Gonzalez & Waddington – Attorneys at Law

CALL NOW 1-800-921-8607

UCMJ Article 120 Abusive Sexual Contact When that Person is Incapable of Consenting

Note: This law applies only to Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting offenses committed on and after 1 January 2019

What is Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting?

Article 120 Ucmj Abusive Sexual Contact When That Person Is Incapable Of ConsentingAbusive sexual contact under Article 120 UCMJ occurs when an individual engages in sexual contact with a person incapable of consenting due to reasons such as unconsciousness, intoxication, or mental impairment. These allegations are severe, carrying penalties like imprisonment, dishonorable discharge, and mandatory sex offender registration.

For those accused, seeking the best military defense lawyers is crucial. Article 120 UCMJ lawyers are well-versed in military law’s complexities and can provide a strong defense, ensuring the accused’s rights are protected and striving for the best possible outcome.

Facing such charges can be life-altering, affecting both personal and professional lives. An experienced defense lawyer can scrutinize evidence, challenge the prosecution’s case, and offer essential support throughout the legal process. This legal assistance is vital to navigating the intricacies of the military justice system and mitigating the significant consequences of a conviction.

What are the Elements of Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting?

  1. 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
  2. That the accused did so when (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)

Note: The maximum and minimum punishments for UCMJ Article 120 Abusive Sexual Contact When that Person is Incapable of Consenting (Abusive Sexual Contact) vary depending on the date of the offense.

In the military, the crime of UCMJ Article 120, Abusive Sexual Contact When that Person is Incapable of Consenting, 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?

What are the Maximum Punishments for Abusive Sexual Contact When that Person is Incapable of Consenting, 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 When that Person is Incapable of Consenting, 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 When that Person is Incapable of Consenting

In that COL Richard Troutman, US Marine Corps, did, at or near Marine Corps Base Camp Pendleton, California, on or about 4 July 2025, touch directly the clothing anus of LCpl Billy Paine, with COL Richard Troutman’s body part, to wit: COL Richard Troutman’s finger, with an intent to gratify the sexual desire of COL Richard Troutman, when LCpl Billy Paine was incapable of consenting to the sexual contact because he was impaired by an intoxicant, to wit: alcohol and the accused knew of that condition.

What are the Definitions for Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting?

“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. 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 When that Person is Incapable of Consenting has Been Raised, then the Military Judge Will Give the Following Instruction:

Article 120 Ucmj Abusive Sexual Contact When That Person Is Incapable Of Consenting Military Defense LawyersEvidence 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 (___).

Reasonable Doubt and Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting

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.

Consent and Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting

  • 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 (___).

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 Facts and Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting Cases

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.

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.

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)].

Legal References for Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting

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?

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 When that Person is Incapable of Consenting

A military member convicted of Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting 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 When that Person is Incapable of Consenting Military Defense Lawyers

If you are suspected or accused of UCMJ Article 120 Abusive Sexual Contact When that Person is Incapable of Consenting, reach out to speak with one of our experienced military court martial lawyers to discuss your best defense strategy.

What is Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting?

Article 120 of the Uniform Code of Military Justice (UCMJ) covers a range of sexual offenses, including abusive sexual contact. Specifically, Article 120 addresses situations where the victim is incapable of consenting due to various reasons such as impairment, unconsciousness, or other incapacitating conditions. Understanding this provision is crucial for service members and their families, as the implications of a charge and conviction are severe.

Understanding Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting

Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting defines abusive sexual contact as the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person with the intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person. This definition becomes particularly pertinent when the victim is incapable of consenting due to:

  • Being asleep, unconscious, or otherwise unaware that the sexual contact is occurring.
  • Being incapable of consenting due to a mental disease, defect, or physical disability.
  • Being incapable of consenting due to intoxication or impairment by drugs, alcohol, or other substances.

Basics of Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting

For a conviction under Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting, the prosecution must prove the following elements beyond a reasonable doubt:

  • The accused engaged in sexual contact with another person.
  • The other person was incapable of consenting to the sexual contact due to sleep, unconsciousness, mental disease or defect, physical disability, or intoxication.
  • The accused knew or reasonably should have known that the other person was incapable of consenting.

Consequences of Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting Conviction

A conviction for abusive sexual contact under Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting carries significant penalties, reflecting the seriousness of the offense. These penalties can include:

  • Dishonorable discharge from the military.
  • Lengthy imprisonment, potentially up to life, depending on the circumstances.
  • Forfeiture of all pay and allowances.
  • Mandatory registration as a sex offender.

Collateral Consequences of Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting

In addition to the direct penalties, a conviction can result in severe collateral consequences that affect the individual’s life long after serving their sentence. Consequences of an Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting conviction can include:

  • Challenges in finding employment due to the dishonorable discharge and sex offender status.
  • Social stigma and isolation resulting from the nature of the offense.
  • Restrictions on residency and travel due to sex offender registration requirements.
  • Loss of civil rights, such as voting or owning firearms.
  • Strained family relationships and social connections.

The Importance of Legal Representation for Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting

Given the severe consequences of a conviction under Article 120 UCMJ, securing experienced legal representation is essential. A knowledgeable military defense lawyer can:

  • Conduct a thorough investigation of the allegations and gather evidence to support the defense.
  • Challenge the prosecution’s evidence and question the credibility of witnesses.
  • Negotiate with prosecutors to seek reduced charges or favorable plea agreements.
  • Advocate for the accused’s rights in court, ensuring a fair trial and striving for the best possible outcome.

A defense lawyer familiar with military law understands the unique aspects of court-martial proceedings and can navigate the complexities to protect the accused’s rights effectively.

Court Martial Lawyers for Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting

Article 120 UCMJ addresses the serious crime of abusive sexual contact, particularly when the victim is incapable of consenting. Understanding the elements of the offense, potential penalties, and the importance of legal representation is crucial for anyone involved in such a case. The consequences of a conviction extend beyond immediate penalties, affecting various aspects of life long-term.

If you or someone you know is facing charges under Article 120 UCMJ Abusive Sexual Contact When that Person is Incapable of Consenting, it is imperative to seek legal assistance immediately. The stakes are high, and having experienced legal representation can significantly affect the defense strategy and the case’s ultimate resolution.

Skip to content