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Article 120, UCMJ. Rape and sexual assault

Since 2006, Congress and the President have made numerous changes to the law and procedure governing rape and sexual assault prosecutions in the military.  These changes are intended to assist military prosecutors to obtain a higher rate of conviction.  What was once a straightforward area of military law is now extremely convoluted and complex.  Congress’ first attempt to rewrite Article 120 was a disaster – so much so that the version that came into effect 1 October 2007 had to be repealed and replaced by another version in 2012.  The military appellate courts are still working through the many issues raised by the 2012 version of Article 120.

Prior to 2007, the prosecution in military rape and sexual assault cases was required to prove as an element of the offense that the sex occurred “without the consent” of the alleged victim.  Lawmakers explicitly chose to remove this element from the 2007 version of Article 120. Despite Congress’ attempt to legislate common sense out of the statute, consent is almost always an issue in a sexual assault trial.  Similarly, the current version of Article 120 is designed to assist the prosecution by removing “consent” from sexual assault cases.  However, experienced military lawyers, know how to introduce evidence of consent and mistake of fact as to consent to defend military members against unjust charges of rape and sexual assault.

The old version of Article 120, UCMJ, took up half a page in the Manual for Courts-Martial.  The current version of Article 120, invents new sexual assault offenses and includes two full pages in the Manual for Courts-Martial with an additional eleven pages of discussion.  Military prosecutors often charge one offense under multiple provisions of the statute reasoning that this tactic increases the odds of a conviction.  The statute text and elements of each of the offenses from this current version are too numerous to list here – the text of a portion of the statute is below.  For more information on a particular sexual assault charge, consult with an experienced military lawyer – one who has successfully defended sexual assault charges under each version of Article 120.

Text of the 2012 version of Article 120.

(a) Rape. Any person subject to this chapter who commits a sexual act upon another person by— (1) using unlawful force against that other person;

(2) using force causing or likely to cause death or grievous bodily harm to any person;

(3) threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;

(4) first rendering that other person unconscious; or

(5) administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct; is guilty of rape and shall be punished as a court-martial may direct.

Elements.

(1)  Rape involving contact between penis and vulva or anus and mouth

(a) By unlawful force

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva or anus or mouth by the penis; and
(ii) That the accused did so with unlawful force.

(b) By force causing or likely to cause death or grievous bodily harm

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva or anus or mouth by the penis; and
(ii) That the accused did so by using force causing or likely to cause death or grievous bodily harm to any person.

(c) By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva or anus or mouth by the penis; and
(ii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping.

(d) By first rendering that other person unconscious

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva or anus or mouth by the penis; and
(ii) That the accused did so by first rendering that other person unconscious.

(e) By administering a drug intoxicant or other similar substance

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva or anus or mouth by the penis; and
(ii) That the accused did so by administering to that other person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct.

(2) Rape involving penetration of the vulva or anus or mouth by any part of the body or any object.

(a) By force

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva or anus or mouth of another person by any part of the body or by any object;
(ii) That the accused did so with unlawful force; and
(iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

For more information on this offense including the maximum punishment, potential defenses, and a discussion of the strengths and weaknesses of the prosecution’s case consult with an experienced military lawyer.

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