Guide Note: As part of the FY 2006 Military Authorization Act, Congress amended Article 120 of the Uniform Code of Military Justice (UCMJ), effective for offenses occurring on and after October 1, 2007. Article 120 was formerly known as "Rape and carnal knowledge," but is now entitled "Rape, sexual assault, and other sexual misconduct."
The new Article 120 creates 36 offenses. These 36 offenses replace those offenses under the former Article 120 and others that used to be MCM offenses under Article 134 (the "General" Article).
The new Article 120 replaces the following Article 134 offenses:
• Indecent assault
• Indecent acts or liberties with a child
• Indecent exposure
• Indecent acts with another
The UCMJ change also amends two Article 134 offenses:
(1) Indecent language communicated to another - other than when communicated in the presence of a child - remains punishable under Article 134. If the language was communicated in the presence of a child, then it is an Article 120 offense.
(2) Pandering (having someone commit an act of prostitution) is still an offense under Article 134, but if the pandering is "compelled," it becomes an Article 120 offense
The change also adds a new Article 120a, "Stalking."
ELEMENTS OF THE OFFENSE
Rape
By using force: That the accused caused another person, who is of any age, to engage in a sexual act by using force against that other person.
By causing grievous bodily harm: That the accused caused another person, who is of any age, to engage in a sexual act by causing grievous bodily harm to any person.
By using threats or placing in fear: That the accused caused another person, who is of any age, to engage in a sexual act by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.
By rendering another unconscious: That the accused caused another person, who is of any age, to engage in a sexual act by rendering that other person unconscious.
By administration of drug, intoxicant, or other similar substance:
(i) That the accused caused another person, who is of any age, to engage in a sexual act by administering to that other person a drug, intoxicant, or other similar substance;
(ii) That the accused administered the drug, intoxicant or other similar substance by force or threat of force or without the knowledge or permission of that other person; and
(iii) That, as a result, that other person's ability to appraise or control conduct was substantially impaired.
Aggravated sexual assault
By using threats or placing in fear:
(i) That the accused caused another person, who is of any age, to engage in a sexual act; and
(ii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping).
By causing bodily harm:
(i) That the accused caused another person, who is of any age, to engage in a sexual act; and
(ii) That the accused did so by causing bodily harm to another person.
Upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness:
(i) That the accused engaged in a sexual act with another person, who is of any age; and (Note: add one of the following elements)
(ii) That the other person was substantially incapacitated;
(iii) That the other person was substantially incapable of appraising the nature of the sexual act;
(iv) That the other person was substantially incapable of declining participation in the sexual act; or
(v) That the other person was substantially incapable of communicating unwillingness to engage in the sexual act.
Rape of a child not yet 12
(i) That the accused engaged in a sexual act with a child; and
(ii) That at the time of the sexual act the child had not attained the age of twelve years.
Rape of a child who has attained the age of 12 years but has not attained the age of 16 years
By using force:
(i) That the accused engaged in a sexual act with a child;
(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and
(iii) That the accused did so by using force against that child.
By causing grievous bodily harm:
(i) That the accused engaged in a sexual act with a child;
(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and
(iii) That the accused did so by causing grievous bodily harm to any person.
By using threats or placing in fear:
(i) That the accused engaged in a sexual act with a child;
(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and
(iii) That the accused did so by threatening or placing that child in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.
By rendering that child unconscious:
(i) That the accused engaged in a sexual act with a child;
(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and
(iii) That the accused did so by rendering that child unconscious.
Above information derived from the Manual for Courts-Martial]
By administration of drug, intoxicant, or other similar substance:
(i) That the accused engaged in a sexual act with a child
(ii) That at the time of the sexual act the child had attained the age of 12 years but attained the intoxicant, or had not attained the age of 16 years;
(iii) (a) That the accused did so by administering to that child a drug, intoxicant, or other similar substance;
(b) That the accused administered the drug, intoxicant, or other similar substance by force or threat of force or without the knowledge or permission of that child; and
(c) That, as a result, that child's ability to appraise or control conduct was substantially impaired.
Aggravated sexual assault of a child who has attained the age of 12 years but has not attained the age of 16 years:
(a) That the accused engaged in a sexual act with a child; and
(b) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years.
Aggravated sexual contact
By using force:
(i) That the accused engaged in sexual contact with another person; or
(ii) That the accused caused sexual contact with or by another person; and
(iii) That the accused did so by using force against that other person.
By causing grievous bodily harm:
(i) That the accused engaged in sexual contact with another person; or
(ii) That the accused caused sexual contact with or by another person; and
(iii) That the accused did so by causing grievous bodily harm to any person.
By using threats or placing in fear:
(i) That the accused engaged in sexual contact with another person; or
(ii) That the accused caused sexual contact with or by another person; and
(iii) That the accused did so by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.
By rendering another unconscious:
(i) That the accused engaged in sexual contact with another person; or
(ii) That the accused caused sexual contact with or by another person; and
(iii) That the accused did so by rendering that other person unconscious.
By administration of drug, intoxicant, or other similar substance:
(i) That the accused engaged in sexual contact with another person; or
(ii) That the accused caused sexual contact with or by another person; and
(iii) (a) That the accused did so by administering to that other person a drug, intoxicant, or other similar substance;
(b) That the accused administered the drug, intoxicant, or other similar substance by force or threat of force or without the knowledge or permission of that other person; and
(c) That, as a result, that other person's ability to appraise or control conduct was substantially impaired.
Abusive sexual contact
By using threats or placing in fear:
(i) That the accused engaged in sexual contact with another person; or
(ii) That the accused caused sexual contact with or by another person; and
(iii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping).
By causing bodily harm:
(i) That the accused engaged in sexual contact with another person; or
(ii) That the accused caused sexual contact with or by another person; and
(iii) That the accused did so by causing bodily harm to another person.
(i) That the accused engaged in sexual contact with another person; or
(ii) That the accused caused sexual contact with or by another person; and (Note: add one of the following elements)
(iii) That the other person was substantially incapacitated;
(iv) That the other person was substantially incapable of appraising the nature of the sexual contact;
(v) That the other person was substantially incapable of declining participation in the sexual contact; or
(vi) That the other person was substantially incapable of communicating unwillingness to engage in the sexual contact.
Wrongful sexual contact
(a) That the accused had sexual contact with another person;
(b) That the accused did so without that other person's permission; and
(c) That the accused had no legal justification or lawful authorization for that sexual contact.
Above information derived from the Manual for Courts-Martial]
Upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness:
Aggravated sexual contact with a child who has not attained the age of 12 years
(i) That the accused engaged in sexual contact with a child; or
(ii) That the accused caused sexual contact with or by a child or by another person with a child; and
(iii) That at the time of the sexual contact the child had not attained the age of twelve years.
Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years
By using force:
(i) That the accused engaged in sexual contact with a child; or
(ii) That the accused caused sexual contact with or by a child or by another person with a child; and
(iii) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and (iv) That the accused did so by using force against that child.
By causing grievous bodily harm:
(i) That the accused engaged in sexual contact with a child; or
(ii) That the accused caused sexual contact with or by a child or by another person with a child; and
(iii) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and
(iv) That the accused did so by causing grievous bodily harm to any person.
By using threats or placing in fear:
(i) That the accused engaged in sexual contact with a child; or
(ii) That the accused caused sexual contact with or by a child or by another person with a child; and
(iii) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and
(iv) That the accused did so by threatening or placing that child or that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.
By rendering another or that child unconscious:
(i) That the accused engaged in sexual contact with a child; or
(ii) That the accused caused sexual contact with or by a child or by another person with a child; and
(iii) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and
(iv) That the accused did so by rendering that child or that other person unconscious.
By administration of drug, intoxicant, or other similar substance:
(i) That the accused engaged in sexual contact with a child; or
(ii) That the accused caused sexual contact with or by a child or by another person with a child; and
(iii) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and
(iv) (a) That the accused did so by administering to that child or that other person a drug, intoxicant, or other similar substance;
(b) That the accused administered the drug, intoxicant, or other similar substance by force or threat of force or without the knowledge or permission of that child or that other person; and
(c) That, as a result, that child's or that other person's ability to appraise or control conduct was substantially impaired.
Abusive sexual contact with a child
(a) That the accused engaged in sexual contact with a child; or
(b) That the accused caused sexual contact with or by a child or by another person with a child; and
(c) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years.
Indecent liberties with a child
(a) That the accused committed a certain act or communication;
(b) That the act or communication was indecent;
(c) That the accused committed the act or communication in the physical presence of a certain child;
(d) That the child was under 16 years of age; and
(e) That the accused committed the act or communication with the intent to:
(i) arouse, appeal to, or gratify the sexual desires of any person; or
(ii) abuse, humiliate, or degrade any person.
Indecent act
(a) That the accused engaged in certain conduct; and
(b) That the conduct was indecent conduct.
Indecent exposure
(a) That the accused exposed his or her genitalia, anus, buttocks, or female areola or nipple;
(b) That the accused's exposure was in an indecent manner;
(c) That the exposure occurred in a place where the conduct involved could reasonably be expected to be viewed by people other than the accused's family or household; and
(d) That the exposure was intentional.
Aggravated sexual abuse of a child
(a) That the accused engaged in a lewd act; and
(b) That the act was committed with a child who has not attained the age of 16 years.
Forcible pandering
(a) That the accused compelled a certain person to engage in an act of prostitution; and
(b) That the accused directed another person to said person, who then engaged in an act of prostitution.
Note: If the act of prostitution was not compelled, but "the accused induced, enticed, or procured a certain person to engage in an act of sexual intercourse for hire and reward with a person to be directed to said person by the accused," see Article 134.
Above information derived from the Manual for Courts-Martial]
DEFINITIONS
Sexual act. The term 'sexual act' means --
(A) contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or
(B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
Sexual contact. The term 'sexual contact' means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.
Grievous bodily harm. The term 'grievous bodily harm' means serious bodily injury. It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose. It is the same level of injury as in Article 128, and a lesser degree of injury than in section 2246(4) of title 18.
Dangerous weapon or object. The term 'dangerous weapon or object' means --
(A) any firearm, loaded or not, and whether operable or not;
(B) any other weapon, device, instrument, material, or substance, whether animate or inanimate, that in the manner it is used, or is intended to be used, is known to be capable of producing death or grievous bodily harm; or
(C) any object fashioned or utilized in such a manner as to lead the victim under the circumstances to reasonably believe it to be capable of producing death or grievous bodily harm.
Force. The term 'force' means action to compel submission of another or to overcome or prevent another's resistance by --
(A) the use or display of a dangerous weapon or object;
(B) the suggestion of possession of a dangerous weapon or object that is used in a manner to cause another to believe it is a dangerous weapon or object; or
(C) physical violence, strength, power, or restraint applied to another person, sufficient that the other person could not avoid or escape the sexual conduct.
Threatening or placing that other person in fear.The term 'threatening or placing that other person in fear' for the charge of 'rape' or the charge of 'aggravated sexual contact' means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to death, grievous bodily harm, or kidnapping.
Threatening or placing that other person in fear. In general. The term 'threatening or placing that other person in fear' for the charge of 'aggravated sexual assault, or the charge of 'abusive sexual contact' means a communication or action that is of sufficient consequence to cause a reasonable fear that noncompliance will result in the victim or another being subjected to a lesser degree of harm than death, grievous bodily harm, or kidnapping.
Inclusions. Such lesser degree of harm includes --
(i) physical injury to another person or to another person's property; or
(ii) a threat --
(I) to accuse any person of a crime;
(II) to expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or
(III) through the use or abuse of military position, rank, or authority, to affect or threaten to affect, either positively or negatively, the military career of some person.
Bodily harm. The term 'bodily harm' means any offensive touching of another, however slight.
Child. The term 'child' means any person who has not attained the age of 16 years.
Lewd act. The term 'lewd act' means --
(A) the intentional touching, not through the clothing, of the genitalia of another person, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or
(B) intentionally causing another person to touch, not through the clothing, the genitalia of any person with an intent to abuse, humiliate or degrade any person, or to arouse or gratify the sexual desire of any person.
Indecent liberty. The term 'indecent liberty' means indecent conduct, but physical contact is not required. It includes one who with the requisite intent exposes one's genitalia, anus, buttocks, or female areola or nipple to a child. An indecent liberty may consist of communication of indecent language as long as the communication is made in the physical presence of the child. If words designed to excite sexual desire are spoken to a child, or a child is exposed to or involved in sexual conduct, it is an indecent liberty; the child's consent is not relevant.
Above information derived from the Manual for Courts-Martial]
Indecent conduct. The term 'indecent conduct' means that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations. Indecent conduct includes observing, or making a videotape, photograph, motion picture, print, negative, slide, or other mechanically, electronically, or chemically reproduced visual material, without another person's consent, and contrary to that other person's reasonable expectation of privacy, of --
(A) that other person's genitalia, anus, or buttocks, or (if that other person is female) that person's areola or nipple; or
(B) that other person while that other person is engaged in a sexual act, sodomy (under Article 125 ), or sexual contact.
Act of prostitution. The term 'act of prostitution' means a sexual act, sexual contact, or lewd act for the purpose of receiving money or other compensation.
Consent. The term 'consent' means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused's use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent. A person cannot consent to sexual activity if --
(A) under 16 years of age; or
(B) substantially incapable of --
(i) appraising the nature of the sexual conduct at issue due to --
(I) mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise; or
(II) mental disease or defect which renders the person unable to understand the nature of the sexual conduct at issue;
(ii) physically declining participation in the sexual conduct at issue; or
(iii) physically communicating unwillingness to engage in the sexual conduct at issue.
Mistake of fact as to consent. The term 'mistake of fact as to consent' means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct consented. The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable the ignorance or mistake must have been based on information, or lack of it, which would indicate to a reasonable person that the other person consented. Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances. The accused's state of intoxication, if any, at the time of the offense is not relevant to mistake of fact. A mistaken belief that the other person consented must be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense.
MAXIMUM PUNISHMENTS
Rape and Rape of a Child: Dishonorable Discharge, death or confinement for Life, and forfeiture of all pay and allowances.
Aggravated Sexual Assault: Dishonorable Discharge, confinement for 30 yrs, and forfeiture of all pay and allowances.
Aggravated Sexual Assault of a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.
Aggravated Sexual Abuse of a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.
Aggravated Sexual Contact
ishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.
Aggravated Sexual Contact with a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.
Abusive Sexual Contact with a Child
ishonorable Discharge, confinement for 15 yrs, and forfeiture of all pay and allowances.
Indecent Liberty with a Child: Dishonorable Discharge, confinement for 15 yrs, and forfeiture of all pay and allowances.
Abusive Sexual Contact: Dishonorable Discharge, confinement for 7 yrs, and forfeiture of all pay and allowances.
Indecent Act: Dishonorable Discharge, confinement for 5 yrs, and forfeiture of all pay and allowances.
Forcible Pandering
ishonorable Discharge, confinement for 5 yrs, and forfeiture of all pay and allowances.
Wrongful Sexual Contact
ishonorable Discharge, confinement for 1 yr, and forfeiture of all pay and allowances.
Indecent Exposure: Dishonorable Discharge, confinement for 1 yr, and forfeiture of all pay and allowances.
Next Article, Article 120a -- Stalking.
Above information derived from the Manual for Courts-Martial]
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