UCMJ Article 93a: Prohibited Activities With a Military Recruit or Trainee

Article 93a of the Uniform Code of Military Justice, codified at 10 U.S.C. 893a, makes it a criminal offense for a person in a position of authority over a recruit or a junior member in initial training to engage in inappropriate sexual conduct with that person. The article exists because of a structural reality of military life: the relationship between a drill instructor and a basic trainee, or between a recruiter and an applicant, is defined by a steep and lasting imbalance of power. The article treats that imbalance as the heart of the wrong, so it removes the question of whether the junior person agreed. Consent is not a defense.

Article 93a is a relatively new provision. It was created by the Military Justice Act of 2016 and took effect, with the rest of that act’s punitive-article changes, on 1 January 2019. It is distinct from Article 93, cruelty and maltreatment, which is an older and broader offense; the close numbering reflects a shared concern with abuse of subordinates but the two articles have different elements and different scope.

The two relationships the statute covers

The statute is built around two categories of authority, each defined separately. The first covers a person who is an officer, a noncommissioned officer, or a petty officer; who is in a training leadership position with respect to a specially protected junior member of the armed forces; and who engages in prohibited sexual activity with that specially protected junior member. The second covers a military recruiter who engages in prohibited sexual activity with an applicant for military service, or with a specially protected junior member who is enlisted under a delayed entry program. In both, the offense turns on the accused’s role rather than on any showing of coercion.

The statute supplies its own definitions, and they control the reach of the article. A “specially protected junior member of the armed forces” is, in general terms, a member assigned to or awaiting assignment to basic training or an equivalent initial entry training program, an officer candidate, a cadet or midshipman, or a member in a designated initial career qualification or technical training program before the member is fully qualified. A “training leadership position” includes a drill instructor position and other leadership positions in a basic or initial training program, as well as faculty and staff positions at the military service academies. An “applicant for military service” is a person who, under regulations, is an applicant for original enlistment or appointment. A military recruiter is a person whose primary duty is to recruit persons for military service. The Secretary concerned fills in the operational details of these categories by regulation.

“Prohibited sexual activity” is also defined by reference to regulation. The statute describes it as inappropriate physical intimacy under circumstances set out in regulations prescribed by the Secretary concerned. This means the precise boundary of the conduct depends partly on service regulations implementing the article, which is why the exact scope of a charge should be confirmed against the current regulatory definitions rather than assumed.

What the government must prove

To convict, the prosecution must prove the accused’s qualifying status, the protected status of the other person, and the prohibited activity. In a training-leadership case, that means proving the accused was an officer, a noncommissioned officer, or a petty officer; that the accused held a training leadership position with respect to the other person; that the other person was a specially protected junior member; and that the accused engaged in prohibited sexual activity with that person. In a recruiter case, the government proves that the accused was a military recruiter and that the accused engaged in prohibited sexual activity with an applicant for military service or with a specially protected junior member enlisted under a delayed entry program.

The accused’s knowledge of the other person’s protected status is generally part of the case; the law is aimed at people who occupy these roles precisely because the role carries knowledge of who the trainees and applicants are. What the government does not have to prove is force, threat, or lack of agreement. The article punishes the abuse of the training and recruiting relationship itself.

Consent is not a defense

The most important feature of Article 93a is stated plainly in the statute: consent is not a defense for any conduct at issue in a prosecution under the article. This is a deliberate departure from offenses where the presence or absence of consent is decisive. The drafters concluded that a recruit, a basic trainee, or an applicant cannot meaningfully consent to sexual activity with the very person who controls his or her training, evaluation, or entry into the service, because that authority figure holds power over the junior person’s daily life, career, and future. Agreement obtained inside that relationship is treated as legally irrelevant. A defense built on the idea that the other person willingly participated does not reach the elements of the offense.

This does not mean every other defense is foreclosed. The accused may still contest whether he or she actually held the qualifying status, whether the other person met the statutory definition of a protected junior member or applicant, or whether the conduct fell within the regulatory definition of prohibited sexual activity. But the door that consent opens in many sexual-offense prosecutions is closed here by the text of the statute.

Maximum punishment

The maximum punishment for a violation of Article 93a, as set in the Manual for Courts-Martial, is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for up to five years. As with other offenses, the sentencing system changed for offenses committed on or after 27 Dec 2023, when a military judge began imposing sentence under segmented sentencing and sentencing categories. The authorized confinement for a particular charge should be confirmed against the current Manual, but the five-year ceiling reflects the seriousness Congress and the President attached to the abuse of a training or recruiting relationship.

Where the article fits

Article 93a is one of several provisions that protect subordinates and that govern sexual misconduct in the armed forces. Article 93 addresses cruelty and maltreatment of any person subject to a service member’s orders, a broader relationship than the specific training and recruiting roles named in Article 93a. The Article 120 group covers rape and sexual assault and the range of related sexual offenses for the force generally. Article 93a is narrower and more categorical than those provisions: it identifies particular roles of trust at the entry point of military service and forbids sexual involvement across that line outright, without regard to consent. The article is also among the offenses for which the Office of Special Trial Counsel and the post-2023 reforms reshaped how sexual misconduct is investigated and charged, so the procedural path of an Article 93a case should be checked against current law.

Sources

• 10 U.S.C. 893a (Article 93a, Prohibited activities with military recruit or trainee by person in position of special trust), via the Legal Information Institute: https://www.law.cornell.edu/uscode/text/10/893a
• Manual for Courts-Martial, United States, Part IV (Punitive Articles), Article 93a, Joint Service Committee on Military Justice: https://jsc.defense.gov/
• 10 U.S.C. 893 (Article 93, Cruelty and maltreatment), for the related but broader offense, via the Legal Information Institute: https://www.law.cornell.edu/uscode/text/10/893

This article is for general informational purposes only and is not legal advice. It describes military law and procedure of public record, does not address any individual case, and does not create an attorney-client relationship.