Punitive Articles of the UCMJ - Article 120 (Rape)

UCMJ: Article 120: Rape and Carnal Knowledge

Enlisted Female Airforce Soldier
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Sexual assault resulting in rape is an extremely serious offense and is punishable by death according to the text of Article 120 of the Uniform Code of Military Justice (UCMJ). The problem is many sexual assaults are not reported and then rape can be very difficult to prove in a court of law as it tends to turn into a "he said - she said" argument.

In a 2018 report, military members were surveyed from the Army, Navy, Air Force and Marine Corps. Based on the survey, there were over 20,500 instances of unwanted sexual contact (from groping to rape). This was an increase over the 14,900 estimated in the last survey in 2016 (RAND Corporation). Overwhelmingly women were assaulted (96%) and by someone they already knew within the military (85%) with alcohol being part of the event 62% of the time. 

The Department of Defense at the highest levels are taking these numbers very seriously. Defense Secretary Patrick Shanahan recently told graduates of the Class of 2019 commencement at the U.S. Naval Academy to "set the standard on preventing sexual harassment and assault" among the ranks. "Sexual assault and harassment degrades the dignity of our teammates..." He closed with, "When you see ethical failure -- in uniform or out, by military members or others -- you must become gravity. You and your commitment must be unshakable, regardless of the circumstances." 

The remaining text of the article is the legal definition of rape

Text of Article 120

A. “Any person subject to this chapter who commits an act of sexual intercourse by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.”

B. Any person subject to this chapter who, under circumstances not amounting to rape, commits an act of sexual intercourse with a person—

  1. who is not his or her spouse; and
  2. who has not attained the age of sixteen years, is guilty of carnal knowledge and shall be punished as a court-martial may direct.

C. Penetration, however slight, is sufficient to complete either of these offenses.

In a prosecution under subsection (b), it is an affirmative defense that—

The accused has the burden of proving a defense under subparagraph (d)(1) by a preponderance of the evidence.

  • the person with whom the accused committed the act of sexual intercourse had at the time of the alleged offense attained the age of twelve years, and
  • the accused reasonably believed that the person had at the time of the alleged offense attained the age of 16 years.

Elements

1. Rape.

  • That the accused committed an act of sexual intercourse; and
  • That the act of sexual intercourse was done by force and without consent.

2. Carnal knowledge - though this is a rather archaic term, it is the legal term for sexual intercourse.

  • That the accused committed an act of sexual intercourse with a certain person;
  • That the person was not the accused’s spouse; and
  • That at the time of the sexual intercourse the person was under 16 years of age.

Explanation

1. Rape.

  • Nature of offense. Rape is sexual intercourse by a person, executed by force and without the consent of the victim. It may be committed on a victim of any age. Any penetration, however slight, is sufficient to complete the offense.
  • Force and lack of consent. Force and lack of consent are necessary to the offense. Thus, if the victim consents to the act, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a victim in possession of his or her mental faculties fails to make lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that the victim did consent. Consent, however, may not be inferred if resistance would have been futile, where resistance is overcome by threats of death or great bodily harm, or where the victim is unable to resist because of the lack of mental or physical faculties. In such a case there is no consent and the force involved in penetration will suffice. All the surrounding circumstances are to be considered in determining whether a victim gave consent, or whether he or she failed or ceased to resist only because of a reasonable fear of death or grievous bodily harm. If there is actual consent, although obtained by fraud, the act is not rape, but if to the accused’s knowledge the victim is of unsound mind or unconscious to an extent rendering him or her incapable of giving consent, the act is rape. Likewise, the acquiescence of a child of such tender years that he or she is incapable of understanding the nature of the act is not consent.
  • Character of victim. See Mil. R. Evid. 412, concerning rules of evidence relating to an alleged rape victim’s character.

2. Carnal knowledge. “Carnal knowledge” is sexual intercourse under circumstances not amounting to rape, with a person who is not the accused’s spouse and who has not attained the age of 16 years. Though this passage in the law implies a wife cannot be raped, that is not the case husbands or wives can be charged with rape if there is no consent to sexual intercourse.
Any penetration, however slight, is sufficient to complete the offense. It is a defense, however, which the accused must prove by a preponderance of the evidence, that at the time of the act of sexual intercourse, the person with whom the accused committed the act of sexual intercourse was at least 12 years of age, and that the accused reasonably believed that this same person was at least 16 years of age.

Lesser Included Offenses

1. Rape.

  • Article 128—assault; assault consummated by a battery
  • Article 134—assault with intent to commit rape
  • Article 134—indecent assault
  • Article 80—attempts
  • Article 120(b)—carnal knowledge

2. Carnal knowledge.

  • Article 134—indecent acts or liberties with a person under 16
  • Article 80—attempts

Maximum Punishment

  1. Rape. Death or such other punishment as a court-martial may direct.
  2. Carnal knowledge with a child who, at the time of the offense, has attained the age of 12 years. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.
  3. Carnal knowledge with a child under the age of 12 years at the time of the offense. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for life without eligibility for parole.

Above Information from Manual for Court Martial, 2002, Chapter 4, Paragraph 45