Sexual Assault Crimes Under Article 120

The Judicial Proceedings Panel released a report on sexual assault crimes under Article 120. The following is the executive summary from the report.

Article 120 is the statute used to prosecute sexual assault crimes under the Uniform Code of Military Justice (UCMJ). It has been substantially revised since the UCMJ was first adopted in 1951.  The most recent version, enacted by Congress in 2012, incorporates all sexual assault offenses under the UCMJ into a single article. The JPP’s February 2015 report recommended that the Department of Defense (DoD) appoint a subcommittee to the JPP to continue review of 17 issues with the 2012 version of Article 120.  The first 11 of these issues relate to definitions of terms and of elements of offenses, defenses, and enumerated offenses under the statute.  The remaining 6 issues relate to how the military prosecutes crimes under the UCMJ involving coercive sexual relationships and abuse of authority, including relationships between trainers and trainees, recruits and recruiters, and senior and subordinate military members in the same chain of command.

Beginning in April 2015, the JPP Subcommittee met nine times to conduct its assessment. The subcommittee heard perspectives and recommendations from many experienced military justice spractitioners, and it compared Article 120 to the similar federal criminal provision in Title 18 of the United States Code where appropriate. The Subcommittee presented its report and recommendations to the JPP in December 2015.  For seven issues it reviewed, the Subcommittee recommended amendments to Article 120 or the Manual for Courts-Martial (MCM).  For the remaining ten issues, the Subcommittee determined that change or amendment is not warranted.

The JPP carefully deliberated on the Subcommittee’s review of Article 120 and accepted all of the Subcommittee’s recommendations, with the exception of a minor modification regarding a proposed new offense under Article 120(b)(1)(E). The JPP concurs with the Subcommittee’s assessment that Article 120 provides a reasonably effective statutory framework for prosecution of sexual assault offenses in the military, but some definitions and terms used in the statute are sufficiently confusing or vague as to create uncertainty or concern regarding the effects of these terms on standards of conduct among Service members or on court-martial prosecution of sexual assault offenses.  To address these concerns, the JPP recommends that Congress amend five definitions in Article 120 and adopt a new theory of liability to specifically address coercive sexual acts or contact in which a perpetrator has used position, rank, or authority to obtain compliance by the other person. A redline version of Article 120 illustrating the JPP’s recommended amendments to the statute is included in this report.

The JPP also recommends that the President amend the MCM to specifically state that consent and mistake of fact as to consent may be raised in any case in which they are relevant.

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