Aggravated Sexual Contact Defense Attorneys Article 120 UCMJ

Aggravated Sexual Contact – Article 120, UCMJ

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Military sex crimes include:

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

Aggravated Sexual Contact by Force
Aggravated Sexual Contact by Force Likely to Cause Death or Grievous Bodily Harm
Aggravated Sexual Contact by Threatening or Placing That Other Person in Fear That Any Person Would Be Subjected to Death, Grievous Bodily Harm, or Kidnapping
Aggravated Sexual Contact by First Rendering That Other Person Unconscious:
Aggravated Sexual Contact by Administering a Drug, Intoxicant, or Other Similar Substance

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

• Dishonorable Discharge
• Total Forfeiture of all pay and allowances
• Confinement for 20 years
• Reduction to the grade of E-1
• If convicted of Aggravated Sexual Contact, the service member have to register as a sex offender.

Our military trial victories speak for themselves. The accused service member and his or her desired outcome is our main concern. Our criminal defense attorneys keep lighter caseloads than the average free US Army defense lawyer so that we can concentrate on each client separately. Your case will not be outsourced to a third party, and we will not coerce you into pleading guilty at the eleventh hour. Our defense attorneys have successfully fought US Army court-martial and administrative separation (ADSEP) cases in the United States and around the world.

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Our firm’s founding partners, Michael Waddington and Alexandra Gonzalez-Waddington, graduated from Temple University School of Law in Philadelphia, PA. In addition, Mr. Waddington is a member of the American Board of Criminal Lawyers. The ABCL is one of the most honored legal groups comprised of some of the most experienced criminal defense lawyers in the United States. Membership is by invitation only and is limited to extremely regarded defense attorneys that have a decade of experience defending criminal cases. During this time, they must have defended 50 or more felony trials and won 35 or more jury cases.

Sample Specification for Aggravated Sexual Contact by Force:

In that A1C Gary Hornet, US Air Force, did at or near Eglin Air Force Base, FL, on or about June 5, 2025, cause his penis to touch the inner thigh of Major Christine Toonotts, with A1C Gary Hornet’s penis, with an intent to abuse Major Christine Toonotts, by using unlawful force.

Sample Specification for Aggravated Sexual Contact by Force Likely to Cause Death or Grievous Bodily Harm:

In that A1C Gary Hornet, US Air Force, did at or near Eglin Air Force Base, FL, on or about June 5, 2025, touch the buttocks of Major Christine Toonotts, with A1C Gary Hornet’s tongue, with an intent to gratify the sexual desire A1C Gary Hornet, by using force likely to cause death or grievous bodily harm to Major Christine Toonotts, to wit: beating her with a tire iron.

Sample Specification for Aggravated Sexual Contact by Threatening or Placing That Other Person in Fear That Any Person Would Be Subjected to Death, Grievous Bodily Harm, or Kidnapping:

In that A1C Gary Hornet, US Air Force, did at or near Eglin Air Force Base, FL, on or about June 5, 2025, touch the anus of Major Christine Toonotts, with A1C Gary Hornet’s hand, with an intent to gratify the sexual desire of A1C Gary Hornet, by threatening Major Christine Toonotts that her daughter would be subjected to death.

Sample Specification for Aggravated Sexual Contact by First Rendering That Other Person Unconscious:

In that A1C Gary Hornet, US Air Force, did at or near Eglin Air Force Base, FL, on or about June 5, 2025, touch the vulva of Major Christine Toonotts, with an object to wit: a dildo, with an intent to abuse Major Christine Toonotts, by rendering Major Christine Toonotts unconscious by drugging her with Flunitrazepam, also known as Rohypnol.

Sample Specification for Aggravated Sexual Contact by Administering a Drug, Intoxicant, or Other Similar Substance:

In that A1C Gary Hornet, US Air Force, did at or near Eglin Air Force Base, FL, on or about June 5, 2025, touch the breast of Major Christine Toonotts, with A1C Gary Hornet’s penis, with an intent to arouse the sexual desire of A1C Gary Hornet, by administering to Major Christine Toonotts without the knowledge or permission of Major Christine Toonotts a drug, Flunitrazepam, also known as Rohypnol thereby substantially impairing the ability of Major Christine Toonotts to appraise or control her conduct.

Elements of Aggravated Sexual Contact:

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 a sexual contact to be committed upon] (state name of the alleged victim), by (state the alleged sexual contact); and
(2) That the accused did so by
(a) using unlawful force against (state the name of the alleged victim).
(b) using force causing or likely to cause death or grievous bodily harm to (state the name of the person alleged), to wit: (state the alleged force).
(c) threatening or placing (state the name of the alleged victim) in fear that (state the name of the person alleged) would be subjected to death, grievous bodily harm, or kidnapping.
(d) first rendering (state the name of the alleged victim) unconscious.
(e) administering to (state the name of the alleged victim) a drug, intoxicant, or other similar substance (by force or threat of force) (without the knowledge or consent of (state the name of the alleged victim)), thereby substantially impairing the ability of (state the name of the alleged victim) to appraise or control his/her conduct.

Definitions and Other Instructions for Aggravated 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.

The “vulva” is the external genital organs of the female, including the entrance of the vagina and the labia majora and labia minora.

“Labia”v is the Latin and medically correct term for “lips.”

NOTE 1: By unlawful force. When the sexual contact is alleged by unlawful force, include the following instruction:

“Unlawful force” means an act of force done without legal justification or excuse.

“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.

NOTE 2: By force causing or likely to cause death or grievous bodily harm. When the sexual contact is alleged by force causing or likely to cause death or grievous bodily harm, include the following instruction:

“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.

“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.

The force causing or likely to cause death or grievous bodily harm which caused the alleged victim to engage in the sexual contact need not have been applied by the accused to the alleged victim. It is sufficient if the accused applied such force to any person, which thereby caused the alleged victim to engage in the sexual contact.)

NOTE 3: By 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. 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.

“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.

“Kidnapping” means the wrongful seizure or confinement and holding of a person against their will.

“Wrongful” means without legal justification or excuse.

“Holding” means detention. The detention must be more than a momentary or incidental detention.

“Against their will” means that the person was held involuntarily. The involuntary nature of the detention may result from force, mental or physical coercion, or from other means, including false representations. (If the person is incapable of having a recognizable will, as in the case of a very young child or a mentally incompetent person, the holding must be against the will of the person’s parents or legal guardian.)

The person to be (killed) (subjected to grievous bodily harm) (kidnapped) need not be the alleged victim. It is sufficient if the accused threatened or placed the alleged victim in fear that any person would be (killed) (subjected to grievous bodily harm) (kidnapped), which thereby caused the alleged victim to engage in the sexual contact.

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: Instructing on consent.

The issue of “consent” may arise in two ways. First, lack of consent is an element when the accused is charged with aggravated sexual contact by administering a drug, intoxicant, or similar substance without the consent of the alleged victim. Lack of consent is not an element when the accused is charged with aggravated sexual contact by any other method (to include when the accused is charged with administering a drug, intoxicant, or similar substance by force or by threat of force). See US v. Neal, 68 MJ 289, 302-304 (CAAF 2010) (statutory definition of “force” does not imply an element of lack of consent). Second, evidence of the alleged victim’s consent to the sexual conduct might be introduced with respect to any aggravated sexual contact allegation in order to negate the elements of the offense. Generally, the elements of an Article 120(c) offense require the accused to have committed sexual conduct “by” a certain method.

Stated another way, “by” means the sexual conduct occurred because of that method. Consent to the sexual conduct logically precludes that causal link; 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. If consent evidence has been introduced to negate other elements of the charged offense, give the second parenthetical below, along with the appropriately tailored definitions of consent. If lack of consent to the administration of a drug, intoxicant, or similar substance is an element of the charged offense, give the first parenthetical below, along with the appropriately tailored definition of consent.

IF LACK OF CONSENT TO THE ADMINISTRATION OF A DRUG, INTOXICANT, OR SIMILAR SUBSTANCE IS AN ELEMENT, GIVE THE FOLLOWING INSTRUCTION:

(As I previously advised you, in (The) Specification(s) (__________) of (The) (Additional) Charge (___), the accused is charged with the offense of aggravated sexual contact by administering a drug, intoxicant, or other similar substance to (state the name of the alleged victim) without his/her knowledge or consent, thereby substantially impairing the ability of (state the name of the alleged victim) to appraise or control his/her conduct. For this offense, lack of consent to the administration of the drug, intoxicant, or other similar substance is an element of the offense.)

IF CONSENT EVIDENCE HAS BEEN INTRODUCED TO NEGATE OTHER ELEMENTS OF THE CHARGED OFFENSE, GIVE THE FOLLOWING INSTRUCTION:

The evidence has (also) raised the issue of whether (state the name of the alleged victim) 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 applicable element). 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 applicable element.

“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.

A person cannot consent to being rendered unconscious.

A person cannot consent while under threat or in fear.

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 6: 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 or as to knowledge of or consent to the administration of a drug, intoxicant, or other substance), 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 alleged victim) consented to the sexual conduct alleged] [(state the name of the alleged victim) (knew of) (consented to) the administration of the drug, intoxicant, or other similar substance] [__________] 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 other person (knew of) (consented to) the administration of the drug, intoxicant, or other similar substance] [__________].

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] [the other person (knew of) (consented to) the administration of the drug, intoxicant, or other similar substance] [__________]. (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 alleged victim (knew of) (consented to) the administration of the drug, intoxicant, or other similar substance] [__________], 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] [the alleged victim (knew of) (consented to) the administration of the drug, intoxicant, or other similar substance] [__________], 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 7: Voluntary intoxication and mistake of fact. If the above mistake of fact instruction is given, and there is evidence of the accused’s voluntary intoxication, give the following instruction:

There has been some evidence concerning the accused’s state of intoxication at the time of the alleged offense(s). 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.

References for Aggravated 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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