UCMJ Article 120b: Rape and Sexual Assault of a Child
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Article 120b covers sexual offenses against a child, which the statute defines as anyone under 16. Rape of a child is punishable by confinement for life without eligibility for parole and sexual assault of a child by up to 30 years, both with a mandatory dismissal or dishonorable discharge; sexual abuse of a child carries up to 20 years when it involves sexual contact and up to 15 years otherwise.
Three offenses, set by age and conduct
| Offense | Statute | Conduct |
|---|---|---|
| Rape of a child | § 920b(a) | A sexual act with a child under 12; or a sexual act with a child who is at least 12 by using force against any person, threatening or placing the child in fear, rendering the child unconscious, or administering a drug, intoxicant, or similar substance |
| Sexual assault of a child | § 920b(b) | A sexual act with a child who is at least 12 |
| Sexual abuse of a child | § 920b(c) | A lewd act upon a child |
Source: 10 U.S.C. § 920b. Because “child” means a person who has not attained the age of 16 (§ 920b(g)(4)), the “at least 12” offenses cover ages 12 through 15.
Two definitions widen the article beyond Article 120. A “sexual act” here also includes intentionally touching, not through clothing, the genitalia of a person under 16 with the intent to abuse, humiliate, harass, or degrade, or to arouse or gratify sexual desire (§ 920b(g)(1); Manual for Courts-Martial (2024 ed.), Part IV, ¶ 62.c(2)). A “lewd act” includes any sexual contact with a child, and also intentionally exposing one’s genitalia, anus, buttocks, or female areola or nipple to a child, or intentionally communicating indecent language to a child, “by any means, including via any communication technology,” with the same intent (§ 920b(g)(5)). Exposure or indecent messages sent online can therefore be sexual abuse of a child without any physical contact.
Consent and age
“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)).
Knowledge of the child’s age is not an element either, and the mistake-of-age rules depend on the child’s actual age (§ 920b(d)):
- Child under 12: it is not a defense that the accused reasonably believed the child was 12 or older.
- Child at least 12 but under 16: for sexual assault of a child and sexual abuse of a child, it is a defense that the accused reasonably believed the child had attained 16. The accused must prove that belief by a preponderance of the evidence. The defense does not apply to rape of a child. Rule for Courts-Martial 916(j)(2) states the same rule.
The former marriage defense is gone. Pub. L. 118-159, § 565, enacted December 23, 2024, removed it from the statute.
Maximum punishment and mandatory minimums
From the Manual for Courts-Martial (2024 ed.), Part IV, ¶ 62.d:
| Offense | Authorized maximum | Mandatory minimum |
|---|---|---|
| Rape of a child | Forfeiture of all pay and allowances; confinement for life without eligibility for parole | Dismissal or dishonorable discharge |
| Sexual assault of a child | Forfeiture of all pay and allowances; confinement for 30 years | Dismissal or dishonorable discharge |
| Sexual abuse of a child involving sexual contact | Dishonorable discharge, forfeiture of all pay and allowances, 20 years | None listed |
| Sexual abuse of a child, other cases | Dishonorable discharge, forfeiture of all pay and allowances, 15 years | None listed |
The mandatory minimum comes from 10 U.S.C. § 856(b), which also applies it to attempts to commit rape or sexual assault of a child. Only a general court-martial may try rape or sexual assault of a child (10 U.S.C. § 818(c)). In a general court-martial where every finding of guilty is for an offense committed after December 27, 2023, the sentence for these offenses is set by the military judge rather than the members (10 U.S.C. § 853(b)).
Who prosecutes, and for how long
Every Article 120b offense is a covered offense under 10 U.S.C. § 801(17)(A). If the offense was committed after December 27, 2023, only a special trial counsel may refer it, dismiss it, or enter a plea agreement, and that counsel also decides whether the report qualifies as covered (10 U.S.C. § 824a(c)). The Office of Special Trial Counsel was created by the National Defense Authorization Act for Fiscal Year 2022 (Pub. L. 117-81), not by the Military Justice Act of 2016.
Rape of a child and sexual assault of a child may be tried at any time (10 U.S.C. § 843(a)). Sexual abuse of a child is a “child abuse offense” under § 843(b)(2), so charges may be brought during the life of the child or within 10 years after the offense, whichever is longer.
Adult victims, recordings, and child pornography
Sexual offenses against adults are charged under Article 120. Indecent viewing, recording, and distribution of recordings of a person’s private area fall under Article 120c. Child pornography is a separate enumerated Article 134 offense (MCM ¶ 95) and is itself a covered offense; the structure of enumerated offenses is explained under Article 134, the general article.
Sources
- 10 U.S.C. § 920b, Article 120b, Rape and sexual assault of a child (Cornell LII)
- 10 U.S.C. § 856, Article 56, Sentencing (Cornell LII)
- 10 U.S.C. § 818, Article 18, Jurisdiction of general courts-martial (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)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 62; Part II, R.C.M. 916(j)(2)
General information about military law, not legal advice for any individual case.