§ Article 120b : Rape and Sexual Assault of a Child

Article 120b of the UCMJ (10 U.S.C. § 920b) defines three offenses against a child under 16: rape of a child, sexual assault of a child, and sexual abuse of a child. It applies age-specific standards, does not treat lack of consent as an element, and states directly that a child cannot consent to a sexual act, a lewd act, or the use of force.

Who It Applies To

Rape of a child — Article 120b(a): any person subject to the UCMJ who commits a sexual act upon a child who has not attained the age of 12; or who commits a sexual act upon a child who has attained the age of 12 by using force against any person, threatening or placing that child in fear, rendering that child unconscious, or administering to that child a drug, intoxicant, or other similar substance.

Sexual assault of a child — Article 120b(b): any person subject to the UCMJ who commits a sexual act upon a child who has attained the age of 12.

Sexual abuse of a child — Article 120b(c): any person subject to the UCMJ who commits a lewd act upon a child.

A child is any person who has not attained the age of 16.

What It Covers

Rape of a child

1. The accused committed a sexual act upon a child.
2. At the time, the child had not attained the age of 12 — or had attained 12 but not 16 and the accused used force against that child or any other person, threatened the child or another person or placed the child in fear, rendered the child unconscious, or administered to the child a drug, intoxicant, or other similar substance.

Sexual assault of a child

1. The accused committed a sexual act upon a child.
2. At the time, the child had attained the age of 12 but had not attained the age of 16.

Sexual abuse of a child

1. The accused committed a lewd act upon a child.

Statutory definitions

• Sexual act and sexual contact have the meanings in Article 120(g), except that for this article a sexual act also includes the intentional touching, not through the clothing, of the genitalia of a person under 16 with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
• Lewd act means any sexual contact with a child; intentionally exposing one’s genitalia, anus, buttocks, or female areola or nipple to a child by any means, including communication technology, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person; intentionally communicating indecent language to a child by any means with that intent; or any indecent conduct intentionally done with or in the presence of a child, including by communication technology, that is grossly vulgar, obscene, and repugnant to common propriety and tends to excite sexual desire or deprave morals with respect to sexual relations.
• Force means the use of a weapon; the use of physical strength or violence sufficient to overcome, restrain, or injure a child; or inflicting physical harm. In a parent-child or similar relationship, the use or abuse of parental or similar authority is sufficient to constitute force.
• Threatening or placing that child in fear means a communication or action of sufficient consequence to cause the child to fear that non-compliance will result in the child or another person being subjected to the action contemplated.

Statutory rules on age and consent

• For a child under 12, it need not be proven that the accused knew the child’s age, and it is not a defense that the accused reasonably believed the child had attained the age of 12.
• For a child under 16, it need not be proven that the accused knew the child had not attained 16. For sexual assault of a child and sexual abuse of a child, the statute provides a defense, which the accused must prove by a preponderance of the evidence, that the accused reasonably believed the child had attained the age of 16, if the child had in fact attained at least the age of 12.
• Lack of consent is not an element and need not be proven. A child cannot consent to any sexual act, lewd act, or use of force.
• In proving a threat, it need not be shown that the person actually intended, or was able, to carry it out.

Maximum Punishment

Maximum authorized punishment.

• Rape of a child: forfeiture of all pay and allowances and confinement for life without eligibility for parole. Mandatory minimum: dismissal or dishonorable discharge.
• Sexual assault of a child: forfeiture of all pay and allowances and confinement for 30 years. Mandatory minimum: dismissal or dishonorable discharge.
• Sexual abuse of a child, cases involving sexual contact: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.
• Sexual abuse of a child, other cases: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.

Sentencing parameters. Rape of a child, Category 5 (240–480 months). Sexual assault of a child, Category 4 (120–240 months). Sexual abuse of a child, both forms, Category 3 (30–120 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 120b applies to victims under 16 and does not make lack of consent an element; Article 120 addresses adult victims. Images of minors are addressed by the Article 134 child pornography offense, and endangering a child’s welfare by a person with a duty of care by Article 119b.

What the Provision Does

Under Article 120b, a child cannot consent to any sexual act, lewd act, or use of force. The article sets age-based rules and authorizes higher maximum punishments than the parallel offenses against adults in Article 120.

History

Article 120b was added to the UCMJ by Pub. L. 112-81, § 541 (enacted December 31, 2011), effective June 28, 2012, when offenses against children were separated from Article 120. It received a technical amendment in 2013 (Pub. L. 112-239) and was amended by the Military Justice Act of 2016 (Pub. L. 114-328, § 5430), effective January 1, 2019, to expand the definition of sexual act for child victims. In December 2024, Pub. L. 118-159 (§ 565) removed the former statutory defense that the persons were married to each other, and the reference to a child “not legally married” to the accused in the consent provision.

Sources

• 10 U.S.C. § 920b (Article 120b, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 62
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C
• Pub. L. 118-159, div. A, title V, § 565 (Dec. 23, 2024)