Article 120b UCMJ Rape by Administering a Drug, Intoxicant, or Other Similar Substance to a Child Who Has Attained the Age of 12 Years

Facing a court-martial, UCMJ action, Administrative Separation Board, or other Adverse Administrative Action for Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant? Call our experienced military defense lawyers at 1-800-921-8607 for a free consultation.

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Note: This law applies only to Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant or Other Similar Substance to a Child Who Has Attained the Age of 12 Years offenses committed on and after 1 January 2019.

What is Article 120b UCMJ Rape by Administering a Drug, Intoxicant, or Other Similar Substance to a Child Who Has Attained the Age of 12 Years?

Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant addresses rape by administering a drug, intoxicant, or other similar substance to a child aged 12 years or older. This severe offense involves coercing a child into sexual activity through the use of substances that impair their ability to resist. Manual for Courts-Martial, United States (2024 ed.)

Convictions carry mandatory minimum sentences, dishonorable discharge, and lifelong sex offender registration. Accused individuals should seek the best military defense lawyers to navigate these complex legal waters, protect their rights, and strive for the most favorable outcome.

For those facing such allegations, experienced Article 120 UCMJ lawyers are crucial to scrutinizing evidence, challenging prosecution claims, and ensuring a fair trial. The consequences of a conviction extend beyond the courtroom, affecting every aspect of life, making skilled legal representation essential.

Note: The maximum and minimum punishments for Article 120b UCMJ vary depending on the date of the offense.

In the military, the crime of Article 120b UCMJ Rape by Administering a Drug, Intoxicant, or Other Similar Substance to a Child Who Has Attained the Age of 12 Years falls under the general offense category of Rape of a Child. It is one of the most serious offenses under the UCMJ and carries significant mandatory punishments. Offenses committed after December 27, 2023, carry a mandatory minimum jail sentence ranging from 240-480 months (20 to 40 years) and a mandatory Dishonorable Discharge or Dismissal. If convicted, the defendant must register as a Federal and State sex offender.

What are the Elements of Article 120b UCMJ Rape by Administering a Drug, Intoxicant, or Other Similar Substance to a Child Who Has Attained the Age of 12 Years?

That (state the time and place alleged), the accused committed (a) sexual act(s) upon (state name of the alleged victim) by (state the alleged sexual act); and
That the accused did so by administering to (state the name of the alleged victim) a drug, intoxicant, or other similar substance; and
That at the time of the sexual act (state the name of the alleged victim) had attained the age of 12 years but had not attained the age of 16 years.

What are the Article 120b UCMJ Rape of a Child Offenses?

Rape of a Child Who Has Not Attained the Age of 12 Years
Rape by Force of a Child Who Has Attained the Age of 12 Years
Rape by Threatening or Placing in Fear a Child Who Has Attained the Age of 12 Years
Rape by Rendering Unconscious a Child Who Has Attained the Age of 12 Years
Rape by Administering a Drug, Intoxicant, or Other Similar Substance to a Child Who Has Attained the Age of 12 Years

What are the Maximum Punishments for Article 120b UCMJ Rape by Administering a Drug, Intoxicant, or Other Similar Substance to a Child Who Has Attained the Age of 12 Years?

For Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant offenses committed between 1 January 2019 and 27 December 2023:

Life without eligibility
Total Forfeitures
Reduction to E-1
A Dishonorable Discharge or a dismissal is a mandatory minimum sentence for this offense.
Federal Felony Conviction
Registration as a State & Federal Sex Offender

For Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant offenses committed after 27 December 2023

Under the Sentencing Parameters, Article 120b UCMJ Rape by Administering a Drug, Intoxicant, or Other Similar Substance to a Child Who Has Attained the Age of 12 Years is a Category 5 Offense
Mandatory confinement ranges from 240-480 months (20 to 40 years)
A Dishonorable Discharge or a Dismissal is a mandatory minimum sentence for this offense.
Federal Felony Conviction
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 Specification for Article 120b UCMJ Rape by Administering a Drug, Intoxicant, or Other Similar Substance to a Child Who Has Attained the Age of 12 Years

In that SFC Jacque Papen, US Army, 3rd Infantry Regiment, did, USMA West Point, New York, on or about 21 February 2024, commit a sexual act upon Jane Victim, a child who had attained the age of 12 years but had not attained the age of 16 years, by penetrating Jane Victim’s mouth with SFC Jacque Papen’s penis, with an intent to humiliate Jane Victim, by administering to Jane Victim a intoxicant, to wit: alcohol.

Model Specification for Article 120b UCMJ Rape by Administering a Drug, Intoxicant, or Other Similar Substance to a Child Who Has Attained the Age of 12 Years

In that ___________ (personal jurisdiction data), did (at/on board—location) (subject- matter jurisdiction, if required), on or about ______ 20__, commit a sexual act upon __________, a child who had attained the age of 12 years but had not attained the age of 16 years, by [penetrating ___________’s (vulva) (anus) (mouth) with __________’s penis] [causing contact between _______’s mouth and________’s (penis) (vulva) (scrotum) (anus)] [penetrating _______’s (vulva) (penis) (anus) with (______’s body part) (an object) to wit:______, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________ ]] [intentionally touching, not through the clothing, the genitalia of _________, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________]], by administering to ____________ a (drug) (intoxicant) (____), to wit: _____________.

What are the Definitions for Article 120b UCMJ Rape by Administering a Drug, Intoxicant, or Other Similar Substance to a Child Who Has Attained the Age of 12 Years?

“Sexual act” means: (A) the penetration, however slight, of the penis into the vulva or anus or mouth; (B) contact between the mouth and the penis, vulva, scrotum, or anus; (C) 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; or (D) 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.

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

Sexual Definitions in Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant Cases

The prosecution is not required to prove the accused knew the age of (state the name of the alleged victim) at the time the alleged sexual act(s) occurred.

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.”

Marriage and Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant. Marriage is not a defense for Rape of a Child under Article 120b UCMJ.

Evidence of consent in Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant Cases

Generally, the elements of an Article 120b(a)(2) 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 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, if the alleged offense is Rape of a Child who has attained the age of 12 years by using force or threatening or placing the child in fear, evidence that the alleged victim consented to the sexual conduct at issue 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.

This instruction is not applicable where the alleged offense is Rape of a Child who has attained the age of 12 years by rendering the child unconscious or administering a drug to the child. The judge must carefully evaluate the evidence presented by both sides in such cases to determine the applicability of the following instruction.

Consent and Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant

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).

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 120b UCMJ Rape by Administering a Drug, Intoxicant, or Other Similar Substance to a Child Who Has Attained the Age of 12 Years

A military member convicted of Article 120b UCMJ Rape by Administering a Drug, Intoxicant, or Other Similar Substance to a Child Who Has Attained the Age of 12 Years, must register as a sex offender. A registered sex offender may suffer the following collateral consequences:

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

Potential Collateral Consequences of a Federal Conviction for Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant

Employment will be severely limited (many employers won’t hire a convict)
Inability to enroll in college, university, or trade school
Loss of GI Bill
Loss of military career
Loss of retirement benefits.
Loss of VA benefits.
Loss of medical benefits.
Loss of spouse, family members, and friends
Loss of income while in jail
Mental and physical suffering before and after prison
Ineligibility for public benefits, such as food stamps
Ineligibility for government-sponsored student loans and grants;
Restrictions on certain types of employment or occupational licenses;
Ineligibility to provide foster care to minor family members
Prohibitions on working with children
Loss of professional license or certification
Limitations on adoption or foster care

The collateral consequences of a sex offender registration, a federal felony conviction, an Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant conviction, and a dishonorable discharge are severe and far-reaching, impacting various aspects of an individual’s life. Here’s an overview of each:

In-depth Collateral Consequences of Sex Offender Registration after Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant Conviction

Employment Restrictions:

Difficulty finding jobs due to background checks and employer reluctance to hire registered sex offenders.
Restrictions on working in certain fields, such as education, childcare, and healthcare.

Housing Restrictions after Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant Conviction:

Prohibited from living near schools, parks, or other places where children gather.
Limited housing options and potential eviction from current residences.

Social Stigma:

Social ostracism and isolation due to the nature of the offense.
Strained family relationships and difficulties in forming new relationships.

Travel Restrictions after Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant Conviction:

Limitations on traveling or moving to other states or countries, with requirements to register in new jurisdictions.
Notification requirements for travel, both domestically and internationally.

Public Notification:

Information about the offense and personal details may be made publicly accessible, leading to harassment and vigilantism.

Mandatory Reporting after Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant Conviction:

Regular check-ins with law enforcement and compliance with reporting requirements.
Strict adherence to registration deadlines and reporting any changes in residence, employment, or other personal details.

Detailed Collateral Consequences of a Federal Felony Conviction of Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant

Loss of Civil Rights:

Inability to vote, serve on a jury, or run for public office.
Loss of the right to own or possess firearms.

Employment Challenges:

Significant barriers to obtaining employment due to the stigma of a felony conviction.
Ineligibility for certain professional licenses and certifications.

Financial Consequences of Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant Conviction:

Difficulty obtaining loans, mortgages, or other forms of credit.
Potential loss of government benefits, such as housing assistance or food stamps.

Educational Barriers:

Ineligibility for federal student loans or grants.
Barriers to admission in certain educational programs or institutions.

Immigration Consequences of Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant Conviction:

Risk of deportation or inadmissibility for non-citizens.
Loss of eligibility for naturalization.

Social and Familial Impact of Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant Conviction:

The strain on personal relationships and social isolation.
Challenges in maintaining custody or visitation rights for children.

Collateral Consequences of Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant and Dishonorable Discharge

Employment Impact:

Difficulty finding civilian employment due to the negative perception of a dishonorable discharge.
Ineligibility for certain government jobs and loss of veterans’ preference in hiring.

Loss of Benefits:

Ineligibility for VA benefits, including healthcare, education, and housing assistance.
Loss of military pensions and other retirement benefits.

Social Stigma of Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant Conviction:

Negative social perception and potential ostracism from veteran communities.
Impact on personal relationships and family dynamics.

Legal Restrictions after Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant Conviction:

Loss of the right to possess firearms.
Potential additional legal penalties and restrictions imposed by state laws.

Educational and Financial Impact of Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant Conviction:

Ineligibility for GI Bill benefits and other educational assistance programs.
Challenges in obtaining loans and financial aid for education or business ventures.

Loss of Military Honors:

Revocation of military honors, awards, and decorations.
Exclusion from veterans’ organizations and events.

The combination of these collateral consequences can create substantial challenges for individuals, severely impacting their ability to reintegrate into society and lead a productive life. It underscores the importance of seeking skilled legal representation to navigate the complexities of the legal system and mitigate the potential impact of a conviction of Article 120b UCMJ Rape of a Child by Administering a Drug Intoxicant and its aftermath.

Frequently Asked Questions

1- What constitutes “rape by administering a drug” under Article 120b? Under Article 120b, “rape by administering a drug” involves engaging in a sexual act with a child who is 12 years or older by using a drug, intoxicant, or other similar substance to impair the child’s ability to consent. This includes situations where the substance is administered without the child’s knowledge or consent.

2- What is the significance of the child being aged 12 or older? The law specifically addresses children who are at least 12 years old but younger than 16 years old. This age range is important as it defines the scope of the offense under Article 120b. Different articles of the UCMJ may apply to cases involving children younger than 12 or adults.

3- What types of substances are covered under Article 120b? Article 120b covers any drug, intoxicant, or similar substance that impairs the child’s ability to understand or control their actions. This can include prescription medications, illegal drugs, alcohol, or any other substance used to render the child incapable of giving consent.

4- How is “impairment of ability to consent” defined in this context? Impairment of ability to consent means that the substance administered interferes with the child’s ability to understand the nature of the sexual act or to exercise their will. This includes making the child unconscious or otherwise incapacitated so that they cannot provide informed consent.

5- What are the legal procedures for prosecuting a case under Article 120b? Prosecution under Article 120b involves a thorough investigation by military law enforcement. If sufficient evidence is found, charges are preferred and may be referred to a court-martial. The accused has the right to legal representation and a fair trial. The proceedings will follow the UCMJ’s established legal processes.

6- What are the potential penalties for a conviction under Article 120b? Conviction under Article 120b can result in severe penalties, including lengthy confinement, reduction in rank, forfeiture of pay, and a dishonorable discharge from the military. Convicted individuals may also be required to register as sex offenders.

7- Are there defenses available for someone accused under Article 120b? Defenses might include challenging the evidence related to the administration of the substance, arguing that the accused did not engage in the alleged sexual act, or questioning the claim that the substance impaired the child’s ability to consent. Each case is unique and defenses will vary based on the facts and circumstances.

8- How does Article 120b differ from other related UCMJ articles? Article 120b specifically addresses cases where a drug or intoxicant is used to facilitate rape involving a child aged 12 to 15. Other related articles may cover different forms of sexual assault, such as rape or sexual assault involving adults or children under the age of 12, without the element of drug administration.

9- Where can one find more information about Article 120b? Detailed information can be found in the UCMJ itself, through military legal assistance offices, or by consulting with a military lawyer. Additional resources may be available through the Department of Defense or military justice training programs.