Overview of the new Article 120. Congress amended Article 120, U.C.M.J. (See 10 U.S.C. § 920) 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.” These changes are reflected in the 2007 MCM. These changes are monumental in that:
– They created 36 offenses. These 36 offenses replace the offenses under the former Article 120 and others that used to be MCM offenses under Article 134.
– The new Article 120 replaces the following Article 134 offenses. The parenthetical cites indicate the replaced MCM provisions:
- Indecent assault (Paragraph 63, Part IV, MCM).
- Indecent acts or liberties with a child (Paragraph 87, Part IV, MCM).
- Indecent exposure (Paragraph 88, Part IV, MCM).
- Indecent acts with another (Paragraph 90, Part IV, MCM).
– The UCMJ change also amends some Article 134 offenses.
— Indecent language communicated to another – other than when communicated in the presence of a child –remains punishable under Article 134 (Paragraph 89, Part IV, MCM). If the language was communicated in the presence of a child, then it is an Article 120 offense.
— Pandering (having someone commit an act of prostitution) is still an offense under Article 134 (Paragraph 97, Part IV, MCM) but the elements have been somewhat modified. There is a new Article 120 offense when the pandering is “compelled.”
— With the exception of the new Article 120 offenses as lesser included offenses, Article 125 (sodomy) remains unchanged. (Sodomy is “unnatural carnal copulation” and includes fellatio, cunnilingus, bestiality, and anal sodomy.)
– The changes also permit charging an accused when the accused himself or herself did not engage in the sexual act, sexual contact, indecent conduct, or lewd act, but instead caused another to do so. Prior to the new Article 120, such conduct was possibly punishable under the U.C.M.J. by alleging that the accused was an aider and abettor. (See Article 77, U.C.M.J.) Under the new Article 120, “causing” another person to commit the offense, or conduct directed at another causing the victim to submit (such as threatening another person), are discreet offenses.
5. The MCM change also amends the definition of “indecent” in the offense of indecent language. Paragraph 89(c), Part IV, MCM, now reads:
“Indecent” language is that which is grossly offensive to modesty, decency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or disgusting nature, or its tendency to incite lustful thought. Language is indecent if it tends reasonably to corrupt morals or incite libidinous thoughts. The language must violate community standards.
If the communication was made in the physical presence of the child, the new Article 120 – and not Article 134 – would be used.
Click here to continue reading about Elements of the new offenses and law enforcement officers.