UCMJ Article 120: Rape and Sexual Assault
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Article 120 punishes four offenses against adults, and the exposure turns on two questions: was there a “sexual act” or only “sexual contact,” and how was it accomplished? Rape is punishable by confinement for life without eligibility for parole and sexual assault by up to 30 years. For both, a conviction carries a mandatory minimum of dismissal or dishonorable discharge.
Four offenses built from two variables
The statute, 10 U.S.C. § 920, pairs a penetrative offense with a touching offense at each level of coercion.
| Offense | Conduct | How it is accomplished |
|---|---|---|
| Rape, § 920(a) | Sexual act | Unlawful force; force causing or likely to cause death or grievous bodily harm; threats or fear of 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, § 920(b) | Sexual act | Threats or placing the person in fear; a fraudulent claim that the act serves a professional purpose; inducing a belief that the accused is another person; without consent; while the accused knows or reasonably should know the person is asleep, unconscious, or otherwise unaware; or while the person is incapable of consenting because of impairment by a substance or a mental disease, defect, or physical disability that the accused knows or reasonably should know about |
| Aggravated sexual contact, § 920(c) | Sexual contact | Any circumstance that would make it rape if it had been a sexual act |
| Abusive sexual contact, § 920(d) | Sexual contact | Any circumstance that would make it sexual assault if it had been a sexual act |
A “sexual act” under § 920(g)(1) is penetration, however slight, of the vulva, anus, or mouth by the penis; contact between the mouth and the penis, vulva, scrotum, or anus; or penetration, however slight, of the vulva, penis, or anus of another by any part of the body or an object, with an intent to abuse, humiliate, harass, or degrade, or to arouse or gratify sexual desire. “Sexual contact” under § 920(g)(2) is touching, or causing another person to touch, directly or through clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person with that same intent. The same incident can be charged at different levels depending on which of these the evidence proves.
What the statute says consent is, and is not
The term “consent” means a freely given agreement to the 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 does not constitute consent.
Source: 10 U.S.C. § 920(g)(7)(A).
The same subsection adds that submission caused by force, threat of force, or fear is not consent, and that a current or previous dating, social, or sexual relationship, or the way a person was dressed, does not by itself constitute consent. Under § 920(g)(7)(B), a sleeping, unconscious, or incompetent person cannot consent, and no one can consent to force likely to cause death or grievous bodily harm or to being rendered unconscious. Subsection (g)(7)(C) directs that all the surrounding circumstances be considered.
“Incapable of consenting” is a separate defined term in § 920(g)(8): the person is either incapable of appraising the nature of the conduct, or physically incapable of declining participation in, or communicating unwillingness to engage in, the sexual act. The definition is functional; it does not set an age or a level of intoxication.
Two more rules sit in the statute’s text. In proving a threat, the government need not show the accused intended to carry it out or could have (§ 920(e)). And marriage is not a defense to any conduct charged under the section (§ 920(f)).
Rank and authority as a source of fear
Sexual assault by “threatening or placing that other person in fear” is not limited to threats of violence. The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 60.c(4), says the “wrongful action” behind the fear includes an abuse of military rank, position, or authority to obtain a sexual act or contact. Its examples are threats to start an adverse personnel action, or to withhold a favorable one, unless the person submits. The Manual also limits the point: superiority in rank is “a factor in, but not dispositive of,” whether a reasonable person in the victim’s position would fear the threatened action. A rank difference alone does not establish the offense, and its absence does not rule it out.
Mistake of fact
The general defense rule appears in Rule for Courts-Martial 916(j)(1). Where an element requires only general intent or knowledge, a mistaken belief must have existed in the accused’s mind and must have been reasonable under all the circumstances; a mistake about an element requiring specific intent, willfulness, or knowledge of a particular fact need only have been honestly held. Read with the consent definition above, a belief resting on silence or the absence of resistance runs directly into the statutory sentence that lack of resistance “does not constitute consent.”
Maximums and mandatory minimums
Article 120 itself says each offense is punished “as a court-martial may direct.” The limits come from the President under 10 U.S.C. § 856(a), in the Manual for Courts-Martial (2024 ed.), Part IV, ¶ 60.d:
| Offense | Authorized maximum | Mandatory minimum |
|---|---|---|
| Rape | Forfeiture of all pay and allowances; confinement for life without eligibility for parole | Dismissal or dishonorable discharge |
| Sexual assault | Forfeiture of all pay and allowances; confinement for 30 years | Dismissal or dishonorable discharge |
| Aggravated sexual contact | Dishonorable discharge, forfeiture of all pay and allowances, confinement for 20 years | None listed |
| Abusive sexual contact | Dishonorable discharge, forfeiture of all pay and allowances, confinement for 7 years | None listed |
The mandatory minimum comes from 10 U.S.C. § 856(b), which requires dismissal or dishonorable discharge for rape and sexual assault under § 920(a) and (b), and for attempts to commit them, subject to the plea-agreement exception referenced in that subsection. An attempt carries the same mandatory minimum but, under the Manual’s rule for Article 80, no more than 20 years of confinement (¶ 4.d); the rules for attempted offenses explain that cap.
Who imposes the sentence depends on the dates of the offenses. When every finding of guilty in a general or special court-martial is for an offense committed after December 27, 2023, the military judge determines the sentence rather than the members; capital cases follow a separate procedure (10 U.S.C. § 853(b)-(c)).
Who controls the prosecution
Every offense under Article 120 is a “covered offense” under 10 U.S.C. § 801(17)(A), which lists section 920 as a whole, so aggravated and abusive sexual contact are included along with rape and sexual assault. For offenses that occurred after December 27, 2023, a special trial counsel decides, exclusively, whether a report is a covered offense and, once exercising authority, whether to refer charges to a special or general court-martial, dismiss them, or enter a plea agreement (10 U.S.C. § 824a(c)). If the special trial counsel declines to prefer or refer, the commander may act on the case under the ordinary rules. The change moves the charging decision; it does not alter the elements or the burden of proof.
Time limits differ inside the article
Under 10 U.S.C. § 843(a), a person charged with rape or sexual assault may be tried at any time. Aggravated and abusive sexual contact against an adult are not on that list, so the general rule in § 843(b)(1) applies: trial by court-martial is barred if the offense was committed more than five years before sworn charges reach an officer exercising summary court-martial jurisdiction over the command.
Related offenses and representation
Offenses against children are charged under Article 120b, rape and sexual assault of a child, which has its own definitions and age-based defenses. Indecent viewing, recording, broadcasting, forcible pandering, and indecent exposure fall under Article 120c, other sexual misconduct.
At a general or special court-martial the accused may be represented by civilian counsel the accused provides, and by military counsel who is either detailed under Article 27 or selected by the accused if that counsel is reasonably available (10 U.S.C. § 838(b)). Some civilian practices present Article 120 court-martial defense as a practice area of its own; the differences between detailed military counsel and retained civilian counsel are covered separately.
Sources
- 10 U.S.C. § 920, Article 120, Rape and sexual assault generally (Cornell LII)
- 10 U.S.C. § 856, Article 56, Sentencing (Cornell LII)
- 10 U.S.C. § 801, Article 1, Definitions, paragraph (17) (Cornell LII)
- 10 U.S.C. § 824a, Article 24a, Special trial counsel (Cornell LII)
- 10 U.S.C. § 843, Article 43, Statute of limitations (Cornell LII)
- 10 U.S.C. § 853, Article 53, Findings and sentencing (Cornell LII)
- 10 U.S.C. § 838, Article 38, Duties of trial counsel and defense counsel (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 60 and ¶ 4.d; Part II, R.C.M. 916(j)
This article is for general informational purposes only and is not legal advice. It does not address any individual case and does not create an attorney-client relationship. Any outside practice referenced is illustrative of the civilian defense field, not an endorsement.