UCMJ Article 120

UCMJ Article 120 addresses sexual assault and related sexual misconduct committed by service members. It is one of the most comprehensive and strictly enforced articles in the UCMJ, reflecting the military’s zero-tolerance stance on sexual violence. The article criminalizes rape, sexual assault, aggravated sexual contact, abusive sexual contact, and attempts to commit these offenses.

The purpose of Article 120 is to protect service members from sexual violence, preserve the dignity of individuals, and maintain discipline and trust within the armed forces. Because of the seriousness of these crimes, Article 120 carries some of the most severe penalties in military law.

Key Elements

Depending on the specification, the prosecution must prove:

Rape

  1. The accused committed a sexual act on another person.
  2. The act was done by force, threat, or when the person was incapable of consent.
  3. The act was without consent and wrongful.

Sexual Assault

  1. The accused committed a sexual act upon another.
  2. The act was without consent, or the victim was incapable of consenting due to impairment, unconsciousness, or other factors.

Aggravated Sexual Contact

  1. The accused engaged in sexual contact with another.
  2. The contact was by force, threat, or without consent.

Abusive Sexual Contact

  1. The accused engaged in sexual contact without consent.
  2. The contact did not meet the criteria for aggravated sexual contact but was still wrongful.

Scope and Application

Article 120 applies worldwide to all service members. It covers a range of misconduct from rape to unwanted sexual touching. The law defines:

  • Sexual act: Penetration, however slight, of the vulva, anus, or mouth by the penis, or contact between mouth and genitals.
  • Sexual contact: Touching of intimate body parts with intent to abuse, humiliate, or gratify sexual desire.
  • Consent: Freely given agreement by a competent person. Lack of verbal or physical resistance alone does not equal consent.

The article also criminalizes attempts to commit these offenses under Article 80.

Punishment

  • Rape: Death (if committed under aggravating circumstances, such as child victims or wartime) or life imprisonment without parole, dishonorable discharge, forfeiture of all pay and allowances.
  • Sexual assault: Dishonorable discharge, forfeiture of all pay and allowances, confinement for up to 30 years.
  • Aggravated sexual contact: Dishonorable discharge, forfeiture of all pay and allowances, confinement for up to 20 years.
  • Abusive sexual contact: Dishonorable discharge, forfeiture of all pay and allowances, confinement for up to 7 years.

Defenses

Common defenses include:

  • Consent: Showing that the act was consensual.
  • Mistake of fact as to consent: If the accused honestly and reasonably believed consent was given.
  • Lack of proof: Government must prove the elements beyond a reasonable doubt.
  • Mental responsibility: Rare cases involving lack of mental capacity at the time of the act.

Examples

  • If a soldier forces another into sexual intercourse by threat, it is rape under Article 120.
  • If a Marine engages in sex with someone too intoxicated to consent, it is sexual assault.
  • If an airman gropes another service member without consent, it may be abusive sexual contact.
  • If a sailor attempts sexual assault but is stopped before completion, the offense is punishable under Article 120 and Article 80.

Conclusion

Article 120 of the UCMJ demonstrates the military’s uncompromising stance against sexual violence. By defining and punishing a wide range of sexual misconduct, it ensures accountability, justice for victims, and protection of military discipline. The penalties reflect the seriousness of the offense, and enforcement of this article is central to maintaining trust in the armed forces.

Frequently Asked Questions

1. What is the difference between rape and sexual assault under Article 120?
Rape involves force, threat, or when the victim cannot consent at all, while sexual assault includes any sexual act without consent, including when the victim is impaired.

2. Can intoxication affect consent?
Yes. If someone is too intoxicated to understand or give agreement, they cannot legally consent.

3. What is the maximum punishment for rape under the UCMJ?
Death or life imprisonment without parole, along with dishonorable discharge and forfeiture of all pay and allowances.

4. Does Article 120 apply to same-sex misconduct?
Yes. The law is gender-neutral and applies regardless of gender or orientation.

5. What if the accused believed there was consent?
A reasonable mistake of fact regarding consent can be a defense, but it must be both honest and reasonable.

6. Can attempts be punished?
Yes, attempted rape or sexual assault is punishable under Article 120 in conjunction with Article 80.

7. Does Article 120 apply outside the United States?
Yes. It applies to service members worldwide under UCMJ jurisdiction.

8. How is sexual contact defined under the UCMJ?
Touching of intimate body parts with intent to abuse, humiliate, or gratify sexual desire.

9. Can consent be withdrawn?
Yes. Consent can be withdrawn at any time, and continuing after withdrawal is a violation.

10. Why is Article 120 important for the military?
Because sexual violence undermines morale, discipline, and trust. Strict enforcement of Article 120 is critical for maintaining integrity in the armed forces.

Sources

  • Uniform Code of Military Justice, 10 U.S.C. § 920, Article 120
  • Manual for Courts-Martial, United States (2024 edition)
  • Army Regulation 27-10, Military Justice
  • Navy JAGMAN (Judge Advocate General’s Manual) § 0149
  • Air Force Instruction 51-201, Administration of Military Justice
  • Court of Appeals for the Armed Forces, United States v. Pease, 75 M.J. 180 (2016)
  • Military Attorney Joseph L. Jordan, Articles of the UCMJ web page

This content is for informational purposes only. If you are facing issues related to Article 120 or any other UCMJ provision, you should consult a qualified military attorney.

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