courtmartialdefenselawyer316Sexual Assault Crimes in the Military: Overview

1.1.1       Revisions to the U.C.M.J. in 2007

The Uniform Code of Military Justice and the Manual on Courts Martial set out the laws that govern not only offenses unique to the military, but conventional offenses such as assault, battery and sexual offenses. In 2007, the section of the Code entitled “Rape” was amended and renamed “Rape, Sexual Assault and Other Sexual Offenses” and some offenses that had appeared elsewhere were consolidated in the new U.C.M.J. Article 120.  It was effective October 1, 2007. Thus, in defending a client charged with any form of sexual offense, defense counsel needs to be aware of whether the charges arise under the old or the new Code.

In Article 120, there are fourteen categories of sexual crime; many of the definitions and elements apply equally to adult and child victims. The key difference when the victim is a child is that certain sexual conduct with children is an offense based solely on the child’s age and without the necessity of showing specific intent or use of force.

1.1.2         Application of the new or “old” law

Generally, the statute of limitation is five years except in death penalty cases. Rape is technically a death penalty crime in the military, but the impact of Supreme Court decisions on the death penalty insofar as rape and child rape provisions of the U.C.M.J. is beyond the scope of this review. Moreover, the statute may be tolled if the accused was outside of the jurisdiction of military tribunals for some period of time. Thus, the “old” law is still relevant to prosecutions occurring today and potentially for some time in the future.  The practitioner should be aware of the prior law and case holdings, but they are beyond the scope of this summary here.

1.1.3        Criticism of the 2007 Revisions

Critics have called the 2007 revisions in the Code at worst unconstitutional and at best confusing. 2009 Report of the Defense Task Force on Sexual Assault in the Military Services, “Practitioners consistently advised Task Force members that the new Article 120 is . . . cumbersome and confusing.”

Because of the intricacies of the revisions and the interplay between the “old” rape code and the new Article 120, counsel must study the issues and governing law very closely when undertaking the defense of a military sexual assault crime. Citations here are to the Manual for Courts Martial (MCM)

1.2          Rape MCM 45 (b)(1)

1.2.1     Elements of Rape

Rape is causing another person to engage in a “sexual act”

  • by use of force
  • or by causing grievous bodily harm
  • or by using threats of or creating fear of death, grievous bodily harm or kidnapping
  • or by rendering another unconscious
  • or by administering an intoxicant or other drug

1.2.2  A “sexual act” is any contact between the penis and the vulva however slight; or the penetration of the genital opening of another by hand, finger or an object with the intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. MCM 45a(t)(1) Note that the first part of the definition of penetration excludes same gender conduct. The second part of the definition requires proof of specific intent.

1.2.3     “Force” is compelling submission or overcoming resistance by use of a dangerous weapon or object, causing another to believe that one has such a weapon, or physical violence or restraint that causes the other to be unable to avoid or escape the sexual contact. MCM 45a(t)(5). Note that the latter part of the definition may fuse the concept of consent into the crime, although it is technically an affirmative defense.

1.2.4  “Grievous bodily harm” is serious bodily harm like a broken bone. MCM 45a(t)(3)

1.2.5   “Threatening” or placing someone in fear means a communication or action sufficient to cause a reasonable fear that the victim or another will be subjected to the threatened act. MCM 45a(t)(6)

1.3    Aggravated Sexual Assault MCM 45b(3)

1.3.1  Aggravated Sexual Assault is causing another person to engage in a “sexual act”

  • by using threats of or creating fear of bodily harm or other harm less than death, grievous bodily harm or kidnapping
  • or by causing bodily harm
  • or the other person is substantially incapacitated or unable to appraise the act, decline it or communicate unwillingness )

1.3.2  The definition of sexual act is the same as defined under rape.

1.3.3   “Threatening” bodily harm “less than death, grievous bodily harm or kidnapping” includes such non-physical threats as to accuse another of a crime; to publish a secret exposure of which could subject the victim to ridicule, hatred or contempt; or abuse military rank to affect another’s career. MCM 45a(t)(7)

1.3.4  “Bodily harm” means offensive touching of another, however slight, and includes touching someone other than the victim if that contributes to the victim’s submission to the act. MJ Benchbook 34-5-d

1.4           Aggravated Sexual Contact MCM 45b(5)

1.4.1  Aggravated Sexual Contact is engaging in “sexual contact” with another person or causing sexual contact with or by another person:

  • by force
  • or by causing grievous bodily harm
  • or by threats or creating fear of death, grievous bodily harm or kidnapping
  • or rendering another unconscious
  • or administering a drug or other intoxicant

1.4.2               “Sexual Contact” is the intentional touching of intimate body parts including the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person. Touching may be direct or indirect (through clothing). Sexual contact includes causing another to perform sexual contact. MCM 45a(t)(2). This is a specific intent crime and may include male-on-male contact.

1.4.3     The remaining definitions are the same as set out in Section 1.2 above.

1.5      Abusive Sexual Contact MCM 45b(8)

1.5.1   Abusive Sexual Contact is causing another person to engage in “sexual contact”

  • by using threats of or creating fear of bodily harm or other harm less than death, grievous bodily harm or kidnapping MCM 45b(8)(a)
  • or by causing bodily harm MCM 45b(8)(b)
  • or the other person is substantially incapacitated or unable to appraise the act, decline it or communicate unwillingness MCM 45b(8)(c)

1.5.2             The definitions of sexual contact is the same as defined under aggravated sexual contact.

1.5.3            The remaining definitions are the same as those set out in Section 1.3 above.

1.6      Wrongful Sexual Contact MCM 45b(13)

1.6.1   Wrongful Sexual Contact is having sexual contact with another person

  • without their permission
    • and the accused had no legal justification or lawful authorization for the contact MCM 45b(13)

1.6.2             Because of the “without their permission” element of this crime, it appears that the accused has to have asked for consent.

1.7         Indecent Act MCM 45b(11)

1.7.1      An Indecent Act is a “form of immorality related to sexual purity which is grossly vulgar, obscene, and repugnant to common propriety and tends to excite sexual desire or deprave morals with respect to sexual relations. MCM  45a(t)(11).

1.7.2       It is further defined as observing or making any visual material (such as a video tape) without the victim’s consent and contrary to their reasonable expectations of privacy where the depiction is of

  • the victim’s intimate bodily parts
  • of the victim while the victim is engaged in a sexual act, sodomy or sexual contact.

1.8            Indecent Exposure MCM 45b(14)

1.8.1              Indecent exposure consists of the accused

  • exposing his or her genitalia, anus, buttocks or female breast
  • and the exposure was in an indecent manner
  • and it occurred where people other than family were likely to see it
  • and the exposure was intentional

1.8.2       This is thus a specific intent crime. “Indecent manner” is not separately defined; the closest parallel is the definition of “indecent act.”

1.9     Forcible Pandering MCM 45b(12)

1.9.1              Forcible pandering is compelling someone to

  • Engage in an act of “prostitution”
  • And procuring the clients for the act of prostitution

1.9.1         “Prostitution” is a sexual act, sexual contact or a lewd act.

1.9.2         A  “lewd” act is

  • Intentionally touching another’s genitalia (not through clothing) with the intent to abuse, humiliate or degrade any person or to arouse or gratify the sexual desire of any person
  • Or intentionally causing another person to engage in said touching. MCM 45a(t)(10)

1.10 Sexual Crimes Involving Children

Essentially, the same conduct that is a crime against an adult is a crime against a child as well and the elements are the same. However, certain conduct that would not be criminal with regard to an adult victim is criminal with respect to a child.

1.10.1          Rape of a Child is

  • engaging in a sexual act with a child under the age of 12
  • or committing “rape,” as defined in Section 1.2 above, of a child who has attained the age of 12. MCM 45b.

1.10.2        “Child” is a person who has not attained the age of 16. MCM 45a(t)(9)

1.10.3   The first provision is equivalent to statutory rape; if the child is under 12, any sexual conduct is criminal and neither force nor specific intent is required to prove the offense nor is “consent” an affirmative defense. The second provision relates to children between the ages of 12 and 16 and requires the other elements of rape. However, a sex act with any child between the ages of 12 and 16 is criminalized as aggravated sexual assault of a child, without regard to force or intent, see 1.11 herein.

1.11             Aggravated Sexual Assault of a Child

1.11.1   Aggravated Sexual Assault of a Child is engaging in a sexual act with a child who has attained the age of 12. MCM 45d.

1.11.2   This offense is defined by the age of the child and not by the degree of force or specific intent.

1.12             Aggravated Sexual Abuse of a Child

1.12.1 Aggravated Sexual Abuse of a Child is engaging in a lewd act with a child. MCM 45f.

  • A lewd act is intentionally touching another’s genitalia (not through clothing) with the intent to abuse, humiliate or degrade any person or to arouse or gratify the sexual desire of any person
  • Or intentionally causing another person to engage in said touching. MCM 45a(t)(10)

1.13             Aggravated Sexual Contact with a Child

1.13.1 Aggravated Sexual Contact with a Child is the same as Rape of a Child, except that the accused’s conduct is “sexual contact” rather than a “Sexual Act.” MCM 45g.

1.14             Indecent Liberties with a Child

1.14.1 Indecent Liberties with a Child is engaging in  indecent liberties in the presence of a child

  • With the intent to arouse, appeal to or gratify the sexual desires of an person
  • Or with the intent to abuse, humiliate or degrade any person MCM 45j

1.14.2 Indecent Liberties include

  • Exposing one’s genitalia, anus, buttocks of female breasts to a chile
  • Indecent language in the presence of a child
  • Words designed to excite sexual desire spoken to a child
  • Exposing a child to sexual conduct

The Role of Affirmative Defenses to Military Sexual Assault

MRE 412: Military “Rape Shield Law”

MRE 413 & MRE 414 Evidence of Similar Crimes in Sexual Assault & Child Molestation Cases

Sexual Assault Crimes in the Military: Overview

Crimes in the Military