UCMJ Article 120: Abusive Sexual Contact

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.