Official Law Enforcement Guidance On: How to investigate, and title, an offense under Article 120, UCMJ.
(Important: This document is a summary and overview of MCM provisions. Always consult the MCM itself before proceeding.)
Step 1. Determine WHAT was done to or with the victim (the italics below is the MCM definition).
a. Sexual act. (C)ontact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
b. Sexual contact. (T)he intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.
c. Indecent liberty with a child. The term 'indecent liberty' means indecent conduct, but physical contact is not required. It includes one who with the requisite intent exposes one's genitalia, anus, buttocks, or female areola or nipple to a child. An indecent liberty may consist of communication of indecent language as long as the communication is made in the physical presence of the child. If words designed to excite sexual desire are spoken to a child, or a child is exposed to or involved in sexual conduct, it is an indecent liberty; the child's consent is not relevant.
d. Indecent conduct (indecent act). The term 'indecent conduct' means that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations. Indecent conduct includes observing, or making a videotape, photograph, motion picture, print, negative, slide, or other mechanically, electronically, or chemically reproduced visual material, without another person's consent, and contrary to that other person's reasonable expectation of privacy, of--
(A) that other person's genitalia, anus, or buttocks, or (if that other person is female) that person's areola or nipple; or
(B) that other person while that other person is engaged in a sexual act, sodomy (under section 925 (article 125)), or sexual contact.
e. Indecent exposure. Intentionally exposing .... in an indecent manner, in any place where the conduct involved may reasonably be expected to be viewed by people other than members of the actor's family or household, the genitalia, anus, buttocks, or female areola or nipple....
f. Lewd act. Defined as (A) the intentional touching, not through the clothing, of the genitalia of another person, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or (B) intentionally causing another person to touch, not through the clothing, the genitalia of any person with an intent to abuse, humiliate or degrade any person, or to arouse or gratify the sexual desire of any person.
g. Pandering (having another to engage in an act of prostitution). The term 'act of prostitution' means a sexual act, sexual contact, or lewd act for the purpose of receiving money or other compensation.
Step 2. Determine HOW it was done to or with the victim.
- By force.
- By inflicting bodily harm.
- By causing grievous bodily harm (GBH).
- By threats or placing in fear.
- By rendering the victim unconscious.
- Using a dangerous weapon or object.
- By administering a drug, intoxicant, or similar substance.
- While the victim was incapacitated or incapable to appraise the nature of the act, decline participation, or communicate unwillingness to participate.
- Lack of permission.
Note: Some offenses – especially involving children – may not require any of the above to be proven.
Note: The victim of a sexual act or conduct need not be the person who was threatened in order to accomplish the act. For example, the suspect may have threatened the victim’s mother, or applied force to the mother, in order to cause the victim to submit.
Step 3. Determine the SUSPECT’S ROLE in what was done to or with the victim.
- Perpetrator (engaged in the act or conduct).
- Suspect caused the victim to be subject to the act or conduct.
- Suspect did not himself/herself engage in the act or conduct, but caused another to do so.
- If the act or conduct occurred while the victim was incapacitated or incapable to appraise the nature of the act, decline participation, or communicate unwillingness to participate, to what extent did the suspect render the victim incapacitated, or contribute to the victim’s incapacity or declination.
Step 4. Determine the AGE of the victim at the time of the offense.
- Child under 12.
- Child 12 or over, but less than 16.
- Person over 16.
Note 1: Where age is an element, it does not have to be proven the accused knew the age of the child. It will always assist an investigation, however, when the prosecution is able to prove the accused actually knew the victim’s age.
Note 2: In any offense where it is an element that the child had not attained the age of 12, it is NOT a defense the accused reasonably believed the child had attained the age of 12.
Note 3: In some offenses (see affirmative defenses below) where it is an element the child was 12 or over but not yet 16, it may be an affirmative defense if the accused reasonably believed the child had attained the age of 16.
Consider whether the actor and the victim were MARRIED. (See affirmative defense below and look for alibi, bias, motive to lie or fabricate an allegation).
Consider possible AFFIRMATIVE DEFENSES to sex crimes and develop evidence that supports or refutes that defense.