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Article 120b UCMJ Sexual Assault of a Child

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

“Your career, reputation, and even your freedom hang in the balance. A single misstep could derail everything you’ve worked for. This isn’t just a legal matter; it’s a fight for your future.” (Michael Waddington, Military Defense Lawyer).

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Note: This law applies only to Article 120b UCMJ Sexual Assault of a Child offenses committed on and after 1 January 2019.

What is Article 120B UCMJ Sexual Assault of a Child?

Article 120B Ucmj Sexual Assault Of A Child

“Article 120b UCMJ Sexual Assault of a Child addresses the sexual assault of a child, which is a grave offense involving sexual acts with a minor under 16 years of age. This includes engaging in any sexual act with a child, causing a child to engage in sexual acts, or attempting to do so. The penalties for such an offense are extremely severe, often resulting in long-term confinement, dishonorable discharge, and forfeiture of pay.” Manual for Courts-Martial, United States (2024 ed.)

Those accused of this crime must seek representation from the best military defense lawyers. Skilled court martial lawyers are crucial in navigating the complexities of these cases, protecting the accused’s rights, and developing a robust defense strategy. Experienced legal counsel can significantly impact the case’s outcome, potentially mitigating the harsh penalties.

Engaging knowledgeable court martial lawyers, such as those at Gonzalez & Waddington, ensures that the accused receives comprehensive and effective legal representation. Their extensive experience handling military justice cases is vital for achieving the best possible outcome.

Note: The maximum and minimum punishments for Article 128 UCMJ Assault Upon a Warrant, Noncommissioned, or Petty Officer vary depending on the date of the offense.

What are the Elements of Article 120b UCMJ Sexual Assault of a Child?

  1. That (state the time and place alleged), the accused committed (a) sexual act(s) upon (state the name of the alleged victim), by (state the alleged sexual act); and
  2. 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. Manual for Courts-Martial, United States (2024 ed.)

What are the Maximum Punishments for Article 120b UCMJ Sexual Assault of a Child?

For Article 120b UCMJ Sexual Assault of a Child offenses committed between 1 January 2019 and 27 December 2023:

  • 30 Years of Confinement
  • A dishonorable discharge or a dismissal is a mandatory minimum sentence for sexual assault of a child convicted under this statute.
  • Total Forfeitures
  • Reduction to E-1
  • Federal Felony Conviction
  • Registration as a State & Federal Sex Offender

For Article 120b UCMJ Sexual Assault of a Child offenses committed after 27 December 2023

  • Under the Sentencing Parameters, Article 120b UCMJ Sexual Assault of a Child is a Category 4 Offense – Confinement from 120-240 months (10 to 20 years)
  • A dishonorable discharge or a dismissal is a mandatory minimum sentence for sexual assault of a child convicted under this statute.
  • Total Forfeitures
  • Reduction to E-1
  • 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 Sexual Assault of a Child

In that LTG Connor McGruder, US Army, did, at or near Fort Bliss, Texas, on or about 23 February 2025, commit a sexual act upon Sadie Smith, a child who had attained the age of 12 years but had not attained the age of 16 years, by penetrating Sadie Smith’s vulva with LTG Connor McGruder’s penis with an intent to arouse the sexual desire of Sadie Smith.

Model Specification for Article 120b UCMJ Sexual Assault of a Child

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, 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 __________]].

What are the Definitions for Article 120b UCMJ Sexual Assault of a Child?

“Sexual act” under Article 120b UCMJ Sexual Assault of a Child means:

  1. the penetration, however slight, of the penis into the vulva or anus or mouth;
  2. contact between the mouth and the penis, vulva, scrotum, or anus;
  3. 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
  4. 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. Manual for Courts-Martial, United States (2024 ed.)

“Child” under Article 120b UCMJ Sexual Assault of a Child means any person who has not attained the age of 16 years.

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” under Article 120b UCMJ Sexual Assault of a Child is the external genital organs of the female, including the entrance of the vagina and the labia majora and labia minora.

“Labia” under Article 120b UCMJ Sexual Assault of a Child is the Latin and medically correct term for “lips.”

Mistake of fact as to age in Article 120b UCMJ Sexual Assault of a Child cases. Mistake of fact as to age is an affirmative defense to sexual assault of a child. If raised by some evidence, the military judge must advise the members that the defense has the burden of proving by a preponderance of the evidence that mistake existed. When mistake of fact as to age has been raised, include the following instruction. The burden of proof in the instruction below is as provided in the statute.

The evidence has raised the issue of mistake on the part of the accused concerning the offense(s) of sexual assault of a child, as alleged in (the) Specification(s) (___) of (the) (Additional) Charge (___). Specifically, the mistake concerns the accused’s belief that (state the name of the alleged victim) was at least 16 years of age when the alleged sexual act(s) occurred.

The prosecution is not required to prove the accused knew that (state the name of the alleged victim) had not attained the age of 16 years at the time the alleged sexual act(s) occurred. However, an honest and reasonable mistake of fact as to (state the name of the alleged victim)’s age is a defense to (that) (those) charged offense(s).

Mistake of fact in Article 120b UCMJ Sexual Assault of a Child Cases

“Mistake of fact as to age” under Article 120b UCMJ Sexual Assault of a Child means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct was at least 16 years old. 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, which would indicate to a reasonable person that (state the name of the alleged victim) was at least 16 years old. Manual for Courts-Martial, United States (2024 ed.)

Additionally, ignorance or mistake cannot be based on the negligent failure to discover the facts.

Negligence under Article 120b UCMJ Sexual Assault of a Child is the absence of due care.

Due care under Article 120b UCMJ Sexual Assault of a Child is what a reasonably careful person would do under the same or similar circumstances.

The burden is on the defense to establish the accused was under this mistaken belief by a preponderance of the evidence. A “preponderance” means more likely than not if a preponderance does not convince you of the evidence that, at the time of the charged sexual assault of a child, the accused was under a mistaken belief that (state the name of the alleged victim) was at least 16 years old, the defense does not exist.

Even if you conclude, the accused was under the honest and mistaken belief that (state the name of the alleged victim) was at least 16 years old, if a preponderance does not convince you of the evidence that, at the time of the charged sexual assault of a child, the accused’s mistake was reasonable, the defense does not exist.

Voluntary intoxication and mistake of fact as to age in Article 120b UCMJ Sexual Assault of a Child cases. If there is evidence of the accused’s voluntary intoxication, the following instruction is appropriate:

There is evidence in this case that indicates that, at the time of the alleged sexual assault of a child, the accused may have been under the influence of (alcohol) (drugs). The accused’s state of voluntary intoxication, if any, at the time of the offense is not relevant to the mistake of fact.

A mistaken belief that (state the name of the alleged victim) was at least 16 years of age must be what a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense.

Voluntary intoxication does not permit what would be an unreasonable belief in the mind of a sober person to be considered reasonable because the person is intoxicated.

Marriage in Article 120b UCMJ Sexual Assault of a Child cases. It is a defense that the persons engaging in the sexual act were at that time married to each other, except where the accused commits a sexual act upon the person when the accused knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring or when the other person is incapable of consenting to the sexual act due to impairment by any drug, intoxicant, or other similar substance, and that condition was known or reasonably should have been known by the accused.

If raised by some evidence, the military judge must advise the members that the defense has the burden of proving by a preponderance of the evidence that a marriage existed.

When marriage between the accused and the alleged victim of the sexual assault of a child has been raised, include the following instructions:

The evidence has raised the issue of marriage between the accused and (state the name of the alleged victim) concerning the offense(s) of sexual assault of a child, as alleged in (the) Specification(s) (___) of (the) (Additional) Charge (___).

Reasonable Doubt in Article 120b UCMJ Sexual Assault of a Child Cases

Article 120B Ucmj Sexual Assault Of A Child Court Martial AttorneysIt is a defense to (that) (those) charged offense(s) that the accused and (state the name of the alleged victim) were married to each other when they engaged in the sexual act(s). A “marriage” is a relationship, recognized by the laws of a competent State or foreign jurisdiction, between the accused and (state the name of the alleged victim) as spouses. A marriage exists until the laws of a competent State or foreign jurisdiction dissolve it.

The defense of marriage does not exist where the accused commits the alleged sexual act(s) upon (state the name of the alleged victim) when the accused knows or reasonably should know that she/he is asleep, unconscious or otherwise unaware that the sexual act(s) (is) (are) occurring or when she / he is incapable of consenting to the sexual act(s) due to impairment by any drug, intoxicant or other similar substance, and that condition was known or reasonably should have been known by the accused.

The defense has the burden of proving by a preponderance of the evidence that the defense of marriage exists.

The term “preponderance” under Article 120b UCMJ Sexual Assault of a Child means more likely than not. Therefore, unless a preponderance convinces you of the evidence that at the time of the sexual act(s) alleged, the accused and (state the name of the alleged victim)were married to each other, the defense of marriage does not exist.

Final Instructions in Article 120b UCMJ Sexual Assault of a Child Cases

Even if a preponderance convinces you of the evidence that at the time of the sexual act(s) alleged, the accused and (state the name of the alleged victim) were married to each other, if you are not also convinced by a preponderance of the evidence that (state the name of the alleged victim) was not (asleep, unconscious or otherwise unaware of the sexual act(s) occurring) (incapable of consenting to the sexual act(s) due to impairment by any drug, intoxicant or other similar substance) or that the accused was not aware of and should not have been aware of such condition, the defense of marriage does not exist.

Article 120b UCMJ Sexual Assault of a Child Military Defense Lawyers

Introduction to Article 120b UCMJ Sexual Assault of a Child

Article 120b of the Uniform Code of Military Justice (UCMJ) specifically addresses the crime of sexual assault of a child. This article aims to protect minors within the military community from sexual exploitation and abuse. Given the vulnerability of child victims and the serious nature of these offenses, the military imposes severe penalties for those found guilty. This guide provides a comprehensive overview of Article 120b UCMJ Sexual Assault of a Child, including the elements of the offense, potential punishments, and the broader implications of a conviction.

Basics of Article 120b UCMJ Sexual Assault of a Child

To secure a conviction for sexual assault of a child under Article 120b, the prosecution must prove the following elements beyond a reasonable doubt:
  • Victim’s Age: The victim was under 16 during the offense.
  • Sexual Act: The accused committed a sexual act upon the victim. A sexual act includes contact between the penis and the vulva, the penis and the anus, or contact between the mouth and the penis, vulva, or anus. It also includes the penetration, however slight, of the anal or genital opening of another by a hand, finger, or any object, with the intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire.
  • Intent: The accused committed the act with the intent to abuse, humiliate, harass, degrade, or gratify sexual desire.

Collateral Consequences of Article 120b UCMJ Sexual Assault of a Child Conviction

A conviction for sexual assault of a child under Article 120b has numerous collateral consequences, including:
  • Sex Offender Registration: The convicted individual will be required to register as a sex offender. This involves being listed on public sex offender registries, regular reporting to law enforcement, and restrictions on residency and employment.
  • Employment Challenges: Finding civilian employment can be extremely difficult for registered sex offenders, especially those with a dishonorable discharge. Many employers are hesitant to hire individuals with such a conviction.
  • Loss of Military Benefits: Convicted individuals typically lose all military benefits, including retirement pay, healthcare benefits, and access to military facilities.
  • Social Stigma: The social stigma attached to being a registered sex offender can lead to isolation, harassment, and difficulties in maintaining personal relationships.
  • Legal Restrictions: Convicted sex offenders may face various legal restrictions, including limits on internet usage, travel, and contact with minors.

Impact on the Victim in an Article 120b UCMJ Sexual Assault of a Child Case

The impact of sexual assault on a child victim can be profound and long-lasting. Victims may experience a range of emotional, psychological, and physical effects, including:
  • Emotional Trauma: Feelings of shame, guilt, and anxiety are common among victims of sexual assault. These feelings can persist into adulthood and affect all areas of life.
  • Psychological Issues: Victims may develop mental health conditions such as depression, post-traumatic stress disorder (PTSD), and other anxiety disorders.
  • Physical Health Problems: Sexual assault can lead to physical injuries and long-term health issues, including sexually transmitted infections (STIs).
  • Behavioral Changes: Victims may exhibit changes in behavior, such as withdrawal from social activities, difficulty in school, and increased risk-taking behaviors.
  • Relationship Difficulties: Trust issues and difficulties in forming healthy relationships are common among survivors of sexual assault.

Legal Defenses for Article 120b UCMJ Sexual Assault of a Child

Accused individuals have the right to present a defense against charges of sexual assault of a child under Article 120b. Common defenses include:
  • Mistaken Identity: The defense may argue that the accused was not the individual who committed the offense.
  • False Accusations: The defense may present evidence suggesting that the accusations are false or motivated by ulterior motives.
  • Consent: While this defense is not applicable if the victim is under the age of consent (16), it may be argued if there is a question about the victim’s age.
  • Lack of Intent: The defense may argue that the contact was accidental or not intended to be sexual.

Importance of Legal Representation in Article 120b UCMJ Sexual Assault of a Child Case

Given the serious nature of the charges and the severe consequences of a conviction, it is crucial for individuals accused of sexual assault of a child under Article 120b UCMJ Sexual Assault of a Child to seek experienced legal representation. A qualified military defense attorney can provide guidance, build a strong defense, and protect the accused’s rights throughout the legal process.

Article 120b UCMJ Sexual Assault of a Child Military Defense Lawyers

Article 120b UCMJ’s provisions on sexual assault of a child are designed to protect minors within the military community and uphold the standards of conduct required for military service. The severe penalties and collateral consequences underscore the gravity of such offenses. Understanding the elements of the offense, potential defenses, and the importance of legal representation is essential for anyone facing such charges.

Article 120b UCMJ Court-Martial Attorneys

If you are suspected or accused of Article 120B UCMJ Sexual Assault of a Child, speak with one of our experienced military court martial lawyers to discuss your case. For more information on military law and the UCMJ, visit the official Army JAG Corps website.

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 Sexual Assault of a Child

A military member convicted of Article 120b UCMJ Sexual Assault of a Child 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

  • 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

Sexual Assault of a Child Reporting Data

“In APY 22-23, there were multiple reports of sexual assault involving children, emphasizing the critical need for protective measures and rigorous investigations within military settings.” Statistical Data on Sexual Assault and Sexual Harassment APY22-23, p. 10
“Sexual assault cases involving children are treated with the utmost seriousness, involving thorough investigations and substantial support services for the victims.” Statistical Data on Sexual Assault and Sexual Harassment APY22-23, p. 12

Demographics and Trends

“Most victims of sexual assault involving children in APY 22-23 were females, consistent with broader trends observed in other forms of sexual misconduct.” Statistical Data on Sexual Assault and Sexual Harassment APY22-23, p. 18
“Incidents of sexual assault involving children primarily involved subjects aged 16-24, who are within the predominant age group of military academy students.” Statistical Data on Sexual Assault and Sexual Harassment APY22-23, p. 18

Military Justice Outcomes

“By the end of APY 22-23, several cases of sexual assault involving children had advanced to military justice proceedings, demonstrating the seriousness with which these offenses are regarded.” Statistical Data on Sexual Assault and Sexual Harassment APY22-23, p. 15
“Cases of sexual assault involving children resulted in various disciplinary actions, including court-martial charges, nonjudicial punishment, and administrative discharges.” Statistical Data on Sexual Assault and Sexual Harassment APY22-23, p. 16

Prevalence and Reporting

“The 2022 SAGR survey highlighted the critical issue of underreporting, with many incidents of sexual assault involving children likely going unreported to authorities.” Statistical Data on Sexual Assault and Sexual Harassment APY22-23, p. 13
“DoD’s initiatives aim to encourage reporting and provide necessary support to victims of sexual assault involving children, ensuring they receive the help they need.” Statistical Data on Sexual Assault and Sexual Harassment APY22-23, p. 14

Key Statistics

“In APY 22-23, there were a total of 166 reports of sexual assault, with a notable number involving child victims, indicating a persistent issue that requires targeted interventions.” Statistical Data on Sexual Assault and Sexual Harassment APY22-23, p. 8
“Of the 166 total reports, 65 were Unrestricted Reports, and 101 were Restricted Reports, reflecting various levels of confidentiality and investigative needs.” Statistical Data on Sexual Assault and Sexual Harassment APY22-23, p. 8
“Most victims in investigations of sexual assault involving children were female (91 percent), while most subjects were male (86 percent), highlighting gender dynamics in these cases.” Statistical Data on Sexual Assault and Sexual Harassment APY22-23, p. 18
“Among the 65 Unrestricted Reports, 31 involved an academy student alleging sexual assault by another academy student, underscoring the peer-related nature of many incidents.” Statistical Data on Sexual Assault and Sexual Harassment APY22-23, p. 15
“Indecent exposure incidents primarily involved subjects aged 16-24, who represent the majority demographic within the military academies.” Statistical Data on Sexual Assault and Sexual Harassment APY22-23, p. 18
“By the end of APY 22-23, disposition information was completed for 60 subjects involved in sexual assault investigations, ensuring accountability and justice.” Statistical Data on Sexual Assault and Sexual Harassment APY22-23, p. 15

Sexual Assault of a Child in the Military: Impacts and False Allegations

Sexual assault of a child within the military is a deeply troubling issue that not only affects the victims but also has broader implications for military culture and justice. This article explores the impacts on victims, the challenges of false allegations, and the complexities of dealing with these issues within the military justice system.

Impacts on Victims

Victims of sexual assault in the military face severe psychological and emotional consequences. Research shows that these victims, particularly children, experience long-term trauma that affects their mental health and overall well-being. The unique environment of the military, combined with the hierarchical structure and the potential for isolation, exacerbates the impacts of such assaults.
“Women veterans were significantly more likely than civilian women to report adult sexual assault. Veterans more frequently reported having been sexually abused by a parental figure, reported longer durations of CSA, and significantly greater severity of ASV than civilians.” Schultz et al., 2006
The trauma experienced by these victims can lead to severe mental health issues such as PTSD, depression, and anxiety. Furthermore, the culture within the military often discourages reporting due to fear of retaliation, stigma, and a lack of trust in the justice system.
“Survivors of sexual assault are revictimized as they navigate the civilian criminal justice system. Significantly less is known, however, about how sexual violence is navigated within the military justice system.” Tosto & Bonnes, 2022

False Allegations

False allegations of sexual assault are a serious concern within the military, complicating the efforts to address genuine cases. These false claims can undermine the credibility of actual victims and create an environment of skepticism and doubt. Research indicates that while false allegations are not extremely common, they do occur and can have devastating effects on the accused.
“The legal disposition was ascertained and related to victim and assault characteristics together with the forensic medical and laboratory findings. The police pressed charges in more than half of the cases and 11% turned out to be false allegations.” Ingemann-Hansen et al., 2008
The military justice system faces the dual challenge of ensuring justice for victims while protecting the rights of the accused. The high stakes involved make it imperative that allegations are thoroughly investigated and that both victims and the accused receive fair treatment.

The Military Justice System

The military justice system has specific protocols for dealing with sexual assault cases. However, these protocols are often criticized for their ineffectiveness and bias. There is a growing call for reforms to ensure that the system can handle these cases more justly and effectively.
“High rates of sexual assault within the United States Armed Forces have led to several initiatives designed to combat sexual violence and increase prosecution of perpetrators.” Bonnes & Tosto, 2023
Military lawyers often face the difficult task of balancing the need to support victims with the necessity of ensuring a fair trial for the accused. This delicate balance is further complicated by the cultural and institutional factors that influence the perception and handling of sexual assault cases.

Conclusion

Addressing the issue of sexual assault of a child in the military requires a comprehensive approach that includes support for victims, stringent measures against false allegations, and significant reforms in the military justice system. Ensuring justice and support for all parties involved is crucial to maintaining the integrity and morale of the armed forces.
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