How Does the UCMJ Treat Sexual Assault and Related Offenses?
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Under the UCMJ, “sexual assault” is both a specific offense, Article 120(b), and the everyday name for a family of graded offenses spread across Article 120 (adult victims), Article 120b (children under 16), Article 120c (other sexual misconduct such as indecent recording and exposure), and Article 117a (distribution of intimate images). Within Article 120, the charge depends on whether the conduct was a sexual act or sexual contact and on how it was accomplished. Maximum punishments run from 1 year for indecent viewing or exposure to life without eligibility for parole for rape, and rape and sexual assault convictions carry a mandatory dismissal or dishonorable discharge, subject to two plea-agreement exceptions in Article 53a(d).
Article 120: four graded offenses
Article 120 (10 U.S.C. § 920) defines four offenses in two pairs:
| Sexual act (penetration or oral contact) | Sexual contact (touching with the required intent) | |
|---|---|---|
| By force, serious threat, rendering unconscious, or drugging | Rape, Art. 120(a) | Aggravated sexual contact, Art. 120(c) |
| By lesser threat, fraud, without consent, or on a person asleep, unaware, or incapable of consenting | Sexual assault, Art. 120(b) | Abusive sexual contact, Art. 120(d) |
Rape (Art. 120(a)) is a sexual act committed by using unlawful force; using force causing or likely to cause death or grievous bodily harm; threatening or placing the person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping; first rendering the person unconscious; or administering a drug or intoxicant by force, threat, or without the person’s knowledge or consent, substantially impairing the person’s ability to appraise or control conduct.
Sexual assault (Art. 120(b)) is a sexual act committed by threatening or placing the person in fear; by a fraudulent representation that the act serves a professional purpose; by inducing a belief that the accused is another person; without the person’s consent; when the accused “knows or reasonably should know” the person is asleep, unconscious, or otherwise unaware; or when the person is incapable of consenting because of impairment by a drug or intoxicant, or a mental disease, defect, or physical disability, and that condition “is known or reasonably should be known”.
Contact offenses. Aggravated sexual contact is sexual contact that would be rape “had the sexual contact been a sexual act”; abusive sexual contact is sexual contact that would be sexual assault on the same basis (Art. 120(c), (d)).
The statute’s definitions draw the lines between these charges:
- Sexual act covers penetration, however slight, of the penis into the vulva, anus, or mouth; contact between the mouth and the penis, vulva, scrotum, or anus; and penetration of the vulva, penis, or anus by any body part or object with an intent to abuse, humiliate, harass, or degrade, or to arouse or gratify sexual desire (§ 920(g)(1)).
- Sexual contact is touching, directly or through clothing, of the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks with the same kinds of intent (§ 920(g)(2)).
- Proof of threat does not require proof that the accused intended or was able to carry it out (§ 920(e)).
- Marriage is not a defense to any conduct charged under Article 120 (§ 920(f)).
How the statute defines consent
Article 120(g)(7) defines consent as “a freely given agreement to the conduct at issue by a competent person.” The definition continues:
- “An expression of lack of consent through words or conduct means there is no consent.”
- “Lack of verbal or physical resistance does not constitute consent.”
- Submission resulting from force, threat of force, or fear is not consent.
- A current or previous dating, social, or sexual relationship “by itself”, or the person’s manner of dress, does not constitute consent.
- “A sleeping, unconscious, or incompetent person cannot consent.”
- “All the surrounding circumstances are to be considered in determining whether a person gave consent.”
A person is incapable of consenting if the person is “incapable of appraising the nature of the conduct at issue”, or “physically incapable of declining participation in, or communicating unwillingess to engage in, the sexual act at issue” (§ 920(g)(8); the statute’s own spelling). The statute sets no blood-alcohol number; whether impairment reached that level is a question of fact. For the impairment theory, the government must also prove the condition was known or reasonably should have been known to the accused.
Article 120b: offenses against children
Article 120b (10 U.S.C. § 920b) applies when the victim “has not attained the age of 16 years.” The statute provides: “Lack of consent is not an element and need not be proven in any prosecution under this section. A child cannot consent to any sexual act, lewd act, or use of force” (§ 920b(f)).
- Rape of a child: any sexual act with a child under 12, or a sexual act with a child 12 or older by force, threat, rendering the child unconscious, or administering a drug or intoxicant (§ 920b(a)). In a parent-child or similar relationship, “the use or abuse of parental or similar authority is sufficient to constitute the use of force” (§ 920b(g)(2)).
- Sexual assault of a child: any sexual act with a child who has attained 12 (§ 920b(b)).
- Sexual abuse of a child: a lewd act upon a child (§ 920b(c)).
Age. For a child under 12, it is no defense that the accused reasonably believed the child was 12 or older. For a child 12 to 15, the accused may prove by a preponderance of the evidence, as a defense to sexual assault of a child or sexual abuse of a child (not rape of a child), that the accused reasonably believed the child had attained 16 (§ 920b(d)).
Marriage. The FY2025 National Defense Authorization Act (Pub. L. 118-159, December 23, 2024) struck the former marriage defense and the “not legally married” language from Article 120b.
Article 120c and Article 117a
Article 120c covers indecent viewing, indecent visual recording, broadcasting or distributing such a recording, forcible pandering, and indecent exposure. Wrongful broadcast or distribution of intimate visual images is a separate offense under Article 117a; a distribution case can be charged under either article depending on how the image was made and shared.
Maximum punishments
The statutes authorize punishment “as a court-martial may direct”; the Manual for Courts-Martial (2024 ed.), Part IV, sets the maximums:
| Offense | Maximum punishment |
|---|---|
| Rape (120(a)) | Total forfeitures and confinement for life without eligibility for parole; mandatory minimum dismissal or dishonorable discharge |
| Sexual assault (120(b)) | Total forfeitures and 30 years; mandatory minimum dismissal or dishonorable discharge |
| Aggravated sexual contact (120(c)) | Dishonorable discharge, total forfeitures, 20 years |
| Abusive sexual contact (120(d)) | Dishonorable discharge, total forfeitures, 7 years |
| Rape of a child (120b(a)) | Total forfeitures and life without eligibility for parole; mandatory minimum dismissal or dishonorable discharge |
| Sexual assault of a child (120b(b)) | Total forfeitures and 30 years; mandatory minimum dismissal or dishonorable discharge |
| Sexual abuse of a child (120b(c)) | Dishonorable discharge, total forfeitures, 20 years if it involves contact; 15 years otherwise |
| Indecent viewing; indecent exposure (120c) | Dishonorable discharge, total forfeitures, 1 year |
| Indecent recording (120c) | Dishonorable discharge, total forfeitures, 5 years |
| Broadcasting or distributing an indecent recording (120c) | Dishonorable discharge, total forfeitures, 7 years |
| Forcible pandering (120c) | Dishonorable discharge, total forfeitures, 20 years |
| Wrongful distribution of intimate images (117a) | Dishonorable discharge, total forfeitures, 2 years |
Death is not an authorized punishment for rape under the current article (MCM 2024, Part IV, ¶60.d(1)).
Mandatory minimum, and its two exceptions. Article 56(b) requires dismissal or dishonorable discharge for rape, sexual assault, rape of a child, sexual assault of a child, and attempts or conspiracies to commit them. The requirement yields in two plea-agreement situations: the military judge “may accept a plea agreement that provides for a sentence of bad conduct discharge”, and, on the trial counsel’s recommendation in exchange for substantial assistance in investigating or prosecuting another person, may accept a sentence below the mandatory minimum (Art. 53a(d)). Parameters and plea agreements shape the final number, as described in how the sentencing phase of a court-martial proceeds.
Who decides whether to prosecute
Articles 117a, 120, 120b, and 120c are covered offenses (10 U.S.C. § 801(17)). For covered offenses committed after December 27, 2023, a special trial counsel has “exclusive authority” to refer, dismiss, and enter plea agreements, and may refer to a general or special court-martial (§ 824a(c)(3); Art. 34(c)). A special trial counsel may also elect to exercise authority over Article 117a, 120, 120b, and 120c offenses that occurred on or before December 27, 2023 (§ 824a(d)(1)(A)). The reform did not change the elements or the burden of proof.
Time limits and registration
- Statute of limitations. Rape and sexual assault, and rape and sexual assault of a child, can be tried at any time (Art. 43(a)). Aggravated and abusive sexual contact against an adult are subject to the five-year rule; other Article 120, 120b, and 120c offenses against a child under 16 fall under the child abuse rule (the child’s life or ten years, whichever is longer). Details are in how the statute of limitations operates under the UCMJ.
- Sex offender registration. Federal registration law counts as a qualifying offense “a military offense specified by the Secretary of Defense” (34 U.S.C. § 20911), so registration duties depend on whether the particular conviction is on the Secretary’s list and on state law where the person lives.
Related protections for the person reporting
Victims of these offenses (victims’ rights and the Special Victims’ Counsel program) have rights under Article 6b, may be eligible for a Special Victims’ Counsel under 10 U.S.C. § 1044e (eligibility categories are set by that statute), and are protected by Military Rule of Evidence 412’s limits on evidence of a victim’s sexual behavior.
Sources
- 10 U.S.C. § 920, Article 120, Rape and sexual assault generally (Cornell LII)
- 10 U.S.C. § 920b, Article 120b, Rape and sexual assault of a child (Cornell LII)
- 10 U.S.C. § 920c, Article 120c, Other sexual misconduct (Cornell LII)
- 10 U.S.C. § 917a, Article 117a, Wrongful broadcast or distribution of intimate visual images (Cornell LII)
- 10 U.S.C. § 856, Article 56, Sentencing (Cornell LII)
- 10 U.S.C. § 853a, Article 53a, Plea agreements (Cornell LII)
- 10 U.S.C. § 824a, Article 24a, Special trial counsel (Cornell LII)
- 34 U.S.C. § 20911, Relevant definitions (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶¶ 55a, 60, 62, 63
This article is general information about military law, not legal advice for any individual case.