UCMJ Article 120: Abusive Sexual Contact
At Bilecki Law Group, we defend service members against charges of abusive sexual contact under Article 120 of the UCMJ. We know there is more to your side of the story and we’ll fight to get that truth into the light.
What Is Article 120 Of The UCMJ?
Article 120 of the UCMJ address illegal sexual conduct that is committed by members of the armed forces. These charge include rape, sexual assault, aggravated sexual contact, and abusive sexual contact. Charges under Article 120 are some of the most serious charges a service member can face and come with devastating consequences that will follow the service member for life.
On the surface, Article 120 looks to provide protection from unwanted sexual contact. When enforced consistently and with the same standards of justice in mind, Article 120 fulfills its righteous purpose. Unfortunately, we find little consistency or the pursuit of justice in many commands throughout the armed services.
As it currently stands, the Pentagon is under heavy pressure from congress and other elected officials to root out sexual assault from the military. The resulting climate is such that allegations are being treated as proof of guilt and command will find any opportunity to come across as aggressive on the matter. That includes rooting innocent men and women out of the ranks. It’s not right and it’s not justice, but it is the current reality.
What Is Abusive Sexual Contact Under Article 120?
Abusive sexual contact is the lesser of the four Article 120 charges and it is important that we start with a clear definition. That is because it is not uncommon for an aggressive prosecutor to pursue charges of sexual assault, when in reality we are look at abusive sexual contact. Every charge comes with very specific elements that the prosecution must satisfy in order to find one guilty. There are several categories of charges and as such, we’ll list them just as they read out of the UCMJ.
Abusive sexual contact by threat/fear, fraudulent representation, or artifice- For a service member to be found guilty, the prosecution must satisfy the following two elements:
(1) That (state the time and place alleged), the accused [committed sexual contact upon] [caused ________ to commit sexual contact upon] (state the name of the alleged victim) by (state the alleged sexual contact); and
(2) That the accused did so by
(a) threatening or placing (state the name of the alleged victim) in fear;
(b) making a fraudulent representation that the sexual contact served a professional purpose;
(c) inducing a belief by artifice, pretense, or concealment that the accused was another person.
Abusive sexual contact without consent – For a service member to be found guilty, the prosecution must satisfy the following two elements:
(1) That (state the time and place alleged), the accused [committed sexual contact upon] [caused ________ to commit sexual contact upon] (state the name of the alleged victim) by (state the alleged sexual contact); and
(2) That the accused did so without the consent of (state the name of the alleged victim).
Abusive sexual contact when victim is alseep, unconscious, or otherwise unaware – For a service member to be found guilty, the prosecution must satisfy the following three elements:
(1) That (state the time and place alleged), the accused [committed sexual contact upon] [caused ________ to commit sexual contact upon] (state the name of the alleged victim) by (state the alleged sexual contact);
(2) That the accused did so when (state the name of the alleged victim) was asleep, unconscious, or otherwise unaware that the sexual contact was occurring; and
(3) That the accused knew or reasonably should have known that (state the name of the alleged victim) was asleep, unconscious, or otherwise unaware that the sexual contact was occurring.
Abusive sexual contact when victim is incapable of consenting – For a service member to be found guilty, the prosecution must satisfy the following three elements:
(1) That (state the time and place alleged), the accused [committed sexual contact upon] [caused ________ to commit sexual contact upon] (state the name of the alleged victim) by (state the alleged sexual contact);
(2) That the accused did so when (state the name of the alleged victim) was incapable of consenting to the sexual contact due to (impairment by a drug, intoxicant, or other similar substance) (a mental disease or defect, or physical disability); and
(3) That the accused knew or reasonably should have known (state the name of the alleged victim) was incapable of consenting to the sexual contact due to (impairment by a drug, intoxicant, or other similar substance) (a mental disease or defect, or physical disability).
The UCMJ then goes on to define “sexual contact” as touching, or causing another person to touch, either directly or through the clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body or an object.
“Consent” is defined as 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. Submission resulting from the use of force, threat of force, or placing another person in fear also does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue does not constitute consent.
What’s The Worst That Can Happen If I Am Found Guilty Of Abusive Sexual Contact?
As a quick side note, we should also point out that marriage is not a defense under Article 120. We’d love to tell you that a spouse would never make allegations during a nasty divorce because he/she knows what happens in the military if they do, but we’d be lying. The consequences are so dire for those accused, and guilt is assumed in this current climate, which makes Article 120 a terrible weapon for a hostile spouse to wield.
If found guilty, you could be looking at a dishonorable discharge, total forfeiture of all pay and allowances, 7 years confinement and reduction in rank to E-1. Unfortunately, even if you are found Not Guilty, we still see commands trying to ruin and end careers for the accused. That’s why even if you know you are completely innocent and you were sitting in your barracks room reading your Bible and drinking some English tea during the alleged incident, you are still going to have a fight on your hands.
How To Fight Back And Win Against Article 120 Charges?
The reality is that Article 120 charges are rarely black and white where good and evil are clearly obvious. The truth is that it often involves some mutual drinking, flirting, and even some consensual romantic activity that goes terribly wrong. Perhaps this was a long-term relationship that has now gone sour, and retribution is the end game. In other cases, the accuser could be in big trouble with the UCMJ in their own right and they see this as a way out.
That’s why when we take on a case, we fight like hell to get the whole story brought into the light. The prosecution is going to try and make you sound like a serial rapist when in reality, you both just fell asleep after drinking and you woke up spooning by default. Just ask any Marine grunts on a cold field op and they’ll tell you that waking up to another Marine spooning you is par for the course.
Whatever your story is, we take that truth and fight like hell to let it be known. The simple fact is that running good men and women out of the military and convicting innocent men and women is not justice. It does neither the victim or this nation any good to allow the current culture and climate to persist without a robust, aggressive, and competent defense. We’ve just seen too many innocent men and women charged with the most heinous actions under Article 120 to let it slide.
That’s why we take the tough cases that others run from and that’s why we take the fight to the heart of the military justice system on their behalf. Justice demands it and our men and women in uniform deserve justice. If you are under investigation or facing court martial under Article 120, the military justice system is coming to destroy you, innocence be damned. Give us a call and get us into this fight. Upfront, we’ll give you a free defense strategy session that you can take with you, even if you don’t retain us. We’ll tell you exactly what you are facing and as long as you are willing to fight like hell for the truth, so are we. Again, please do not assume your innocence will come to light naturally. The military justice system has every reason to suppress that truth and if you let them, they will do so to you. Get us into this fight and we’ll get your truth into the light.
Contact Us Today
Whatever your story is, we take that truth and fight like hell to let it be known. The simple fact is that running good men and women out of the military and convicting innocent men and women is not justice. It does neither the victim or this nation any good to allow the current culture and climate to persist without a robust, aggressive, and competent defense. We’ve just seen too many innocent men and women charged with the most heinous actions under Article 120 to let it slide.