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Military Sexual Assault Defense Lawyers

Military personnel facing allegations and charges under Article 120 UCMJ are in a serious and life changing situation. If you are found guilty of charges under Article 120, Article 120a, and Article 120b, you could face jail time and a dishonorable discharge. A conviction would also bring the lifelong mark of being a registered sex offender.

The military puts the most resources into prosecuting sexual assault allegations under Article 120 UCMJ. These cases are the most likely to result in a general court-martial. A general court-martial is the most serious type of criminal trial in the military.

When you have this much at stake, you cannot afford to take chances with your representation. You need an experienced military sexual assault lawyer.

We have successfully defended against countless allegations of sexual assault, before trial and at trial. Many times, these military sexual assault cases result from honest and reasonable mistakes, and sometimes they result from deliberate lies. You need a military sexual assault attorney who knows how to present your best defense.

Article 120 UCMJ Sexual Assault Guide

What Crimes Are Charged Under Article 120 of The Uniform Code of Military Justice?

  • Rape
  • Sexual Assault
  • Aggravated Sexual Contact
  • Abusive Sexual Contact

There’s no question that acts under Article 120 UCMJ are despicable and harmful when they occur, yet the military’s solution of more prosecutions has done little to change human behavior. When you are up against the military justice process, you need an experienced military sexual assault lawyer fighting for you.

6 Essential Definitions to Understanding Offenses Under Article 120 UCMJ:

1. Sexual Act

  • Sexual Intercourse
  • Penetration of the vulva, anus, or mouth by a penis
  • Contact between the mouth and the penis, vulva, scrotum, or anus
  • Penetration of the vulva, penis, or anus by any part of another person’s body or by an object, done with an intent to abuse, humiliate, or degrade anyone
  • OR when done to arouse or gratify the sexual desire of anyone

2. Sexual Contact

  • When a person sexually touches, or causing someone else to touch, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person when done with an intent to abuse, humiliate, harass, or degrade anyone
  • OR when done to arouse or gratify the sexual desire of any person
  • Sexual touching can occur directly to a part of the body or through one’s clothing and the touching can be done by any part of the body or an object.

3. Grievous Bodily Harm

  • Serious bodily injury such as broken or dislocated bones, deep cuts, serious damage to internal organs, and other severe bodily injuries
  • Grievous bodily harm does not include minor injuries like a black eye or bloody nose.

4. Force

  • Using a weapon
  • Using enough physical strength or violence to overcome, restrain, or injure someone
  • Causing enough physical harm to force or compel a person to submit to a sexual act

Force is considered “unlawful” when it is used without any legal justification or excuse.

5. Threatening or Placing Another Person in Fear

This means communicating or acting in a way that causes a person to reasonably fear that if they do not submit to sexual acts, then someone will suffer a negative consequence.

6. Consent

  • Consent is a freely given agreement by a competent person.
  • Consent can occur when a person is drunk or intoxicated.
  • A person can consent to sexual intercourse when they are drunk.

A person is too drunk to consent when they are unable to make decisions at all.

  • Article 120 UCMJ and alcoholThey said “no” or “stop.”
  • They acted in a manner opposite of agreement, such as physical resistance or trying to get away.
  • A sleeping or unconscious person cannot consent.
  • An incompetent person cannot consent.
  • Competence means having the ability to make and communicate a decision.

It is possible for a person to be silent and not to consent to sexual intercourse or sexual acts.

It is also possible for a person to consent without verbalizing agreement in words.

What Is the Difference Between Rape and Sexual Assault?

Both of these crimes involve a sexual act (penetration). The difference is how the sexual act took place.

What Is Rape?

Rape is a sexual act when any of the following are true:

  • When using unlawful force
  • When using force that caused or was likely to cause death or grievous bodily harm
  • When threatening or placing someone in fear that they may die, be kidnapped, or be subjected to grievous bodily harm
  • When rendering the other person unconscious
  • When giving the other person some sort of drug or intoxicant (like alcohol), by force, threat of force, or without permission or consent, and the intoxicant substantially impaired the person’s ability to consent

What Is Sexual Assault?

Sexual assault is a sexual act when any of the following are true:

  • When threatening or placing another person in fear
  • When done by fraudulent representation
  • When done by false pretense
  • When done without consent
  • When the other person is asleep, unconscious, or unaware the act is occurring
  • When the other person is incapable of consenting

What Is Aggravated Sexual Contact?

  • Aggravated sexual contact has all the same elements of rape, except it involves sexual contact instead of a sexual act.

What Is Abusive Sexual Contact?

  • Abusive sexual contact has all the same elements as sexual assault, except it involves sexual contact instead of a sexual act.

Military Sexual Assault Lawyer

Can a Service Member Be Charged with A Crime Under Article 120 UCMJ Even if They Are Off Base or Off Duty?

Yes. Crimes under Article 120 UCMJ are crimes under the UCMJ whether it happens on base or off base and whether it happens during work hours or after work hours.

Are There Differences Between Article 120, Article 120a, Article 120b, and Article 120c?

Yes. All charged offenses under Article 120 UCMJ relate to acts of sexual violence. We have outlined the components of each section for you below.

What is Article 120a UCMJ?

  • Article 120a UCMJ makes it an offense to mail obscene content.
  • This means knowingly and wrongfully placing obscene material in the mail.

What is Article 120b UCMJ?

The offenses in Article 120b UCMJ are sex crimes against children. A service member can be charged with rape of a child under Article 120b.

When Is a Person Old Enough to Consent to Sex?

  • A 16 year-old-person is old enough to legally consent to sex. Any sexual act or sexual contact with a person who is under 16 years old is a crime.
  • It is a separate crime to make, possess, or transfer nude images of a person who is under 18 years old.
  • A sexual act against a child who is 12 years old or younger will be considered rape of a child.

If the child is at least 12 years old, but not yet 16 years old, it is considered rape if a person commits a sexual act against the child by:

  • Using force
  • Threatening or placing the child in fear
  • Causing the child to be unconscious
  • Giving the child a drug or some sort of intoxicant

If the sexual act does not involve these facts, then it is called a sexual assault of a child.

Remember a child cannot consent to a sexual act or sexual contact.

What Is a Lewd Act?

It is considered sexual abuse of a child if a person commits a lewd act on the child. A lewd act is:

  • Any sexual contact with a child.
  • Exposing genitalia, anus, buttocks, or female areola or nipple to a child, with an intent to abuse, humiliate, or degrade anyone or to arouse or gratify the sexual desires of anyone. This includes doing these things using technology like video chat or text message.
  • Communicating indecent language to a child with an intent to abuse, humiliate, or degrade anyone or to arouse or gratify the sexual desire of anyone. Just like the other one, this can be done over a phone, video chat, and text message.
  • Indecent conduct done with or in the presence of a child, even if on the phone or video chat, that relates to some sexual impurity that is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

What Is Article 120c of The Uniform Code of Military Justice?

Article 120c UCMJ includes “other sexual misconduct” such as:

  • Viewing someone else’s private area without their permission.
  • Photographing, filming, broadcasting, or distributing another’s private area without their permission.
  • Forcing another to engage in acts of prostitution (“forcible pandering”).
  • Indecent exposure.

What Is the Best Defense for Article 120 UCMJ Offenses?

When images or videos were taken when someone doesn’t have a reasonable expectation of privacy, they may not be guilty of the offenses under this article.

Whether or not you think you may have a defense, you should immediately contact an experienced military sexual assault lawyer. Immediately engaging with an attorney who has extensive experience handling a military sexual assault case is key to a solid defense and helps ensure the best outcome possible.

What Defenses Are There for Article 120 UCMJ Offenses?

Common defenses are:

  • Consent
  • Mistake of Fact as to Consent – If you honestly thought they were consenting and that thought was reasonable using an objective, sober person standard, you would not be guilty
  • False allegations including bias and motive to fabricate
  • Memory issues, which may involve the impact of alcohol (see next section)
  • Character evidence – while there have been some limitations placed on the use of character evidence, there are still some ways to creatively use character evidence as a defense

Can You Consent to Sex when You Are Drunk?

Yes! Drunk sex is not always a crime. Many people use alcohol socially or even for the intended purpose of lowering their own inhibitions. As long as a person is able to make and communicate decisions, then they can still legally consent.

A person can be drunk and consent to sexual activity. However, the military, like many other jurisdictions, specifically states that voluntary intoxication by the accused is not a defense. An experienced military sexual assault lawyer must lean into all the evidence, witness testimony, and specialized experts for your best defense.

What Is a “Blackout” As It Relates to Alcohol and Consent?

A “blackout” is when the use of alcohol results in memory loss. A “blackout” does not occur when a person “passes out” and falls asleep or unconscious. A person can be perfectly functional, appear fine, consent, and communicate effectively, and can wake up the next day without a memory of anything that took place after a certain point in the previous night. This happens when alcohol causes the hippocampus (a part of the brain) to shut down temporarily, and short term memories are not transferring into long term memory. Typically, at some point after falling asleep at the end of the night, the alcohol will metabolize out of the person’s system, and when they wake up, they are again transferring short term memories into long term memory. This can be very alarming for the person who experienced a blackout. They can also be susceptible to filling in the gaps in their memories in ways that are not accurate.

Can You Consent to Sex when You Are Blacked Out?

Yes, a person can be drunk to the point where they experience a “blackout,” a lack of memory, and still be able to consent to sexual intercourse. Forensic psychologists will be necessary to testify in court to explain this concept.

A defense attorney experienced in working in the military justice system will be able to explore and present these facts when they apply..

  1. “Incapable of consenting” means the person is incapable of appraising the nature of the conduct at issue or physically incapable of declining participation in, or communicating unwillingness to engage in, the sexual act at issue.
  2. A “competent person” is a person who possesses the physical and mental ability to consent.
  3. An “incompetent person” is a person who is incapable of appraising the nature of the conduct at issue, or physically incapable of declining participation in or communicating unwillingness to engage in the sexual act at issue.
  4. If a person is intoxicated or drunk to the point where they are unable to communicate, then they cannot consent.

REMEMBER! A person can be intoxicated or drunk and can act in a manner that they later regret. People engage in behaviors when drunk that they later regret. This happens all the time, and it is not isolated to sex!

Does an Article 120 UCMJ Allegation Always Lead to A Court-Martial?

No! Sometimes, the best defense is to avoid trial altogether.

Your appointed military sexual assault lawyer and even your civilian defense lawyers will wait to investigate or to even interview the alleged victim until right before trial, when it is too late.

At Military Law, we pride ourselves on early intervention. We work on behalf of military members accused of sexual assault to prevent the case from even going to trial if we can. If you do go to trial, we use the foundation we build during the investigation phase to get the best possible result, which in many cases is a full acquittal.

What Happens When Convicted of An Offense Under Article 120 UCMJ?

The mandatory minimum sentence when convicted is dismissal for an officer and a dishonorable discharge for enlisted service members. In addition, you can face the possibility of life in prison. You will also encounter collateral consequences. These impact your life and were not part of your sentence at court-martial.

What Are Collateral Consequences of An Article 120 UCMJ offense?

These are additional effects of a conviction that are not part of a court-martial sentence:

  • Registered sex offender
  • Lost voting rights in some cases
  • Lost right to own a weapon in some cases
  • Administrative discharge, if you do not receive a punitive discharge

Is a Conviction Under Article 120 UCMJ a felony?

Federal law does not define military convictions as a felony. The military does not categorize offenses as misdemeanors or felonies.

A court-martial conviction under Article 120 UCMJ is a federal conviction. The military will report this to national databases.

Some states will call this conviction a felony if the authorized punishment could have been greater than one year.

How Do You Get the Help You Need?

If you hire us at Military Law, your military sexual assault defense lawyer will have the highest levels of experience. We have successfully defended many military members against allegations of rape, sexual assault, and abusive sexual contact in investigations, administrative actions, separation boards, and courts-martial.

Military Law clients can trust our team of military defense attorneys and investigators will never stop working to get the best possible results. Call our law firm at 800-235-3645 or fill out our online contact form.

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Jeremy Snyder

Article 120 UCMJ Sexual Assault Attorney, Jeremy Snyder