Understanding Incapacitation in the Context of Article 120

Understanding Incapacitation in the Context of Article 120

By Stephanie Kral | April 2, 2024

Article 120 of the Uniform Code of Military Justice (UCMJ) has undergone numerous revisions over the past two decades, particularly concerning offenses related to “rape and sexual assault.” In the current version of Article 120, the term “incapable” is central to defining rape and sexual assault, encompassing both the act itself and the alleged victim’s ability to consent. If an individual is rendered unconscious of administered a substance that impairs their ability to appraise or control conduct by force or without their knowledge, it falls within the definition of rape under Article 120.

The law, as articulated in Articles 120(b)(3)(A) and 120(d), explicitly prohibits engaging in sexual activity with an individual incapable of consenting due to impaired judgment from drugs or alcohol. “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.

Conviction of rape or sexual assault under the UCMJ carries severe consequences. A guilty verdict results in a mandatory dishonorable discharge, which leads to a loss in benefits. Service members convicted of sexual assault or rape face life-altering consequences, emphasizing the importance of securing effective legal representation to challenge charges and protect their rights.

The maximum penalties under Article 120 are substantial. For rape, the potential consequences include lifetime confinement without parole. Sexual assault convictions carry a penalty of up to 30 years of confinement. Aggravated sexual contact carries a penalty of up to 20 years in confinement and a dishonorable discharge, while abusive sexual conduct carries up to seven years of confinement and a dishonorable discharge.

The government must prove that the alleged victim was incapable of consenting to the sexual act due to a drug, an intoxicant, mental disease or defect, or a physical disability. They must also prove that the accused knew or should have known of the condition.

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.

In the military justice system, the most common scenario is when the alleged victim has been drinking and a sexual act occurs. The crux of the issue is whether the alleged victim consented to the sexual act. “Consent” is typically the focus of both the prosecution and defense. It is crucial for the accused to have an attorney with extensive experience defending these types of cases.

There are some practical signs that a person may be incapacitated, such as slurred or incomprehensible speech, vomiting, incontinence, and an inability to walk steadily. There are also times where an alleged victim may appear as though they are capable of consenting but they are so drunk they do not remember their interactions with the accused. In those situations, it is necessary to use a forensic psychologist to strategically defend against the allegation that there was no consent. Our attorneys are highly experienced in military sexual assault cases and have extensive knowledge of how to successfully use all the resources available through the military justice system to present an effective defense.

Given the severity of these charges and the potential consequences, individuals facing such allegations in military court must seek skilled legal representation from a dedicated UCMJ attorney with expertise in Article 120 and a thorough understanding of precedent-setting cases. The stakes are high, and a strong legal defense is crucial in preserving the rights and future of the accused.