Article 120, UCMJ: What Servicemembers Need to Know About Sexual Offense Allegations

By Stephanie Kral | January 9, 2024


For servicemembers, understanding Article 120 of the Uniform Code of Military Justice (UCMJ) is essential. This section of the UCMJ governs offenses related to rape, sexual assault, and sexual contact. These crimes carry serious consequences, including confinement for decades, dishonorable discharge, and forfeiture of pay and allowances. Whether you are seeking to protect yourself from an allegation or better understand your rights and responsibilities, this guide will break down Article 120 and provide insight into how to approach a defense.

What Is Article 120 of the UCMJ?

Article 120 establishes legal parameters for handling crimes of sexual misconduct in the military. It includes definitions, the elements of each offense, and the potential penalties. It is broken into four primary categories:

  1. Rape

A person is guilty of rape if they commit a sexual act by:

  • Using unlawful force against another person.
  • Using force that causes or is likely to cause death or grievous bodily harm.
  • Threatening or placing another person in fear of death, grievous bodily harm, or kidnapping.
  • Rendering the victim unconscious.
  • Administering drugs, intoxicants, or similar substances without the victim’s knowledge or consent, thereby impairing their ability to appraise or control their conduct.

Rape is one of the most serious offenses under Article 120, punishable by life imprisonment without parole and mandatory dishonorable discharge.

  1. Sexual Assault

Sexual assault involves committing a sexual act by:

  • Threatening or placing another person in fear.
  • Making fraudulent representations (e.g., claiming the act serves a professional purpose).
  • Inducing the victim’s belief through artifice, pretense, or concealment that the perpetrator is another person.
  • Committing the act without the victim’s consent.
  • Engaging in the act when the victim is asleep, unconscious, or otherwise unaware of the act.
  • Committing the act when the victim is incapable of consenting due to impairment, disability, or other factors known or reasonably known to the accused.

Penalties for sexual assault include confinement for up to 30 years and mandatory dishonorable discharge.

  1. Aggravated Sexual Contact

This offense involves sexual contact (rather than a sexual act) that meets the criteria for rape if the act were completed. For example, touching someone’s intimate areas without their consent, with intent to humiliate, degrade, or sexually arouse, may constitute aggravated sexual contact if force, threats, or impairment are involved.

The maximum penalty includes confinement for 20 years, forfeiture of pay and allowances, and a dishonorable discharge.

  1. Abusive Sexual Contact

This category involves sexual contact that would otherwise meet the criteria for sexual assault if it were a sexual act. Common scenarios include:

  • Touching someone in prohibited areas without their consent.
  • Using fraudulent representation or artifice to induce contact.
  • Touching someone who is unaware the contact is occurring or incapable of consenting.

Penalties for abusive sexual contact include up to 7 years of confinement, dishonorable discharge, and forfeiture of pay and allowances.

Key Definitions Under Article 120

Understanding the specific terms used in Article 120 is critical when evaluating allegations. Some of the most important definitions include:

  • Sexual Act: Includes penetration of the vulva, anus, or mouth by any part of the body or an object, or contact between the mouth and genital areas.
  • Sexual Contact: Involves touching intimate parts of the body with intent to abuse, humiliate, degrade, or arouse.
  • Consent: Defined as a freely given agreement to the conduct at issue by a competent person. Lack of consent can be demonstrated by words or actions. Notably:
    • Silence or submission under fear or coercion does not constitute consent.
    • A person who is asleep, unconscious, or impaired cannot consent.
  • Force: Includes physical violence, threats, or the use of a weapon to compel submission.
  • Incapable of Consenting: Describes a person who is unable to appraise the nature of the conduct or communicate unwillingness due to impairment or physical incapacity. Read more at this blog post.

Defending Against Allegations Under Article 120

Allegations of sexual misconduct are taken very seriously in the military justice system. However, being accused does not mean you are guilty. There are several potential defenses and strategies to navigate these charges effectively. Key steps include:

  1. Understand the Allegation

Carefully review the charges against you, including the specific offense and its elements. This can help identify weaknesses in the prosecution’s case and formulate an effective defense.

  1. Potential Defenses

Several defenses can be raised in response to an Article 120 allegation:

  • Consent: Demonstrating that the alleged victim agreed to the sexual act or contact freely and without coercion.
  • Mistake of Fact: Proving that you reasonably believed the other party consented to the act based on the circumstances.
  • Insufficient Evidence: Challenging the credibility of the prosecution’s evidence or witnesses, including inconsistencies in testimony or procedural errors during the investigation.
  • Alibi: Establishing that you were not present at the time and place of the alleged offense.
  1. Preserve Your Rights

It is critical to avoid self-incrimination and protect your rights throughout the investigative and judicial processes. Steps to take include:

  • Exercise Your Right to Remain Silent: Do not discuss the case with anyone other than your attorney. Anything you say can be used against you.
  • Cooperate Strategically: While you should comply with lawful orders, avoid volunteering information without legal counsel present.
  • Do Not Discuss the Case with Others: Conversations with colleagues, friends, or family can inadvertently harm your case.
  1. Seek Legal Representation

Navigating a sexual misconduct allegation under Article 120 requires expert legal assistance. A civilian military defense attorney can provide invaluable support by evaluating the strength of the prosecution’s case, challenging improper evidence or procedural violations, and crafting a tailored defense strategy based on the facts of your case.

Why Choose a Civilian Military Defense Attorney?

While military defense counsel is available to all servicemembers facing charges, there are significant advantages to hiring an experienced civilian military defense attorney:

  • Unbiased Representation: Civilian attorneys work solely for you, independent of the military chain of command.
  • Specialized Expertise: Many civilian attorneys specialize in defending Article 120 cases and are familiar with the nuances of military law.
  • Personalized Attention: Civilian attorneys often have the resources to dedicate more time and attention to your case.
  • Challenging the System: Civilian attorneys are well-versed in holding the government accountable for errors or misconduct during investigations and trials.

The High Stakes of Article 120 Allegations

The consequences of a conviction under Article 120 extend beyond criminal penalties. A guilty finding can result in:

  • Loss of rank and benefits.
  • Permanent criminal record, impacting future employment opportunities.
  • Mandatory registration as a sex offender.
  • Damage to personal relationships and reputation.

These long-term repercussions underscore the importance of a strong defense strategy.

Steps to Take If You Are Accused

If you face allegations of a sexual offense, take immediate action to protect yourself:

  1. Remain Silent: Politely decline to answer questions until you have an attorney present.
  2. Secure Legal Counsel: Contact an experienced civilian military defense attorney as soon as possible.
  3. Gather Evidence: If possible, document relevant details, such as witnesses, text messages, or other communications.
  4. Follow Legal Advice: Work closely with your attorney to prepare for the investigation and potential court-martial.

Conclusion

Allegations under Article 120 of the UCMJ are life-altering and must be taken seriously. Understanding the law, preserving your rights, and securing skilled legal representation are critical steps in navigating these charges. Whether you need to defend yourself against an accusation or simply want to be informed, being proactive can make all the difference.

If you or someone you know is facing an Article 120 allegation, don’t wait. Consult an experienced civilian military defense attorney who can guide you through this challenging time and work to protect your rights, career, and future. Contact Kral Military Defense now.