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In re: NEW ARTICLE 120 Rape under the UCMJ

Soldiers, Sailors, Airmen and Marines

As of 1 October 2007, following drafting by Congress and subsequent approval by the White House, Article 120 has been significantly modified. It now includes in excess of 30 offenses which all qualify as sexual violations. No only are there new offenses, but offenses such as Indecent Language and Indecent Acts, which used to be under Article 134 will now be under Article 120, Rape

What is most important to remember is that conduct which may be thought of as “innocent” or “a joke” or “unintentional” can be prosecuted. For instance, touching someone on top of his/her clothing on the inner thigh is an offense and can be prosecuted. Using sexually insulting language, exposing one’s self, or any sexual touching of a child can be prosecuted.

Rape is no longer gender based and men or women can be prosecuted for rape and can be raped. Placing a person in fear of sexual assault is an offense even if it is not intended as an offense. Also significant is that the new article on rape has removed the element of “without consent” from the list of facts that the government has to initially prove beyond a reasonable doubt. In fact the burden of proof to a preponderance of the evidence is on the DEFENSE to prove that the act was WITH consent. This is an unprecedented change that exists no where else in the UCMJ or in any other jurisdiction in the United States. Once the defense meets its burden of proving the act was with consent, the government gets another chance to prove the act was without consent.

To every service member, the importance of all of these changes is that the moment that he or she becomes aware that someone has complained about conduct, a lawyer should be consulted immediately. Say nothing to anyone. This means, do not talk to friends, SNCO’s, OIC’s or even spouses or significant others.

All of these people may be able to be compelled to testify against the service member. Finally, keep in mind that if alcohol or drugs were involved during the alleged incident, this may mean that a service member’s memory is not accurate. Remain silent and seek legal help. Military lawyers cannot help until formal charges have been preferred. Service members need help before that. Consult a civilian lawyer with military justice experience and help can be obtained much earlier than that. Many civilian military lawyers will provide initial consultation without charging. Call and find out or risk your careers!