease or defect, or physical disability)].

References for Abusive Sexual Contact, Article 120, UCMJ:

Definition of “vulva.” See US v Williams, 25 MJ 854 (AFCMR 1988) pet. denied, 27 MJ 166 (CMA 1988) and US v. Tu, 30 MJ 587 (ACMR 1990).

Definition of “competent person.” See US v. Pease, 75 MJ 180 (CAAF 2016).

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