Military Sexual Assault: Article 120, UCMJ
Allegations of sexual assault, rape, or abusive sexual contact under Article 120, Uniform Code of Military Justice can have a profound impact on your future, even if you are found not guilty. One of the single most important choices you can make is having a military defense lawyer who knows the law, listens to you, and fights relentlessly on your behalf. If you have been accused of sexual assault or are facing charges, contact our military defense attorneys immediately.
Article 120, UCMJ
Military sexual assault is a constantly changing area of law that is always under scrutiny from Congress and the public. It’s important to understand what all the terms mean, what the process is after being accused, and what the consequences of an accusation could be.
Article 120, UCMJ, prohibits rape, sexual assault, aggravated sexual contact, and abusive sexual contact. Rape and sexual assault of a child and child pornography are prohibited under different punitive articles of the UCMJ.
What is the difference between rape and sexual assault?
People often use those terms interchangeably, but they mean different things under the UCMJ. They both require a “sexual act,” which includes:
- Penetration of the penis into the vulva, anus, mouth,
- Contact between the mouth and the penis, vulva, scrotum, or anus, or
- Penetration of the vulva, penis, or anus by part of a person’s body or an object.
Rape requires a “sexual act” under the following circumstances:
- Unlawful force;
- Force likely to cause death or grievous bodily harm;
- Threat of death, grievous bodily harm, or kidnapping;
- Rendering someone unconscious; or
- Forcible administration of a drug or intoxicant that substantially impairs their ability to appraise or control conduct.
Sexual assault also requires a “sexual act,” but under different circumstances, which are:
- Threatening or placing a person in fear;
- Making a fraudulent representation that the sexual act serves a professional purpose;
- Inducing a belief that they are a different person;
- When the other person does not consent;
- When the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring; or
- When the other person is incapable of consenting due to impairment by a drug, intoxicant, or mental or physical disability.
What are aggravated and abusive sexual contact?
“Sexual acts” and “sexual contact” are different concepts. Whereas “sexual acts” cover the conduct defined above, “sexual contact” involves the touching, or causing another person to touch, either directly or through the clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person with the intent to abuse, humiliate, harass, or degrade any person or arouse or gratify the sexual desire of any person. The touching may be accomplished by any part of the body or an object.
Sexual contact that occurs under the same circumstances as those listed for rape is aggravated sexual contact. Sexual contact that occurs under the same circumstances as those listed for sexual assault is called abusive sexual contact.
Sexual Assault Investigations
When you are accused of sexual assault, it can be extremely stressful knowing what decisions to make and understanding the process. It is very important that you know your rights. You have the right to remain silent, the right to an attorney, and the right to refuse consent. You should exercise all of these rights, and immediately contact a military defense attorney to learn more about your rights and options.
If you are investigated for sexual crimes, NCIS, CID, AFOSI, or CGIS will enter your information into NCIC, a federal database. Even if your command doesn’t take any action against you, the fact that you were investigated for a sexual crime will still be stored in NCIC. It could come up during background checks and security clearance investigations for the rest of your life.
DOD Instruction 1030.02 requires that military prosecutors get the input of the alleged victim before disposing of the case, which means the evidence against you is not the only factor your commanding officer is using to consider what to do with your case. Even if the evidence against you isn’t strong, your case could still be pushed to a court-martial because the alleged victim wants that outcome.
Sexual Assault Court-Martial Consequences
If you are convicted at a court-martial of rape or sex assault, the current law imposes a mandatory minimum sentence of a dishonorable discharge. A dishonorable discharge will effectively eliminate your access to any military benefits, including the GI Bill.
In addition to the mandatory dishonorable discharge, the maximum jail sentence for rape is life in prison, and 30 years for sexual assault. Even the least serious offense under Article 120, UCMJ – abusive sexual contact – has a maximum jail sentence of seven years. Sex offender registration may be required depending on the laws of your state if you are convicted of a sexual crime, including those under Article 120, UCMJ.
Administrative Separation for Sexual Assault
Even if you do not face court-martial, being accused of a sexual offense can still have significant consequences for both your career and civilian life. The military services all have regulations that require administrative discharge or board of inquiry proceedings against any person with a substantiated allegation of sexual misconduct. If your commanding officer believes the allegations, you could be facing administrative separation even if your case doesn’t have sufficient evidence to go to court-martial, or if your accuser does not want to testify or participate in a court-martial.
Military Sexual Assault Defense Lawyers
Having an experienced military defense lawyer to represent you if you are accused of rape, sexual assault, or abusive sexual contact is key in ensuring your career, reputation, and life are not unfairly impacted. Steph and Abby both specialized in sexual assault cases when they were on active duty, and eventually served as instructors for other military lawyers on how to handle sexual crimes cases.
Steph and Abby had their first joint defense victory when they teamed up in 2015 to defend a client accused of nine specifications of rape, sexual assault, and sexual crimes. They worked for two and a half years to exonerate their client. Their tireless work in exposing his accuser’s lies, fighting for discovery of evidence showing their client’s innocence, and skillful trial advocacy led to a full acquittal. They were honored to attend his retirement ceremony two years later. Steph and Abby use the same approach now, with the added benefit of years more experience.
Steph and Abby have also served on both sides of the criminal justice system, working as both prosecutors and defense attorneys. They have both developed a wide range of skills, including talking to alleged victims, working with victims’ counsel, talking to commanders and convening authorities about sexual cases, and working with law enforcement on investigations for UCMJ articles covering sexual crimes. KMD does not have to take a one-size-fits all approach to every case or trial.
Steph and Abby have the diplomacy to talk to the victims’ counsel, while also having the advocacy to conduct a scathing cross-examination of the alleged victim at trial.
If you are facing allegations of a sexual offense, KMD has the experience, skills, and knowledge to defend you, your career, and your freedom.
Contact An Experienced Military Defense Lawyer Today
For a free consultation, call (619) 376-6820 or use the online contact form.