§ Article 120 : Rape and Sexual Assault Generally

Article 120 of the UCMJ (10 U.S.C. § 920) defines four related but distinct offenses: rape, sexual assault, aggravated sexual contact, and abusive sexual contact. Rape and sexual assault involve a “sexual act”; aggravated and abusive sexual contact involve “sexual contact” under otherwise parallel circumstances.

Who It Applies To

Rape — Article 120(a): any person subject to the UCMJ who commits a sexual act upon another person by (1) using unlawful force against that person; (2) using force causing or likely to cause death or grievous bodily harm to any person; (3) threatening or placing that person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping; (4) first rendering that person unconscious; or (5) administering to that person, by force or threat of force, or without that person’s knowledge or consent, a drug, intoxicant, or other similar substance, thereby substantially impairing that person’s ability to appraise or control conduct.

Sexual assault — Article 120(b): any person subject to the UCMJ who commits a sexual act upon another person (1) by threatening or placing that person in fear, by making a fraudulent representation that the sexual act serves a professional purpose, or by inducing a belief by any artifice, pretense, or concealment that the person is another person; (2) without that person’s consent, or when the accused knows or reasonably should know that the person is asleep, unconscious, or otherwise unaware that the act is occurring; or (3) when the person is incapable of consenting because of impairment by a drug, intoxicant, or similar substance, or because of a mental disease or defect or physical disability, and that condition is known or reasonably should be known by the accused.

Aggravated sexual contact — Article 120(c): any person subject to the UCMJ who commits or causes sexual contact upon or by another person, if doing so would be rape had the sexual contact been a sexual act.

Abusive sexual contact — Article 120(d): any person subject to the UCMJ who commits or causes sexual contact upon or by another person, if doing so would be sexual assault had the sexual contact been a sexual act.

What It Covers

The Manual lists the elements for each form as two parts: (1) the accused committed a sexual act (for rape or sexual assault) or sexual contact (for aggravated or abusive sexual contact) upon another person, and (2) the accused did so in the specific manner alleged from the list above. For the “asleep, unconscious, or otherwise unaware” and “incapable of consenting” forms, the Manual adds that the other person was in that condition and that the accused knew or reasonably should have known of it.

Statutory definitions

• Sexual act means (A) the penetration, however slight, of the penis into the vulva or anus or mouth; (B) contact between the mouth and the penis, vulva, scrotum, or anus; or (C) the penetration, however slight, of the vulva or penis or anus of another by any part of the body or any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
• Sexual contact means 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 means 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 force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating, social, or sexual relationship by itself, or the manner of dress of the person involved, does not constitute consent. A sleeping, unconscious, or incompetent person cannot consent. All the surrounding circumstances are considered in determining whether a person gave consent.
• 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.
• Force means the use of a weapon; the use of physical strength or violence sufficient to overcome, restrain, or injure a person; or inflicting physical harm sufficient to coerce or compel submission. Unlawful force is force done without legal justification or excuse.
• Threatening or placing that other person in fear means a communication or action of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to the wrongful action contemplated. Under the Manual, “wrongful action” includes abuse of military rank, position, or authority — such as threatening an adverse personnel action, or withholding a favorable one, unless the victim submits. Superiority in rank is a factor in, but not dispositive of, that question.
• Grievous bodily harm means serious bodily injury, such as fractured or dislocated bones, deep cuts, torn members of the body, or serious damage to internal organs; it does not include minor injuries such as a black eye or a bloody nose.

Other statutory rules

• In proving a threat, it need not be shown that the person actually intended, or was able, to carry it out.
• Marriage is not a defense for any conduct in issue in a prosecution under Article 120.
• Evidence of a victim’s other sexual behavior or predisposition is governed by Military Rule of Evidence 412, and communications with a victim advocate by Military Rule of Evidence 514.

Maximum Punishment

Maximum authorized punishment.

• Rape: forfeiture of all pay and allowances and confinement for life without eligibility for parole. Mandatory minimum: dismissal or dishonorable discharge.
• Sexual assault: forfeiture of all pay and allowances and confinement for 30 years. Mandatory minimum: dismissal or dishonorable discharge.
• Aggravated sexual contact: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.
• Abusive sexual contact: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 7 years.

Sentencing parameters. Rape, Category 4 (120–240 months). Sexual assault and aggravated sexual contact, Category 3 (30–120 months). Abusive sexual contact, Category 2 (1–36 months).

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Related and Distinguished

Article 120 addresses offenses against adults. Offenses against a child under 16 are addressed by Article 120b, in which lack of consent is not an element. Indecent viewing, recording, broadcasting, forcible pandering, and indecent exposure are addressed by Article 120c. Sexual activity by a trainer or recruiter with a trainee or applicant, regardless of consent, is addressed by Article 93a.

What the Provision Does

Article 120 defines when a sexual act or sexual contact with another person is a crime — including when it is committed by force, threat, or fraud, without consent, or when the other person is asleep, unaware, or incapable of consenting — and grades the maximum punishment by the nature of the act and the circumstances.

History

Article 120 appeared in the original 1950 UCMJ as the offenses of rape and carnal knowledge, and was codified at 10 U.S.C. § 920 in 1956. After amendments in 1992 and 1996, Congress rewrote it in 2006 (Pub. L. 109-163), effective October 1, 2007, and again in 2011 (Pub. L. 112-81), effective June 28, 2012, when offenses against children and other sexual misconduct were moved to Articles 120b and 120c. The Military Justice Act of 2016 (Pub. L. 114-328, § 5430) revised the sexual assault provisions and the definitions of sexual act, sexual contact, and consent, effective January 1, 2019.

Sources

• 10 U.S.C. § 920 (Article 120, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Military Rules of Evidence 412 and 514
• Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 60
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C
• United States v. Mendoza, 85 M.J. 213 (C.A.A.F. 2024) (Article 120(b)(2)(A), a sexual act upon a person capable of consenting who does not consent, and Article 120(b)(3)(A), a sexual act upon a person incapable of consenting because of impairment, establish separate theories of liability)
• United States v. Casillas, 86 M.J. 94 (C.A.A.F. 2025) (applying Mendoza and rejecting facial and as-applied constitutional challenges to Article 120(b)(2) and (g)(7))