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

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

What is UCMJ Article 120 Sexual Assault When the Victim is Incapable of Consenting?

Ucmj Article 120 Sexual Assault When The Victim Is Incapable Of ConsentingArticle 120 of the UCMJ addresses sexual assault when the victim is incapable of consenting due to factors such as impairment by drugs, alcohol, or a mental or physical condition. This serious offense carries severe penalties, including confinement, dishonorable discharge, and mandatory sex offender registration. Accusations of this nature demand immediate legal attention due to the complex legal landscape and the significant impact on the accused’s life and career.

Securing the best military defense lawyers is crucial if accused of this crime. These lawyers thoroughly understand military law and can effectively navigate the intricate legal processes involved in Article 120 UCMJ cases. They work diligently to protect the rights of the accused, scrutinize the evidence, and develop a robust defense strategy. Given the potential consequences, including long-term imprisonment and social stigma, having experienced Article 120 UCMJ lawyers on your side can significantly influence the outcome of your case, ensuring a fair trial and the best possible defense.

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

In the military, the crime of UCMJ Article 120, Sexual Assault When the Victim is Incapable of Consenting, falls under the general offense category of Sexual Assault. It is one of the more serious offenses under the UCMJ and carries significant mandatory punishments. Offenses committed after December 27, 2023, carry a mandatory minimum jail sentence of 30-120 months (Between 2 years and 6 months to 10 years of confinement

) and a Dishonorable Discharge or Dismissal. If convicted, the defendant must register as a Federal and State sex offender.

What are the Sexual Assault Offenses Under Article 120 UCMJ?

What are the Maximum Punishments for Sexual Assault When the Victim is Incapable of Consenting, 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.
  • Note: Registration as a State & Federal Sex Offender
  • Federal Felony Conviction

For offenses committed after 27 December 2023

  • Under the Sentencing Parameters, Sexual Assault When the Victim is Incapable of Consenting, 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.
  • Note:  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
  • Federal Felony Conviction

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

A military member convicted of Sexual Assault When the Victim is Incapable of Consenting, Article 120 UCMJ, 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

What are the Elements of Article 120 UCMJ Sexual Assault When the Victim is Incapable of Consenting (Sexual Assault)?

  1. That at or near (location), on or about (date), the accused committed a sexual act upon (victim) by (state the alleged sexual act);
  2. That the accused did so when (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).

Sample Model Specification: Article 120 UCMJ Sexual Assault When the Victim is Incapable of Consenting (Sexual Assault)

In that SGT Ronald Don, 82nd Airborne Division, US Army, did, at or near Fort Liberty, NC, on or about 4 July 2024, commit a sexual act upon Jane Victim, to wit: penetrating Jane Victim’s vulva with SGT Ronald Don’s penis, with an intent to gratify the sexual desire of SGT Ronald Don, when Jane Victim was incapable of consenting to the sexual act because she was impaired by an intoxicant, to wit: alcohol, and the accused knew of that condition.

What are the Definitions for Article 120 UCMJ Sexual Assault When the Victim is Incapable of Consenting (Sexual Assault)?

Marriage and UCMJ Article 120 Sexual Assault When the Victim is Incapable of Consenting. Marriage is not a defense to any offense in violation of Article 120 UCMJ Sexual Assault When the Victim is Incapable of Consenting (Sexual Assault).

If necessary, include the following instruction: Marriage is not a defense to this offense.

“Sexual act” 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; or
  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.

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.”

What is Incapable of consenting?

When the offense alleges the victim was incapable of consenting, include the following instructions:

“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.

If Evidence of Consent to Article 120 UCMJ Sexual Assault When the Victim is Incapable of Consenting (Sexual Assault) has Been Raised, then the Military Judge Will Give the Following Instructions:

The evidence has raised the issue of whether Jane Victim consented to the sexual conduct listed in The Specification One of The Charge. All of the evidence concerning consent to the sexual conduct is relevant. It must be considered in determining whether the government has proven (the elements of the offense) (that the sexual conduct was done by state the applicable element).

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 applicable element).

Consent and UCMJ Article 120 Sexual Assault When the Victim is Incapable of Consenting

“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 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.
  • A person cannot consent to being rendered unconscious.
  • A person cannot consent while under threat or in fear.
  • A “competent person” is a person who possesses the physical and mental ability to consent.
  • An “incompetent person” is a person who is incapable of appraising the nature of the conduct at issue, or physically incapable of declining participation in or communicating unwillingness to engage in the sexual act at issue.
  • All the surrounding circumstances are to be considered in determining whether a person
    gave consent.

UCMJ Article 120 Military Defense Lawyers

If you are suspected or accused of UCMJ Article 120 Sexual Assault When the Victim is Incapable of Consenting (Sexual Assault), reach out to speak with one of our experienced military court martial lawyers to discuss your best defense strategy.

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

UCMJ Article 120 Sexual Assault When the Victim is Incapable of Consenting covers various forms of sexual assault, including situations where the victim is incapable of consenting. This provision aims to protect individuals who are unable to provide valid consent due to certain incapacitating conditions, ensuring that perpetrators are held accountable for their actions. The military takes these offenses seriously to maintain discipline, trust, and respect within its ranks.

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

Sexual assault within the military has been a significant concern for many years. The UCMJ was established to provide a uniform set of laws that govern the conduct of military personnel. UCMJ Article 120 Sexual Assault When the Victim is Incapable of Consenting specifically addresses sexual misconduct, including rape, sexual assault, and other unwanted sexual behaviors. The inclusion of provisions for victims who are incapable of consenting reflects a commitment to safeguarding the well-being of all service members, particularly those who are vulnerable due to incapacitation.

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

To secure a conviction for sexual assault under UCMJ Article 120 Sexual Assault When the Victim is Incapable of Consenting, the prosecution must prove the following elements beyond a reasonable doubt:

  • Act of Sexual Assault: The accused committed a sexual act upon the victim. A sexual act is defined as contact between the penis and vulva, penis and anus, mouth and penis, mouth and vulva, or penetration of the anal or genital opening of another by any object with intent to abuse, humiliate, harass, or degrade.
  • Incapability to Consent: The victim was incapable of consenting to the sexual act due to impairment by an intoxicant, mental disease or defect, or physical disability. This includes situations where the victim is unconscious, asleep, or otherwise unaware that the sexual act is occurring.
  • Knowledge of Incapacity: The accused knew or reasonably should have known that the victim was incapable of consenting to the sexual act.

Collateral Consequences of a UCMJ Article 120 Sexual Assault When the Victim is Incapable of Consenting Conviction

A conviction for sexual assault under Article 120 when the victim is incapable of consenting can have numerous collateral consequences that extend beyond the immediate legal penalties. These consequences can significantly impact the accused’s future, including:

  • Employment Issues: Difficulty obtaining civilian employment due to the nature of the conviction and any resulting discharge status. Many employers are hesitant to hire individuals with a criminal record, particularly for sexual offenses.
  • Loss of Military Benefits: Loss of military benefits, including retirement pay, VA benefits, and healthcare. A dishonorable discharge typically results in the forfeiture of these benefits.
  • Reputation Damage: Significant damage to personal and professional reputation. A conviction for sexual assault can lead to social ostracism and loss of respect from peers, family, and the community.
  • Registration as a Sex Offender: Mandatory registration as a sex offender in many jurisdictions, which carries additional restrictions and monitoring requirements.
  • Civil Liability: Potential civil lawsuits from the victim for damages, which can result in financial liabilities and further legal battles.

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

The primary purpose of penalizing sexual assault under Article 120 when the victim is incapable of consenting is to protect service members and maintain good order and discipline within the military. The military environment relies heavily on trust, respect, and discipline among its members. Sexual assault, particularly against those who cannot consent, undermines these foundational principles and damages unit cohesion and morale. By criminalizing such behavior, the military aims to:

  • Protect Vulnerable Individuals: Ensure that service members who are incapacitated or otherwise unable to consent are protected from sexual exploitation and harm.
  • Promote Respect and Professionalism: Foster a culture of respect and professionalism within the ranks, where all service members feel safe and valued.
  • Deter Misconduct: Deter potential offenders by highlighting the severe consequences of such behavior. The military’s strict enforcement of these laws serves as a deterrent to would-be offenders.
  • Maintain Discipline: Uphold the standards of conduct necessary for military readiness and effectiveness. Sexual misconduct disrupts the order and discipline essential for military operations.

Challenges in Prosecution of UCMJ Article 120 Sexual Assault When the Victim is Incapable of Consenting

Prosecuting sexual assault cases where the victim is incapable of consenting presents unique challenges. These challenges can include:

  • Proving Incapacity: Establishing that the victim was indeed incapable of consenting at the time of the assault can be complex. This may require medical or expert testimony to demonstrate the extent of the victim’s incapacitation.
  • Victim Testimony: The victim’s inability to recall the events due to incapacitation can complicate the case. Prosecutors may need to rely on other evidence, such as witness testimony or forensic evidence, to build their case.
  • Defense Strategies: The defense may argue that the accused reasonably believed the victim was capable of consenting or that the accused did not know the victim was incapacitated. Overcoming these defense strategies requires thorough evidence and a strong prosecution strategy.

Support for Victims of UCMJ Article 120 Sexual Assault When the Victim is Incapable of Consenting

The military provides various support services for victims of sexual assault to ensure their well-being and facilitate their participation in the legal process. These support services include:

  • Victim Advocates: Trained professionals who provide emotional support, information about legal rights, and assistance throughout the legal process.
  • Medical Care: Comprehensive medical care, including forensic examinations, to address the physical and psychological effects of the assault.
  • Counseling Services: Access to counseling and mental health services to support the victim’s recovery and well-being.
  • Legal Assistance: Legal support to help victims understand their rights and navigate the legal system.

Court Martial  Lawyers for UCMJ Article 120 Sexual Assault When the Victim is Incapable of Consenting

Article 120 of the UCMJ, which addresses sexual assault when the victim is incapable of consenting, is a critical component of the military’s efforts to protect its members and maintain discipline. The severe penalties and collateral consequences associated with a conviction underscore the military’s commitment to addressing and deterring sexual misconduct. By providing support for victims and ensuring thorough prosecution of offenders, the military aims to foster a safe and respectful environment for all service members.

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