UCMJ Article 120 Abusive Sexual Contact Of a Person Who Is Asleep, Unconscious, or Otherwise Unaware the Act is Occurring

Facing a court-martial, UCMJ action, Administrative Separation Board, or other Adverse Administrative Action for Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconscious? Call our experienced military defense lawyers at 1-800-921-8607 for a free consultation.

Note: This law applies only to Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep, Unconscious, or Otherwise Unaware the Act is Occurring offenses committed on and after 1 January 2019

What is Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep, Unconscious, or Otherwise Unaware the Act is Occurring?

Abusive sexual contact under Article 120 UCMJ, specifically involving a person who is asleep, unconscious, or otherwise unaware, is a grave offense in the military. This charge involves engaging in sexual contact without the victim’s awareness or consent, leading to severe consequences such as imprisonment, dishonorable discharge, and mandatory sex offender registration.

Facing such charges can be life-altering, affecting one’s personal and professional life significantly. It is crucial for those accused to seek immediate legal assistance from the best military defense lawyers. These lawyers are well-versed in the complexities of military law and can provide a robust defense to protect the rights of the accused. They can help navigate the intricate legal processes, challenge the evidence, and work towards achieving the best possible outcome.

Having experienced Article 120 UCMJ lawyers by your side ensures that every aspect of the case is meticulously examined and the defense strategy is tailored to the case’s unique circumstances. This comprehensive approach can significantly affect the outcome, potentially reducing penalties or achieving an acquittal.

In conclusion, accusations under Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconscious military defense lawyers require the support of the best military defense lawyers. Their knowledge and dedication to defending military personnel can help mitigate the severe consequences and ensure the accused receives a fair trial. If you are facing such charges, contacting experienced Article 120 UCMJ lawyers immediately is essential to protect your future.

What are the Elements of Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep, Unconscious, or Otherwise Unaware the Act is Occurring?

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

Note: The maximum and minimum punishments for UCMJ Article 120 Abusive Sexual Contact Of a Person Who Is Asleep, Unconscious, or Otherwise Unaware the Act is Occurring (Abusive Sexual Contact) vary depending on the date of the offense.

In the military, the crime of UCMJ Article 120, Abusive Sexual Contact Of a Person Who Is Asleep, Unconscious, or Otherwise Unaware the Act is Occurring, falls under the general offense category of Abusive Sexual Contact. It is one of the more serious offenses under the UCMJ and carries significant mandatory punishments. Offenses committed after December 27, 2023, carry a mandatory minimum jail sentence of 1-36 months (1 month to 3 years). If convicted, the defendant must register as a Federal and State sex offender.

What are the Abusive Sexual Contact Offenses Under Article 120 UCMJ?

Abusive Sexual Contact by Threatening or Placing That Other Person in Fear, Article 120 UCMJ
Abusive Sexual Contact by Fraudulent Representation, Article 120 UCMJ
Abusive Sexual Contact by False Pretense, Article 120 UCMJ
Abusive Sexual Contact Without Consent, Article 120 UCMJ
Abusive Sexual Contact Of a Person Who Is Asleep, Unconscious, or Otherwise Unaware the Act is Occurring, Article 120 UCMJ
Abusive Sexual Contact When that Person is Incapable of Consenting, Article 120 UCMJ

What are the Maximum Punishments for Abusive Sexual Contact Of a Person Who Is Asleep, Unconscious, or Otherwise Unaware the Act is Occurring, Article 120 UCMJ?

For offenses committed between 1 Jan 2019 and 27 Dec 2023:

7 Years of Confinement
Dishonorable Discharge, BCD, Dismissal
Total Forfeitures
Reduction to E-1
Collateral Consequences of a Federal Felony Conviction
Collateral Consequences of Registration as a State & Federal Sex Offender

For offenses committed after 27 Dec 2023

Under the Sentencing Parameters, Abusive Sexual Contact Of a Person Who Is Asleep, Unconscious, or Otherwise Unaware the Act is Occurring, Article 120 UCMJ, is a Category 2 Offense
Mandatory confinement ranges from 1-36 months (1 month to 3 years)
Dishonorable Discharge, BCD, Dismissal
Total Forfeitures
Reduction to E-1
Collateral Consequences of a Federal Felony Conviction
Collateral Consequences of Registration as a State & Federal Sex Offender
Note: The Military Judge MAY impose a period of confinement less than the jurisdictional maximum period of confinement upon finding specific facts that warrant such a sentence. Manual for Courts-Martial, United States (2024 ed.), Appendix 12B-C

Combined UCMJ Maximum Punishment Charts

Sample Model Specification: Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep, Unconscious, or Otherwise Unaware the Act is Occurring

In that COL Richard Troutman, US Marine Corps, did, at or near Marine Corps Base Camp Pendleton, California, on or about 3 November 2024, touch directly the buttocks of LCpl Billy Paine, with COL Richard Troutman’s body part COL Richard Troutman’s penis with an intent to arouse the sexual desire of COL Richard Troutman, when he reasonably should have known) that LCpl Billy Paine, was unconscious.

What are the Definitions for Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep, Unconscious, or Otherwise Unaware the Act is Occurring?

“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.

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.

Marriage and Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconscious. Marriage is not a defense to any offense violating UCMJ Article 120 Sexual Contact by Force. If necessary, include the following instruction: Marriage is not a defense to this offense.

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

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

If Evidence of Consent to Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep, Unconscious, or Otherwise Unaware the Act is Occurring has Been Raised, then the Military Judge Will Give the Following Instruction:

Evidence of consent in Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconscious cases. 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 and Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconscious

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).

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

Mistake of Fact is a Legal Defense for Article 120 UCMJ Abusive Sexual Contact

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 (___).

Mistake of Fact and Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconscious

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” in Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconsciouscases, 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.

Voluntary intoxication and mistake of fact and Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconscious. Suppose there is evidence of the accused’s voluntary intoxication. In that case, 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.

Voluntary intoxication and “knew or reasonably should have known” and Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconscious. 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 concerning whether the accused “knew or reasonably should have known” the alleged victim’s state.

The evidence has raised the issue of voluntary intoxication about the offense(s) of (state the alleged offense(s)). Concerning (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.

Intoxicants and Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconscious

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 accused’s guilt. If you are convinced beyond a reasonable doubt that the accused had the required knowledge, the accused will not avoid criminal responsibility because of voluntary intoxication.

Reasonable Doubt and Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconscious

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 and Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconscious

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)].

Legal References for Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconscious

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).

What are the collateral consequences of having to register as a convicted sex offender?

A conviction of Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconscious will require the accused to register as a sex offender. Sex Offenders Often Cannot Live Near or Visit “Places Where Children Congregate.” What does that mean? It means a registered sex offender may not be allowed to live near or visit schools, parks and playgrounds, beaches, shopping malls, stores, movie theaters, community centers, places of worship, libraries, recreational facilities, skating rinks, bus stops, and many more.

Potential Collateral Consequences of a Conviction of Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconscious

A military member convicted of Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconscious must register as a sex offender. A registered sex offender may suffer the following collateral consequences:

Denied housing or difficulty finding housing
Loss of family
Isolation
No educational opportunities
Unemployable or difficulty finding employment
Physical assault
Increased homelessness
Harassment
Financial hardship
Stigmatization
The decline in mental health
No internet access
Deterioration of social bonds
Loss of residency
Difficulty with relationships
Social disgrace and humiliation
Loss of friends
Loss of custody of children
Lack of privacy

Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconscious Military Defense Lawyers

If you are suspected or accused of Article 120 UCMJ Abusive Sexual Contact Of a Person Who Is Asleep Unconscious, or Otherwise Unaware the Act is Occurring, reach out to speak with one of our experienced military court martial lawyers to discuss your best defense strategy.