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Article 120 UCMJ Sexual Assault Court Martial Attorneys

Military Sexual Assault Defense Lawyers

Call Our Hard-hitting Article 120 UCMJ Sex Crime Lawyers

Our seasoned Article 120 UCMJ sex crime lawyers have the firepower to aggressively defend you and your rights in the military justice system. They are some of the most experienced in the field of rape defense. Our seasoned civilian defense lawyers have decades of sex crime defense experience. If you or a loved one has been accused of a sex crime such as Military Sexual Assault, then act now! Our seasoned court-martial attorneys will have your back.

A sex crime is a criminal offense that takes place when a military service member sexually assaults or pushes a forced sexual act through psychological and physical manipulation.

Updated Maximum Punishments Chart for UCMJ Offenses (2024)

Article 120 UCMJ Sexual Assault Defense Lawyers

Our trial results speak for themselves. Our principal concern is the accused service member and his or her desired outcome. Our court-martial attorneys maintain lighter caseloads than the typical appointed military defense attorney so that we can concentrate on each client separately.

Your case will not be outsourced to a third party, and we will not power you into pleading guilty at the last minute. Our military defense attorneys have fought court-martial and administrative separation cases in the US and worldwide.

Our military defense lawyers aggressively defend the following UCMJ sexual crimes:

Article 120 UCMJ Sexual Assault Defense – Court Martial Lawyers

Falsely Accused of Military Sexual Assault: What Should I Do? Article 120 UCMJ Sexual Assault Lawyer Tips

We have successfully defended and acquitted many military members worldwide in Article 120 UCMJ cases. Check out our military law case results to learn more.

What is Article 120 UCMJ Sexual Assault?

Article 120 UCMJ Sexual Assault Court Martial AttorneysThe hard-hitting court-martial defense attorneys at Gonzalez & Waddington have gained a reputation for defending service members accused of Article 120 UCMJ crimes at US military bases worldwide. For example, suppose you are under investigation for a military crime. In that case, having the most aggressive defense attorney can be the difference between spending decades in prison versus winning your trial or redeeming your career. Our Article 120 UCMJ military defense lawyers represent people in criminal and administrative matters, including defending service members accused of sexual assault, theft, and other crimes under the UCMJ. Manual for Courts-Martial, United States (2024 ed.) Unlike most Article 120 UCMJ civilian defense attorneys or your assigned counsel, we do not commonly recommend pleading guilty. Instead, our firm makes the prosecution prove its case beyond a reasonable doubt. Then, we take almost every allegation to trial and fight the allegations before a military jury.

There are Six Types of Sexual Assault Under Article 120 UCMJ:

  • Sexual Assault by Threatening or Placing That Other Person in Fear
  • Sexual Assault by Fraudulent Representation
  • Sexual Assault by False Pretense
  • Sexual Assault Without Consent
  • Sexual Assault of a Person Who is Asleep, Unconscious, or Otherwise Unaware the Act is Occurring
  • Sexual Assault When the Other Person Is Incapable of Consenting

What are the Maximum Punishments for Article 120 UCMJ Sexual Assault?

For offenses committed between 1 January 2019 and 27 December 2023:

  • 30 Years of Confinement
  • Total Forfeitures
  • Reduction to E-1
  • A Dishonorable Discharge or a Dismissal is a mandatory minimum sentence for this offense.
  • Collateral Consequences of a Federal Felony Conviction
  • Collateral Consequences of Registration as a State & Federal Sex Offender

For offenses committed after 27 December 2023

  • Under the Sentencing Parameters, Article 120 UCMJ Sexual Assault is a Category 3 Offense
  • Mandatory confinement ranges from 30-120 months (Between 2 years and 6 months to 10 years)
  • A Dishonorable Discharge or a Dismissal is a mandatory minimum sentence for this offense.
  • 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

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Introduction to Article 120 UCMJ Sexual Assault

Article 120 of the Uniform Code of Military Justice (UCMJ) addresses sexual assault offenses committed by military personnel. This article is a critical component of military law designed to maintain discipline, protect service members, and uphold the integrity of the armed forces. Sexual assault under Article 120 includes a range of non-consensual sexual acts and is treated with utmost seriousness due to the severe impact on victims and the military community. This guide provides an in-depth understanding of Article 120, including the elements of the offense, potential punishments, and the broader implications of a conviction. Manual for Courts-Martial, United States (2024 ed.)

Basics of Article 120 UCMJ Sexual Assault

To secure a conviction for sexual assault under Article 120, the prosecution must prove the following elements beyond a reasonable doubt:
  • Act of Sexual Contact: The accused engaged in a sexual act with the victim. Sexual acts include penetration, however slight, of the genital or anal opening by any body part or object, or contact between the mouth and genitalia.
  • Lack of Consent: The sexual act occurred without the consent of the victim. Consent must be given freely, voluntarily, and with knowledge of the act. Lack of consent can result from force, threat of force, or when the victim is incapacitated or otherwise unable to give consent.
  • Intent: The accused had the specific intent to commit the sexual act without the consent of the victim.

Types of Sexual Assault Under Article 120 UCMJ

Article 120 encompasses various forms of sexual assault, including:
  • Rape: Sexual intercourse by force, threat of force, or when the victim is incapable of consenting due to impairment or unconsciousness.
  • Sexual Assault: Non-consensual sexual acts that do not meet the criteria for rape but involve similar coercive circumstances.
  • Aggravated Sexual Contact: Non-penetrative sexual acts committed by force, threat of force, or when the victim is incapable of consenting.

Collateral Consequences of Article 120 UCMJ Sexual Assault Conviction

A conviction for sexual assault under Article 120 UCMJ Sexual Assault has numerous collateral consequences, including:
  • Sex Offender Registration: The convicted individual will be required to register as a sex offender, which 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 Article 120 UCMJ Sexual Assault Case

The impact of sexual assault on a 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 or work, 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 120 UCMJ Sexual Assault

Accused individuals have the right to present a defense against charges of sexual assault under Article 120. Common defenses include:
  • Consent: The defense may argue that the sexual act was consensual, presenting evidence to support the claim of mutual agreement.
  • 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.
  • Lack of Intent: The defense may argue that the accused did not have the specific intent to commit a non-consensual sexual act.

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

Given the serious nature of the charges and the severe consequences of a conviction, it is crucial for individuals accused of sexual assault under Article 120 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.

Preventative Measures and Education on Article 120 UCMJ Sexual Assault

The military has implemented various preventative measures and educational programs to combat sexual assault within its ranks. These measures include:
  • Training Programs: Regular training on sexual assault prevention, consent, and bystander intervention is provided to all service members.
  • Reporting Mechanisms: Multiple avenues for reporting sexual assault, including confidential and anonymous options, are available to victims.
  • Support Services: Comprehensive support services, including counseling, medical care, and legal assistance, are available to victims of sexual assault.
  • Accountability: Commanders and leaders are held accountable for fostering a culture of respect and taking prompt action on reports of sexual assault.

Impact on Military Readiness of Article 120 UCMJ Sexual Assault

Sexual assault has a significant impact on military readiness and effectiveness. The presence of sexual predators within the ranks undermines trust, unit cohesion, and morale. By addressing and preventing sexual assault, the military aims to create a safer and more effective fighting force. The consequences for perpetrators and support for victims reflect the military’s commitment to maintaining a professional and respectful environment.

Call Our Article 120 UCMJ Sexual Assault Military Defense Lawyers Today

Article 120 of the UCMJ is a critical tool in the military’s efforts to combat sexual assault. Understanding the elements of the offense, the potential punishments, and the broader implications of a conviction is essential for both service members and legal practitioners. The severe penalties and collateral consequences underscore the gravity of such offenses and the military’s commitment to addressing them. Through education, prevention, and support, the military strives to protect its members and maintain the highest standards of conduct.

Military Sexual Related Crimes Include:

  • Rape – Article 120 UCMJ
  • Aggravated Sexual Contact – Article 120 UCMJ
  • Sexual Assault – Article 120 UCMJ
  • Abusive Sexual Contact – Article 120 UCMJ
  • Forcible Pandering
  • Indecent Act
  • Deposit of Obscene Matters – Article 120a, UCMJ
  • Rape of a Child under Article 120b
  • Sexual Abuse of a Child under Article 120b UCMJ
  • Sexual Assault of a Child
  • Indecent Viewing, Indecent Recording, or Broadcasting/Distribution of an
  • Indecent Recording
  • Indecent Exposure
  • Child Pornography Offenses
  • Sexual Harassment – Article 134 UCMJ

Sample Specification for Article 120 Sexual Assault by Threatening or Placing That Other Person in Fear: Manual for Courts-Martial, United States (2024 ed.)

In that PVT Rodney Couch, US Army, did at or near Fort Bliss, TX, on or about February 28, 2022, commit a sexual act upon SPC Jane Doe, by penetrating _SPC Jane Doe’s vulva with PVT Rodney Couch’s penis, with an intent to gratify the sexual desire of PVT Rodney Couch, by placing SPC Jane Doe in fear.

Sample Specification for Article 120 UCMJ Sexual Assault by Fraudulent Representation:

In that PVT Rodney Couch, US Army, did at or near Fort Bliss, TX, on or about February 28, 2022, commit a sexual act upon SPC Jane Doe, by [penetrating SPC Jane Doe’s mouth with PVT Rodney Couch’s penis, with an intent to abuse SPC Jane Doe, by making a fraudulent representation that the sexual act served a professional purpose, to wit: the sexual contact was a requirement to attend Airborne School.

Sample Specification for Article 120 UCMJ Sexual Assault by False Pretense:

In that PVT Rodney Couch, US Army, did at or near Fort Bliss, TX, on or about February 28, 2022, commit a sexual act upon SPC Jane Doe, by penetrating SPC Jane Doe’s anus with PVT Rodney Couch’s penis, with an intent to arouse the sexual desire of PVT Rodney Couch, by inducing a belief by artifice that the said accused was another person.

Sample Specification for Article 120 UCMJ Sexual Assault Without Consent:

In that PVT Rodney Couch, US Army, did at or near Fort Bliss, TX, on or about February 28, 2022, commit a sexual act upon SPC Jane Doe, by penetrating SPC Jane Doe’s vulva with PVT Rodney Couch’s penis, with an intent to gratify the sexual desire of PVT Rodney Couch, without the consent of SPC Jane Doe.

Sample Specification for Article 120 UCMJ Sexual Assault of a Person Who is Asleep, Unconscious, or Otherwise Unaware the Act is Occurring:

In that PVT Rodney Couch, US Army, did at or near Fort Bliss, TX, on or about February 28, 2022, commit a sexual act upon SPC Jane Doe, by penetrating SPC Jane Doe’s vulva with an object to wit: a beer bottle, with an intent to harass SPC Jane Doe, when he knew or reasonably should have known that SPC Jane Doe was asleep.

Sample Specification for Article 120 UCMJ Sexual Assault When the Other Person Is Incapable of Consenting:

In that PVT Rodney Couch, US Army, did at or near Fort Bliss, TX, on or about February 28, 2022, commit a sexual act upon SPC Jane Doe, by penetrating SPC Jane Doe’s anus with PVT Rodney Couch’s penis, with an intent to arouse the sexual desire of PVT Rodney Couch, when SPC Jane Doe was incapable of consenting to the sexual act because she was impaired by an intoxicant, to wit: alcohol, and the accused reasonably should have known of that condition.

Elements of Article 120 UCMJ Sexual Assault by Threat/Fear, Fraudulent Representation, or Artifice:

Each element of Article 120 UCMJ Sexual Assault must be proven beyond a reasonable doubt by the prosecution.

(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 the accused did so by (a) threatening or placing (state the name of the alleged victim) in fear; (b) making a fraudulent representation that the sexual act served a professional purpose; (c) inducing a belief by artifice, pretense, or concealment that the accused was another person. Manual for Courts-Martial, United States (2024 ed.)

Elements of Article 120 UCMJ Sexual Assault Without Consent:

(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 the accused did so without the consent of (state the name of the alleged victim). Manual for Courts-Martial, United States (2024 ed.)

Elements of Article 120 UCMJ Sexual Assault When Victim is Asleep, Unconscious, or Otherwise Unaware:

(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); (2) That the accused did so when (state the name of the alleged victim) was asleep, unconscious, or otherwise unaware that the sexual act was occurring; and (3) 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 act was occurring. Manual for Courts-Martial, United States (2024 ed.)

Elements of Article 120 UCMJ Sexual Assault When the Victim is Incapable of Consenting:

(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); (2) That the accused did so when (state the name of the alleged victim) was incapable of consenting to the sexual act(s) 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 act(s) due to (impairment by drug, intoxicant, or other similar substance) (a mental disease or defect, or physical disability). Manual for Courts-Martial, United States (2024 ed.)

Definitions and Other Instructions for Military Sexual Assault, Article 120, UCMJ

“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; or (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. 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.” NOTE 1: Threat or placing in fear. When the sexual act is alleged by threat or by placing in fear, include the following instruction: “Threatening or placing a person in fear” in an Article 120 UCMJ case, means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action.
“Wrongful action,” as used here, includes an abuse of military rank, position, or authority to engage in a sexual act with a victim. This includes, but is not limited to, threats to initiate an adverse personnel action or withhold a favorable personnel action unless the victim submits to the accused’s requested sexual act. Superiority in rank is a factor in, but not dispositive of, whether a reasonable person in the position of the victim would fear that his or her noncompliance with the accused’s desired sexual act would result in the threatened wrongful action contemplated by the communication or action.)
In proving that a person made a threat, it need not be proven that the person actually intended to carry out the threat or had the ability to carry out the threat. The threat or fear in this case must be that the alleged victim or another person would be subjected to the wrongful action. NOTE 2: Fraudulent representation in an Article 120 UCMJ case. When the sexual act is alleged by making a fraudulent representation that it serves a professional purpose, the following may be appropriate:“fraudulent representation” is a representation of fact, which the accused knows to be untrue, which is intended to deceive, which does in fact deceive, and which causes the other person to engage in the sexual act(s). The fraudulent representation that the sexual act served a professional purpose need not have been made by the accused to (state the name of the alleged victim). It is sufficient if the accused made such a fraudulent representation to any person, which thereby caused (state the name of the alleged victim) to engage in the sexual act. NOTE 3: 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 act at issue. NOTE 4: Marriage. Marriage is not a defense to any offense in violation of Article 120. If necessary, include the following instructions: Marriage is not a defense to this offense. NOTE 5: Without consent. When the sexual act is alleged to be without consent, include the following instructions. “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 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 or to being rendered unconscious. A person cannot consent while under threat or in fear. A person cannot consent when believing, due to a fraudulent representation, that the sexual act served a professional purpose, or when believing, due to artifice, pretense, or concealment that the accused was another person. All the surrounding circumstances are to be considered in determining whether a person gave consent. NOTE 6: Evidence of consent in an Article 120 UCMJ court martial.
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 for any sexual assault allegation to negate the elements of the offense. Generally, the elements of an Article 120(b) 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 (___). 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).
“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 or to being rendered unconscious. A person cannot consent while under threat or in fear. A person cannot consent when believing, due to a fraudulent representation, that the sexual act served a professional purpose or when believing, due to artifice, pretense, or concealment, that the accused was another person. A “competent person” is a person who possesses the physical and mental ability to consent. An “incompetent person” is a person who is incapable of appraising the nature of the conduct at issue, or physically incapable of declining participation in or communicating unwillingness to engage in the sexual act at issue. All the surrounding circumstances are to be considered in determining whether a person gave consent NOTE 7: Mistake of fact. The military judge must determine whether a mistake of fact has been raised by the evidence. See RCM 916(j). When the evidence has reasonably raised a mistake of fact (e.g., a mistake of fact as to consent to the sexual conduct), include the following instruction on an 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 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 fact is a defense to (that) (those) charged offense(s). “Mistake of fact” in an Article 120 UCMJ case 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)). In an Article 120 UCMJ case, 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.
NOTE 8: 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. NOTE 9: Voluntary intoxication and “knew or reasonably should have known.” When the accused is charged with Article 120 UCMJ, sexual assault of a person who was asleep, unconscious, or otherwise unaware that the sexual act was occurring, or a person who was incapable of consenting to the sexual act, 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 act was occurring] [incapable of consenting to the sexual act(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.

Article 120 UCMJ Sexual Assault

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 in an Article 120 UCMJ case, you should consider the effect of intoxication and other evidence in the case.

Which of these crimes are addressed in Article 120 UCMJ Sexual Assualt?

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. 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 act was occurring] [incapable of consenting to the sexual act(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 in an Article 120 UCMJ case 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 act was occurring] [incapable of consenting to the sexual act(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 act was occurring] [incapable of consenting to the sexual act(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 Sexual Assault:

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” under Article 120 UCMJ. See US v. Pease, 75 MJ 180 (CAAF 2016).

Article 120 UCMJ Sexual Assault Attorneys

Our firm’s founding attorneys, Michael Waddington and Alexandra Gonzalez-Waddington, graduated from Temple University School of Law in Philadelphia, PA. In addition, Mr. Waddington is a member of the American Board of Criminal Lawyers. The ABCL is one of the most honored legal groups and comprises some of the country’s most accomplished criminal defense lawyers. Membership is by invitation only and exclusive to extremely qualified criminal attorneys with ten or more years of experience defending criminal trials. During this time, they must have defended 50 or more felony cases and won 35 or more jury cases. Also, Mr. Waddington was voted a “Super Lawyer” in Georgia and is rated Superb on AVVO.com. Some of his cases were made into television shows, such as “Killings at the Canal,” a CNN documentary special that unveils what caused the murders of Iraqi terrorists by Army soldiers. He also regularly teaches criminal defense attorneys on trial law. Our high-powered Article 120 UCMJ criminal defense attorneys will use our skills to defend your court-martial or ADSEP case.

Call today to speak with a hard-hitting Article 120 UCMJ civilian attorney.

Army, Navy, Marine Corps, Air Force, and Coast Guard personnel merit the best court-martial defense attorneys available to defend them at their court-martial or administrative separation (ADSEP) hearing.

Military Sex Crimes, Penalties, & Legal Defenses

Our hard-hitting criminal defense lawyers and their outcomes speak for themselves from less experienced lawyers. Contact our military defense lawyers now if you or a loved one is facing a court martial for a military Article 120 offense or an administrative discharge, non-judicial punishment, show cause board or letter of reprimand.

Military Sexual Assault –  Article 120 UCMJ Sexual Behavior in the Military

Military statutes include numerous sex-related crimes. Military laws try to capture every possible human activity related to sexual misbehavior and deviance. However, military sex crimes can be divided into subcategories such as rape, aggravated sexual assault, abusive sexual contact, child sex crimes, obscenity, and child pornography crimes. Our seasoned Article 120 UCMJ military criminal defense attorneys and their victories set us apart from less aggressive attorneys. If you or a loved one are charged with a military sex crime or if you are facing an administrative discharge, non-judicial punishment, show cause board, or letter of reprimand, then contact our court-martial defense attorneys right away. Our principal concern is the accused service member and his or her future. Our military criminal defense lawyers keep lighter caseloads than the average assigned defense lawyer so that we can focus on each case individually. Your case will not be outsourced to a third party, and we will not bully you into diving at the eleventh hour. Our defense lawyers have successfully contested US Army court-martial and ADSEP cases in the US and globally.

Article 120 UCMJ Military Sexual Assault Attorneys

Quotes and Statistics from DoD Annual Report on Sexual Assault in the Military for FY2022

Number of Reports

“The Department received 8,942 reports of sexual assault involving Service members as victims and/or subjects in FY 2022, an increase of one percent from the 8,866 reports received in FY 2021. Of the 8,942 reports, 5,941 were Unrestricted Reports of sexual assault and 3,001 were Restricted Reports at the end of the year.” DoD Annual Report on Sexual Assault in the Military, FY2022, p. 2

Command Actions

“The Military Departments reported case outcomes (dispositions) for 3,928 cases in Fiscal Year 2022. Of those 3,928 cases, military commanders had sufficient authority and/or jurisdiction to consider 3,188 cases for possible action against the accused. Commanders had sufficient evidence to take disciplinary action in 66 percent of accused members’ cases.” DoD Annual Report on Sexual Assault in the Military, FY2022, p. 3

Support for Victims

“The Department continued to make progress in establishing guidance and infrastructure for a dedicated, integrated, and competent prevention workforce. The Department created a model for a primary prevention workforce and developed a professional credential for prevention workforce members. Ongoing training and professional development for SHARP personnel are essential to providing effective support to victims.” DoD Annual Report on Sexual Assault in the Military, FY2022, p. 2, p. 5, p. 65

Impact on Readiness

“Sexual assault and sexual harassment remain persistent challenges across the Military Services. It is for this reason the Secretary of Defense took immediate action to reduce these harmful behaviors. Retention of skilled personnel is negatively impacted when victims of sexual assault and harassment do not feel supported. A permissive environment for sexual assault and sexual harassment undermines the core values and discipline of the military.” DoD Annual Report on Sexual Assault in the Military, FY2022, p. 7, p. 48, p. iii

Prevention and Response Initiatives

“The Department continues to implement historic reforms to fundamentally change how sexual assault is addressed in the military. In FY21, the Department released the Men’s SAPR Communication Campaign to increase awareness that men are victims of sexual assault and encourage men who experience sexual assault to access resources and support. Regular audits and assessments are necessary to maintain the integrity and effectiveness of the SHARP program.” DoD Annual Report on Sexual Assault in the Military, FY2022, p. 10, p. 9, p. 72

The Office of the Special Trial Counsel (OSTC)

The OSTC is a recent addition to the military justice system, established in July 2021 under the National Defense Authorization Act (NDAA). Its role and impact are still unfolding, but here are some insights:

Purpose

The OSTC was created to address concerns about the handling of sexual assault and other serious crimes within the military. It operates independently of the military chain of command to ensure impartiality and accountability.

Statistics

Publicly available data on the OSTC’s caseload and outcomes is currently limited. However, the Department of Defense (DoD) confirms the OSTC is actively investigating and prosecuting cases. Its work is anticipated to increase transparency and accountability in military justice.

Quotations

For too long, sexual assault in the military has been an epidemic… The OSTC is a critical step forward in ensuring that survivors of sexual assault in the military get justice.

— Senator Kirsten Gillibrand (D-NY)

The establishment of the Office of the Special Trial Counsel is a historic step forward in our efforts to combat sexual assault in the military.

— Secretary of Defense Lloyd Austin

Additional Resources

While comprehensive data is still limited, the OSTC signifies a significant shift in the military’s approach to addressing serious crimes. Its work is expected to have a lasting impact on the military justice system and the lives of service members.

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