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Punitive Articles of the UCMJ

Article 120, Rape, sexual assault, and other sexual misconduct.

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Guide Note: As part of the FY 2006 Military Authorization Act, Congress amended Article 120 of the Uniform Code of Military Justice (UCMJ), effective for offenses occurring on and after October 1, 2007. Article 120 was formerly known as "Rape and carnal knowledge," but is now entitled "Rape, sexual assault, and other sexual misconduct."

The new Article 120 creates 36 offenses. These 36 offenses replace those offenses under the former Article 120 and others that used to be MCM offenses under Article 134 (the "General" Article).

The new Article 120 replaces the following Article 134 offenses:

The UCMJ change also amends two Article 134 offenses:

(1) Indecent language communicated to another - other than when communicated in the presence of a child - remains punishable under Article 134. If the language was communicated in the presence of a child, then it is an Article 120 offense.

(2) Pandering (having someone commit an act of prostitution) is still an offense under Article 134, but if the pandering is "compelled," it becomes an Article 120 offense.

The change also adds a new Article 120a, "Stalking."

ELEMENTS OF THE OFFENSE

Rape

By using force: That the accused caused another person, who is of any age, to engage in a sexual act by using force against that other person.

By causing grievous bodily harm: That the accused caused another person, who is of any age, to engage in a sexual act by causing grievous bodily harm to any person.

By using threats or placing in fear: That the accused caused another person, who is of any age, to engage in a sexual act by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.

By rendering another unconscious: That the accused caused another person, who is of any age, to engage in a sexual act by rendering that other person unconscious.

By administration of drug, intoxicant, or other similar substance:

    (i) That the accused caused another person, who is of any age, to engage in a sexual act by administering to that other person a drug, intoxicant, or other similar substance;

    (ii) That the accused administered the drug, intoxicant or other similar substance by force or threat of force or without the knowledge or permission of that other person; and

    (iii) That, as a result, that other person's ability to appraise or control conduct was substantially impaired.

Aggravated sexual assault

By using threats or placing in fear:

    (i) That the accused caused another person, who is of any age, to engage in a sexual act; and

    (ii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping).

By causing bodily harm:

    (i) That the accused caused another person, who is of any age, to engage in a sexual act; and

    (ii) That the accused did so by causing bodily harm to another person.

Upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness:

    (i) That the accused engaged in a sexual act with another person, who is of any age; and (Note: add one of the following elements)

    (ii) That the other person was substantially incapacitated;

    (iii) That the other person was substantially incapable of appraising the nature of the sexual act;

    (iv) That the other person was substantially incapable of declining participation in the sexual act; or

    (v) That the other person was substantially incapable of communicating unwillingness to engage in the sexual act.

Rape of a child not yet 12

    (i) That the accused engaged in a sexual act with a child; and

    (ii) That at the time of the sexual act the child had not attained the age of twelve years.

Rape of a child who has attained the age of 12 years but has not attained the age of 16 years

By using force:

    (i) That the accused engaged in a sexual act with a child;

    (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and

    (iii) That the accused did so by using force against that child.

By causing grievous bodily harm:

    (i) That the accused engaged in a sexual act with a child;

    (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and

    (iii) That the accused did so by causing grievous bodily harm to any person.

By using threats or placing in fear:

    (i) That the accused engaged in a sexual act with a child;

    (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and

    (iii) That the accused did so by threatening or placing that child in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.

By rendering that child unconscious:

    (i) That the accused engaged in a sexual act with a child;

    (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and

    (iii) That the accused did so by rendering that child unconscious.

Above information derived from the Manual for Courts-Martial]

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