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UCMJ Article 120 Sexual Assault When Victim is Asleep Unconscious or Otherwise Unaware

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 Victim is Asleep Unconscious, or Otherwise Unaware?

UCMJ Article 120 Sexual Assault When Victim is Asleep UnconsciousArticle 120 of the UCMJ covers sexual assault committed against a victim who is asleep, unconscious, or otherwise unaware. This severe offense involves non-consensual sexual acts carried out when the victim cannot give consent due to their incapacitated state. The consequences of a conviction are dire, including dishonorable discharge, significant imprisonment, and a lasting criminal record.

Accused individuals should seek immediate assistance from the best military defense lawyers possible. Your court martial lawyer should understand the intricacies of military law and can build a strong defense, ensuring the accused’s rights are upheld and aiming for the most favorable outcome. The experienced Article 120 UCMJ lawyers can thoroughly examine the evidence, challenge the prosecution’s arguments, and provide legal support during this challenging time.

Note: The maximum and minimum punishments for UCMJ Article 120 Sexual Assault When Victim is Asleep, Unconscious, or Otherwise Unaware (Sexual Assault) vary depending on the date of the offense.

In the military, the crime of UCMJ Article 120, Sexual Assault When Victim is Asleep, Unconscious, or Otherwise Unaware, 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 Victim is Asleep, Unconscious, or Otherwise Unaware, 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 Victim is Asleep, Unconscious, or Otherwise Unaware, 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 Victim is Asleep, Unconscious, or Otherwise Unaware Article 120 UCMJ

A military member convicted of Sexual Assault When Victim is Asleep, Unconscious, or Otherwise Unaware, 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 UCMJ Article 120: Sexual Assault When Victim is Asleep, Unconscious, or Otherwise Unaware (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 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.

Sample Model Specification: UCMJ Article 120 Sexual Assault When Victim is Asleep Unconscious, or Otherwise Unaware (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, by penetrating Jane Victim’s anus with SGT Ronald Don’s body part to wit: his penis, with an intent to arouse the sexual desire of SGT Ronald Don, when he knew or reasonably should have known that Jane Victim was unconscious due to being asleep.

Model Specification: UCMJ Article 120 Sexual Assault When Victim is Asleep Unconscious, or Otherwise Unaware (Sexual Assault)

In that _________ (personal jurisdiction data), did (at/on board—location), on or about ______20__, commit a sexual act upon_________, by [penetrating __________’s (vulva) (anus) (mouth) with __________’s penis] [causing contact between _______’s mouth and ________’s (penis) (vulva) (scrotum) (anus)] [penetrating _______’s (vulva) (penis) (anus) with (______’s body part) (an object) to wit:______, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________]], when (he) (she) knew or reasonably should have known that _______ was (asleep) (unconscious) (unaware the sexual act was occurring due to __________).

When the Other Per

What are the Definitions for UCMJ Article 120: Sexual Assault When Victim is Asleep, Unconscious, or Otherwise Unaware (Sexual Assault)?

Marriage. Marriage is not a defense to any offense in violation of UCMJ Article 120: Sexual Assault When Victim is Asleep, Unconscious, or Otherwise Unaware (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.”

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.

If Evidence of Consent to UCMJ Article 120: Sexual Assault When Victim is Asleep, Unconscious, or Otherwise Unaware (Sexual Assault) has Been Raised, then the Military Judge Will Give the Following Instruction:

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 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 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” 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.
  • 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 Sexual Assault When Victim is Asleep Unconscious Military Defense Lawyers

If you are suspected or accused of UCMJ Article 120 Sexual Assault When Victim is Asleep, Unconscious, or Otherwise Unaware, reach out to speak with one of our experienced military court martial lawyers to discuss your best defense strategy.

Background of UCMJ Article 120 Sexual Assault When Victim is Asleep Unconscious

Article 120 of the Uniform Code of Military Justice (UCMJ) covers a range of sexual offenses, including rape and sexual assault. Within this article, specific provisions address sexual assault committed against a victim who is asleep or unconscious. The UCMJ is the foundation of military law in the United States, providing a comprehensive set of legal standards and procedures for the conduct of military personnel.

Sexual assault when the victim is asleep or unconscious is a grave offense that undermines the values and integrity of the military. It is treated with the utmost seriousness due to the victim’s vulnerability and the act’s egregious nature. This offense highlights the military’s commitment to maintaining a safe and respectful environment for all service members.

Basics of UCMJ Article 120 Sexual Assault When Victim is Asleep Unconscious

To secure a conviction for sexual assault under Article 120 when the victim is asleep or unconscious, the prosecution must prove the following elements beyond a reasonable doubt:

  • Actus Reus (The Act): The accused committed a sexual act upon another person. A “sexual act” generally involves contact between the penis and the vulva or anus, or penetration of the vulva or anus or mouth by any part of the body or an object.
  • Victim’s Condition: At the time of the sexual act, the victim was asleep, unconscious, or otherwise unaware that the sexual act was occurring.
  • Lack of Consent: The act was committed without the victim’s consent. Consent cannot be obtained from someone who is asleep or unconscious.
  • Mens Reus (The Intent): The accused knew or reasonably should have known that the victim was asleep, unconscious, or otherwise unaware of the sexual act.

Collateral Consequences of a UCMJ Article 120 Sexual Assault When Victim is Asleep Unconscious Conviction

A conviction for sexual assault under UCMJ Article 120 Sexual Assault When Victim is Asleep Unconscious can have numerous collateral consequences, including:

  • Employment Issues: Difficulty obtaining civilian employment due to the nature of the conviction and the resulting dishonorable discharge. Employers may be reluctant to hire individuals with a history of sexual assault.
  • Loss of Military Benefits: Loss of military benefits such as retirement pay, VA benefits, and healthcare. A dishonorable discharge results in the forfeiture of all military-related benefits.
  • Reputation Damage: Significant damage to personal and professional reputation. The stigma associated with a sexual assault conviction can lead to social isolation and strained relationships.
  • Civil Liability: Potential civil lawsuits from the victim for damages. Victims may pursue civil action to seek compensation for the harm suffered.
  • Sex Offender Registration: Requirement to register as a sex offender, which can restrict where one can live, work, and travel. It also involves regular check-ins with law enforcement and public notification.
  • Loss of Voting Rights: In some jurisdictions, a felony conviction results in the loss of the right to vote, further impacting civic participation and personal freedom.

Purpose of UCMJ Article 120 Sexual Assault When Victim is Asleep Unconscious

The primary purpose of penalizing UCMJ Article 120 Sexual Assault When Victim is Asleep Unconsciouswhen the victim is asleep or unconscious is to maintain good order and discipline within the military. Such offenses are antithetical to the values of respect, trust, and integrity that are foundational to military service. By criminalizing this behavior, the military aims to:

  • Protect Service Members: Ensure that all service members can serve in an environment free from sexual violence and predation. Protecting the welfare and dignity of service members is paramount.
  • Promote Respect: Foster a culture of respect and professionalism within the ranks. Sexual assault is a profound violation of respect and trust.
  • Deter Misconduct: Deter potential offenders by highlighting the severe consequences of such behavior. Strong penalties serve as a deterrent to would-be perpetrators.
  • Uphold Standards: Uphold the standards of conduct necessary for military readiness and effectiveness. Maintaining a disciplined and morally sound force is critical to operational success.
  • Support Victims: Provide justice and support for victims of sexual assault. Ensuring that perpetrators are held accountable is essential to victim recovery and institutional integrity.

Reporting and Investigation Process of UCMJ Article 120 Sexual Assault When Victim is Asleep Unconscious

The military has established procedures for reporting and investigating allegations of sexual assault. Service members can report incidents through their chain of command, to the military police, or through confidential channels such as the Sexual Assault Prevention and Response (SAPR) program. The investigation process includes:

  • Initial Report: The victim or a witness makes an initial report of the incident.
  • Investigation: A thorough investigation is conducted by military law enforcement or other authorized personnel. This may include collecting physical evidence, interviewing witnesses, and obtaining statements from the accused and the victim.
  • Legal Review: The findings of the investigation are reviewed by the military legal authorities to determine if sufficient evidence exists to proceed with charges.
  • Court-Martial: If charges are preferred, the case may proceed to a court-martial, where the accused is entitled to legal representation and the opportunity to present a defense.
  • Verdict and Sentencing: If the accused is found guilty, a sentence is imposed based on the severity of the offense and the circumstances of the case.

Support Resources for Victims of UCMJ Article 120 Sexual Assault When Victim is Asleep Unconscious

The military provides various resources to support victims of sexual assault, including:

  • SAPR Program: The Sexual Assault Prevention and Response (SAPR) program offers confidential support, counseling, and advocacy for victims of sexual assault.
  • Victim Advocates: Trained victim advocates provide assistance and support throughout the reporting and investigation process.
  • Medical Services: Comprehensive medical care, including forensic examinations and mental health services, is available to victims.
  • Legal Assistance: Victims have access to legal assistance to understand their rights and navigate the legal process.
  • Confidential Reporting: Options for restricted reporting allow victims to receive support without initiating a formal investigation, preserving their confidentiality while providing access to care and resources.

Military Defense Lawyers for UCMJ Article 120 Sexual Assault When Victim is Asleep Unconscious

UCMJ Article 120 Sexual Assault When Victim is Asleep Unconscious, addressing sexual assault when the victim is asleep or unconscious, reflects the military’s commitment to maintaining a safe and respectful environment for all service members. By defining and penalizing such conduct, the UCMJ upholds the values of the military, deters misconduct, and ensures justice for victims. The severe punishments and collateral consequences associated with this offense underscore the gravity of the crime and the military’s dedication to eradicating sexual violence within its ranks.

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