Military Sex Crimes: Article 120 UCMJ

Article 120 of the Uniform Code of Military Justice (UCMJ) governs sexual offenses within the United States military. This article outlines the definitions, offenses, collateral consequences, legal defenses, and policies associated with Article 120 and other military sex crimes. Given the severe penalties and lasting impacts associated with violations, understanding these aspects is crucial for service members, commanders, and legal professionals.

Article 120 encompasses a range of serious offenses, including rape, sexual assault, aggravated sexual contact, and abusive sexual contact. The military justice system treats these crimes with the utmost severity, reflecting their profound impact on victims and the necessity of maintaining discipline and integrity within the armed forces.

What are the Military Sex Crimes under Article 120 UCMJ?

Article 120 outlines several distinct military sex crimes, each with specific definitions and elements that must be proven for a conviction. These offenses are designed to cover a wide range of non-consensual sexual activities and ensure comprehensive legal protection for victims.

What is Rape UCMJ Article 120?

Rape under Article 120 is defined as the penetration, however slight, of the vulva or anus of another person by any part of the body or by any object or oral penetration by a sexual organ of another person without the consent of the victim. This definition underscores the importance of consent and the severe nature of the offense. A conviction for rape can lead to life imprisonment and mandatory registration as a sex offender.

What is Sexual Assault UCMJ Article 120?

Sexual assault is a broader category under Article 120, encompassing several forms of non-consensual sexual contact. This includes any unwanted touching of the genitalia, anus, groin, breast, inner thigh, or buttocks with the intent to abuse, humiliate, harass, or degrade. Sexual assault charges can also arise from situations where the victim is incapable of consenting due to intoxication, unconsciousness, or other impairments. Penalties for sexual assault are severe and can include lengthy prison sentences and dishonorable discharge.

What is Aggravated Sexual Contact UCMJ Article 120?

Aggravated sexual contact involves sexual contact with the use of force, threats, or when the victim is incapacitated. This offense is considered more serious than basic sexual contact due to the presence of aggravating factors. Convictions can result in significant prison time, loss of rank, and other military-specific penalties.

What is Abusive Sexual Contact UCMJ Article 120?

Abusive sexual contact refers to unwanted sexual contact that does not rise to the level of aggravated sexual contact or rape but is still non-consensual and harmful. This can include unwanted touching or groping. While the penalties for abusive sexual contact may be less severe than those for rape or aggravated sexual contact, they still carry serious consequences, including confinement and dishonorable discharge.

What are the Career Consequences of Military Sex Crimes Convictions?

The repercussions of a conviction under Article 120 UCMJ extend far beyond immediate legal penalties. These collateral consequences can profoundly affect a service member’s military career, civilian life, and personal relationships.

How Can Military Sex Crimes Impact a Military Career?

A conviction of military sex crimes under Article 120 often results in mandatory separation from the military, typically with a dishonorable discharge. This type of discharge ends a military career and disqualifies the individual from receiving most veterans’ benefits, including healthcare and education. Additionally, it can severely limit future employment opportunities, particularly in fields that require security clearances or involve working with vulnerable populations.

What are the Civilian Consequences of Military Sex Crimes?

In the civilian world, individuals convicted of sexual offenses under Article 120 face numerous challenges. One of the most significant is mandatory registration as a sex offender, which can lead to severe restrictions on where they can live and work. Registered sex offenders often face social stigma and isolation, which can impact their ability to reintegrate into society.

What are the Long-Term Effects on the Personal Life of Military Sex Crimes?

Beyond professional and legal consequences, a conviction under Article 120 can have devastating effects on personal relationships and mental health. Individuals may experience strained or broken relationships with family and friends, and the social stigma associated with being a registered sex offender can lead to depression, anxiety, and other mental health issues.

What are Legal Defenses for Military Sex Crimes?

Facing military sex crimes charges under Article 120 is daunting, but several legal defenses can be employed to challenge these accusations. The effectiveness of these defenses largely depends on the specifics of the case, the evidence available, and the skill of the defense attorney.

Common Defenses against Article 120 UCMJ Military Sex Crimes

One of the most common defenses is the argument of consent. Demonstrating that the sexual activity was consensual can negate the charges. This often involves providing evidence such as witness testimony, text messages, or other forms of communication that indicate mutual agreement.

Another defense is challenging the credibility of the accuser. This can include presenting evidence that the accuser has a motive to lie or has made false accusations. However, this approach must be handled delicately to avoid appearing as though the defense is attacking the victim’s character without substantial evidence.

Role of Consent in Legal Defenses in Military Sex Crimes

Consent is a central issue in many Article 120 cases and other military sex crimes. The prosecution must prove beyond a reasonable doubt that the sexual activity was non-consensual. Conversely, the defense can argue that the accused had a reasonable belief that the victim consented to the sexual activity. This can be a complex defense, as it often relies on interpreting the actions and communications of both parties involved.

Importance of Evidence and Witness Testimony in Military Sex Crimes

Evidence and witness testimony play a critical role in Article 120 cases. Physical evidence, such as DNA, medical reports, and forensic evidence, can support or refute the claims made by the prosecution and defense. Additionally, witness testimony can provide crucial insights into the events leading up to and following the alleged incident. It is essential for the defense to thoroughly investigate and present all relevant evidence to build a strong case.

This introduction and the first sections provide a detailed overview of the offenses under Article 120 and the associated collateral consequences and legal defenses. The remaining sections will further elaborate on the policies and procedures and recent changes and updates to Article 120, ensuring a comprehensive understanding of this critical aspect of military justice.

What are the Policies and Procedures Regarding Military Sex Crimes?

The military has established detailed policies and procedures to address allegations under Article 120 of the UCMJ. These procedures are designed to ensure that accusations are handled with the seriousness they deserve while also protecting the rights of the accused.

What is the Military Investigation and Prosecution Process in Military Sex Crimes?

When an allegation of sexual misconduct under Article 120 arises, the military follows a structured investigation and prosecution process:

Initial Report and Investigation: Allegations can be reported by the victim, witnesses, or through mandatory reporting by superiors. Once reported, an investigation is initiated by the appropriate military law enforcement agency, such as the Naval Criminal Investigative Service (NCIS) or the Army’s Criminal Investigation Command (CID). Investigators gather evidence, interview witnesses, and compile a comprehensive report of their findings.
Commander’s Discretion: Based on the investigation’s findings, the commanding officer (CO) decides how to proceed. The CO can handle the matter through non-judicial punishment (NJP) if the offense is considered minor, or refer the case to a court-martial for more serious charges. The CO may also dismiss the charges if there is insufficient evidence. For offenses
Office of the Special Trial Counsel: For military Sex Crimes committed after 27 December 2023, the Office of the Special Trial Counsel (OSTC), not the Commander, will take jurisdiction over the case. See below for a detailed explanation.
Preferral of Charges: If the CO decides to proceed with a court-martial, charges are formally preferred against the accused. This involves drafting a charge sheet outlining the specific offenses and serving it to the accused.
Article 32 Hearing: An Article 32 preliminary hearing is conducted before a general court-martial. This hearing serves as a pretrial investigation to determine whether there is enough evidence to proceed to trial. The accused has the right to be present, cross-examine witnesses, and present evidence. An impartial hearing officer reviews the evidence and makes a recommendation to the convening authority.
Referral to Court-Martial: Based on the Article 32 hearing officer’s recommendation, the convening authority (usually a high-ranking officer) decides whether to refer the case to a court-martial. There are three types of court-martial: summary, special, and general, with general being the most severe and involving the most serious charges.
Court-Martial Proceedings: If the case proceeds to a court-martial, it operates similarly to a civilian criminal trial. The accused has the right to legal representation, to confront and cross-examine witnesses, and to present a defense. A panel of military members (akin to a jury) or a military judge hears the case and determines the verdict.
Sentencing and Appeals: If the accused is found guilty, sentencing is determined by the panel or judge. The accused has the right to appeal a military sex crimes conviction and sentence through the military appellate courts.

What is the Office of the Special Trial Counsel (OSTC) in Military Court-Martial Cases?

The Office of the Special Trial Counsel (OSTC) is a pivotal entity within the military justice system, established to enhance the prosecution of serious offenses, including sexual assault and other military sex crimes, within the armed forces. The OSTC operates under the mandate to ensure fair and effective prosecution, uphold victims’ rights, and maintain the integrity of the military justice process.

What is the Purpose and Mandate of the OSTC?

The OSTC was created in response to concerns about the handling of serious offenses in the military, particularly sexual assault. Its primary purpose is to provide specialized legal expertise and dedicated resources to prosecute these cases effectively. The OSTC aims to ensure that justice is served, both for the victims and the accused, by employing experienced and skilled trial counsel to handle complex and sensitive cases.

What is the Structure and Function of the OSTC?

The OSTC is comprised of highly trained military attorneys who have been selected based on their experience and expertise in handling serious criminal cases and military sex crimes. These special trial counsels are responsible for investigating and prosecuting serious offenses, including those under Article 120 of the Uniform Code of Military Justice (UCMJ), which covers sexual offenses.

The office operates independently from the chain of command to prevent undue influence or bias in the prosecution process. This independence is crucial for maintaining the credibility and integrity of military justice. The OSTC collaborates closely with military investigators, victim advocates, and other relevant parties to build strong cases and ensure thorough investigations.

What are the Key Responsibilities of the OSTC?

Prosecution of Serious Offenses: The OSTC focuses on prosecuting serious criminal offenses, including sexual assault, domestic violence, and other significant crimes. This specialization ensures that these cases receive the attention and expertise required for successful prosecution.
Victim Advocacy: The OSTC works closely with advocates to prioritize victims’ rights and needs throughout the legal process. This includes providing victims with support, information, and legal representation through Special Victims’ Counsel (SVC).
Training and Education: The OSTC is also involved in training military attorneys, commanders, and other personnel on issues related to serious offenses and the military justice process. This education helps improve the overall handling of these cases within the military.

What is the Impact and Significance of the OSTC?

The establishment of the OSTC has significantly strengthened the military’s ability to prosecute serious offenses effectively and fairly. By ensuring that experienced and dedicated trial counsel handles these cases, the OSTC helps uphold the principles of justice and accountability within the armed forces. Its independent structure and focus on victim advocacy further enhance the credibility and integrity of the military justice system.

In conclusion, the Office of the Special Trial Counsel plays a critical role in military court-martial cases, providing specialized prosecution and support to ensure justice for both victims and the accused. Its efforts contribute to a more effective and trustworthy military justice system, reinforcing the military’s commitment to fairness and accountability.

Rights of the Accused and Military Sex Crimes

Service members accused under Article 120 of military sex crimes have several critical rights to ensure a fair and just process:

Right to Counsel: The accused can be represented by a military defense attorney at no cost. They also have the option to hire a civilian defense attorney at their own expense.
Right to Remain Silent: The accused has the right to remain silent and cannot be compelled to incriminate themselves. Any statements made by the accused can be used against them in court.
Right to Confront Witnesses: During the court-martial, the accused must confront and cross-examine all witnesses testifying against them.
Right to Present Evidence: The accused can present evidence and call witnesses in their defense. This includes the right to subpoena witnesses and obtain documents relevant to the case.
Right to a Fair Trial: The accused is entitled to a fair trial, which includes the presumption of innocence until proven guilty beyond a reasonable doubt.
Right to an Appeal: If convicted of military sex crimes, the accused has the right to appeal the decision and sentence to higher military courts.

Recent Changes and Updates to Article 120 UCMJ

Article 120 has undergone several revisions to address concerns about the handling of sexual assault cases within the military. These changes aim to strengthen protections for victims and ensure due process for the accused.

Victim Advocacy and Support: Recent updates have emphasized the importance of providing support and advocacy for victims of sexual assault. This includes access to victim advocates, counseling services, and medical care.
Enhanced Training and Education: The military has implemented extensive training programs to educate service members and leaders about sexual assault prevention, the importance of consent, and the procedures for reporting and responding to allegations.
Special Victims’ Counsel (SVC): The establishment of the SVC program provides victims with their own legal representation throughout the investigative and judicial process. This ensures that victims’ rights and interests are protected.
Improved Reporting Mechanisms: Efforts have been made to streamline and improve the reporting process for sexual assault. This includes anonymous reporting options and better tracking of cases to ensure timely and thorough investigations.
Changes to Prosecution Standards: Updates to Article 120 have clarified and tightened the definitions of sexual offenses, ensuring that the law is applied consistently and fairly. This includes a focus on consent and the removal of ambiguous language that could be exploited in legal defenses.

Importance of Legal Representation in Military Sex Crimes

Navigating the complexities of Article 120 military sex crimes cases requires skilled legal representation and a thorough understanding of the military justice system. The accused and victims benefit from the guidance of experienced attorneys who can advocate for their rights and interests.

For those Accused of Military Sex Crimes

Legal representation is crucial for those accused under Article 120. A defense attorney can help the accused understand their rights, build a strong defense, and navigate the legal proceedings. This includes challenging the evidence, cross-examining witnesses, and presenting exculpatory evidence. Given the severe consequences of a conviction, having a knowledgeable attorney is essential to achieving a fair outcome.

For Victims of Military Sex Crimes

Victims of sexual assault in the military also require strong legal support to navigate the reporting process and the subsequent investigation and prosecution. The Special Victims’ Counsel (SVC) program provides victims with their own legal advocate, ensuring that their voices are heard and their rights protected throughout the process. This support is critical in helping victims feel empowered and supported as they seek justice.

Hiring Military Sex Crimes Defense Lawyers

Article 120 of the UCMJ represents a vital component of military law, addressing the serious issue of sexual misconduct within the armed forces. Understanding the offenses, collateral consequences, legal defenses, and policies associated with Article 120 is essential for service members, legal professionals, and military leaders. By ensuring that allegations are handled with the utmost seriousness and fairness, the military justice system strives to maintain discipline, protect victims, and uphold the rights of the accused.

What are the Collateral Consequences of Article 120 UCMJ Military Sex Crimes Convictions?

Convictions under Article 120 carry severe penalties that extend far beyond the immediate sentence. These collateral consequences impact the convicted service members’ personal, professional, and social lives, creating long-term challenges.

What is the Impact on a Military Career of Military Sex Crimes?

A conviction for military sex crimes under Article 120 typically results in mandatory separation from the military. This separation is usually accompanied by a dishonorable discharge or a bad conduct discharge, both of which have significant repercussions:

Loss of Benefits: A dishonorable discharge results in the forfeiture of most veterans’ benefits, including the GI Bill, VA healthcare, and retirement benefits. This loss can create substantial financial strain and limit access to essential services.
Career Implications: A dishonorable discharge severely restricts future employment opportunities. Many civilian employers are reluctant to hire individuals with such a discharge, particularly in fields requiring security clearances or positions of trust. Additionally, a dishonorable discharge disqualifies individuals from most government jobs and certain professional licenses.
Social Stigma: The stigma associated with a dishonorable discharge can be socially isolating. It can lead to strained relationships with family and friends and make reintegration into civilian life challenging.

What are the Civilian Consequences of Military Sex Crimes?

The impact of a conviction under Article 120 extends into civilian life, primarily through mandatory registration as a sex offender. This registration comes with numerous restrictions and social challenges:

Sex Offender Registration: Individuals convicted of military sex crimes must register as sex offenders, which involves providing personal information to a public registry. This registry is accessible to the public, leading to significant social stigma and discrimination.
Housing and Employment Restrictions: Registered sex offenders often face restrictions on where they can live and work. They may be prohibited from living near schools, parks, and other areas frequented by children. Employment opportunities can also be limited, as many employers are hesitant to hire registered sex offenders.
Social Consequences: The social stigma of being a registered sex offender can lead to isolation and difficulty in forming personal relationships. Individuals may face harassment or discrimination from neighbors, colleagues, and the broader community.
Legal Restrictions: Registered sex offenders are subject to ongoing legal restrictions, including regular check-ins with law enforcement, restrictions on internet use, and limitations on travel. Failure to comply with these requirements can result in additional criminal charges.

What are Legal Defenses for Military Sex Crimes?

Defending against charges under Article 120 requires a strategic and well-prepared approach. The complexity of these cases necessitates a thorough understanding of the law and the ability to present a compelling defense.

What are Common Defenses Against Article 120 UCMJ Military Sex Crimes Charges?

Several defenses can be employed to challenge charges under Article 120, depending on the specifics of the case:

Consent: One of the most common defenses is that the sexual activity was consensual. Demonstrating consent involves presenting evidence that both parties agreed to the sexual activity. This could include text messages, emails, or testimony from witnesses who can attest to the nature of the relationship.
Lack of Evidence: Another effective defense strategy is challenging the sufficiency of the prosecution’s evidence. This can involve questioning the credibility of witnesses, the reliability of forensic evidence, or the methods used in the investigation.
Mistaken Identity: In military sex crimes cases where the perpetrator’s identity is in question, the defense may argue that the accused was mistakenly identified as the offender. This defense often involves presenting alibi evidence or questioning the accuracy of eyewitness testimony.
Mental Incapacity: In some military sex crimes cases, the defense may argue that the accused lacked the mental capacity to form the intent necessary to commit the offense. This defense requires substantial evidence, such as medical or psychiatric evaluations.
Mistake of Fact as to Consent: In military sexual assault cases and other military sex crimes, “mistake of fact as to consent” is a legal defense where the accused argues they genuinely and reasonably believed the alleged victim consented to the sexual activity. This defense hinges on two key components: sincerity and reasonableness.
1. Sincerity: The accused must demonstrate they honestly believed the other party consented. This belief must be more than just a superficial or self-serving assertion; it must be supported by evidence showing a genuine perception of consent.
2. Reasonableness: The belief must also be deemed reasonable under the circumstances. Given the context, a reasonable person in the same situation would have interpreted the alleged victim’s actions or words as consent. Factors considered include verbal and non-verbal cues, the nature of the relationship, and the situational context.
3. However, this defense is not applicable if the accused was reckless or willfully blind to the possibility that the other party did not consent. The burden of proof lies with the defense to establish the belief’s sincerity and reasonableness. If successful, this defense can lead to acquittal, as it negates the required element of mens rea (criminal intent) in a sexual assault charge under Article 120 of the UCMJ.

What are Legal Defenses to Military Sex Crimes?

Consent is a pivotal issue in many Article 120 cases. Proving or disproving consent often determines the outcome of the case. The prosecution must demonstrate beyond a reasonable doubt that the sexual activity was non-consensual. At the same time, the defense must show that the accused had a reasonable belief that consent was given.

Importance of Evidence and Witness Testimony in Military Sex Crimes

Evidence and witness testimony are critical components of both the prosecution’s and the defense’s cases. Key elements include:

Physical Evidence: Forensic evidence such as DNA, fingerprints, and medical reports can corroborate or refute allegations. The integrity and handling of this evidence are crucial.
Witness Testimony: Testimonies from witnesses present during the events or with relevant information about the relationship between the parties involved can significantly influence the case. Effective cross-examining these witnesses is essential for both sides.
Digital Evidence: In the digital age, text messages, emails, social media interactions, and other electronic communications can provide valuable insights into the nature of the relationship and the events in question.

What are the Policies and Procedures Regarding Military Sex Crimes?

The military justice system has implemented various policies and procedures to address the handling of sexual misconduct allegations under Article 120. These measures aim to ensure fairness, protect the rights of all parties involved, and maintain the integrity of the process.

Military Investigation and Prosecution Process for Military Sex Crimes

When an allegation of sexual misconduct is reported, a systematic process is followed to investigate and, if necessary, prosecute the case:

Initial Report: Allegations can be reported through various channels, including direct victim reports, mandatory reporting by superiors, or third-party witnesses.
Investigation: Military law enforcement agencies, such as the NCIS or CID, conduct thorough investigations. This involves collecting evidence, interviewing witnesses, and preparing a detailed report of findings.
Command Decision: Based on the investigation, the commanding officer (CO) decides whether to proceed with non-judicial punishment (NJP) or refer the case to a court martial. The CO may also dismiss the charges if the evidence is insufficient.
Charge Preferral: If court-martial is deemed appropriate, formal charges are preferred against the accused. This involves drafting a charge sheet and serving it to the accused.
Article 32 Hearing: A preliminary hearing, known as an Article 32 hearing, is conducted to determine if sufficient evidence exists to proceed to trial. The accused has the right to be present, cross-examine witnesses, and present evidence.
Referral to Court-Martial: Based on the Article 32 hearing officer’s recommendation, the convening authority decides whether to refer the case to a court-martial.
Court-Martial: The court-martial process mirrors a civilian criminal trial, with the accused having the right to legal representation, to present a defense, and to cross-examine witnesses. A panel or military judge delivers the verdict.
Sentencing and Appeals: If found guilty of military sex crimes, sentencing is determined by the panel or judge. The accused can appeal the conviction and sentence through the military appellate courts.

Rights of the Accused in Military Sex Crimes

To ensure a fair and just process, service members accused under Article 120 are afforded several critical rights:

Right to Counsel: The accused can be represented by a military defense attorney at no cost or hire a civilian attorney at their own expense.
Right to Remain Silent: The accused has the right to remain silent and cannot be compelled to incriminate themselves.
Right to Confront Witnesses: During the court-martial, the accused must confront and cross-examine all witnesses testifying against them.
Right to Present Evidence: The accused can present evidence and call witnesses in their defense, including the right to subpoena witnesses and obtain relevant documents.
Right to a Fair Trial: The accused is presumed innocent until proven guilty beyond a reasonable doubt and is entitled to a fair and impartial trial.
Right to an Appeal: If convicted, the accused can appeal the decision and sentence to higher military courts.

Recent Changes and Updates to Article 120

Recognizing the need to address sexual misconduct more effectively, the military has implemented several changes to Article 120 and its related policies regarding military sex crimes:

Victim Advocacy and Support for Military Sex Crimes

The military has enhanced support systems for victims of sexual assault and other military sex crimes, ensuring they receive the care and advocacy they need. This includes:

Victim Advocates: Trained professionals who provide emotional support, guidance, and assistance throughout the reporting and legal process.
Special Victims’ Counsel (SVC): Legal representation specifically for victims, ensuring their rights are protected and their voices heard during investigations and trials.
Medical and Counseling Services: Access to medical care, mental health services, and counseling to support victims’ recovery and well-being.

Enhanced Training and Education on Military Sex Crimes

To prevent sexual misconduct and improve response to allegations, the military has implemented comprehensive training programs:

Sexual Assault Prevention Training: Mandatory training for all service members on recognizing, preventing, and responding to sexual misconduct and military sex crimes.
Leadership Education: Specialized training for commanders and leaders on handling sexual assault reports, supporting victims, and ensuring fair investigations.

Improved Reporting Mechanisms for Military Sex Crimes

Efforts have been made to streamline and improve the reporting process for sexual assault and other military sex crimes:

Anonymous Reporting Options: Victims can report military sex crimes anonymously, giving them a sense of security and control over the reporting process.
Tracking and Accountability: Enhanced systems for tracking sexual assault cases to ensure timely and thorough investigations and hold perpetrators accountable.

Changes to Prosecution Standards in Military Sex Crimes

To ensure fairness and consistency in prosecuting military sex crimes, the military has clarified and updated the standards and definitions within Article 120:

Clear Definitions: Revised definitions of sexual offenses to remove ambiguity and ensure consistent application of the law.
Focus on Consent: Emphasis on the importance of consent and clear standards for determining whether consent was given or could be reasonably understood.

Selecting the Best Court Martial Lawyers for Military Sex Crimes

Article 120 of the Uniform Code of Military Justice (UCMJ) is a pivotal aspect of military law, addressing serious sexual offenses within the armed forces. This article has provided a comprehensive overview of the definitions, offenses, collateral consequences, legal defenses, and policies associated with Article 120. Understanding these elements is crucial for service members, commanders, and legal professionals to ensure justice and maintain the integrity of the military justice system.

Navigating the complexities of Article 120 military sex crimes cases necessitates skilled legal representation and a thorough understanding of military justice. Knowledgeable attorneys who can advocate for their rights and interests benefit both the accused and victims.

Legal counsel is essential for building a strong defense, challenging evidence, and ensuring due process. For victims, support from Special Victims’ Counsel (SVC) and other advocacy services is crucial in navigating the reporting process and pursuing justice.

Summary of Key Points Regarding Military Sex Crimes

Offenses under Article 120: Article 120 categorizes various forms of sexual misconduct, including rape, sexual assault, aggravated sexual contact, and abusive sexual contact. Each offense has specific criteria and emphasizes the necessity of consent.
Collateral Consequences: Convictions under Article 120 for military sex crimes carry severe penalties, such as dishonorable discharge, loss of military benefits, mandatory sex offender registration, and significant social and professional repercussions. These consequences extend into civilian life, affecting housing, employment, and personal relationships.
Legal Defenses: Accused service members can employ several defenses to military sex crimes, including consent, lack of evidence, mistaken identity, and mental incapacity. The defense strategy often hinges on the presence or absence of consent, requiring detailed analysis of interactions and communications between the involved parties.
Policies and Procedures: The military has established a structured process for investigating and prosecuting military sex crimes under Article 120. This includes initial investigations, command decisions, Article 32 hearings, court-martial proceedings, and the accused’s rights to legal representation, a fair trial, and an appeal. Recent changes have focused on improving victim support, enhancing training and education, streamlining reporting mechanisms, and ensuring clear prosecution standards.

Ongoing Efforts to Address Sexual Misconduct and Military Sex Crimes

The military continues to evolve its approach to handling sexual misconduct, recognizing the need for ongoing improvements to policies, training, and support systems. These efforts aim to create a safer environment for all service members, ensuring that allegations are taken seriously, victims are supported, and the rights of the accused are protected.

Victim Advocacy and Support: Enhancements in victim advocacy and support services, such as the SVC program, provide essential resources and legal representation for victims, helping them navigate the complexities of the military justice system.
Enhanced Training and Education: Comprehensive training programs for all service members and specialized education for leaders and commanders help prevent sexual misconduct and improve the handling of allegations.
Improved Reporting Mechanisms: Streamlined reporting processes and accountability measures ensure that cases are investigated thoroughly and perpetrators are held accountable.
Changes to Prosecution Standards: Clarifying and tightening the definitions of sexual offenses under Article 120 ensure consistent and fair application of the law, emphasizing the importance of consent and removing ambiguities that could be exploited in legal defenses.

Final Thoughts on Military Sex Crimes

Article 120 of the UCMJ is a critical component of military law, addressing serious military sex crimes and ensuring justice within the armed forces. Understanding the offenses, collateral consequences, legal defenses, and policies associated with Article 120 is essential for service members, commanders, and legal professionals. By maintaining a balance between protecting victims and upholding the rights of the accused, the military justice system strives to maintain discipline, integrity, and fairness.

As the military continues to improve its approach to handling sexual misconduct, ongoing education, training, and support will be vital in fostering a culture of respect, accountability, and justice. Service members and legal professionals must remain informed and vigilant, ensuring that the principles of justice and fairness are upheld in every case under Article 120.

Importance of Continued Vigilance in Military Sex Crimes Cases

The military’s commitment to addressing sexual misconduct under Article 120 reflects a broader societal commitment to ensuring safety and justice for all individuals. Continued vigilance, transparency, and adherence to rigorous legal standards are essential in upholding the integrity of the military justice system. By staying informed and proactive, the military community can continue to make strides in preventing sexual misconduct, supporting victims, and ensuring that justice is served fairly and effectively.

Legal History of Military Sex Crimes: Revisions to the UCMJ in 2007

The Uniform Code of Military Justice and the Manual for Courts-Martial set out the laws that govern not only military sex crimes unique to the military but also conventional military sex crimes such as assault, battery, and sexual offenses. In 2007, the section of the Code entitled “Rape” was amended and renamed “Rape, Sexual Assault, and Other Sexual Offenses,” and some offenses that had appeared elsewhere were consolidated in the new UCMJ Article 120. It was effective October 1, 2007. Thus, in defending a client charged with any form of sexual offense, defense counsel needs to be aware of whether the charges arise under the old or the new Code.

In Article 120, there are fourteen categories of military sex crimes; many of the definitions and elements apply equally to adult and child victims. The key difference when the victim is a child is that certain sexual conduct with children is an offense based solely on the child’s age and without the necessity of showing specific intent or use of force.

Application of the new or “old” laws for Military Sex Crimes

Generally, the statute of limitation for military sex crimes is five years, except in death penalty cases. Rape is technically a death penalty crime in the military, but the impact of Supreme Court decisions on the death penalty insofar as rape and child rape provisions of the UCMJ is beyond the scope of this review. Moreover, the statute may be tolled if the accused was outside military tribunals’ jurisdiction for some time. Thus, the “old” law is still relevant to prosecutions occurring today and potentially for some time. The practitioner should be aware of the prior law and case holdings, but they are beyond the scope of this summary here.

Criticism of the 2007 Revisions to the UCMJ

Critics have called the 2007 revisions in the Code, at worst, unconstitutional and, at best, confusing. 2009 Report of the Defense Task Force on Sexual Assault in the Military Services, “Practitioners consistently advised Task Force members that the new Article 120 is . . . cumbersome and confusing.”

Because of the intricacies of the revisions and the interplay between the “old” rape code and the new Article 120 military sex crimes, counsel must study the issues and governing law very closely when undertaking the defense of a military sexual assault crime. Citations here are to the Manual for Courts-Martial (MCM).

Rape MCM 45 (b)(1) – The Old Elements of Military Rape

Rape is causing another person to engage in a “sexual act.”

by use of force
or by causing grievous bodily harm
or by using threats of or creating fear of death, grievous bodily harm, or kidnapping
or by rendering another unconscious
or by administering an intoxicant or other drug

A sexual act

A “sexual act” is any contact between the penis and the vulva, however slight, or the penetration of the genital opening of another by hand, finger, or an object with the intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. MCM 45a(t)(1) Note that the first part of the definition of penetration excludes same-gender conduct. The second part of the definition requires proof of specific intent.

Force in Military Sex Crimes

Force is compelling submission or overcoming resistance by use of a dangerous weapon or object, causing another to believe that one has such a weapon, or physical violence or restraint that causes the other to be unable to avoid or escape the sexual contact. MCM 45a(t)(5). Note that the latter part of the definition may fuse the concept of consent into the crime, although it is technically an affirmative defense.

Grievous bodily harm and Military Sex Crimes

Grievous bodily harm is serious bodily harm like a broken bone. MCM 45a(t)(3)

Threatening or placing someone in fear in Military Sex Crimes

Threatening or placing someone in fear means a communication or action sufficient to cause a reasonable fear that the victim or another will be subjected to the threatened act. MCM 45a(t)(6)

Aggravated Sexual Assault MCM 45b(3) – Military Sex Crimes

Aggravated Sexual Assault is causing another person to engage in a “sexual act.”

by using threats of or creating fear of bodily harm or other harm less than death, grievous bodily harm, or kidnapping
or by causing bodily harm
or the other person is substantially incapacitated or unable to appraise the act, decline it, or communicate unwillingness )

The definition of a sexual act is the same as that defined under rape.

Threatening bodily harm less than death, grievous bodily harm, or kidnapping

Threatening bodily harm less than death, grievous bodily harm, or kidnapping includes such non-physical threats as to accuse another of a crime; to publish a secret exposure of which could subject the victim to ridicule, hatred, or contempt; or abuse military rank to affect another’s career. MCM 45a(t)(7)

Bodily harm

Bodily hard means offensive touching of another, however slight, and includes touching someone other than the victim if that contributes to the victim’s submission to the act. MJ Benchbook 34-5-d

Aggravated Sexual Contact MCM 45b(5)

Aggravated Sexual Contact is engaging in “sexual contact” with another person or causing sexual contact with or by another person:

by force
or by causing grievous bodily harm
or by threats or creating fear of death, grievous bodily harm, or kidnapping
or rendering another unconscious
or administering a drug or other intoxicant

Sexual Contact

Sexual Contact is one of the many military sex crimes. It is defined as the intentional touching of intimate body parts, including the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person. Touching may be direct or indirect (through clothing). Sexual contact includes causing another to perform sexual contact. MCM 45a(t)(2). This is a specific intent crime and may include male-on-male contact.

The remaining definitions are the same as set out in Section 1.2 above.

Abusive Sexual Contact MCM 45b(8) – Military Sex Crimes

Abusive Sexual Contact is causing another person to engage in “sexual contact.”

by using threats of or creating fear of bodily harm or other harm less than death, grievous bodily harm, or kidnapping MCM 45b(8)(a)
or by causing bodily harm MCM 45b(8)(b)
or the other person is substantially incapacitated or unable to appraise the act, decline it, or communicate unwillingness MCM 45b(8)(c)

The definitions of military sex crimes and sexual contact are the same as those defined under aggravated sexual contact. The remaining definitions are the same as those in Section 1.3 above.

Wrongful Sexual Contact MCM 45b(13) -Military Sex Crimes

Wrongful Sexual Contact is having sexual contact with another person without their permission, and the accused had no legal justification or lawful authorization for the contact MCM 45b(13). Because of this crime’s “without their permission” element, the accused must have asked for consent.

Indecent Act MCM 45b(11) – Military Sex Crimes

An Indecent Act is a “form of immorality related to sexual purity which is grossly vulgar, obscene, and repugnant to common propriety and tends to excite sexual desire or deprave morals concerning sexual relations. MCM 45a(t)(11).

It is further defined as observing or making any visual material (such as a videotape) without the victim’s consent and contrary to their reasonable expectations of privacy where the depiction is of the victim’s intimate bodily parts of the victim. In contrast, the victim is engaged in a sexual act, sodomy, or sexual contact.

Indecent Exposure MCM 45b(14) – Military Sex Crimes

Indecent exposure consists of the accused

exposing his or her genitalia, anus, buttocks, or female breast
and the exposure was in an indecent manner
and it occurred where people other than family were likely to see it
and the exposure was intentional

This is thus a specific intent crime. “Indecent manner” is not separately defined; the closest parallel is the definition of “indecent act.”

Forcible Pandering MCM 45b(12)

Forcible pandering is compelling someone to engage in an act of “prostitution” and procuring clients for the act of prostitution. Prostitution is a sexual act, sexual contact or a lewd act.

A “lewd” act is a military sex crime

Intentionally touching another’s genitalia (not through clothing) with the intent to abuse, humiliate or degrade any person or to arouse or gratify the sexual desire of any person
Or intentionally causing another person to engage in said touching. MCM 45a(t)(10)

Military Sexual Crimes Involving Children

Essentially, the same conduct that is a crime against an adult is a crime against a child as well, and the elements are the same. However, certain conduct that would not be criminal about an adult victim is criminal concerning a child.

Rape of a Child is a Military Sex Crime

engaging in a sexual act with a child under the age of 12 or committing “rape,” as defined in Section 1.2 above, of a child who has attained the age of 12. MCM 45b.

Children and Military Sex Crimes

A child is a person who has not attained the age of 16. MCM 45a(t)(9).

The first provision is equivalent to statutory rape; if the child is under 12, any sexual conduct is criminal, and neither force nor specific intent is required to prove the offense, nor is “consent” an affirmative defense. The second provision relates to children between the ages of 12 and 16 and requires the other elements of rape. However, a sex act with any child between the ages of 12 and 16 is criminalized as aggravated sexual assault of a child without regard to force or intent, see 1.11 herein.

Aggravated Sexual Assault of a Child

Aggravated Sexual Assault of a Child is engaging in a sexual act with a child who has attained the age of 12. MCM 45d. This offense is defined by the child’s age, not by the degree of force or specific intent.

Aggravated Sexual Abuse of a Child

Aggravated Sexual Abuse of a Child is engaging in a lewd act with a child. MCM 45f.

A lewd act is intentionally touching another’s genitalia (not through clothing) with the intent to abuse, humiliate or degrade any person or to arouse or gratify the sexual desire of any person
Or intentionally causing another person to engage in said touching. MCM 45a(t)(10)

Aggravated Sexual Contact with a Child

Aggravated Sexual Contact with a Child is the same as Rape of a Child, except that the accused’s conduct is “sexual contact” rather than a “Sexual Act.” MCM 45g.

Indecent Liberties with a Child

Indecent Liberties with a Child is engaging in indecent liberties in the presence of a child

With the intent to arouse, appeal to, or gratify the sexual desires of a person
Or with the intent to abuse, humiliate, or degrade any person MCM 45j

Indecent Liberties include

Exposing one’s genitalia, anus, buttocks of female breasts to a child
Indecent language in the presence of a child
Words designed to excite sexual desire spoken to a child
Exposing a child to sexual conduct

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