JUDICIAL 

PROCEEDINGS 

PANEL

REPORT ON

ARTICLE 120 OF 

THE UNIFORM CODE OF 

MILITARY JUSTICE

February 2016

JUDICIAL PROCEEDINGS PANEL

CHAIR

The Honorable Elizabeth Holtzman

MEMBERS

The Honorable Barbara S. Jones

Mr. Victor Stone

Professor Thomas W. Taylor

Vice Admiral Patricia A. Tracey, U.S. Navy, Retired

STAFF DIRECTOR

Colonel Kyle W. Green, U.S. Air Force

DEPUTY STAFF DIRECTOR

Lieutenant Colonel Kelly McGovern, U.S. Army

CHIEF OF STAFF

Mr. Dale L. Trexler

DESIGNATED FEDERAL OFFICIAL

Ms. Maria Fried

Report of the Judicial Proceedings 

Since Fiscal Year 2012 Amendments Panel

Article 120 of 

the Uniform Code of Military Justice

February 2016

5

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

JUDICIAL PROCEEDINGS PANEL

 

One Liberty Center • Suite 150 • 875 North Randolph Street • Arlington, VA 22203

 

 

February 4, 2016

The Honorable John McCain The Honorable Jack Reed

Chair, Committee Ranking Member, Committee

on Armed Services on Armed Services

United States Senate United States Senate

Washington, DC 20510 Washington, DC 20510

The Honorable Mac Thornberry The Honorable Adam Smith

Chair, Committee Ranking Member, Committee

on Armed Services on Armed Services

United States House of United States House of

Representatives Representatives

Washington, DC 20515 Washington, DC 20515

The Honorable Ashton B. Carter

Secretary of Defense

1000 Defense Pentagon

Washington, DC 20301-1000

Dear Chairs, Ranking Members, and Mr. Secretary:

We are pleased to submit this report of the Judicial Proceedings Since Fiscal Year 

2012 Amendments Panel (JPP) on Article 120, the statute used to prosecute sexual 

assault crimes under the Uniform Code of Military Justice. This report includes six 

recommendations for amendments to Article 120 and/or the Manual for Courts-Martial.

To complete this assessment, a subcommittee of eleven distinguished members 

examined seventeen issues regarding Article 120 that we recommended for additional 

review in our initial report of February 2015. The subcommittee heard from civilian and 

military experts and practitioners, reviewed federal and state sexual assault statutes, and 

deliberated extensively on each issue. The JPP then carefully reviewed the 

subcommittee’s report and accepted all of the subcommittee’s recommendations, with the 

exception of a minor modification regarding a proposed new offense under 

Article 120(b)(1)(E). The JPP expresses sincere appreciation to the members of the 

subcommittee and everyone who contributed to this report.

Elizabeth Holtzman

Chair

Barbara Jones

Victor Stone

Tom Taylor

Patricia Tracey
6

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

-2-

The JPP looks forward to continuing our review of military judicial proceedings 

for sexual assault crimes and addressing other topics in future reports.

Respectfully submitted,

_______________________________

Honorable Elizabeth Holtzman, Chair

____________________________ _____________________________

Honorable Barbara S. Jones Victor Stone

___________________________ ____________________________

Thomas W. Taylor Patricia A. Tracey
1

Contents

Contents

Transmittal Letter 5

Table of Contents 1

EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF JPP RECOMMENDATIONS ON ARTICLE 120 OF 

THE UNIFORM CODE OF MILITARY JUSTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. JPP ASSESSMENT AND RECOMMENDATIONS REGARDING 

ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE . . . . . . . . . 9

A. Introduction

B. Recommendations for Amendments to Article 120 of the UCMJ

C. Recommendation for Amendments to the Manual for Courts-Martial

D. Other Issues Considered

II. PROPOSED REVISIONS TO ARTICLE 120 OF 

THE UNIFORM CODE OF MILITARY JUSTICE . . . . . . . . . . . . . . . . . . . . . . . 19

APPENDICES

A: Subcommitee Report to the Judicial Proceedings Panel 

on Article 120 of the Uniform Code of Military Justice

B: Judicial Proceedings Panel Authorizing Statutes

C: Judicial Proceedings Panel Members and Subcommittee Members

D: Staff Members and Designated Federal Officials

E: Judicial Proceedings Panel Public Meetings, Subcommittee Sessions, and Presenters

F: Acronyms and Abbreviations

G: Sources Consulted

Table of Contents
2

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE
3

Executive Summary

ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

Article 120 is the statute used to prosecute sexual assault crimes under the Uniform Code of Military 

Justice (UCMJ). It has been substantially revised since the UCMJ was first adopted in 1951. The 

most recent version, enacted by Congress in 2012, incorporates all sexual assault offenses under 

the UCMJ into a single article. The JPP’s February 2015 report recommended that the Department 

of Defense (DoD) appoint a subcommittee to the JPP to continue review of 17 issues with the 2012 

version of Article 120. The first 11 of these issues relate to definitions of terms and of elements of 

offenses, defenses, and enumerated offenses under the statute. The remaining 6 issues relate to how 

the military prosecutes crimes under the UCMJ involving coercive sexual relationships and abuse of 

authority, including relationships between trainers and trainees, recruits and recruiters, and senior and 

subordinate military members in the same chain of command. 

Beginning in April 2015, the JPP Subcommittee met nine times to conduct its assessment. The 

Subcommittee heard perspectives and recommendations from many experienced military justice 

practitioners, and it compared Article 120 to the similar federal criminal provision in Title 18 of the 

United States Code where appropriate. The Subcommittee presented its report and recommendations 

to the JPP in December 2015. For seven issues it reviewed, the Subcommittee recommended 

amendments to Article 120 or the Manual for Courts-Martial (MCM). For the remaining ten issues, 

the Subcommittee determined that change or amendment is not warranted.

The JPP carefully deliberated on the Subcommittee’s review of Article 120 and accepted all of the 

Subcommittee’s recommendations, with the exception of a minor modification regarding a proposed 

new offense under Article 120(b)(1)(E). The JPP concurs with the Subcommittee’s assessment that 

Article 120 provides a reasonably effective statutory framework for prosecution of sexual assault 

offenses in the military, but some definitions and terms used in the statute are sufficiently confusing or 

vague as to create uncertainty or concern regarding the effects of these terms on standards of conduct 

among Service members or on court-martial prosecution of sexual assault offenses. To address these 

concerns, the JPP recommends that Congress amend five definitions in Article 120 and adopt a new 

theory of liability to specifically address coercive sexual acts or contact in which a perpetrator has used 

position, rank, or authority to obtain compliance by the other person. A redline version of Article 120 

illustrating the JPP’s recommended amendments to the statute is included in this report.

The JPP also recommends that the President amend the MCM to specifically state that consent and 

mistake of fact as to consent may be raised in any case in which they are relevant.

Executive Summary
4

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE
5

Summary of JPP Recommendations on Article 

120 of the Uniform Code of Military Justice*

SUMMARY OF PANEL RECOMMENDATIONS*

Recommendation 18: Congress should amend the definition of “consent” in Article 120(g)(8) of 

the Uniform Code of Military Justice.

• The definition of consent is confusing in some areas and still retains vestiges of outdated rape 

laws that could be interpreted as requiring a victim to physically resist an attacker before a factfinder can conclude there was a lack of consent.

• The recommended change reflected in the proposed redline version of the statute would retain 

most of the current definition but remove repetitive and contradictory language about resistance. 

• A lack of resistance would still be relevant for the fact-finder to consider along with all the 

surrounding circumstances, but the proposed change clarifies that a lack of resistance alone does 

not constitute consent.

Recommendation 19: The President should amend the Manual for Courts-Martial to specifically 

state that consent (as an attack on proof) and mistake of fact as to consent (as a clearly delineated 

defense) may be raised in any case in which they are relevant.

• There should be clarification in the Manual for Courts-Martial that consent (as an attack on the 

government’s proof) and mistake of fact as to consent (as a clearly delineated defense) may be 

raised in any case in which such a defense is relevant.

Recommendation 20: Congress should amend Article 120 of the Uniform Code of Military 

Justice to provide a definition of the term “incapable of consenting” for cases under Article 

120(b) and (d), and the President should provide further executive guidance about the 

circumstances to consider when considering whether a victim was incapable of consenting.

• Many military justice prosecutions for sexual assault and abusive sexual contact offenses under 

Articles 120(b) and (d) of the Uniform Code of Military Justice involve an alleged victim who was 

incapable of consenting due to impairment by alcohol or other intoxicating substances, and the 

absence of any explanation of this term requires military justice practitioners and courts-martial 

panels to interpret and apply the term in each case. 

• The recommended definition, which is included in the proposed redline version of the statute at 

Article 120(g)(8), and further guidance for practitioners set forth in a subsequent executive order 

will establish a totality of the circumstances test for determining the ultimate question of whether 

a victim was incapable of consenting.

* JPP Recommendations 1–11 are included in the Judicial Proceedings Panel Initial Report 11 (Feb. 2015), available 

at http://jpp.whs.mil/public/docs/08-Panel_Reports/JPP_InitialReport_Final_20150204.pdf. JPP Recommendations 

12–17 are included in the Judicial Proceedings Panel Report on Restitution and Compensation for Military Adult

Sexual Assault Crimes 5 (Feb. 2016), available at jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_Rest_Comp_Report_

Final_20160201_Web.pdf.

Summary of JPP Recommendations on Article 120 of the Uniform Code of Military Justice
6

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

• A comprehensive and complete definition and an executive explanation of the term may also be 

useful in the sexual assault prevention training provided to Service members. 

Recommendation 21: Congress should amend and replace the reference in Article 120(b)(1)(B) of 

the Uniform Code of Military Justice to “causing bodily harm” and should remove the definition 

of “bodily harm” from Article 120(g)(3).

• Article 120(b)(1)(B) criminalizes conduct when an accused has committed a sexual act against 

a victim without consent, but describing that conduct as “bodily harm” is confusing because it 

suggests that the prosecution must prove some additional physical harm beyond the sexual act 

that is not consented to.

• The present language of Article 120(b)(1)(B) of the Uniform Code of Military Justice should 

be replaced with the words “without the consent of the other person,” which would remove 

confusion about the term “bodily harm” and would create a baseline theory of liability for any 

sexual act or sexual contact committed without a victim’s consent. 

• The recommended changes reflected in the proposed redline version of the statute would clarify 

that “bodily harm” in Article 120(g)(3), as applied under Article120 (b)(1)(B) and Article 120(d), 

means a sexual act or sexual contact done without the consent of the victim, but no further 

“bodily harm” or physical injury must be shown. 

• Upon adoption of the new amended language, the present definition of “bodily harm” set forth in 

Article 120(g)(3) would not be required. Following its deletion, successive definitions set forth in 

Article 120(g) would also require renumbering. These recommended changes are reflected in the 

proposed redline version of the statute.

Recommendation 22: Congress should amend the definitions of “sexual act” and “sexual 

contact” in Article 120(g)(1)–(2) of the Uniform Code of Military Justice.

• The recommended change reflected in the proposed redline version of the statute, which is 

modeled after the comparable Title 18 provision, modifies the definition of “sexual act” so that 

penetration and contact are addressed in separate subsections.

• The recommended change reflected in the proposed redline version of the statute modifies the 

definition of “sexual contact” to make clear, as reflected in recent case law from the Court of 

Appeals for the Armed Forces, that the term includes the use of an object.

Recommendation 23: Congress should adopt a new theory of liability in Article 120(b)(1)(E) of 

the Uniform Code of Military Justice for coercive sexual acts or contact in which a perpetrator 

has used position, rank, or authority to obtain compliance by the other person.

• Article 120(b)(1)(A) of the Uniform Code of Military Justice may be used by practitioners to 

charge coercive sexual misconduct offenses involving the abuse of authority, but numerous fact 

patterns—especially those arising in the entry-level training environment between instructors and 

recruits—are not well captured by this theory of liability. 
7

SUMMARY OF PANEL RECOMMENDATIONS

• The addition of a new subsection in Article 120(b)(1), as shown in the proposed redline version 

of the statute, specifically addresses sexual assaults and abusive sexual contact when an accused 

has used his or her position, rank, or authority to obtain compliance by the other person. 

• Adopting a per se or strict liability theory for consensual sexual relationships between basic 

training instructors and trainees under Article 120 is unnecessary, because it would be unjust to 

make engaging in a consensual relationship a registrable sex offense when no such registration 

results from similar consensual relationships between consenting adults in the civilian community, 

and because the current methods of prosecuting these fact patterns under Article 92 as a violation 

of service regulations is effective. 

• The Department of Defense (DoD) recently submitted to Congress a legislative proposal to add a 

new offense at Article 93a that prohibits a person in a training leadership position or serving as 

a military recruiter from engaging in prohibited sexual activity with a military trainee or recruit. 

That proposal, which is based on a study and recommendation by the Military Justice Review 

Group, would address inappropriate physical intimacy, which may include consensual activity, 

between specified personnel. The Judicial Proceedings Panel’s proposed amendment to Article 

120(b)(1) is not limited to abuse of a training leadership or military recruiting position and would 

address any nonconsensual sexual act or contact when an accused has used position, rank, or 

authority to obtain compliance by the other person. 
8

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE
9

JPP Assessment and Recommendations 

Regarding Article 120 of 

the Uniform Code of Military Justice

I.

A. INTRODUCTION

The Judicial Proceedings Panel’s initial report of February 4, 2015, explained the Panel’s review 

and assessment of the 2012 version of Article 120 of the Uniform Code of Military Justice (UCMJ), 

which is the most recent version of the statute used to prosecute sexual assault crimes under the 

UCMJ. As part of its review, the JPP recommended that a subcommittee be appointed to continue 

examining 17 issues regarding Article 120. The first 11 of these issues pertained to definitions of terms 

and of elements of offenses, defenses, and enumerated offenses under the statute. The remaining 6 

issues pertained to how the military prosecutes crimes under the UCMJ involving coercive sexual 

relationships and abuse of authority, including relationships between trainers and trainees, recruits and 

recruiters, and senior and subordinate military members in the same chain of command.

In April 2015, the Secretary of Defense approved the formation of the JPP Subcommittee to 

examine the issues identified by the JPP. Eleven distinguished members were appointed to serve on 

the Subcommittee, which held nine meetings from April through December 2015 and heard from 

44 witnesses.1

 The Subcommittee also considered more than 100 written sources, and deliberated 

extensively on each issue. The Subcommittee delivered its report and recommendations to the JPP on 

December 11, 2015. The Subcommittee determined that Article 120 

provides a reasonably effective statutory framework for prosecution of sexual assault 

offenses in the military, but that some definitions and terms used in Article 120 are 

sufficiently confusing or vague as to create uncertainty or concern regarding the effects 

of these terms on standards of conduct among Service members or on court-martial 

prosecution of sexual assault offenses.2

The Subcommittee recommended amendments to Article 120 or the Manual for Courts-Martial

(MCM) in connection with seven of the issues it reviewed. The Subcommittee substantially relied on 

Title 18 of the United States Code when considering the definition of “sexual act” and the mental 

state required for a conviction involving an incapacitated victim. For the remaining ten issues, the 

Subcommittee determined that change or amendment is not warranted.3

 The Subcommittee’s report to 

the JPP noted where individual Subcommittee members reached opposing conclusions or supplemental 

recommendations on certain issues. The report also included a supplemental and dissenting 

commentary from a Subcommittee member concerning the Subcommittee’s recommendations. 

The JPP deliberated on the Subcommittee’s recommendations during its January 15, 2016, public 

meeting and accepted all of the Subcommittee’s recommendations, with the exception of a minor 

modification regarding a proposed new offense under Article 120(b)(1)(E). The JPP recommends 

that Congress amend five definitions in Article 120 and adopt a new theory of liability to specifically 

address coercive sexual acts or contact in which a perpetrator has used position, rank, or authority 

1 A complete list of presenters who appeared before the JPP Subcommittee is included at Appendix E.

2 Subcommittee Report to the Judicial Proceedings Panel on Article 120 of the Uniform Code of Military Justice

[hereinafter Subcommittee Report], December 10, 2015, Appendix A, at 1.

3 Id.

I. JPP Assessment and Recommendations Regarding Article 120 of the Uniform Code of Military Justice
10

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

to obtain compliance by the other person. A redline version of Article 120 illustrating the JPP’s 

recommended amendments to the statute is provided in Part II of this report.

B. RECOMMENDATIONS FOR AMENDMENTS TO ARTICLE 120 OF THE UCMJ

On the basis of the Subcommittee’s assessment and its own review, the JPP agrees with the 

Subcommittee that Congress should amend Article 120 of the UCMJ to address six issues. A redline 

version of Article 120 illustrating the JPP’s recommended amendments to the statute is included in part 

II of this report. 

1. Definition of “consent” in Article 120(g)(8) 

Military justice practitioners indicated to the JPP and Subcommittee that the definition of consent 

in Article 120(g)(8) is confusing in some areas and still retains vestiges of outdated rape laws that 

could be interpreted as requiring a victim to physically resist an attacker before a fact-finder can 

conclude that there was a lack of consent.4

 The JPP recommends that the text of Article 120(g)(8)(A) 

be amended by deleting the words “or submission resulting from the use of force, threat of force, or 

placing another in fear” and by adding the words “Submission resulting from the use of force, threat 

of force, or placing another in fear also does not constitute consent.” The JPP recommends that the 

text of Article 120(g)(8)(C) be amended by deleting the words “Lack of consent may be inferred based 

on the circumstances of the offense” and by deleting the words “or whether a person did not resist or 

ceased to resist only because of another person’s actions.” 

The new definition of consent proposed for Article 120(g)(8) would retain most of the current 

definition but remove repetitive and contradictory language about resistance. A lack of resistance 

would still be relevant for the fact-finder to consider along with all the surrounding circumstances, but 

the proposed change clarifies that a lack of resistance alone does not constitute consent.

2. Definition of “incapable of consenting” in cases under Article 120(b)(3) and 120(d)

Many military justice prosecutions for sexual assault and abusive sexual contact offenses under 

Articles 120(b) and (d) of the UCMJ involve an alleged victim who was incapable of consenting due 

to impairment by alcohol or other intoxicating substances, and military justice practitioners told the 

JPP and Subcommittee that the absence of any explanation of this term requires practitioners and 

courts-martial panels to interpret the term’s application in each case.5

 A new definition of “incapable 

of consenting” should be adopted in Article 120(g)(8), specifying that a person “is ‘incapable of 

consenting’ if that person does not possess the mental ability to appreciate the nature of the conduct 

or does not possess the physical or mental ability to make or communicate a decision regarding such 

conduct.” In addition, the President should provide further executive guidance in the MCM about the 

circumstances to consider when determining whether a victim was incapable of consenting.

The new definition and guidance for practitioners set forth in a subsequent executive order should 

establish a totality of the circumstances test for determining the ultimate question of whether a victim 

was incapable of consenting. A comprehensive and complete definition and an executive explanation of 

the term may also be useful in sexual assault prevention training provided to Service members.

4 Id. at 2

5 Id. at 3.
11

I. JPP ASSESSMENT AND RECOMMENDATIONS REGARDING ARTICLE 120 OF 

THE UNIFORM CODE OF MILITARY JUSTICE

3. Definition of “bodily harm” in Article 120(b)(1)(B) and 120(g)(3)

Article 120(b)(1)(B) criminalizes conduct when an accused has committed a sexual act against a victim 

without consent, but describing that conduct as bodily harm is confusing because it suggests that the 

prosecution must prove some additional physical harm beyond the sexual act that is not consented 

to.6

 The present language of Article 120(b)(1)(B) of the UCMJ, “causing bodily harm to that other 

person,” should be replaced with the words “without the consent of the other person,” which would 

remove confusion about the term “bodily harm” and would create a baseline theory of liability for any 

sexual act or sexual contact committed without a victim’s consent. 

This modification would clarify that a sexual act or sexual contact made without the consent of the 

victim does not require additional “bodily harm” or physical injury beyond the act or contact that is 

not consented to. If the phrase “causing bodily harm to that other person” is removed from Article 

120(b)(1)(B), then the definition of “bodily harm” in Article 120(g)(3) would be unnecessary in the 

statute and should also be removed. Moreover, as the proposed redline version of the statute shows, 

successive definitions set forth in Article 120(g) would also require renumbering.

4. Definitions of “sexual act” and “sexual contact” in Article 120(g)(1)–(2)

Some military justice practitioners appearing before the JPP expressed concerns that the statute’s 

definition of sexual act may be overbroad.7

 For instance, one JPP witness observed that under the 

current definition, a military member who put his or her finger in the mouth of another to abuse 

or harass that person could be charged with committing a sexual act. A military defense counsel 

recommended amending the definition to eliminate the potential of a sexual assault conviction in cases 

in which objects or “any body part” is inserted into another’s mouth for a purpose that is not sexual. 

The JPP also heard testimony that the statute’s definition of sexual contact may be either too narrow 

or too broad. Witnesses who criticized the definition as too narrow contended that the statute does 

not include a sexual touching of another person through the use of an object. Conversely, those who 

viewed the definition as overly broad reasoned that the definition allows for possible inclusion of 

“hypotheticals [that are] absurd”; one presenter observed that “if the absurdity can be removed from 

the definition, then I think it adds respect to the law.”8

 Another agreed, noting that the definition could 

have unnecessary or inappropriate collateral consequences, such as sex offender registration for acts of 

touching that are not necessarily sexual.9

The JPP recommends that the definitions of “sexual act” and “sexual contact” in Article 120(g)

(1)–(2) of the Uniform Code of Military Justice be amended as follows: The term “sexual act” means 

penetration, however slight, of the penis into the vulva or anus or mouth; or contact between the 

mouth and the penis, vulva, or scrotum or anus; or the penetration, however slight, of the vulva or 

penis or anus of another by any part of the body 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. The term “sexual 

contact” means touching, or causing another person to touch, either directly or through the clothing, 

the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to 

6 Id. at 3, 20.

7 Id. at 29.

8 Transcript of JPP Public Meeting 302–03 (Aug. 7, 2014) (testimony of COL Timothy Grammel, U.S. Army (Retired)).

9 Transcript of JPP Public Meeting 249–52 (Aug. 7, 2014) (testimony of Mr. William Cassara, Attorney at Law, U.S. Army 

(Retired)).
12

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

abuse, humiliate, or degrade any person or with an intent to arouse or gratify the sexual desire of any 

person. Touching may be accomplished by any part of the body or by an object. 

The recommended change reflected in the proposed redline version of the statute modifies the definition 

of “sexual act” so that penetration and contact are addressed in separate subsections, consistent with 

the comparable federal criminal provision in Title 18 of the United States Code. The proposed redline 

version of the statute modifies the definition of “sexual contact” to make clear, as recent case law from 

the Court of Appeals for the Armed Forces affirms, that the term includes the use of an object.

The JPP is aware that DoD recently submitted a proposal to Congress, based on a report from the 

Military Justice Review Group (MJRG), recommending that the definition of “sexual act” be amended 

to conform it to the definition of “sexual act” in the comparable Title 18 provision, 18 U.S.C. § 

2246(2).10 The JPP’s recommended definition of “sexual act” was based in part on the same subsection 

of Title 18 as that drawn on by the MJRG, and the JPP’s recommendation does not differ substantially 

from that proposed by the MJRG. The JPP makes no recommendation regarding the MJRG’s proposal. 

5. New provision in Article 120 for charging coercive sexual relationships

Practitioners may charge coercive sexual misconduct under Article 120(b)(1)(A) of the UCMJ as 

“threatening or placing the victim in fear of wrongful action” when an alleged victim states that he or 

she was coerced into engaging in a sexual act or sexual contact with a superior.11 However, the 2012 

statute removed language from the 2007 version of Article 120 that specifically addressed the abuse of 

position, rank, or authority. The theory of liability in Article 120(b)(1)(A) may not address a coercive 

sexual offense that lacks an overt, direct threat of wrongful action and instead involves more subtle 

elements of coercion, such as those that have occurred between instructors and recruits in entry-level 

training environments. 

The JPP recommends that Article 120 be amended: the proposed Article 120(b)(1)(E) of the UCMJ 

would adopt a new theory of liability for coercive sexual acts or contact in which a perpetrator has 

used position, rank, or authority to obtain compliance by the other person. This new subsection would 

state, “Any person subject to this chapter who commits a sexual act upon another person by using 

position, rank, or authority to obtain compliance by the other person is guilty of sexual assault and 

shall be punished as a court-martial may direct.” The addition of a new subsection in Article 120(b)(1) 

specifically addresses sexual assaults and abusive sexual contact when an accused has used his or her 

position, rank, or authority to obtain compliance by the other person. It would also obviate the need 

to amend the definition of “threatening or placing that other person in fear” as used in prosecutions 

under Article 120(b)(1)(A).

The JPP’s recommendation substantially follows the Subcommittee’s recommended language for a new 

subsection, except for the word “secure.” Some who reviewed the Subcommittee’s proposal noted that 

the word “secure” may not be well defined in case law; the JPP considered alternatives and determined 

that “secure” should be replaced with “obtain.”

10 Department of Defense, Office of General Counsel, Military Justice Review Group, Report of December 22, 2015

[hereinafter MJRG Report], at 871–74, available at http://www.dod.gov/dodgc/mjrg.html. At its October 2015 meeting, 

the JPP Subcommittee heard about the Military Justice Review Group’s review from its director, but he was not able to 

provide specifics about the MJRG’s review or its recommendations because the executive branch had not yet approved 

the MJRG report for public release. Thus the MJRG Report and recommendations were not available to the JPP 

Subcommittee when it was completing its assessment. 

11 Subcommittee Report, Appendix A, at 41.
13

I. JPP ASSESSMENT AND RECOMMENDATIONS REGARDING ARTICLE 120 OF 

THE UNIFORM CODE OF MILITARY JUSTICE

The JPP also concurs with the Subcommittee’s conclusion that consensual sexual relationships between 

basic training instructors and trainees should not be treated as per se illegal or strict liability offenses 

under Article 120. Adopting a per se or strict liability theory to make any sexual relationships between 

senior and subordinate or trainer and trainee a violation of Article 120 would unreasonably expand 

convictions for sexual assault to circumstances involving consensual sexual conduct. Such convictions 

under Article 120 would likely establish registrable sex offenses for consensual conduct that would 

have no such consequence in civilian communities. The JPP agrees that the current practice of charging 

such consensual relationships can be appropriately addressed through standards of conduct already in 

place and established by Service regulations (Article 92, UCMJ) and other articles of the UCMJ such 

as maltreatment (Article 93, UCMJ). The JPP also agrees with the Subcommittee that cases in which 

sexual relationships are charged and prosecuted under Article 92 or Article 93 of the UCMJ should not 

be added to DoD’s list of offenses that trigger sex offender registration.

The JPP is aware that DoD recently submitted a legislative proposal to Congress based on a report 

from the MJRG to add a new offense at Article 93a that prohibits a person in a training leadership 

position or serving as a military recruiter from engaging in prohibited sexual activity with a military 

trainee or recruit.12 The JPP makes no recommendation regarding the MJRG’s proposal. That proposal 

would address inappropriate physical intimacy, which may include consensual activity, between 

specified personnel. In contrast, the JPP’s proposed amendment to Article 120(b)(1) addresses only 

nonconsensual sexual acts. In addition, the JPP amendment would apply to any accused, not just 

someone in a training leadership position or serving as a military recruiter, who has used position, 

rank, or authority to obtain compliance by the other person. 

C. RECOMMENDATION FOR AMENDMENTS TO THE MANUAL FOR 

COURTS-MARTIAL

The JPP also agrees with the Subcommittee that the President should amend the Manual for CourtsMartial to specifically state that consent (as an attack on proof) and mistake of fact as to consent (as 

a clearly delineated defense) may be raised in any case in which they are relevant. Presenters told the 

Subcommittee that these defenses have always been available to an accused—in statute, in the MCM, 

or as a matter of common law as developed by the appellate courts.13 Presenters told the Subcommittee 

that mistake of fact has traditionally been listed as a defense in the MCM and “consent” has been 

viewed as an attack on the government’s proof that an accused may make during trial and that, if 

raised by the evidence, requires a judicial instruction by the military judge.14

To resolve confusion among military justice practitioners that arose when these defenses, which 

had been explicitly included in the 2007 version of Article 120, were not specifically included in the 

2012 version of the statute, the MCM should be amended to clarify that consent (as an attack on the 

government’s proof) and mistake of fact as to consent (as a clearly delineated defense) may be raised in 

any case in which such a defense is relevant. The JPP agrees with the Subcommittee that these defenses 

need not be listed in the text of the statute.

12 MJRG Report, supra note 10, at 733–-39.

13 Subcommittee Report, Appendix A, at 12.

14 Id.
14

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

D. OTHER ISSUES CONSIDERED

The JPP concurs with the Subcommittee’s determination that no change is warranted regarding other 

issues that the JPP had referred to the Subcommittee for additional assessment.

1. Whether the definition concerning the accused’s “administration of a drug or intoxicant” is 

overbroad.

The JPP and Subcommittee considered whether the statute should be narrowly tailored to criminalize 

only the intentional administration of an intoxicant for the purpose of committing a sexual act, 

not actions that are accidental or negligent. No military practitioners raised concerns or identified 

problems in judicial proceedings in connection with this issue.15

The Subcommittee determined that the definition concerning the accused’s “administration of a drug 

or intoxicant” under Article 120(a)(5) is not overbroad, and that adding a specific intent requirement 

may undermine prosecutions in two obvious circumstances: (1) when the accused forms the intent to 

commit the offense only after recognizing how intoxicated the victim has become and (2) when the 

accused ingests drugs or intoxicants at the same time, a situation that raises the issue of voluntary 

intoxication. Taking into account the testimony received from military justice practitioners that there 

are few, if any, problems with this issue, the JPP recommends no changes to the statute’s definition 

concerning “administration of a drug or intoxicant.”

2. Whether the definition of “threatening wrongful action” is ambiguous or too narrow.

Article 120 does not define the term “wrongful action” and provides no guidance whether Congress 

intended this provision to cover the inherently coercive senior–subordinate relationships unique to the 

military. Significantly, the 2007 version of Article 120 specified a theory of liability for placing a victim 

in fear “through the use or abuse of military position, rank, or authority, to affect or threaten to affect, 

either positively or negatively, the military career of another.” This language was not included in the 

2012 version of Article 120.

Some witnesses contended that the current provision is too narrow and ambiguous, because it does 

not encompass sexual acts or contacts that are induced through promises of career advancement or 

undeserved favorable treatment.16 Others testified to the contrary that the current language is adequate 

to charge sexual assaults resulting from inherently coercive senior–subordinate relationships.17

The Subcommittee determined that the definition of “threatening wrongful action” is not so 

ambiguous or narrow as to require a change to the definition. However, the Subcommittee agreed with 

practitioners who found the definition too narrow to capture all offenses that may arise, including 

those in the entry-level training environment. The Subcommittee did not recommend changes to the 

definition of “threatening wrongful action,” but instead concluded that the best way to address the 

practitioners’ concerns is to incorporate a new subsection under Article 120(b)(1) for sexual assaults 

and abusive sexual contact when an accused has abused his or her position, rank, or authority to 

obtain compliance by the other person. Based on the perspectives of military justice practitioners 

who testified before the JPP and the Subcommittee, the JPP concurs with the Subcommittee’s 

15 Id. at 17–18.

16 Id. at 22.

17 Id.
15

I. JPP ASSESSMENT AND RECOMMENDATIONS REGARDING ARTICLE 120 OF 

THE UNIFORM CODE OF MILITARY JUSTICE

recommendation that there should be no modification to the definition of “threatening wrongful 

action,” provided that the new subsection under Article 120(b)(1)(E) is adopted.

3. Whether the definition of “fear” should be amended to more clearly acknowledge both subjective 

and objective factors.

Because the definition of “threatening or placing that other person in fear” hinges on “caus[ing] a 

reasonable fear,” offenses under Article 120 that involve threats or placing a victim in fear are assessed 

according to an objective “reasonable person” standard rather than a subjective standard that takes 

into account the victim’s actual state of mind. The JPP received some testimony that the “reasonable” 

test should be amended to recognize a victim’s subjective, actual fears.18

One Subcommittee member recommended modifying the definition from a narrower reasonable person 

standard to a more subjective one that allows a more vulnerable victim’s fear to be sufficient to satisfy 

the fear element, but the full Subcommittee agreed with the majority of presenters, who testified that 

the government is, and should be, required to prove both (1) the victim’s subjective, personal fear and 

(2) that the victim’s subjective fear was also objectively reasonable under the circumstances.19 The 

Subcommittee determined that no change was necessary to these requirements, as currently specified 

by Article 120(g)(7). Considering the testimony received from military justice practitioners who 

recommended no change on this issue, the JPP concurs with the Subcommittee and recommends no 

changes to the definition of “fear.”

4. Whether the definition of “force” is too narrow.

Under the 2007 version of Article 120, force was defined as an “action to compel submission of 

another or to overcome or prevent another’s resistance” by use or suggestion of a dangerous weapon, 

or by “physical violence, strength, power, or restraint . . . sufficient that the other person could not 

avoid or escape the sexual conduct.” The 2012 revision to Article 120 amended the definition of force 

to focus objectively on the offender’s conduct rather than subjectively on the victim’s behavior. Force 

under the statute is now defined as “(A) the use of a weapon; (B) the use of such physical strength or 

violence sufficient to overcome, restrain, or injure a person; or (C) inflicting physical harm sufficient 

to coerce or compel submission by the victim.” Subsection (B) measures the offender’s use of physical 

strength or violence by an objective reasonable person standard rather than by the actions of the 

particular victim in a case. Subsection (C) considers the particular victim but does not require the 

victim to resist.

Two witnesses before the JPP advocated for a broader definition of force.20 One noted that the 2012 

version of Article 120 restricts “force” to a situation in which a weapon is used, rather than simply 

displayed or suggested.21 The degree of force to compel the victim’s submission is more subjective than 

in the 2007 version and places less emphasis on whether the victim could escape the assault. One other 

JPP witness recommended that Article 120(g)(5) should include “the use, the display, or the suggestion 

of the use of a weapon.” One witness and Subcommittee member argued that there should be two 

18 Id. at 25.

19 Id. at 26.

20 Id. at 27.

21 Id. at 27.
16

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

categories of forcible rape—one encompassing unlawful force applied against a person; the other, 

escalated use of force that could cause death or grievous bodily harm.22

A majority of practitioners testifying before the Subcommittee indicated that the statutory definition in 

Article 120(g)(5) is adequate. In light of the JPP’s proposed amendments to the statutory definition of 

consent in Article 120(g)(8) and the recommendations from a majority of military justice practitioners 

who testified before the JPP and the Subcommittee against making amendments on this issue, the JPP 

concurs with the Subcommittee and recommends no changes to the definition of “force” in Article 

120(g)(5).

5. Whether the accused’s knowledge of a victim’s capacity to consent should be a required element of 

sexual assault.

The requirement to prove that the accused knew or reasonably should have known of the victim’s 

incapacity to consent is not found in the federal sexual abuse statute, 18 U.S.C. § 2242, upon which 

Article 120(b)(2) and 120(b)(3) are based. The JPP heard testimony that this additional requirement 

in Article 120 adds an extra mens rea element for the prosecution to prove, which, in turn, affords 

unnecessary protections to the accused.23 Critics opined that this extra mens rea requirement is 

unnecessary, because the statute is aimed at protecting the victim who is mentally or physically unable 

to consent owing to one of the specifically enumerated conditions: being asleep, unconscious, or 

otherwise unaware that a sexual act is occurring (120(b)(2)); impaired by drugs, intoxicants, or other 

substances (120(b)(3)(A)); or suffering from a mental disease or defect or physical disability (120(b)(3)

(B)).24

The Subcommittee found persuasive the findings of federal courts that 18 U.S.C. § 2242 appropriately 

includes a scienter element that must be proven in rape and sexual assault prosecutions involving an 

incapacitated victim. Doing otherwise would “disregard [a] bedrock American tradition” and make 

the crime one in which strict liability is imposed for the act alone.25 The Subcommittee determined that 

an accused’s knowledge of a victim’s incapacity to consent should remain a required element of sexual 

assault under Article 120(b)(2) and 120(b)(3). 

The Subcommittee also considered the difference in the scienter requirements between Article 120(b)

(2)–(3) and 18 U.S.C. § 2242. Whereas the federal criminal code requires proof that an accused knew 

of a victim’s incapacity to consent, Article 120(b)(2)–(3) permits conviction when an accused either 

knew “or reasonably should have known” of the victim’s incapacity to consent. The majority of the 

Subcommittee determined that the standard established by Congress in Article 120(b)(2)–(3) is neither 

unclear nor ambiguous; therefore, the Subcommittee recommended no change to the standard. Based 

on the testimony received from military justice practitioners advising against any amendments on this 

issue, the JPP concurs with the Subcommittee and does not recommend any amendments.

Three Subcommittee members believed the statute as currently drafted is overbroad, in that the 

language “or reasonably should have known” may criminalize negligence by an accused.26 No 

22 Id. at 27.

23 Id. at 33.

24 Id. at 33.

25 See U.S. v. Bruguier, 735 F.3d 754, 772–73 (8th Cir. 2013). See also United States v. Peters, 277 F.3d 963, 967–68 (7th 

Cir. 2002); United States v. Aksal, 2013 U.S. Dist. LEXIS 176947 (D. N.J. Dec. 17, 2013).

26 Subcommittee Report, Appendix A, at 34–35.
17

I. JPP ASSESSMENT AND RECOMMENDATIONS REGARDING ARTICLE 120 OF 

THE UNIFORM CODE OF MILITARY JUSTICE

witnesses or practitioners appearing before the JPP or the Subcommittee identified any practical 

concerns in actual court-martial cases regarding this standard in the statute. However, members of the 

military should be aware of the standard to which they are held. Sexual assault training should instruct 

military personnel that “or reasonably should be known” is viewed through the eyes of an ordinary, 

prudent, sober adult under the circumstances, and the law provides no defense for Service members 

who claim a negligent belief that a victim consented.27

6. Whether the offense of “indecent act” should be added to the UCMJ as an enumerated or specified 

offense.

For the great majority of the UCMJ’s history, the Article 134 offense of “indecent acts with another” 

proscribed a variety of sexual misconduct that was not otherwise prohibited, such as consensual sexual 

intercourse in the presence of others and sex acts with an animal or a corpse. The 2007 amendment 

to Article 120 moved “indecent acts with another” from Article 134 to Article 120 and eliminated 

the element of the conduct as prejudicial to good order and discipline or discrediting the Service. But 

the 2012 amendment to Article 120 removed the offense entirely. Currently, “indecent act” is not an 

enumerated offense under the UCMJ.

Some presenters before the JPP recommended that the UCMJ should be amended to restore indecent 

acts as an enumerated offense or as a specified offense under Article 134.28 Under the current statute, 

prosecutors may charge an indecent act as a general disorder offense under Article 134, but Article 

134 offenses include an additional element of proof that the conduct was prejudicial to good order and 

discipline or of discredit to the Service. In addition, the maximum punishment for a general disorder 

Article 134 offense is four months’ confinement and forfeiture of two-thirds pay per month for four 

months, whereas the maximum punishment for an indecent act charged under the 2007 version of 

Article 120 was up to five years’ confinement, forfeiture of all pay and allowances, and a dishonorable 

discharge.

As noted above, “indecent acts” as formerly specified in Article 134 required proof that the conduct 

was either prejudicial to good order and discipline or of a nature to bring discredit upon the Armed 

Forces. However, if “indecent acts” were established as an enumerated offense under Article 120 

it would lack the additional showing required by Article 134 and, as a result, might be applied too 

broadly. The Subcommittee therefore recommended against adding indecent acts to the UCMJ as an 

enumerated offense under Article 120.

A draft executive order proposed in 2012 by DoD would establish an Article 134 offense that 

addresses “Indecent Conduct,” pursuant to the President’s authority under Article 56 of the UCMJ.29

Some members of the Subcommittee expressed concern that the proposed indecent conduct offense is 

vague and would potentially permit criminalization of private, consensual sexual acts involving adults. 

However, the Subcommittee limited its review to whether indecent conduct should be added as an 

enumerated offense and took no position on DoD’s proposed Article 134 offense. 

27 See, e.g., U.S. Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook § 3-45-14, n.12 (Sept. 10, 2014), 

available at http://www.apd.army.mil/pdffiles/p27_9.pdf. 

28 Subcommittee Report, Appendix A, at 36.

29 U.S. Dep’t of Def., Joint Service Committee on Military Justice, Proposed Amendments to the Manual for CourtsMartial, United States, 77 Fed. Reg. 64,854, 64,865 (Oct. 23, 2012) available at https://www.gpo.gov/fdsys/pkg/FR2012-10-23/pdf/2012-25852.pdf.
18

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE
19

Proposed Revisions to Article 120 of 

the Uniform Code of Military Justice II.

45. ARTICLE 120—RAPE AND SEXUAL ASSAULT GENERALLY

a. Text of statute.

(a) Rape. Any person subject to this chapter who commits a sexual act upon another person by— 

(1) using unlawful force against that other person;

(2) using force causing or likely to cause death or grievous bodily harm to any person;

(3) threatening or placing that other person in fear that any person will be subjected to death, 

grievous bodily harm, or kidnapping;

(4) first rendering that other person unconscious; or

(5) administering to that other person by force or threat of force, or without the knowledge or 

consent of that person, a drug, intoxicant, or other similar substance and thereby substantially 

impairing the ability of that other person to appraise or control conduct;

is guilty of rape and shall be punished as a court-martial may direct.

(b) Sexual Assault. Any person subject to this chapter who— 

(1) commits a sexual act upon another person by

(A)by threatening or placing that other person in fear;

(B)without the consent of the other person; causing bodily harm to that other person;

(C)by making a fraudulent representation that the sexual act serves a professional purpose; or

(D)by inducing a belief by any artifice, pretense or concealment that the person is another 

person; or

(E) by using position, rank, or authority to obtain compliance by the other person;

(2) commits a sexual act upon another person when the person knows or reasonably should 

know that the other person is asleep, unconscious or otherwise unaware that the sexual act is 

occurring; or

(3) commits a sexual act upon another person when the other person is incapable of consenting to 

the sexual act due to—

(A)impairment by any drug, intoxicant, or other similar substance, and that condition is 

known or reasonably should be known by the person; or

II. Proposed Revisions to Article 120 of the Uniform Code of Military Justice
20

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

(B) a mental disease or defect, or physical disability, and that condition is known or reasonably 

should be known by the person

is guilty of sexual assault and shall be punished as a court-martial may direct.

(c) Aggravated sexual contact.

Any person subject to this chapter who commits or causes sexual contact upon or by another person, 

if to do so would violate subsection (a) (rape) had the sexual contact been a sexual act, is guilty of 

aggravated sexual contact and shall be punished as a court-martial may direct.

(d) Abusive sexual contact. Any person subject to this chapter who commits or causes sexual contact 

upon or by another person, if to do so would violate subsection (b) (sexual assault) had the sexual 

contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a courtmartial may direct.

(e) Proof of Threat. In a prosecution under this section, in proving that a person made a threat, it need 

not be proven that the person actually intended to carry out the threat or had the ability to carry 

out the threat.

(f) Defenses. An accused may raise any applicable defenses available under this chapter or the Rules 

for Court-Martial. Marriage is not a defense for any conduct in issue in any prosecution under this 

section.

(g) Definitions. In this section:

(1) Sexual act. The term “sexual act” means—

(A)contact between the penetration however slight of the penis and into the vulva or anus or 

mouth; and for purposes of this subparagraph, contact involving the penis occurs upon 

penetration, however slight; or

(B) contact between the mouth and the penis, vulva, or scrotum or anus; or

(BC) the penetration, however slight, of the vulva or penis or anus or mouth of another by any 

part of the body 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.

(2) Sexual contact. The term “sexual contact” means—

(A)touching, or causing another person to touch, either directly or through the clothing, the 

genitalia vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person, 

with an intent to abuse, humiliate, or degrade any person or

(B) any touching, or causing another to touch, either directly or through the clothing, any 

body part of any person, if done with an intent to arouse or gratify the sexual desire of any 

person.

Touching may be accomplished by any part of the body or an object.
21

II. PROPOSED REVISIONS TO ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

(3) Bodily harm. The term “bodily harm” means any offensive touching of another, however slight, 

including any nonconsensual sexual act or nonconsensual sexual contact.

(34)Grievous bodily harm. The term “grievous bodily harm” means serious bodily injury. It 

includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to 

internal organs, and other severe bodily injuries. It does not include minor injuries such as a 

black eye or a bloody nose.

(45) Force. The term “force” means—

(A)the use of a weapon;

(B)the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a 

person; or

(C)inflicting physical harm sufficient to coerce or compel submission by the victim.

(56) Unlawful Force.—The term “unlawful force” means an act of force done without legal 

justification or excuse.

(67) Threatening or placing that other person in fear. The term “threatening or placing that other 

person in fear” means a communication or action that is of sufficient consequence to cause a 

reasonable fear that non-compliance will result in the victim or another person being subjected 

to the wrongful action contemplated by the communication or action.

(78) Consent.

(A)The term “consent” means a freely given agreement to the conduct at issue by a competent 

person. An expression of lack of consent through words or conduct means there is no 

consent. Lack of verbal or physical resistance or submission resulting from the use of force, 

threat of force, or placing another person in fear does not constitute consent. Submission 

resulting from the use of force, threat of force, or placing another person in fear also does 

not constitute consent. A current or previous dating or social or sexual relationship by 

itself or the manner of dress of the person involved in the conduct at issue does shall not 

constitute consent.

(B) A sleeping, unconscious or incompetent person cannot consent. A person cannot 

consent to force causing or likely to cause death or grievous bodily harm or to being 

rendered unconscious. A person cannot consent while under threat or in fear or under the 

circumstances described in subparagraph (C) or (D) of subsection (b)(1).

(C)Lack of consent may be inferred based on the circumstances of the offense. All the 

surrounding circumstances are to be considered in determining whether a person gave 

consent. or whether a person did not resist or ceased to resist only because of another 

person’s actions.

(8) Incapable of consenting. A person is “incapable of consenting” if that person does not possess 

the mental ability to appreciate the nature of the conduct or does not possess the physical or 

mental ability to make or communicate a decision regarding such conduct.
22

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE
23

APPENDIX A: Subcommitee Report to the Judicial 

Proceedings Panel on Article 120 of 

the Uniform Code of Military Justice

SUBCOMMITEE REPORT TO THE 

JUDICIAL PROCEEDINGS PANEL

ON

ARTICLE 120 OF THE 

UNIFORM CODE OF MILITARY JUSTICE

December 2015

Subcommittee

to the

Judicial Proceedings since Fiscal Year 2012 Amendments Panel

A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE
24

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE
25

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

Table of Contents

Executive Summary ......................................................................................................................................

Overview of the Subcommittee’s Assessment.............................................................................................

Summary of Subcommittee Recommendations..........................................................................................

Subcommittee Review of Issues....................................................................................................................

Issue 1: Is the current definition of “consent” unclear or ambiguous?.............................................

Issue 2: Should the statute define defenses relying on the victim’s consent or the accused’s 

mistake of fact as to consent in sexual assault cases? ..........................................................

Issue 3: Should the statute define “incapable of consenting?”..........................................................

Issue 4: Is the definition concerning the accused’s “administration of a drug or intoxicant” 

overbroad? ............................................................................................................................

Issue 5: Does the definition of “bodily harm” require clarification?................................................

Issue 6: Is the definition of “threatening wrongful action” ambiguous or too narrow? ...................

Issue 7: How should “fear” be defined to acknowledge both subjective and 

objective factors? ..................................................................................................................

Issue 8: Is the definition of “force” too narrow? ...............................................................................

Issue 9: Are the definitions of “sexual act” and “sexual contact” too narrow, or are they 

overly broad? ........................................................................................................................

Issue 10: Should the accused’s knowledge of a victim’s capacity to consent be a required 

element of sexual assault?.....................................................................................................

Issue 11: Should the offense of “indecent act” be added to the UCMJ as an 

enumerated offense?..............................................................................................................

Issue 12: Is the current practice of charging inappropriate relationships or maltreatment 

under articles of the UCMJ other than Article 120 appropriate and effective when 

sexual conduct is involved?...................................................................................................

Issue 13: Does the 2012 version of the UCMJ afford prosecutors the ability to effectively 

charge coercive sexual relationships or those involving abuse of authority under 

Article 120? ...........................................................................................................................

Issue 14: Should the definition of “threatening or placing that other person in fear” be 
26

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

amended to ensure that coercive sexual relationships or those involving abuse of authority 

are covered under an existing Article 120 provision? ..........................................................

Issue 15: Should a new provision be added under Article 120 to specifically address coercive sexual 

relationships or those involving abuse of authority? ............................................................

Issue 16: Should sexual relationships between basic training instructors and trainees 

be treated as strict liability or per se illegal offenses under Article 120? ............................

Issue 17: As an alternative to further amending Article 120, should coercive sexual 

relationships currently charged under other articles of the UCMJ be added to DoD’s 

list of offenses that trigger sex offender registration? ..........................................................

Enclosures:

1. Subcommittee's Proposed Revisions to Article 120 .............................................................................

2. Supplemental and Dissenting Commentary Concerning Subcommittee Recommendations, with 

Proposed New Article 120 Statute, by Laurie Rose Kepros, Member, JPP Subcommittee.................
27

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

Executive Summary

In its February 2015 assessment of the 2012 version of Article 120 of the Uniform Code of 

Military Justice (UCMJ), the Judicial Proceedings Panel (JPP) recommended that seventeen issues 

should be referred to a subcommittee for further evaluation. Eleven of these issues related to the 

definitions of terms, elements of offenses, defenses, and enumerated offenses under the statute. Some 

presenters testified to the JPP that a lack of clarity or specificity in certain definitions in Article 120 

could create difficulty or uncertainty in prosecuting cases under the statute. Conversely, others told the 

JPP that further revisions to Article 120—a statute significantly revised twice in recent years—would 

make prosecutions more complex.

The JPP also recommended that a subcommittee further assess how the military prosecutes 

crimes under the UCMJ involving abuse of position, rank, or authority, including relationships between 

trainers and trainees, recruits and recruiters, and senior and subordinate military members in the same 

chain of command. The JPP heard testimony about whether the 2012 version of Article 120 and other 

articles of the UCMJ provide sufficient means for the prosecution of coercive sexual offenses, 

inappropriate relationships, and maltreatment, and the JPP heard proposals to amend Article 120 to 

more specifically address offenses committed by training instructors against trainees. The JPP 

recommended that a subcommittee examine these issues and provide recommendations for possible 

amendments.

To review the issues referred to it by the JPP, the JPP Subcommittee (hereinafter "the 

Subcommittee") held seven meetings from April 2015 to October 2015. Members of the Subcommittee 

heard from more than forty witnesses, considered more than one-hundred sources of written material, 

and deliberated extensively on each issue. In accord with the JPP’s directives, the Subcommittee 

discussed and deliberated on each issue regarding whether amendments to Article 120 of the UCMJ 

should be recommended, and, if so, what form such amendments should take. This analysis included 

detailed discussion and debate over specific statutory language and various proposals prepared by the 

Subcommittee members.

Overall, the Subcommittee determined that Article 120 of the UCMJ provides a reasonably 

effective statutory framework for prosecution of sexual assault offenses in the military, but that some 

definitions and terms used in Article 120 are sufficiently confusing or vague as to create uncertainty or 

concern regarding the effects of these terms on standards of conduct among Service members or on 

court-martial prosecution of sexual assault offenses. Accordingly, the Subcommittee determined that 

amendments to Article 120 of the UCMJ and the Manual for Courts-Martial are warranted to address 

seven issues it reviewed. For ten of the issues it reviewed, the Subcommittee determined that change or 

amendment is not warranted.
28

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

Overview of the Subcommittee’s Assessment

In its initial report of February 4, 2015, the Judicial Proceedings Panel (JPP) determined that 

seventeen issues regarding Article 120 of the UCMJ should be directed to a subcommittee for further 

evaluation. The first eleven of these issues were related to definitions of terms, elements of offenses, 

defenses, and enumerated offenses under the statute, and the other six issues were related to coercive 

sexual relationships and abuse of authority.

To complete these tasks, the Subcommittee considered the JPP’s February 2015 report, together 

with the testimony and written materials regarding these issues previously provided to the JPP during its 

public meetings in August through December 2014. The Subcommittee held seven meetings, from April 

through October 2015, and received testimony from forty-four witnesses. These witnesses included 

retired military judges, senior prosecutors and defense counsel, appellate counsel, civilian practitioners, 

staff judge advocate legal advisers to training commanders, general and flag officers in command at the 

Services’ entry-level training commands, the Chief of the Joint Service Committee at the time the 

current version of Article 120 was drafted and submitted to Congress, the Director of Law Enforcement 

Policy for the Department of Defense (DoD), and one member of Congress along with one of her 

constituents who was a victim of sexual misconduct during her entry-level military training. In addition 

to this testimony, the Subcommittee considered the written materials and recommendations provided by 

the witnesses. The Subcommittee deliberated during five of its meetings. The issues, the material 

considered, and the Subcommittee’s conclusions and recommendations are set forth below.

Summary of Subcommittee Recommendations

The Subcommittee recommends that amendments be made to Article 120 of the UCMJ and the 

Manual for Courts-Martial to address the following issues referred to it by the JPP: 

JPP Issue 1: Is the current definition of “consent” unclear or ambiguous?

Subcommittee Recommendation: The Subcommittee determined that the definition of consent is 

confusing in some areas and still retains vestiges of outdated rape laws that could be interpreted to 

require a victim to physically resist an attacker before a fact-finder can conclude there was a lack of 

consent. The Subcommittee’s recommended changes would retain most of the current definition, but 

remove repetitive and contradictory language about resistance. A lack of resistance would still be 

relevant for the fact-finder to consider along with all the surrounding circumstances, but the proposed 

change clarifies that a lack of resistance alone does not constitute consent. 

JPP Issue 2: Should the statute define defenses relying on the victim’s consent or the accused’s 

mistake of fact as to consent in sexual assault cases?

Subcommittee Recommendation: The Subcommittee determined that there should be clarification in 

the Manual for Courts-Martial so that consent (as an attack on the government’s proof) and mistake of 

fact as to consent (as a clearly delineated defense) may be raised in any case in which it is relevant.

JPP Issue 3: Should the statute define “incapable of consenting?”

Subcommittee Recommendation: The Subcommittee determined that practitioners, including military 

judges, prosecutors, defense counsel, appellate courts, panel members at courts-martial, and Service 

members as part of their sexual assault training, need a definition for this important term that is an issue 

in many sexual assault and abusive sexual contact prosecutions under Articles 120(b) and 120(d).
29

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

Practitioners testified that a majority of the cases that go to trial have an alleged victim who was 

incapable of consenting due to impairment by alcohol or other intoxicating substances, and the absence 

of any explanation of this term leaves a “gap” in the statute that makes it difficult for counsel to argue 

their cases and for judges to instruct panel members on this issue. The Subcommittee’s recommended 

definition of “incapable of consenting” would appear in the Subcommittee’s recommended redraft at 

Article 120(g)(8), and further explanatory guidance for practitioners would be set forth in a subsequent 

executive order explaining in more depth that a totality of the circumstances test applies when 

determining the ultimate question of whether a victim was incapable of consenting. 

JPP Issue 5: Does the definition of “bodily harm” require clarification?

Subcommittee Recommendation: The Subcommittee determined that the concept of “bodily harm” is 

useful for cases in which a sexual act or sexual contact has been committed without a victim’s consent, 

especially in cases in which the alleged victim has little or no recollection of the incident owing to 

impairment, but that the term and its present definition are confusing and should be amended. The 

present language of 120(b)(1)(B) should be amended and replaced with the words “without the consent 

of the other person.” This would remove any confusion over the term “bodily harm” and would create a 

baseline theory of liability for any sexual act or sexual contact committed without a victim’s consent.

The Subcommittee’s recommended changes would clarify what the presenters told the Subcommittee: 

that “bodily harm” in Article 120(g)(3), as applied under Article120 (b)(1)(B) and Article 120(d), means 

a sexual act or sexual contact done without the consent of the victim, but no further “bodily harm” or 

physical injury must be shown. This change would further require removing the present definition of 

“bodily harm” set forth in Article 120(g)(3). Accordingly, the successive definitions set forth in Article 

120(g) will also require renumbering. This renumbering is set out in the Subcommittee’s proposed 

redraft in Enclosure 1 to this report.

JPP Issue 9: Are the definitions of “sexual act” and “sexual contact” too narrow, or are they overly 

broad?

Subcommittee Recommendation: The Subcommittee determined that the definitions of “sexual act”

and “sexual contact” require clarification. The definition of “sexual act” should be modified so that 

penetration and contact are addressed in separate subsections, and the definition of “sexual contact”

should include the use of an object.

JPP Issue 13: Does the 2012 version of the UCMJ afford prosecutors the ability to effectively charge 

coercive sexual relationships or those involving abuse of authority under Article 120?

Subcommittee Recommendation: The Subcommittee determined that the 2012 version of the UCMJ 

does afford prosecutors the ability to effectively charge some types of coercive sexual misconduct or 

sexual misconduct involving the abuse of authority. But the Subcommittee also concluded that some 

offenses in the entry-level training environment involve subtle forms of coercion not easily captured 

under the current statutory framework. The Subcommittee therefore recommends a new subsection, 

Article 120(b)(1)(E), that would create an additional theory of liability for sexual assault or abusive 

sexual contact in which an accused has abused his or her position, rank, or authority to secure

compliance by the other person.
30

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

JPP Issue 15: Should a new provision be added under Article 120 to specifically address coercive 

sexual relationships or those involving abuse of authority?

Subcommittee Recommendation: The Subcommittee determined that although Article 120(b)(1)(A) is 

used by practitioners to charge coercive sexual misconduct offenses involving the abuse of authority, 

numerous fact patterns—especially those arising in the entry-level training environment between 

instructors and recruits—are not easily captured by this theory of liability. Accordingly, the 

Subcommittee recommends a new subsection, Article 120(b)(1)(E), to address sexual assaults and 

abusive sexual contact when an accused has abused his or her position, rank, or authority to secure

compliance by the other person.

The Subcommittee does not recommend amendments to Article 120 of the UCMJ regarding the 

following issues referred to it by the JPP:

JPP Issue 4: Is the definition concerning the accused’s “administration of a drug or intoxicant”

overbroad?

Subcommittee Recommendation: The Subcommittee determined that the definition concerning the 

accused’s “administration of a drug or intoxicant” under Article 120(a)(5) is not overbroad. The 

Subcommittee therefore recommends no changes on this issue.

JPP Issue 6: Is the definition of “threatening wrongful action” ambiguous or too narrow?

Subcommittee Recommendation: The Subcommittee determined that the definition of “threatening 

wrongful action” is not so ambiguous or narrow as to require a change to the definition. However, the 

Subcommittee believes that the concerns expressed by practitioners that this definition is too narrow to 

capture offenses arising in the entry-level training environment can and should be addressed. The 

Subcommittee believes that the best approach to the practitioners’ concerns is through its responses to 

issues 13 and 15 recommending a new subsection under Article 120(b)(1) for sexual assaults and 

abusive sexual contact when an accused has abused his or her position, rank, or authority to secure

compliance by the other person.

JPP Issue 7: How should “fear” be defined to acknowledge both subjective and objective factors?

Subcommittee Recommendation: The Subcommittee determined that no change was necessary to the 

current requirements that the fear of the victim be both a personal, subjective fear and that it be an 

objectively reasonable fear, as currently specified by Article 120(g)(7).

JPP Issue 8: Is the definition of “force” too narrow?

Subcommittee Recommendation: The Subcommittee determined that in light of the recommended 

amendments to the statutory definition of consent in issue 1, no modification to the Article 120(g)(5) 

definition of force should be recommended.

JPP Issue 10: Should the accused’s knowledge of a victim’s capacity to consent be a required element 

of sexual assault?

Subcommittee Recommendation: At present, the government must prove both the victim’s incapacity 

to consent and that the accused knew or reasonably should have known of that incapacity. The 

Subcommittee determined that the government should continue to be required to prove that the victim 
31

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

was incapable of consenting and that the accused knew or reasonably should have known of that 

incapacity. Title 18 U.S.C. Section 2242 (Sexual abuse) and Section 2244 (Abusive sexual contact) 

require the government to prove not only the charged sexual act or sexual contact but also the accused’s 

knowledge of the victim’s incapacity to consent. The elements in Article 120(b)(2) and 120(b)(3) 

similarly require the government to prove the act and the accused’s knowledge of the incapacity, but 

also permit a conviction when an accused “reasonably should have known” of the victim’s incapacity to 

consent. The Subcommittee considered the specific issue referred by the JPP, as well as whether Article 

120’s scienter requirement was overly broad in permitting a conviction for an accused who “reasonably 

should have known” of the victim’s incapacity to consent, and determined that it would not recommend 

any changes on this issue.

JPP Issue 11: Should the offense of “indecent act” be added to the UCMJ as an enumerated offense?

Subcommittee Recommendation: For the great majority of the UCMJ’s history, “indecent acts” were 

punishable as a specified offense under Article 134, requiring a showing that the conduct was either 

prejudicial to good order and discipline or of a nature to bring discredit upon the Armed Forces. An 

enumerated offense under Article 120 would require no such showing, which could result in overbroad 

application of the offense. The Subcommittee is aware that the Department of Defense has proposed an 

Article 134 offense in a recent draft executive order that addresses “Indecent Conduct,” pursuant to the 

President’s authority under Article 56 of the UCMJ. The Subcommittee takes no position on the 

contents of that proposal. The Subcommittee does not recommend adding the offense of “indecent act”

to the UCMJ as an enumerated offense under Article 120. The Subcommittee’s recommendation does 

not extend to offenses specified by the President under Article 134 of the UCMJ.

JPP Issue 12: Is the current practice of charging inappropriate relationships or maltreatment under 

articles of the UCMJ other than Article 120 appropriate and effective when sexual conduct is 

involved?

Subcommittee Recommendation: The Subcommittee determined that the current practice of charging 

inappropriate sexual relationships or maltreatment under articles of the UCMJ other than Article 120 

(Articles 92 and 93) can be appropriate and effective when sexual conduct is involved.

JPP Issue 14: Should the definition of “threatening or placing that other person in fear” be amended 

to ensure that coercive sexual relationships or those involving abuse of authority are covered under 

an existing Article 120 provision?

Subcommittee Recommendation: The Subcommittee determined that if the proposed Article 

120(b)(1)(E) is adopted (see issue 15), the definition of threatening or placing another person in fear 

does not need to be amended with respect to coercive sexual relationships.

JPP Issue 16: Should sexual relationships between basic training instructors and trainees be treated 

as per se illegal or strict liability offenses under Article 120? 

Subcommittee Recommendation: The Subcommittee determined that consensual sexual relationships 

between basic training instructors and trainees should not be treated as per se illegal or strict liability 

offenses under Article 120.
32

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

JPP Issue 17: As an alternative to further amending Article 120, should coercive sexual relationships 

currently charged under other articles of the UCMJ be added to DoD’s list of offenses that trigger sex 

offender registration?

Subcommittee Recommendation: The Subcommittee determined that sexual relationships currently 

charged under other articles of the UCMJ, including Articles 92 and 93, should not be added to DoD’s

list of offenses that trigger sex offender registration. 
33

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

Subcommittee Review of Issues

1. Is the current definition of “consent” unclear or ambiguous?

A. JPP Rationale for Referring This Issue to the Subcommittee. Some witnesses who 

appeared before the JPP in late 2014 testified that the current UCMJ definition of consent1 is 

inconsistent and confusing. According to JPP witness and Subcommittee member Professor Stephen J. 

Schulhofer of the New York University School of Law, this definition of consent mixes three of the four 

definitions of consent used throughout many American jurisdictions. He observed that the current 

version of Article 120 is awkwardly constructed and the consent language is vague and contradictory. 

He suggested that the JPP propose a fresh start to the sexual assault statute rather than attempt to amend 

it piecemeal. In contrast, other witnesses, including trial practitioners, said that the definition is clear, 

unambiguous, and should not be altered. Given these opposing viewpoints, the JPP referred this issue to 

the Subcommittee for further analysis.2

B. Testimony and Information Received by the Subcommittee. A majority of the presenters 

before the Subcommittee recommended some change to the definition of consent. A retired Army 

military judge stated that some parts of the consent definition are contradictory. He suggested replacing 

the term “freely given” with “voluntary.” He also suggested removing terminology regarding a victim 

needing to resist the attack.3 A senior Marine Corps prosecutor and former military judge agreed.4 A 

senior Army prosecutor recommended that consent should be “outwardly expressed in words or 

 1 See 10 U.S.C. § 920(g)(8).

2 JUDICIAL PROCEEDINGS PANEL, INITIAL REPORT 26–27 (Feb. 2015) [hereinafter JPP INITIAL REPORT], available at

http://jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_InitialReport_Final_20150204.pdf.

3 Written Statement of Colonel Timothy Grammel, U.S. Army (Ret.) (Apr. 10, 2015).

4 Transcript of JPP Subcommittee Meeting 104–14 (May 7, 2015) (testimony of Lieutenant Colonel Chris Thielemann, U.S. Marine 

Corps).

Current definition of “consent” in Article 120(g)(8) of the UCMJ:

(8) Consent.

(A) The term “consent” means a freely given agreement to the conduct at issue by a 

competent person. An expression of lack of consent through words or conduct means 

there is no consent. Lack of verbal or physical resistance or submission resulting from 

the use of force, threat of force, or placing another person in fear does not constitute 

consent. A current or previous dating or social or sexual relationship by itself or the 

manner of dress of the person involved with the accused in the conduct at issue shall 

not constitute consent.

(B) A sleeping, unconscious, or incompetent person cannot consent. A person cannot 

consent to force causing or likely to cause death or grievous bodily harm or to being 

rendered unconscious. A person cannot consent while under threat or in fear or under 

the circumstances described in subparagraph (C) or (D) of subsection (b)(1).

(C) Lack of consent may be inferred based on the circumstances of the offense. All 

the surrounding circumstances are to be considered in determining whether a person 

gave consent, or whether a person did not resist or ceased to resist only because of 

another person’s actions.
34

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

conduct.”5 He suggested removing subparagraph (g)(8)(c) as being redundant given the other 

subparagraphs.

6

The reserve Chief of the Marine Corps Defense Services Organization testified that the term 

“competent person” is confusing and unclear and needs to be defined.7 A senior Air Force defense 

counsel stated that the definition of consent is internally inconsistent in some places, that any 

terminology requiring “affirmative consent” is not realistic, and that affirmative expressions of consent 

are not how people interact socially.8

An Army appellate government counsel who litigates sexual assault convictions on appeal 

testified that there needs to be clarification regarding what a competent person is; the definition provides 

that “a sleeping, unconscious or incompetent person cannot consent,” but she suggested that there is a 

gap in the definition when applied to a victim who is not sleeping or unconscious.9 A civilian 

practitioner who formerly served on active duty as a Marine Corps prosecutor and defense counsel 

stated that the present definition of consent is too narrow and needs to be broader.10

A smaller number of presenters recommended no changes to the definition of consent. For 

instance, a senior Air Force prosecutor stated that while the various concepts in the definition could be 

organized in a simpler manner, the statute nevertheless provides Service members, practitioners, and 

finders of fact with a relatively concise statement of this fundamental legal term.11 And a civilian 

attorney and former prosecutor testified that he does not see a problem with the definition of consent in 

Article 120. He noted that over his career, he never prosecuted a sexual assault case where he didn’t 

have to prove that there was no consent, even when lack of consent was not included as a specific 

element of an offense; in his opinion attempting to avoid the consent issue does not accomplish much.

He does not think the law is the problem; rather, the problem is in the implementation of the law, which 

he describes as how cases are investigated, charged, and prosecuted, and how victims are treated.12

C. Conclusion: Some Subcommittee members noted a concern with the definition’s “residual 

reference to resistance.”13 The definition and the bench instructions given to the court-martial panel 

members can be interpreted as requiring a victim to physically resist an attacker before a judge or panel 

can find that the victim did not consent to the sexual act or sexual contact alleged. For instance, the 

Subcommittee noted that the language in 120(g)(8)(A), which in part states that a “lack of verbal or 

physical resistance” “resulting from the use of force” does not constitute consent, could actually imply 

that a lack of verbal or physical resistance not resulting from the use of force could constitute consent.

Moreover, the Subcommittee also noted that 120(g)(8)(C) on one hand advises the fact-finder to 

consider “all the surrounding circumstances” of the offense, yet on the other hand advises the fact-finder 

 5 Transcript of JPP Subcommittee Meeting 114–24 (May 7, 2015) (testimony of Lieutenant Colonel Alex Pickands, U.S. Army).

6 Transcript of JPP Subcommittee Meeting 114–24 (May 7, 2015) (testimony of Lieutenant Colonel Alex Pickands, U.S. Army).

7 Transcript of JPP Subcommittee Meeting 218–33 (May 7, 2015) (testimony of Colonel Terri Zimmermann, U.S. Marine Corps 

Reserve).

8 Transcript of JPP Subcommittee Meeting 233–45 (May 7, 2015) (testimony of Lieutenant Colonel Julie Pitvorec, U.S. Air Force).

9 Transcript of JPP Subcommittee Meeting 351–64 (May 7, 2015) (testimony of Captain Jihan Walker, U.S. Army).

10 Transcript of JPP Subcommittee Meeting 386–97 (May 7, 2015) (testimony of Mr. Zachary Spilman, Attorney at Law).

11 Transcript of JPP Subcommittee Meeting 124–35 (May 7, 2015) (testimony of Major Mark Rosenow, U.S. Air Force); see also

Written Statement of Major Mark Rosenow (May 20, 2015).

12 Transcript of JPP Subcommittee Meeting 378–86 (May 7, 2015) (testimony of Mr. John Wilkinson, Æquitas—The Prosecutors' 

Resource on Violence Against Women).

13 See generally Transcript of JPP Subcommittee Meeting 229 (June 25, 2015).
35

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

to consider whether and why the victim did or did not resist the attack. Grouping the question of 

resistance with all the other circumstances surrounding the offense places too much weight—perhaps 

inadvertently—on the issue of resistance.14 Although the Subcommittee believes evidence of resistance 

or the lack thereof to be relevant and admissible evidence for a fact-finder to consider, it is just one of 

the circumstances surrounding the offense and should be given no greater or lesser emphasis than any 

other circumstance in the text of the statute or elsewhere.

Regarding the definition of “consent,” the Subcommittee decided to recommend that the 

statutory definition of “consent” be modified in order to address concerns that the definition is unclear, 

is confusing, and contains language seeming to require resistance by a victim in order for a fact-finder to 

find that a victim did not consent.

To avoid placing too much emphasis on evidence of resistance or the lack thereof, the 

Subcommittee’s proposal would break out in one subsection of the definition the concept of resistance 

and the other issues currently listed in the statute for determining whether there was consent, and would 

place the general concept of the circumstances surrounding the offense in a separate subsection of the 

definition. 

D. Recommendation: The Subcommittee recommends that the text of Article 120(g)(8)(A) be 

amended by deleting the words “or submission resulting from the use of force, threat of force, or placing 

another in fear” and by adding the words “Submission resulting from the use of force, threat of force, or 

placing another in fear also does not constitute consent.” The Subcommittee recommends that the text of 

Article 120(g)(8)(C) be amended by deleting the words “Lack of consent may be inferred based on the 

circumstances of the offense” and by deleting the words “or whether a person did not resist or ceased to 

resist only because of another person’s actions.” See Enclosure 1, Proposed Modified Article 120 of the 

UCMJ.

The new definition of consent in the Subcommittee’s proposed redraft would appear at Article 

120(g)(7) and would read as follows:

(7) Consent.

(A) The term “consent” means a freely given agreement to the conduct at 

issue by a competent person. An expression of lack of consent through words or 

conduct means there is no consent. Lack of verbal or physical resistance does not 

constitute consent. Submission resulting from the use of force, threat of force, or 

placing another person in fear also does not constitute consent. A current or 

previous dating or social or sexual relationship by itself or the manner of dress of 

the person involved in the conduct at issue does not constitute consent.

(B) A sleeping, unconscious, or incompetent person cannot consent. A 

person cannot consent to force causing or likely to cause death or grievous 

bodily harm or to being rendered unconscious. A person cannot consent while 

under threat or in fear or under the circumstances described in subparagraph (C) 

or (D) of subsection (b)(1).

(C) All the surrounding circumstances are to be considered in 

determining whether a person gave consent.15

 14 See generally Transcript of JPP Subcommittee Meeting 233–34, 242–43 (June 25, 2015).

15 See Enclosure 1.
36

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

2. Should the statute define defenses relying on the victim’s consent or the accused’s mistake of 

fact as to consent in sexual assault cases?

A. JPP Rationale for Referring This Issue to the Subcommittee. Several witnesses before the 

JPP testified that the availability of the defenses of consent and mistake of fact as to consent under the 

current statute is unclear, because such defenses were explicitly included in the 2007 version of Article 

120 but are not specifically included in the 2012 version. Other witnesses said that the mistake of fact 

defense still clearly applied, but contended that it should be reintroduced into the statute to expressly 

limit its applicability and make clear any limitations on its scope.

During deliberations, members of the JPP agreed that the statute’s lack of clarity in its definition 

of consent contributes to confusion about the role of consent in determining knowledge or intent in 

Article 120 offenses. The JPP also agreed that consent and mistake of fact as to consent are important 

defenses and that the statute should clearly indicate what constitutes a mistake of fact and whether the 

defense applies to rape and sexual assault offenses. Given the opposing views of presenters before the 

JPP and the JPP’s own concerns regarding this issue, the JPP referred this issue to the Subcommittee for 

further analysis.16

B. Testimony and Information Received by the Subcommittee. A majority of presenters 

recommended clarification that these two defenses are available and may be raised by an accused. A 

retired Army trial judge opined that the statute should clearly state that, if raised, consent to the sexual 

conduct at issue is a defense to all of the offenses in Article 120.17 He also stated that mistake of fact as 

to consent in any Article 120 case where it is relevant should be clearly listed as a defense in the statute 

or in Rule for Courts-Martial (R.C.M.) 916.18 A retired Marine Corps trial judge agreed that mistake of 

fact as to consent should be clearly stated to be an available defense.19 A retired Air Force trial judge 

also recommended that it be clearly stated that consent and mistake of fact as to consent are available 

defenses to an accused in sexual assault cases.20

A senior Army supervisory prosecutor testified that listing the defenses available to an accused 

in a prosecution under Article 120 would be helpful to practitioners.21 The reserve Chief of the Marine 

Corps Defense Services Organization testified that both consent and mistake of fact as to consent should 

be clearly stated in both the statute and R.C.M. 916.22 A senior Army Defense Counsel recommended

that both consent and mistake of fact as to consent be put back into the statute to remove any confusion 

as to their availability to an accused.23 A civilian military court-martial practitioner and current reservist 

who formerly served on active duty as both a military prosecutor and a defense counsel opined that both 

consent and mistake of fact as to consent are always available to an accused as a matter of constitutional 

due process.24

 16 JPP INITIAL REPORT 27–29.

17 Written Statement of Colonel Timothy Grammel, U.S. Army (Ret.) (Apr. 10, 2015).

18 Written Statement of Colonel Timothy Grammel, U.S. Army (Ret.) (Apr. 10, 2015).

19 Transcript of JPP Subcommittee Meeting 249 (Apr. 9, 2015) (testimony of Lieutenant Colonel Quincy Ward, U.S. Marine Corps 

(Ret)).

20 Transcript of JPP Subcommittee Meeting 190–91 (Apr. 9, 2015) (testimony of Colonel William Orr, U.S. Air Force (Ret.))

21 Written Statement of Lieutenant Colonel Alexander Pickands, U.S. Army (May 8, 2015).

22 Transcript of JPP Subcommittee Meeting 230 (May 7, 2015) (testimony of Colonel Terri Zimmermann, U.S. Marine Corps 

Reserve).

23 Transcript of JPP Subcommittee Meeting 245–53 (May 7, 2015) (testimony of Major Frank Kostik, U.S. Army); see also Written 

Statement of Major Kostik (May 26, 2015).

24 Transcript of JPP Subcommittee Meeting 392 (May 7, 2015) (testimony of Mr. Zachary Spilman, Attorney at Law).
37

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

A smaller number of military prosecutors opined that regardless of whether it is expressly stated 

in the statute or elsewhere, an accused may always raise consent and mistake of fact as to consent 

because Article 120(f) states “an accused may raise any applicable defenses available under this chapter 

or the Rules for Courts-Martial.” In light of this, they testified that amendment to Article 120 is 

unnecessary.25

C. Conclusion: With respect to the defenses of “consent” and “mistake of fact as to consent,” at 

its June meeting the Subcommittee decided to recommend that “consent” be left the way it is now 

treated, as a defense attack on the government’s proof regarding which the judge instructs the courtmartial panel members, and that “mistake of fact as to consent” be clearly listed as a defense and added 

back into the statute or in the Rules for Courts-Martial.

D. Recommendation: Owing to some question by practitioners regarding the availability of 

these defenses, the Subcommittee recommends clarification, in the Manual for Courts-Martial, that an 

accused may raise both “consent” and “mistake of fact as to consent” in appropriate cases. Presenters 

told the Subcommittee that these defenses have always been available to an accused, in statute, in the 

Manual for Courts-Martial, or as a matter of the common law as developed by the appellate courts.

Presenters told the Subcommittee that mistake of fact has traditionally been listed as a defense in the 

Manual for Courts-Martial and “consent” has been viewed as an attack on the government’s proof 

which an accused may make during trial and on which, if raised by the evidence, requires a judicial 

instruction by the military judge. Accordingly, the availability of “consent” as an attack on proof and 

“mistake of fact as to consent” as a defense should be clearly stated in the Manual for Courts-Martial.

The Subcommittee does not recommend that these defenses be listed in the text of the statute. 

 25 Written Statement of Major Mark Rosenow, U.S. Air Force (May 20, 2015); see also Transcript of JPP Subcommittee Meeting 358 

(May 7, 2015) (testimony of Captain Jihan Walker, U.S. Army).
38

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

3. Should the statute define “incapable of consenting?”

A. JPP Rationale for Referring This Issue to the Subcommittee. Numerous witnesses told 

the JPP that the interpretation of “incapable of consenting” and of “impairment” under the 2012 version 

of Article 120 raised just as many problems as had language in the 2007 version of the statute. Noting 

that the statute includes no definitions or further guidance regarding the term “incapable of consenting,”

witnesses provided anecdotes of military judges using their “common sense and the knowledge of 

human nature to the ways of the world” to determine the meaning of “incapable of consent.” These 

witnesses recommended amending the statute to provide either a definition or a statutory test to 

determine when an individual is incapable of consenting.

During deliberations, the JPP determined that additional review was required. In particular, it 

noted the interrelationship between incapacity and consent and the importance of providing clear 

definitions of these terms to judges, practitioners, and court-martial panel members. And because sexual 

assault prevention training for all Service members uses language from Article 120, vague terms may 

leave them confused about standards of behavior and expectations, raising an important policy interest.

Given the views of presenters before the JPP and the JPP’s own concerns regarding this issue, the JPP 

referred this issue to the Subcommittee for further analysis.26

B. Testimony and Information Received by the Subcommittee. A majority of the presenters 

before the Subcommittee recommended that a definition be adopted of this important term that is often 

relevant in sexual assault cases. This term appears in the statute at Article 120(b)(3), but unlike most 

other terms or definitions referred to the Subcommittee, there is no explanation or definition of the term 

under Article 120(g). Perhaps as a result, this issue generated the greatest number of recommendations 

for change from the presenters before the Subcommittee.

One retired Navy military judge testified that the lack of a definition for “incapable of 

consenting” is “a big anemia in the statute, and we have to go in and fill it.”

27 A retired Army military 

judge recommended adoption of a definition that would state, “The term ‘incapable of consenting’

means unable to appraise the nature of the sexual conduct at issue, physically decline participation in the 

sexual conduct at issue, or physically communicate unwillingness to engage in the sexual conduct at 

issue.”28 A senior Army prosecutor stated that the current Article 120 is devoid of any definition for 

“incapable of consenting,” and this lack of definition renders an already challenging theory of 

culpability almost useless.29 By removing the 2007 definition of “substantially incapacitated,” in his 

view, Congress left practitioners adrift without a standard by which to teach Service members how to 

behave, provide notice of criminal behavior, make appropriate charging decisions, and effectively 

prosecute those who exploit impaired or intoxicated individuals.30 A senior Air Force prosecutor 

testified that a definition is needed, and he suggested the following: “The term ‘incapable of consenting’

means unable to appraise the nature of the sexual conduct at issue, decline participation in the sexual 

conduct at issue, or communicate unwillingness to engage in the sexual conduct at issue.”31

 26 JPP INITIAL REPORT 29–30.

27 Transcript of JPP Subcommittee Meeting 200 (Apr. 9, 2015) (testimony of Commander John Maksym, U.S. Navy (Ret.)).

28 Written Statement of Colonel Timothy Grammel, U.S. Army (Ret.) (Apr. 10, 2015).

29 Written Statement of Lieutenant Colonel Alexander Pickands, U.S. Army (May 8, 2015).

30 Written Statement of Lieutenant Colonel Alexander Pickands, U.S. Army (May 8, 2015).

31 Transcript of JPP Subcommittee Meeting 121 (May 7, 2015) (testimony of Major Mark Rosenow, U.S. Air Force).
39

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

An Air Force appellate government counsel stated that the lack of a definition leads to defense 

counsel’s arguing that any condition short of a victim being asleep or unconscious amounts to the victim 

being capable of consenting to sexual activity.32 She suggested that a definition contain the following 

language: “A person does not need to be unconscious or asleep in order to be incapable of consenting to 

a sexual act due to impairment by a drug, intoxicant or other similar substance,” or “a person’s level of 

impairment does not need to rise to the level of unconsciousness or sleep in order for that person to be 

incapable of consenting to a sexual act due to impairment by a drug, intoxicant or other similar 

substance.”33 An Army appellate government counsel agreed that this term needs to be clarified.

34

Defense counsel also agreed that there should be a definition of “incapable of consenting.” The 

reserve Chief of the Marine Corps Defense Services Organization testified that the statute should define 

“incapable of consenting.”35 A senior Air Force defense counsel testified that a definition is needed, and 

she agreed with the definition recommended by the retired Army military judge quoted above: “The 

term ‘incapable of consenting’ means unable to appraise the nature of the sexual conduct at issue, 

physically decline participation in the sexual conduct at issue, or physically communicate unwillingness 

to engage in the sexual conduct at issue.”

36 A senior Army defense counsel agreed that a definition is 

needed, and likewise agreed with the one recommended by the retired Army military judge.37 A senior 

Navy defense counsel also testified that practitioners absolutely need the statute to define this term; 

consent becomes an issue as early as the investigative stage, and without an adequate definition cases 

end up devolving into a battle of experts giving opinions on the level of intoxication.38 He told the 

Subcommittee that the concept of “incapable of consenting” also comes into conflict with the training 

received by court-martial panels on alcohol intoxication as it relates to the ability to consent, and 

without a legal definition military judges cannot assist the panel members on this often pivotal issue.39

One civilian attorney and former prosecutor testified that a victim’s capacity to consent is 

always a fact question, but it helps to give examples in a definition, such as “less than 16 years old, 

mentally defective, mentally incapacitated, too intoxicated to appreciate the nature of the act, physically 

helpless, or unconscious.”

40

One Subcommittee member, in presenting before the Judicial Proceedings Panel, noted that the 

phrase “incapable of consenting” is “conclusory and meaningless.” For instance, when is a person 

incapable? What is the test? Civilian courts have worked with similar language and managed 

convictions from time to time, he pointed out, but the ambiguity impedes the law’s ability to 

communicate a normative message and may inhibit prosecution of deserving cases. He stated that the 

criteria of incapacity must be defined.41 

 32 Transcript of JPP Subcommittee Meeting 336–47 (May 7, 2015) (testimony of Major Mary Ellen Payne, U.S. Air Force).

33 Transcript of JPP Subcommittee Meeting 336–47 (May 7, 2015) (testimony of Major Mary Ellen Payne, U.S. Air Force)

34 Transcript of JPP Subcommittee Meeting 351–64 (May 7, 2015) (testimony of Captain Jihan Walker, U.S. Army).

35 Transcript of JPP Subcommittee Meeting 231 (May 7, 2015) (testimony of Colonel Terri Zimmermann, U.S. Marine Corps 

Reserve).

36 Transcript of JPP Subcommittee Meeting 242–44 (May 7, 2015) (testimony of Lieutenant Colonel Julie Pitvorec, U.S. Air Force).

37 Written Statement of Major Frank Kostik (May 26, 2015).

38 Transcript of JPP Subcommittee Meeting 253–68 (May 7, 2015) (testimony of Lieutenant Commander Richard Federico, U.S. 

Navy).

39 Transcript of JPP Subcommittee Meeting 253–68 (May 7, 2015) (testimony of Lieutenant Commander Richard Federico, U.S. 

Navy).

40 Transcript of JPP Subcommittee Meeting 382–84 (May 7, 2015) (testimony of Mr. John Wilkinson, Æquitas - The Prosecutors' 

Resource on Violence Against Women). 

41 Written Comments of Professor Stephen Schulhofer (Aug. 8, 2014).
40

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

C. Conclusion: The vast majority of presenters before the Subcommittee who practice under the 

UCMJ requested a definition of “incapable of consenting,” as this issue is present in most cases 

prosecuted at trial. The Subcommittee concluded that a definition is necessary and should be initiated 

through statutory amendment, an executive order, or in the Military Judges’ Benchbook instructions.

The Subcommittee first looked to 18 U.S.C. § 2242 (Sexual abuse) for possible guidance 

regarding what factors should be considered when adopting a definition of “incapable of consenting.”42

That code section criminalizes knowingly engaging in a sexual act with another person if that other 

person is—

(A) incapable of appraising the nature of the conduct; or 

(B) physically incapable of declining participation in, or communicating unwillingness 

to engage in, that sexual act.43

However, the Subcommittee believed that this language, although helpful, could be seen as too 

narrow. The Subcommittee found the Navy-Marine Court of Criminal Appeals opinion in United States 

v. Pease44 to be more useful. The Pease court stated: 

An “incompetent” person is a person who lacks either the mental or physical ability to 

consent due to a cause enumerated in the statute. To be able to freely give an agreement, 

a person must first possess the cognitive ability to appreciate the nature of the conduct in

question, then possess the mental and physical ability to make and to communicate a 

decision regarding that conduct to the other person.45

 The court further stated that to be incapable of consenting means a person “lacked the 

cognitive ability to appreciate the sexual conduct in question or the physical or mental ability to 

make and to communicate a decision about whether they agreed to the conduct.”46

Accordingly the Subcommittee recommends a new definition of “incapable of consenting,”

based in part on the Pease case.

The Subcommittee also believes that additional guidance should be provided regarding the 

factors that should be considered by a fact-finder when resolving the question of whether the alleged 

victim was incapable of consenting, including a totality of the circumstances analysis that sets forth a 

non-exhaustive list of example factors.47 This proposed definition is set forth in the Subcommittee’s 

recommendation.

D. Recommendation: The Subcommittee recommends that the following definition of 

“incapable of consenting” be adopted as part of the Subcommittee’s redraft of Article 120, which would 

appear at Article 120(g)(8):

 42 See generally Transcript of JPP Subcommittee Meeting 114–15 (Oct. 22, 2015). 

43 18 U.S.C. § 2242 (Sexual Abuse).

44 United States v. Pease, 74 M.J. 763 (N-M. Ct. Crim. App. 2015). 

45 Pease, 74 M.J. at 770.

46 Id.

47 See generally Transcript of JPP Subcommittee Meeting 117–19 (Oct. 22, 2015).
41

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

Incapable of consenting. A person is ‘incapable of consenting’ if that person does not 

possess the mental ability to appreciate the nature of the conduct or does not possess the 

physical or mental ability to make or communicate a decision regarding such conduct.

The Subcommittee further recommends that the following language be promulgated in an 

executive order to be published in the Manual for Courts-Martial and the Military Judges’ Benchbook

instructions:

A totality of circumstances standard applies when assessing whether a person 

was incapable of consenting. In deciding whether a person was incapable of consenting, 

many factors should be considered and weighed, to the extent they are known, including, 

but not limited to, that person’s:

• Decision-making ability;

• Ability to foresee and understand consequences;

• Awareness of the identity of the person with whom they are engaging in the 

conduct;

• Level of consciousness;

• Amount of alcohol or other intoxicants ingested;

• Tolerance to the ingestion of alcohol or other intoxicants; and/or

• Ability to walk, talk, and engage in other purposeful physical movements.
42

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

4. Is the definition concerning the accused’s “administration of a drug or intoxicant” overbroad? 

A. JPP Rationale for Referring This Issue to the Subcommittee. According to JPP witness 

and Subcommittee member Professor Schulhofer, the statute should be narrowly tailored to criminalize 

only the intentional administration of an intoxicant for the purpose of committing a sexual act, not 

actions that are accidental or negligent. No military practitioners raised concerns regarding this issue 

with the JPP or related any criticisms arising from problems with this definition that have occurred at 

the trial level. 

During deliberations, JPP members noted that only one presenter highlighted the issue of intent 

with regard to the administration of a drug or intoxicant. It was not clear to the JPP if a conviction 

would be possible in cases in which the substance was administered by accident or without proof of 

intent. Given these questions, the JPP referred this issue to the Subcommittee for further analysis.48

B. Testimony and Information Received by the Subcommittee. A majority of presenters 

before the Subcommittee recommended no changes to the definition of an accused’s administering a 

drug or intoxicant to a victim under Article 120(a)(5). For instance, according to a senior Army 

prosecutor there is no indication from the field that, as worded, this provision is capturing conduct that 

is not exploitative or assaultive.49 He urged the Subcommittee not to add a specific intent requirement to 

this offense. He offered the hypothetical that if a person spiked a punch bowl at a party and then 

performed a sexual act on someone who had consumed that intoxicant and become impaired, that 

behavior should be criminal. Adding a specific intent that the intoxicant be administered with the 

purpose of rendering people impaired and vulnerable to sexual acts would render this theory unprovable. 

Doing so would also require the offender to have specifically chosen the victim at the time of 

administering the substance, when it is just as likely that he or she is targeting a pool of individuals (e.g., 

anyone who partakes in the punch). Similarly, a senior Air Force prosecutor stated that 

recommendations to include a specific intent requirement (e.g., that administration of the drug or 

intoxicant be for the purpose of impairing a victim’s capacity to consent) are misplaced.50 The discretion 

of commanders throughout the processing of a case and the consistent safety check provided by judge 

advocates, including their Article 34, UCMJ, pretrial advice, make it unlikely this subsection will be 

applied to situations where the administration is disconnected from the sexual act or sexual contact.

Adding a specific intent requirement would, however, undermine prosecutions through this subsection 

in two obvious circumstances: (1) where the accused formed the intent to commit the offense only after 

recognizing how intoxicated the victim became and (2) where the accused ingests drugs or intoxicants at 

the same time and thereby raises the issue of voluntary intoxication. See R.C.M. 916(l)(2). And one 

civilian practitioner who formerly served as a Marine Corps prosecutor and defense counsel observed 

 48 JPP INITIAL REPORT 30.

49 Written Statement of Lieutenant Colonel Alexander Pickands, U.S. Army (May 8, 2015).

50 Written Statement of Major Mark Rosenow, U.S. Air Force (May 20, 2015).

Current text of Article 120(a)(5) of the UCMJ:

Any person subject to this chapter who commits a sexual act upon another person by—

(5) administering to that other person by force or threat of force, or without the knowledge 

or consent of that person, a drug, intoxicant, or other similar substance and thereby 

substantially impairing the ability of that other person to appraise or control conduct,

is guilty of rape and shall be punished as a court-martial may direct.
43

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

that this issue appears to be concerned with an incredibly narrow set of hypothetical facts that do not

require preemptive congressional action.51

A contrary view was offered by a retired Army military judge, who suggested amending the 

definition by adding the requirement that the administration of a drug or intoxicant be done for the 

purpose of impairing the victim’s capacity to express a lack of consent to the sexual act.52

C. Conclusion: With respect to the definition concerning the accused’s “administration of a 

drug or intoxicant,” as stated in Article 120(a)(5), the Subcommittee determined that no change should 

be made to this definition.53 The Subcommittee concluded that adding an element to this provision 

would unnecessarily complicate charging certain offenses under the statute.

D. Recommendation: No change.

 51 Transcript of JPP Subcommittee Meeting 387–88 (May 7, 2015) (testimony of Mr. Zachary Spilman, Attorney at Law).

52 Written Statement of Colonel Timothy Grammel, U.S. Army (Ret.) (Apr. 10, 2015).

53 See generally Transcript of JPP Subcommittee Meeting 227–28 (Oct. 22, 2015).
44

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

5. Does the definition of “bodily harm” require clarification?

A. JPP Rationale for Referring This Issue to the Subcommittee. The 2012 version of Article 

120 expanded the offense of sexual assault to include sexual acts by causing bodily harm. Under the 

current statute, bodily harm is defined as “any offensive touching of another, however slight, including 

any nonconsensual sexual act or nonconsensual sexual contact.” Thus, in cases in which the bodily harm 

alleged is the sexual act (or contact) itself, lack of consent can effectively become an element of the 

offense.

The issue raised to the JPP is whether sexual assault based on bodily harm under Article 

120(b)(1)(B) includes only offenses that involved bodily harm in addition to the sexual act or if the 

statute also includes offenses that involved only a nonconsensual sexual act. According to several 

current practitioners, the definition of bodily harm, as well as the statutory scheme surrounding the 

bodily harm offense, is ambiguous and creates confusion at trial. One solution recommended to the JPP 

was to amend the definition of bodily harm to include “physical pain, illness, or any impairment” while 

establishing a separate and distinct offense under Article 120 for sexual intercourse without consent.

However, another witness before the JPP argued that the bodily harm definition should not be altered 

and that Congress’s intention to include sex without consent as an offense was clear.

During deliberations, the JPP members found the definition of bodily harm confusing. Given the 

opposing views of presenters and the JPP’s own concerns over the term “bodily harm,” the JPP referred 

this issue to the Subcommittee for further analysis.54

B. Testimony and Information Received by the Subcommittee. A majority of the presenters 

before the Subcommittee recommended that no changes be made to the concept of bodily harm in 

Article 120(b)(1)(B) or the definition of bodily harm in Article 120(g)(3). Several experienced 

prosecutors stated that they would charge Article 120(b)(1)(B) in cases in which the victim has little or 

no recollection of the incident but can affirmatively state that a perpetrator engaged in a sexual act or 

sexual contact with the victim without consent. For instance, one senior Army prosecutor stated that he 

has had cases in which the victim was positioned, unclothed, in such a manner that the offender 

penetrated her without having to adjust clothing, bedding, or her body, and without having to use 

force.55 If the sexual act could not be used as the bodily harm, this would not be prosecutable as a sexual 

assault. He testified that this definition also helps in cases of poor or old memory, and he has prosecuted 

numerous cases in which the victim remembered being penetrated, but not the details of any physical 

contact before the penetration.56 A senior Marine prosecutor recommended leaving this definition 

unchanged because it allows the government to capture acts that are nonconsensual and also addresses 

the scenario where consent is withdrawn.57 A senior Air Force prosecutor recommended that no changes 

be made because the definition accurately captures the legal term and allows prosecutors to criminalize 

 54 JPP INITIAL REPORT 30–31.

55 Written Statement of LTC Alexander Pickands, U.S. Army (May 8, 2015).

56 Written Statement of LTC Alexander Pickands, U.S. Army (May 8, 2015). 

57 Transcript of JPP Subcommittee Meeting 111–13 (May 7, 2015) (testimony of Lieutenant Colonel Chris Thielemann, U.S. Marine 

Corps).

Current definition of “bodily harm” in Article 120(g)(3) of the UCMJ:

(3) Bodily harm. The term “bodily harm” means any offensive touching of another, 

however slight, including any nonconsensual sexual act or nonconsensual sexual contact.
45

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

nonconsensual sexual acts and sexual contacts even in situations where the act or contact constitutes the 

offensive touching.58

An Army appellate government counsel asked that no changes be made because this subsection 

allows the government to charge the bodily harm as the act, and this tactic is useful in cases in which the 

victim does not have a clear memory of what happened owing to impairment by drugs or alcohol.59 One 

civilian practitioner testified that the statute is clear that Congress intended to define nonconsensual 

sexual activity as bodily harm, and this definition is uncontroversial.60

On the other hand, a retired Army trial judge opined that the definition was confusing and in 

need of change, and he suggested creating a new offense under Article 120 of “wrongful sexual 

contact,” which would criminalize any sexual contact on another person without that other person’s 

permission.61 And a senior Air Force defense counsel stated that there is “just no real definition” of 

“bodily harm” that actually lends itself to be easily defended when it is used in the context of 

incapacitation or alcohol. It is used in various different ways. And for that reason, it is hard to articulate 

what exactly “bodily harm” means. She suggested that the term “bodily harm” needs to have a definition 

that is actually workable.62

Testifying before the JPP in August 2014, Subcommittee member Professor Stephen Schulhofer 

opined that the concept of “bodily harm” is confusing as used in several places in Article 120 and 

should be more clearly defined. He stated that it should serve to differentiate more serious cases from 

those in which there is no injury or threat of injury beyond the harm of unwanted penetration itself. 

Bodily harm as currently defined in the UCMJ (“any offensive touching of another, however slight, 

including any nonconsensual sexual act or nonconsensual sexual contact”) conflicts with the Model 

Penal Code’s definition, which specifies “physical pain, illness or any impairment of physical 

condition.”63

C. Conclusion: According to military practitioners who testified before the Subcommittee, the 

concept of “bodily harm” is useful for cases in which a sexual act or contact has been committed 

without the victim’s consent and a victim has little or no recollection of the event beyond the 

nonconsensual act or contact. But despite many practitioners’ testimony that the concept of bodily harm 

as used under Article 120(b)(1)(B), Article 120(d), and the definition in Article 120(g)(3) is workable, 

the Subcommittee nevertheless finds the term and its present definition confusing for two reasons. 

First, the statute currently defines bodily harm as “any offensive touching of another, however 

slight,” meaning a nonconsensual touching and nothing more. Although that concept of bodily harm has 

a well-developed history in military law under Article 128, UCMJ (Assault)—a history that judges and 

legal practitioners are well-versed in—non-lawyers who sit on military courts-martial panels are not 

typically familiar with this legal concept. “Bodily harm” in lay terms often means the presence of 

physical injuries, and the Subcommittee is concerned that a panel could interpret “bodily harm” to 

require some physical injury in addition to the unwanted sexual penetration or contact. Because rape and 

sexual assault may not result in physical injuries, these differing concepts could be confusing to a panel 

 58 Written Statement of Major Mark Rosenow, U.S. Air Force (May 20, 2015).

59 Transcript of JPP Subcommittee Meeting 359 (May 7, 2015) (testimony of Captain Jihan Walker, U.S. Army).

60 Transcript of JPP Subcommittee Meeting 388 (May 7, 2015) (testimony of Mr. Zachary Spilman).

61 Written Statement of Colonel Timothy Grammel, U.S. Army (Ret.) (April 10, 2015).

62 Transcript of JPP Subcommittee Meeting 121–23 (May 7, 2015) (testimony of Lieutenant Colonel Julie Pitvorec, U.S. Air Force)

63 Written Comments of Professor Stephen Schulhofer (Aug. 8, 2014).
46

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

and result in inappropriate acquittals.64 Second, the current text regarding this theory of liability in 

Article 120(b)(1)(B) is tautological. For these reasons, the Subcommittee recommends it be amended. 

The Subcommittee’s recommended changes would clarify what the presenters told the 

Subcommittee: that “bodily harm” in Article 120(g)(3), as applied under Article120 (b)(1)(B) and 

Article 120(d), is defined as a sexual act or sexual contact done without the consent of the victim, but no 

further “bodily harm” must be shown.

D. Recommendation: Change the language of 120(b)(1)(B) and replace it with “without the 

consent of the other person.”65 This would remove any confusion over the term “bodily harm” and 

would create a baseline offense for any sexual act or sexual contact committed without a victim’s 

consent. The removal of the definition of bodily harm set forth in Article 120(g)(3) will require that 

each successive subparagraph be renumbered. This renumbering is set forth in the Subcommittee’s 

proposed redraft in Enclosure 1 to this report.

The new Article 120(b)(1)(B) would read as follows:

(b) Sexual assault. Any person subject to this chapter who—

(1) commits a sexual act upon another person

(B) without the consent of the other person;

is guilty of sexual assault and shall be punished as a court-martial may direct.66

 64 See generally Transcript of JPP Subcommittee Meeting 332–39 (June 25, 2015).

65 See Enclosure 1.

66 See Enclosure 1.
47

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

6. Is the definition of “threatening wrongful action” ambiguous or too narrow?

A. JPP Rationale for Referring This Issue to the Subcommittee. The Manual for CourtsMartial does not define the term “wrongful action” and provides no guidance on whether Congress 

intended this provision to cover the inherently coercive senior–subordinate relationships unique to the 

military. Significantly, the 2007 version of Article 120 specifically articulated and provided a theory of 

liability for placing a victim in fear “through the use or abuse of military position, rank, or authority, to 

affect or threaten to affect, either positively or negatively, the military career of another.” However, this 

language was removed from the current version of Article 120. 

Some witnesses contended that the current provision is too narrow and ambiguous, because it 

does not encompass sexual acts or contacts that are induced through promises of career advancement or 

undeserved favorable treatment. Others testified to the contrary that the current language is adequate to 

charge sexual assaults resulting from inherently coercive relationships and that the “threat of . . . 

wrongful action” language is appropriately broad and can encompass senior–subordinate relationships.

During deliberations, the JPP agreed that additional review was necessary to determine whether 

the current statutory language is intended to cover relationships unique to the military and, if so, 

whether the statute is sufficiently broad. Given the opposing views offered by practitioners, the JPP 

referred this issue to the Subcommittee for further analysis.67

B. Testimony and Information Received by the Subcommittee. A majority of presenters 

before the Subcommittee recommended some change in the definition of “threatening wrongful action.” 

This group testified that the term is unclear and ambiguous in cases in which an accused is charged with 

violating Article 120(b)(1)(A) or 120(d) by using his or her position of authority or rank to coerce a 

victim into a sexual act or sexual contact. For instance, a senior Air Force appellate government counsel 

stated that the definition should be made more explicit.68 To her, it is not obvious at first glance that the 

definition is meant to encompass situations where a superior is using his or her rank or authority to 

coerce sexual acts or contacts.69 Military court-martial panels are used to following orders, she noted, 

and thus it is important for those selected to sit as panel members to receive explicit instructions. 

Otherwise, defense counsel could certainly successfully argue that since neither “use of rank” or “abuse 

of authority” is expressly included in the definition of “threatening or placing in fear,” the court 

members cannot find the accused guilty. She suggested incorporating the language of the 2007 version 

of Article 120 into the definition of “threatening or placing in fear”—with the caveat that offering to 

affect a subordinate’s career positively should not be a criminal act. A senior Marine Corps prosecutor 

at an entry-level training command testified that the bench book instructions for this definition are 

 67 JPP INITIAL REPORT 31–32.

68 Written Statement of Major Mary Ellen Payne, U.S. Air Force (September 1, 2015).

69 Written Statement of Major Mary Ellen Payne, U.S. Air Force (September 1, 2015).

Current definition of “threatening or placing that other person in fear” in Article 120(g)(7) 

of the UCMJ:

(7) Threatening or placing that other person in fear. The term “threatening or placing that 

other person in fear” means a communication or action that is of sufficient consequence to 

cause a reasonable fear that non-compliance will result in the victim or another person 

being subjected to the wrongful action contemplated by the communication or action.
48

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

inadequate.70 He suggested “reaching back” to the previous version of Article 120 for guidance. The 

prior version of Article 120 provided some specific examples of what could constitute the threatened 

harm targeted, one of which was threatening or placing the victim in fear “through the use or abuse of 

military position, rank, or authority, to affect or threaten to affect, either positively or negatively, the 

military career of some person.”71 He suggested also explaining that threats may be either express or 

implied.72 A senior Coast Guard prosecutor and former military judge testified that the definition “falls 

short.”73 He stated that a military judge needs to be able to provide court-martial panels with specific 

instructions, and he suggested a modification to the bench instructions in accord with his fellow 

prosecutors’ suggestions based on the prior version of Article 120.74

A senior Air Force appellate defense counsel agreed that the definition needs modification. Like 

some of the prosecutors, she suggested looking back to the 2007 version of Article 120 and modifying 

the bench instructions to address this issue.75 A senior Air Force staff judge advocate and legal adviser 

to a training commanding general testified that this definition is too narrow and should include any 

offers of favorable action by the accused.76 A Marine Corps staff judge advocate and legal adviser to the 

commanding general of an entry-level training facility testified that he believes the definition should be 

modified in accord with the 2007 version of article to include the specific example of abusing military 

position, rank, or authority.77

A minority of presenters suggested that the definition does not need change. A retired Army 

military judge believes that the current definition is sufficient because it addresses “wrongful”

conduct.78 And a senior Air Force prosecutor noted that the current definition is sufficiently broad to 

cover the types of sexual assaults and abusive sexual contacts falling outside of the other theories 

contained in Article 120(b)(1).79 That said, he recommended consideration of a new sexual offense 

specifically targeting the inherently coercive senior–subordinate relationships unique to the military.80

One Subcommittee member, in presenting before the Judicial Proceedings Panel, noted that the 

definition is either too ambiguous or too narrow in its application to an officer or NCO who seeks sexual 

favors in return for undeserved favorable treatment, or sexual favors absent which he will report an 

enlistee’s infractions or mention factually accurate shortcomings in the enlistee’s personnel report.81 He 

recommends that the definition be clarified and that these types of scenarios be treated as a coercive 

sexual crime.82

 70 Transcript of JPP Subcommittee Meeting 14 (Aug. 27, 2015) (testimony of Major Adam King, U.S. Marine Corps).

71 10 U.S.C. § 920(t)(7)(B) (This version of Article 120 was in effect for offenses committed during the period from Oct. 1, 2007 

through June 27, 2012).

72 Transcript of JPP Subcommittee Meeting 16 (Aug. 27, 2015) (testimony of Major Adam King, U.S. Marine Corps). 

73 Transcript of JPP Subcommittee Meeting 31 (Aug. 27, 2015) (testimony of Lieutenant Commander Ben Gullo, U.S. Coast Guard).

74 Transcript of JPP Subcommittee Meeting 32 (Aug. 27, 2015) (testimony of Lieutenant Commander Ben Gullo, U.S. Coast Guard).

75 Transcript of JPP Subcommittee Meeting 123 (Aug. 27, 2015) (testimony Captain Lauren Shure, U.S. Air Force).

76 Transcript of JPP Subcommittee Meeting 190 (Aug. 27, 2015) (testimony of Colonel Brynn Morgan, U.S. Air Force).

77 Transcript of JPP Subcommittee Meeting 194–95 (Aug. 27, 2015) (testimony of Lieutenant Colonel Brett Wilson, U.S. Marine 

Corps).

78 Written Statement of Colonel Timothy Grammel, U.S. Army (Ret.) (Apr. 10, 2015).

79 Written Statement of Major Mark Rosenow, U.S. Air Force (May 20, 2015).

80 Written Statement of Major Mark Rosenow, U.S. Air Force (May 20, 2015).

81 Written Comments of Professor Stephen Schulhofer (Aug. 8, 2014).

82 Written Comments of Professor Stephen Schulhofer (Aug. 8, 2014).
49

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

Two other presenters held that the definition is actually too broad and encompasses conduct that 

should not be criminal. For instance, a senior Army prosecutor suggested the words “physical or 

violent” be inserted to qualify “action contemplated by the communication or action.”83 The effect 

would be to strip nonviolent threats out of the sexual assault arena, reserving the most severe offenses 

and punishments for those who (a) violate a person’s physical integrity (their body) and (b) render 

ineffective a person’s personal autonomy (their ability to decide what happens to their body).84 Force, 

violence, threatening coercion, and incompetence—all of these have violence at their core; the victim is 

compelled to participate, actively or passively, in the sexual conduct. They cannot, or reasonably do not, 

have the opportunity to escape or avoid the conduct. He suggested that economic harms should be 

addressed outside of Article 120, if at all.85 And a civilian practitioner and former Marine Corps 

prosecutor and defense counsel declared that “the definition is incredibly broad and presents a uniquely 

factual question: Was the contemplated action wrongful?”86 In his view, this is a question of fact to be 

determined according to the evidence, and he believes that the current definition of wrongful action is 

adequate to address the issues of coercive sexual relationships and abuses of military rank or authority.87

C. Conclusion: Although concerns were expressed to the Subcommittee regarding the definition

being unclear and perhaps too narrow, the Subcommittee nevertheless concluded that adding a new 

subsection (E) to Article 120(b)(1) addressing abuse of position, rank, or authority would satisfy those 

worried about potential narrowness in the definition of threatening wrongful action in Article 

120(g)(7).88 Accordingly, the Subcommittee recommended no change to the definition of “threatening 

or placing that other person in fear” under Article 120(g)(7).

D. Recommendation: No change.

 83 Written Statement of LTC Alexander Pickands, U.S. Army (May 8, 2015).

84 Written Statement of LTC Alexander Pickands, U.S. Army (May 8, 2015).

85 Written Statement of LTC Alexander Pickands, U.S. Army (May 8, 2015).

86 Transcript of JPP Subcommittee Meeting 389 (May 7, 2015) (testimony of Mr. Zachary Spilman, Attorney at Law).

87 Transcript of JPP Subcommittee Meeting 389 (May 7, 2015) (testimony of Mr. Zachary Spilman, Attorney at Law).

88 See generally Transcript of JPP Subcommittee Meeting 382–86 (Oct. 22, 2015).
50

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

7. How should “fear” be defined to acknowledge both subjective and objective factors?

A. JPP Rationale for Referring This Issue to the Subcommittee. Because the definition of 

“threatening or placing that other person in fear” hinges on “caus[ing] a reasonable fear,”89 it is clear 

that for offenses under Article 120 involving threats or placing a victim in fear, an objective “reasonable 

person” standard must be met rather than a subjective standard that takes into account the victim’s 

actual and individual mind-set. The JPP received some testimony that the “reasonable” test should be 

amended to recognize a victim’s subjective, actual fears.

During deliberations, the JPP agreed that additional review was necessary to determine whether 

a different test should replace the current objective test and to evaluate the most effective and efficient 

means of implementing such a change. In addition, the definition of “threatening or placing that other 

person in fear” in the 2012 version of the statute was substantially narrowed from the definition used in 

the 2007 version. This change raises questions as to whether the current version of Article 120 

sufficiently criminalizes certain types of sexual misconduct, particularly those that involve abuse of 

authority. Given the opposing views among presenters and the JPP’s own concerns about this issue, the 

JPP referred it to the Subcommittee for further analysis.90

B. Testimony and Information Received by the Subcommittee. A majority of presenters 

before the Subcommittee recommended no changes to Article 120(g)(7), at least in the context of 

prosecutions under Article 120(a)(3), 120(b)(1)(A), 120(c), or 120(d), when the accused has been 

charged with placing the victim in “fear” of the threatened act alleged. The majority of presenters stated 

the government is—and should be—required to prove both (1) the victim’s subjective, personal fear, 

and (2) that the victim’s subjective fear was also objectively reasonable under the circumstances.

A senior Army prosecutor stated that fear is defined adequately as written: a victim’s actual, 

subjective fear could indicate that the victim’s fear is also objectively reasonable in response to a 

particular threat.

91 He believes these forms of proof to be sufficient; there is no need for further 

adjustment.92 Likewise, a senior Air Force prosecutor found the requirement that a victim’s fear be 

“objectively reasonable under the circumstances” to be proper: a subjective but objectively unreasonable 

fear in a victim would, in cases in which the defense was raised, make it impossible for the prosecution 

to prove beyond a reasonable doubt that the accused did not have an honest and reasonable mistake of 

fact as to consent.93 He noted that in the marginal case in which the accused has knowledge of the 

victim’s objectively unreasonable but subjective fear, the prosecution is free to allege sexual assault or 

abusive sexual contact by bodily harm, as the sexual act or sexual contact would be nonconsensual.94

A retired Army military judge stated that “fear” does not need to be defined to acknowledge 

subjective fear, because subjective fear is already relevant and admissible and would also be relevant to 

show objective fear.95 He believes that removing the requirement that the fear be objectively reasonable 

would result in confusion and cause practical problems in litigating sexual assault trials.96 And a civilian 

 89 10 U.S.C. § 920(g)(7).

90 JPP INITIAL REPORT 32 (Feb. 2015).

91 Written Statement of LTC Alexander Pickands, U.S. Army (May 8, 2015).

92 Id.

93 Written Statement of Major Mark Rosenow, U.S. Air Force (May 20, 2015).

94 Written Statement of Major Mark Rosenow, U.S. Air Force (May 20, 2015).

95 Written Statement of Colonel Timothy Grammel, U.S. Army (Ret.) (Apr. 10, 2015).

96 Id.
51

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

practitioner who was formerly a Marine Corps prosecutor and defense counsel stated that requiring an 

objectively reasonable fear is “appropriate because it incorporates the defense of mistake of fact 

regarding whether the other person was actually in fear” and also “avoids prosecuting someone for 

instilling a fear that is objectively unreasonable.”97

One retired Air Force military judge offered a different view, testifying that if the focus is on 

protecting the victim, the court-martial panel members “should not be permitted to superimpose their 

own judgment upon the victim, as long as they believe the victim believed he or she was in fear.”98 He 

suggested that in such cases, the accused should be responsible for the victim as he or she “finds” the 

victim.99

One Subcommittee member who submitted written material to the Judicial Proceedings Panel 

recommended modifying the definition from a narrower reasonable person standard to a more subjective 

one that allows a more vulnerable victim’s fear to be sufficient to satisfy the fear element.100

C. Conclusion: The Subcommittee concluded that no change was needed to the requirements 

that a victim’s subjective and personal fear be also objectively reasonable under the circumstances, as 

currently specified by Article 120(g)(7).101

D. Recommendation: No change.

 97 Transcript of JPP Subcommittee Meeting 390 (May 7, 2015) (testimony of Mr. Zachary Spilman, Attorney at Law).

98 Transcript of JPP Subcommittee Meeting 192 (April 9, 2015) (testimony of Colonel William Orr, U.S. Air Force (Ret.)).

99 Transcript of JPP Subcommittee Meeting 192 (April 9, 2015) (testimony of Colonel William Orr, U.S. Air Force (Ret.)).

100 Dean Lisa M. Schenck, Sex Offenses Under Military Law: Will the Recent Changes in the Uniform Code of Military Justice 

(UCMJ) Re-traumatize Sexual Assault Survivors in the Courtroom?, 11 OHIO ST. J. CRIM. L. 439, 452–53 (2014). 

101 See generally Transcript of JPP Subcommittee Meeting 284 (Oct. 22, 2015).
52

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

8. Is the definition of “force” too narrow?

A. JPP Rationale for Referring This Issue to the Subcommittee. Under the 2007 version of 

Article 120, force was defined as an “action to compel submission of another or to overcome or prevent 

another’s resistance” by use or suggestion of a dangerous weapon, or by “physical violence, strength, 

power, or restraint . . . sufficient that the other person could not avoid or escape the sexual conduct.” 

According to one expert, this phrasing required the victim to resist the assault.102 The 2012 revision to 

Article 120 amended the definition of force to focus objectively on the offender’s conduct rather than 

subjectively on the victim’s behavior. Force is now defined as “(A) the use of a weapon; (B) the use of 

such physical strength or violence sufficient to overcome, restrain, or injure a person; or (C) inflicting

physical harm sufficient to coerce or compel submission by the victim.” Subsection (B) measures the 

offender’s use of physical strength or violence by an objective reasonable person standard rather than by 

the actions of the particular victim in a case. While subsection (C) does look at the particular victim, it 

does not place the burden of resistance on that person.

Two witnesses before the JPP advocated for a broader definition of force. JPP Subcommittee 

member Dean Lisa Schenck noted that the 2012 version of Article 120 restricts “force” to a situation in 

which a weapon is used, rather than simply displayed or suggested. The degree of force to compel the 

victim’s submission is more subjective than in the 2007 version and places less emphasis on whether the 

victim could escape the assault. One other JPP witness recommended that Article 120(g)(5) should 

include “the use, the display, or the suggestion of the use of a weapon.” Professor Schulhofer argued 

that there should be two categories of forcible rape—one encompassing unlawful force applied against a 

person; the other, escalated use of force that could cause death or grievous bodily harm. During 

deliberations, the JPP decided that additional review was warranted to determine if the definition of 

force should be broadened and referred this issue to the Subcommittee for further analysis.103

B. Testimony and Information Received by the Subcommittee. A majority of presenters 

before the Subcommittee recommended no change to the definition of force under Article 120(g)(5). A 

senior Air Force prosecutor stated that in his experience, offenses falling under the statute’s definitions 

of rape and aggravated sexual contact are much less common than those qualifying as sexual assault and 

abusive sexual contact.104 He noted that in cases in which “force” is used, it is normally apparent, and 

the language included within Article 120(g)(5) is adequate.105 Similarly, a senior Army prosecutor 

 102 Jim Clark, Analysis of Crimes and Defenses 2012 UCMJ Article 120, Effective 28 June 2012, Emerging Issues 7 (2012), available 

at http://jpp.whs.mil/Public/docs/03_Topic-Areas/02-Article_120/20140807/07_Art120_UCMJ_Crimes 

Defenses_Analysis_Clark_2012.pdf., at 2

103 JPP INITIAL REPORT 32–33 (Feb. 2015).

104 Written Statement of Major Mark Rosenow, U.S. Air Force (May 20, 2015).

105 Written Statement of Major Mark Rosenow, U.S. Air Force (May 20, 2015).

Current definition of force in Article 120(g)(5) of the UCMJ:

(5) Force. The term “force” means—

(A) the use of a weapon;

(B) the use of such physical strength or violence as is sufficient to overcome, restrain, 

or injure a person; or

(C) inflicting physical harm sufficient to coerce or compel submission by the victim.
53

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

opined that the definition is sufficient, and he suggested adding the words “using or brandishing a 

weapon” to the first prong under Article 120(g)(5)(A).106 He provided the example of an accused 

brandishing a Taser, a weapon that would not be likely to cause grievous bodily harm or death, but 

would serve to compel submission even without completing the act of using it.107 A retired Army 

military judge opined that the definition of “force” is not too narrow.108 In his view, some of the 

concerns about situations that are arguably not covered could be addressed by other theories of liability, 

such as “threatening or placing that other person in fear that any person will be subjected to death, 

grievous bodily harm, or kidnapping.”109 And a civilian practitioner and former Marine Corps 

prosecutor and defense counsel testified that the statutory definition of force is narrow, which in his 

opinion is sensible when considered in the context of the broader statutory definitions of bodily harm 

and of threatening or placing in fear.110

One senior Air Force appellate government counsel offered an opposing view, suggesting that 

the current definition of force should clarify that a victim is not required to exert any particular level of 

resistance in order for the accused to be found to have used unlawful force.111 She relied on an appellate 

case in which the Service court overturned a rape conviction because the government did not admit 

sufficient evidence to prove force: specifically, “trial counsel did not elicit sufficient evidence to 

indicate that the Appellant used force to overcome the pushing.”112 The court appears to have focused 

on what it perceived was a lack of resistance by the victim, and although the case was prosecuted under 

the 2007 version of Article 120, she believes that the same result could occur under the present version 

of the statute.113

One Subcommittee member, in written material presented to the Judicial Proceedings Panel, 

recommended modifying the definition of force to include situations in which the accused suggests that 

he or she has possession of a weapon; at this time the definition covers only situations in which a 

weapon is actually used.114

C. Conclusion: The Subcommittee concluded that in light of the amendments to the statutory 

definition of consent recommended in the discussion of issue 1, no modification to the Article 120(g)(5) 

definition of force should be recommended.115

D. Recommendation: No change.

 106 Written Statement of LTC Alexander Pickands, U.S. Army (May 8, 2015).

107 Written Statement of LTC Alexander Pickands, U.S. Army (May 8, 2015).

108 Written Statement of Colonel Timothy Grammel, U.S. Army (Ret.) (Apr. 10, 2015).

109 Written Statement of Colonel Timothy Grammel, U.S. Army (Ret.) (Apr. 10, 2015).

110 Transcript of JPP Subcommittee Meeting 390 (May 7, 2015) (testimony of Mr. Zachary Spilman, Attorney at Law). 

111 Written Statement of Major Mary Ellen Payne, U.S. Air Force (May 15, 2015).

112 Id, citing U.S. v. Soto, ACM 38422 (A.F. Ct. Crim. App., Sept. 16, 2014)(unpub. op.).

113 Id.

114 Dean Lisa M. Schenck, Sex Offenses Under Military Law: Will the Recent Changes in the Uniform Code of Military Justice 

(UCMJ) Re-traumatize Sexual Assault Survivors in the Courtroom?, 11 OHIO ST. J. CRIM. L. 439, 451–52 (2014).

115 See generally Transcript of JPP Subcommittee Meeting 285 (Oct. 22, 2015).
54

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

9. Are the definitions of “sexual act” and “sexual contact” too narrow, or are they overly broad?

A. JPP Rationale for Referring This Issue to the Subcommittee. The JPP heard testimony 

that the statute’s definition of sexual act may be overbroad. One JPP witness observed that a military 

member who put his or her finger in the mouth of another to abuse or harass that person could be 

charged with committing a sexual act under the current definition. A military defense counsel 

recommended amending the definition to eliminate the potential of a sexual assault conviction in cases 

in which objects or “any body part” are inserted into another’s mouth for a purpose that is not sexual.

The JPP also heard testimony that the statute’s definition of sexual contact may be either too narrow or 

overbroad. Witnesses before the JPP were split on that issue. Those who criticized the definition as too 

narrow contended that the statute does not include a sexual touching of another person through the use 

of an object. Conversely, those who viewed the definition as overly broad reasoned that the definition 

allows for possible inclusion of “hypotheticals [that are] absurd;” one observed that “if the absurdity can 

be removed from the definition, then I think it adds respect to the law.”116 Another presenter agreed, 

noting that the definition could be used to impose unnecessary or inappropriate collateral consequences, 

such as sex offender registration for acts of touching that are not necessarily sexual. During 

deliberations, members of the JPP agreed that additional review of these definitions was warranted, and 

referred this issue to the Subcommittee for further analysis.117

B. Testimony and Information Received by the Subcommittee. A majority of presenters 

before the Subcommittee recommended some modification of the definitions of “sexual act” and “sexual 

contact” under Article 120(g)(1)–(2). A retired Army military judge stated that the definitions of “sexual 

act” and “sexual contact” are too broad.118 The term “sexual act,” he suggested, could be fixed by 

 116 Transcript of JPP Public Meeting 302–03 (Aug. 7, 2014) (testimony of COL Timothy Grammel, U.S. Army (Retired)).

117 JPP INITIAL REPORT 33–35 (Feb. 2015).

118 Written Statement of Colonel Timothy Grammel, U.S. Army (Ret.) (Apr. 10, 2015).

Current definitions of sexual act and sexual contact in Article 120(g)(1) and (2) of the 

UCMJ:

(1) Sexual act. The term “sexual act” means—

(A) contact between the penis and the vulva or anus or mouth, and for purposes of 

this subparagraph contact involving the penis occurs upon penetration, however 

slight; or

(B) the penetration, however slight, of the vulva or anus or mouth, of another by any 

part of the body 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.

(2) Sexual contact. The term “sexual contact” means—

(A) touching, or 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

(B) any touching, or causing another person to touch, either directly or through the 

clothing, any body part of any person, if done with an intent to arouse or gratify the 

sexual desire of any person.
55

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

deleting two words—“or mouth”—from subparagraph (B). The term “sexual contact,” he suggested,

should be corrected by deleting most of subparagraph (B), which criminalizes touching any body part 

with any body part, including through the clothing, if it is accompanied by the intent to arouse or gratify 

the sexual desire of any person. He suggested that statutory language requiring specific intent should be 

added to subparagraph (A). In addition, with this change, an ambiguity in the last sentence can be 

corrected, and “or by any object” can be added after “by any body part.” A senior Air Force prosecutor 

testified that “sexual act” is too broad and “sexual contact” is too narrow.119 He recommended removing 

“or mouth” from the definition of “sexual act,” and adding “or any object” to the definition of “sexual 

contact.” 

A senior Army defense counsel recommended modifying the definition of “sexual contact” to 

state, “Touching may be accomplished by any part of the body or by any object when the object is used 

to arouse or gratify the sexual desire of any person.”

120 A senior Navy defense counsel agreed with the 

retired Army trial judge that “or mouth” should be deleted from the definition of sexual act.121 He also 

agreed with the suggested change to the definition of sexual contact to include the use of an object. An 

Army appellate government counsel agreed that the use of an object should be added to the definition of 

sexual contact.122 One senior Marine Corps appellate defense counsel testified that the second parts of 

the definitions of sexual act and sexual contact in Article 120(g)(1)(B) and 120(g)(2)(B) are overly 

broad and should be removed.123

On the other hand, one senior Army prosecutor recommended no changes to the definition of 

sexual act because in his view it is correctly defined.124 He stated that the definition of “sexual contact”

is adequate, although he agreed that the words “or an object” should be added.125

On July 15, 2015, in the midst of the Subcommittee’s meetings, the Court of Appeals for the 

Armed Forces issued its opinion in United States v. Schloff,

126 holding that “sexual contact” may include 

those instances when an accused touches a victim with an object. In a 3–2 decision, the Court ruled that 

a specification alleging abusive sexual contact by pressing a stethoscope to the breasts of a 

noncommissioned officer in violation of Article 120 of the UCMJ appropriately stated an offense,

because the act of pressing a stethoscope to the victim’s breasts (object-to-body contact) constituted 

sexual contact as defined by Article 120(g)(2). 

C. Conclusion: The Subcommittee concluded that the definitions for “sexual act” and “sexual 

contact” should be amended to clarify the bounds of prohibited conduct and address concerns regarding 

overbreadth in some places and narrowness in other parts of these definitions.127

Numerous presenters testified that the definition of sexual act in Article 120(g)(1)(B) may be too 

broad because it could include placing an object like a toothbrush into someone’s mouth with the intent 

to abuse, humiliate, or degrade any person, regardless of whether there was any specific sexual intent.128

 119 Transcript of JPP Subcommittee Meeting 131 (May 7, 2015) (testimony of Major Mark Rosenow, U.S. Air Force).

120 Written Statement of Major Frank Kostik U.S. Army (May 26, 2015).

121 Transcript of JPP Subcommittee Meeting 264 (May 7, 2015) (testimony of Lieutenant Commander Richard Federico, U.S. Navy).

122 Transcript of JPP Subcommittee Meeting 361 (May 7, 2015) (testimony of Captain Jihan Walker, U.S. Army).

123 Transcript of JPP Subcommittee Meeting 332–36 (May 7, 2015) (testimony of Major John Stephens, U.S. Marine Corps).

124 Written Statement of LTC Alexander Pickands, U.S. Army (May 8, 2015).

125 Id.

126 United States v. Schloff 74 M.J. 312 (2015).

127 See generally Transcript of JPP Subcommittee Meeting 288–313 (Oct. 22, 2015).

128 Transcript of JPP Subcommittee Meeting 20, 50 (May 7, 2015) (testimony of Major Amy Bateman, U.S. Army).
56

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

The Subcommittee believes that this definition could convert into a sex crime acts that might constitute 

hazing or battery-types of offenses—offensive touchings—but are not sex offenses.129

Moreover, to address concerns regarding the narrowness of the definition of sexual contact in

Article 120(g)(2), and following the recommendations of several presenters, the Subcommittee believes 

the statutory definition of sexual contact should clearly state that contact can be accomplished not only 

with any part of the body but also with an object.

D. Recommendation: The Subcommittee recommends that the Article 120(g)(1) definition for 

“sexual act” be amended as follows:130 The words “contact between the” should be deleted, and the 

words “penetration however slight of the” should be inserted, in Article 120(g)(1)(A). Further, the word 

“and” preceding the word “vulva” should be deleted and replaced with the word “into” and the words 

“and for purposes of this subparagraph contact involving the penis occurs upon ‟penetration, however 

slight” should be deleted.

A new subsection (B) should be added to subparagraph (g)(1), consisting of the words “contact 

between the mouth and the penis, vulva, or scrotum or anus.” The current subsection (B) should be 

redesignated subsection (C), and the words “or penis” should be added after the word “vulva,” and the 

words “or mouth” should be deleted.

The Subcommittee recommends that the Article 120(g)(2) definition for “sexual contact” be 

amended as follows: Article 120(g)(2)(A) and (B) should be merged into one subparagraph. The word 

“genitalia” should be deleted, and the words “vulva, penis, scrotum” should be added in its place. The 

words “any touching, or causing another person to touch, either directly or through the clothing, any 

body part of any person, if done” should be deleted.131

The new definitions of “sexual act” and “sexual contact” in Article 120(g) would read as 

follows:

(1) Sexual act. The term “sexual act” means—

(A) penetration, however slight, of the penis into the vulva or anus or mouth;

(B) contact between the mouth and the penis, vulva, scrotum, or anus; or

(C) the penetration, however slight, of the vulva or penis or anus of another by any 

part of the body 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.

(2) Sexual contact. The term “sexual contact” means—

touching, or causing another person to touch, either directly or through the clothing, the 

vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person, with an 

intent to abuse, humiliate, or degrade any person, or with an intent to arouse or gratify 

the sexual desire of any person.

 129 See generally Transcript of JPP Subcommittee Meeting 396–97 (June 25, 2015).

130 See Enclosure 1.

131 See Enclosure 1.
57

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

Touching may be accomplished by any part of the body or an object.
58

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

10. Should the accused’s knowledge of a victim’s capacity to consent be a required element of 

sexual assault?

A. JPP Rationale for Referring This Issue to the Subcommittee. The requirement of proving 

that the accused knew or reasonably should have known of the victim’s incapacity to consent is not 

found in the text of the federal sexual abuse statute, 18 U.S.C. § 2242, upon which Article 120(b)(2) and 

120(b)(3) were based. Some testimony before the JPP suggested that this additional requirement in 

Article 120 is essentially an extra mens rea element that the prosecution must prove, which, in turn, 

affords unnecessary protections to the accused. Critics opined that this extra mens requirement is 

unnecessary because the statute is aimed at protecting the victim who is mentally or physically unable to 

consent owing to one of the specifically enumerated conditions, such as being asleep, unconscious, or 

otherwise unaware that a sexual act is occurring (120(b)(2)); impaired by drugs, intoxicants, or other 

substances (120(b)(3)(A)); or suffering from a mental disease or defect or physical disability 

(120(b)(3)(B)). Given these concerns, the JPP referred this issue to the Subcommittee for further 

analysis.132

B. Testimony and Information Received by the Subcommittee. A majority of presenters 

before the Subcommittee recommended that no changes be made to Article 120(b)(2) or 120(b)(3), 

which require the government to prove both (1) the victim’s incapacity to consent and (2) that the 

accused knew or reasonably should have known of that incapacity. A retired Army military judge 

opined that the requirement that the accused knew or should have known of the victim’s incapacity to 

consent should remain as a required element of sexual assault.133 A senior Army prosecutor testified that 

this will be a required item of proof whether it is a stated element or it is raised as a defense. In its 

current form, the statute simply takes the defense of mistake of fact and incorporates it into Article 

120(b)(2)–(3) by making it a required element. In other words, an accused cannot be both reasonably 

aware of the victim’s incapacity and reasonably mistaken that the victim consented. If this requirement 

were removed, an accused could still raise mistake of fact as a defense.134 Likewise, a senior Air Force 

prosecutor stated that the requirement that the accused “knows or reasonably should know” of the 

victim’s incapacity to consent is properly included as part of Article 120(b)(2), (b)(3)(A), and (b)(3)(B), 

UCMJ. He believes it strikes the proper balance between criminalizing sexual acts (as well as sexual 

contacts through Art. 120(d), UCMJ) against victims who are in a condition making them incapable of 

consent and sparing from unfair punishment Service members who were both honestly and reasonably 

mistaken about that status. In courts-martial involving evidence of such a mistake of fact, the accused 

will appropriately be held to the standard of a reasonably careful, ordinary, prudent, and sober adult 

under the circumstances at the time of each offense.135 A former Marine prosecutor and defense counsel 

who is now a civilian counsel stated that the government should have to prove the accused had some 

knowledge that the victim was incapable of consenting.136

Two federal circuit courts of appeal have held that in prosecutions under 18 U.S.C. § 2242, the 

government must prove both that the victim was incapacitated and that the accused knew of this 

incapacity (the scienter requirement).

137

 132 JPP INITIAL REPORT 35 (Feb. 2015).

133 Written Statement of Colonel Timothy Grammel, U.S. Army (Ret.) (Apr. 10, 2015).

134 Written Statement of LTC Alexander Pickands, U.S. Army (May 8, 2015).

135 Written Statement of Major Mark Rosenow, U.S. Air Force (May 20, 2015).

136 Transcript of JPP Subcommittee Meeting 391 (May 7, 2015) (testimony of Mr. Zachary Spilman, Attorney at Law). 

137 See, e.g., U.S. v. Bruguier, 735 F.3d 754, 774 (8th Cir. 2013); United States v. Peters, 277 F.3d 963, 967–68 (7th Cir. 2002). See 

also United States v. Aksal, 2013 U.S. Dist. LEXIS 176947 (D. N.J. Dec. 17, 2013).
59

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

There were no presenters before the Subcommittee who suggested amending this section of 

Article 120.

C. Conclusion: Although some testimony was presented to the JPP that these subsections of 

Article 120 impose an additional mens rea requirement on the government in prosecutions for sexual 

assault and abusive sexual contact, this scienter element of proof is necessary, and it is also required 

under the federal criminal code in Title 18, U.S.C. Section 2242 (Sexual abuse). That section of the 

federal criminal code punishes anyone who knowingly:

(1) causes another person to engage in a sexual act by threatening or placing that other person in 

fear (other than by threatening or placing that other person in fear that any person will be 

subjected to death, serious bodily injury, or kidnapping); or

(2) engages in a sexual act with another person if that other person is—

(A) incapable of appraising the nature of the conduct; or 

(B) physically incapable of declining participation in, or communicating unwillingness 

to engage in, that sexual act.

The Subcommittee finds persuasive the federal circuit courts’ rationale for requiring that the 

government prove not just that the accused engaged in a sexual act, but also that the accused knew the 

victim was incapacitated when doing so.138 For instance, the Eighth Circuit in United States v. Bruguier

reasoned that to do otherwise would, among other things, “disregard the bedrock American tradition” of 

requiring this scienter element to be proven in rape and sexual assault prosecutions involving an 

incapacitated victim, and it would make the crime one where strict liability is imposed for the act 

alone.139

The Subcommittee additionally considered the difference in the scienter requirements between 

Article 120(b)(2)–(3) and 18 U.S.C. § 2242. The federal criminal code requires proof that an accused 

knew of a victim’s incapacity to consent, whereas Article 120(b)(2)–(3) permits conviction when an 

accused either knew or “reasonably should have known” of the victim’s incapacity to consent. The 

Subcommittee determined that the standard established by Congress in Article 120(b)(2)–(3) is neither 

unclear nor ambiguous; therefore, the Subcommittee does not recommend changes to the standard.

Two members of the Subcommittee concluded that Service members should not face the severe 

consequences of conviction under Article 120(b)(2) and (3) in the absence of the same culpability 

required for convicting a civilian under the same circumstances. Therefore they would recommend 

changing Article 120(b)(2) and (3) to require, as under 18 U.S.C. § 2242, that the accused have 

knowledge of the victim’s incapacity to consent. Under federal law, of course, knowledge includes 

willful blindness, a substantial means for assuring punishment in cases of culpable misconduct.

In sum, the Subcommittee determined that an accused’s knowledge of a victim’s incapacity to 

consent should remain a required element of sexual assault under Article 120(b)(2) and 120(b)(3).

D. Recommendation: The Subcommittee does not recommend changing Article 120(b)(2) or 

Article 120(b)(3).

 138 Bruguier, 735 F.3d at 774. 

139 Id. at 772–73.
60

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

11. Should the offense of “indecent act” be added to the UCMJ as an enumerated offense?

A. JPP Rationale for Referring This Issue to the Subcommittee. The UCMJ offense of 

“indecent acts with another” traditionally proscribed a variety of sexual misconduct that was not 

otherwise prohibited, such as consensual sexual intercourse in the presence of others and sex acts with 

an animal or a corpse. The 2007 amendment to Article 120 moved “indecent acts with another” from 

Article 134 to Article 120 and eliminated the element of the conduct as prejudicial to good order and 

discipline or discrediting the Service. The 2012 amendment to Article 120, however, removed the 

offense entirely. Currently, “indecent act” is not an enumerated offense under the UCMJ.

The JPP received testimony that the statute should be amended to restore indecent acts as an 

enumerated offense. The prosecution may still charge an indecent act as a general disorder offense 

under Article 134, but it must prove as an additional element that the conduct was prejudicial to good 

order and discipline or discredited the Service. In addition, the maximum punishment for a general 

disorder Article 134 offense is four months’ confinement and forfeiture of two-thirds pay per month for 

four months, whereas the maximum punishment for an indecent act charged under the 2007 version of 

Article 120 was up to five years’ confinement, forfeiture of all pay and allowances, and a dishonorable 

discharge.

During deliberations, members of the JPP agreed that additional review was necessary to 

consider whether indecent acts should be restored as an enumerated offense, and the JPP referred this 

issue to the Subcommittee for further analysis.140

B. Testimony and Information Received by the Subcommittee. A majority of presenters 

before the Subcommittee recommended that this offense be added back into the Uniform Code of 

Military Justice. A retired Marine Corps trial and appellate judge testified that this offense should be put 

back in the UCMJ because, in his experience, “the breadth and amount of [indecent] things that younger 

generations will do today that are completely incompatible with what the public believes the military 

culture is needs to be back in there.”141 A senior Army prosecutor stated that this offense should be 

added back into the code, and suggested that the tougher decision is between putting it into Article 120 

versus having the President add it back to Article 134’s enumerated offenses.142 In his view, putting the 

offense under Article 120 relieves the government of having to prove that the conduct was Service 

discrediting or prejudicial to good order and discipline, which is an additional element of proof for an 

Article 134 offense that is not required under Article 120.143 The importance of this, he believes, is not 

that it saves the government effort; rather, it is that indecent acts could then be a lesser-included offense 

of other Article 120 crimes.144 If it is an Article 134 offense, the additional element of proof prevents its 

use as a lesser offense.145 And a senior Air Force prosecutor testified that an offense of indecent acts 

should be added back into the code, although it could be placed under either Article 120 or Article 

134.146 He believes that nonconsensual sexual encounters regularly include elements of abuse that are 

not well captured within the present statutory scheme; if this offense is reintroduced into the code, 

investigators and trial practitioners at all levels could be aware of its availability when faced with fact 

 140 JPP INITIAL REPORT 36 (Feb. 2015). 

141 Transcript of JPP Subcommittee Meeting 200–01 (Apr. 9, 2015) (testimony of Lieutenant Colonel Quincy Ward, U.S. Marine 

Corps (Ret.)).

142 Written Statement of LTC Alexander Pickands, U.S. Army (May 8, 2015).

143 Id.

144 Id.

145 Id.

146 Transcript of JPP Subcommittee Meeting 134–35 (May 7, 2015) (testimony of Major Mark Rosenow, U.S. Air Force). 
61

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

patterns that appear to fall under the category of sexual assault but do not satisfy the elements of any 

current offense. In his view, the fair administration of military justice by the consistent charging of these 

crimes in similar fact patterns would benefit significantly if indecent acts were added back into the 

UCMJ as an enumerated offense.147

One Subcommittee member, in material presented to the Judicial Proceedings Panel, 

recommended adding this offense back into Article 120 in order to avoid the additional element of proof 

under Article 134.148

Two presenters recommended no change on this issue. A retired Army military judge stated that 

the offense of “indecent act,” which existed in the statute between 2007 and 2012, should not be added 

as an enumerated offense under Article 120.149 Most of what was in that offense between 2007 and 2012 

has been moved to Article 120c(a). The remainder of indecent acts that should be criminalized and are 

not covered by Articles 120, 120b, 120c, or 125 can fall within Article 134, as does the offense of 

indecent language. He suggested that if the President thinks it warrants being specifically enumerated as 

an offense under Article 134 in part IV of the Manual for Courts-Martial, then the President can 

accomplish that enumeration by executive order, which is how indecent acts were handled in the past.

And a civilian practitioner and former Marine Corps prosecutor and defense counsel suggested that 

indecent conduct can currently be prosecuted as a general offense under Article 134.150

C. Conclusion: The Subcommittee concluded that adding indecent acts to the UCMJ as an 

enumerated offense (i.e., a statutory offense enumerated in Title 10 of the U.S. Code) is unwarranted. 

For the great majority of the UCMJ’s history, “indecent acts” were punishable as a specified offense 

under Article 134, requiring a showing that the conduct was either prejudicial to good order and 

discipline or of a nature to discredit the Armed Forces. An enumerated offense under Article 120 would 

require no such showing, which could result in overbroad application of the offense. The Subcommittee 

is aware that the Department of Defense has proposed an Article 134 offense in a recent draft executive 

order that addresses “Indecent Conduct,” pursuant to the President’s authority under UCMJ Article 56. 

The Subcommittee takes no position on the contents of that proposal.

D. Recommendation: The Subcommittee does not recommend adding the offense of “indecent 

act” to the UCMJ as an enumerated offense under Article 120. The Subcommittee’s recommendation 

does not extend to offenses specified by the President under Article 134 of the UCMJ.

 147 Id.

148 Dean Lisa M. Schenck, Sex Offenses Under Military Law: Will the Recent Changes in the Uniform Code of Military Justice 

(UCMJ) Re-traumatize Sexual Assault Survivors in the Courtroom?, 11 OHIO ST. J. CRIM. L. 439, 448–51 (2014).

149 Written Statement of Colonel Timothy Grammel, U.S. Army (Ret.) (Apr. 10, 2015).

150 Transcript of JPP Subcommittee Meeting 391–92 (May 7, 2015) (testimony of Mr. Zachary Spilman, Attorney at Law).
62

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

12. Is the current practice of charging inappropriate relationships or maltreatment under articles 

of the UCMJ other than Article 120 appropriate and effective when sexual conduct is involved?

A. JPP Rationale for Referring This Issue to the Subcommittee. Inappropriate, consensual 

sexual relationships between instructors and recruits are currently charged as a violation of Article 92, 

UCMJ. The maximum punishment that may be imposed at a court-martial for a violation of this 

provision is a dishonorable discharge (or dismissal for an officer), forfeiture of all pay and allowances, 

and confinement for two years. Coercive relationships may also be charged, depending on the specific 

facts of the offense, under Article 93, maltreatment; Article 128, assault; or Article 134, conduct that 

discredits the Service or is prejudicial to good order and discipline. As further explained with respect to 

issue 13, sometimes behavior occurring within the context of these prohibited relationships is already 

chargeable and charged under Article 120 as well. 

Those who testified before the JPP against amending Article 120 to cover these types of sexual 

relationships highlighted the articles and regulations that already prohibit inappropriate sexual 

relationships. Numerous witnesses, including prosecutors, staff judge advocates, military justice experts, 

a civilian defense counsel, and the Army’s Judge Advocate General, told the JPP that current UCMJ 

punitive articles and regulations sufficiently criminalize sexual relationships between senior officials 

and subordinates, trainers and trainees, and recruiters and recruits, contending that the statute does not 

require further revision. 

Several other witnesses, however, told the JPP that prosecuting offenses of senior–subordinate 

relationships that involve elements of coercion under punitive articles other than Article 120 is not 

sufficient, because convictions for violating these other punitive articles generally do not require sex 

offender registration. They contend that such offenses should be charged and viewed as sex offenses, 

because while a sexual relationship between a senior and a subordinate may appear consensual, the 

inherently coercive nature of the relationship prevents the subordinate from rendering freely given 

consent.

Given the opposing views between presenters before the JPP regarding whether the current 

practice of charging inappropriate relationships or maltreatment under articles of the UCMJ other than 

Article 120 is appropriate and effective when sexual conduct is involved, the JPP referred this issue to 

the Subcommittee for further evaluation.151

B. Testimony and Information Received by the Subcommittee. A majority of presenters 

before the Subcommittee stated that the current practice of charging inappropriate sexual relationships 

or maltreatment under Articles 92 or 93 is appropriate and effective when consensual sexual conduct is 

involved. A senior Marine Corps prosecutor testified that the current method of charging inappropriate 

sexual relationships under Articles 92 or 93 is adequate.152 A senior Army prosecutor testified that the 

present framework is workable and suggested adding a new Article 92 offense for any training instructor 

who has a sexual relationship with a recruit.153 A senior Navy prosecutor and former defense counsel 

testified that the current version of Article 120 is sufficient to prosecute sexual assault and contact 

crimes.154 In cases in which Article 120 is charged and the government is arguing that the accused 

placed the victim in fear, he believes that Article 120 allows a prosecutor to make a fact-specific 

prosecution and to make an argument as to why the language used by the accused was sufficient to put 

 151 JPP INITIAL REPORT 38–43 (Feb. 2015).

152 Transcript of JPP Subcommittee Meeting 12–13 (Aug. 27, 2015) (testimony of Major Adam King, U.S. Marine Corps).

153 Transcript of JPP Subcommittee Meeting 19–22 (Aug. 27, 2015) (testimony of Major Tyler Heimann, U.S. Army).

154 Transcript of JPP Subcommittee Meeting 25 (Aug. 27, 2015) (testimony of Lieutenant Commander Ben Robertson, U.S. Navy).
63

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

that person in fear and give them a reasonable belief that “what they said was going to happen, would 

happen.”155 And a senior Coast Guard prosecutor who has also served as a staff judge advocate and 

military judge concurred that the current practice of prosecuting consensual trainer–trainee cases under 

Article 92 is sufficient.156

Numerous defense counsel also expressed their belief that the current practice of charging 

inappropriate relationships or maltreatment under articles of the UCMJ other than Article 120 is 

appropriate and effective when consensual sexual conduct is involved. A senior Air Force appellate 

defense counsel testified that the current structures of the UCMJ, specifically Article 120, are fully 

capable of handling sexual misconduct within the training environment.157 A Navy defense counsel 

reiterated that the current practice of charging under Articles 92, 93, or 120 allows prosecutors the 

flexibility needed when charging these types of cases.158 And a Marine defense counsel who has 

previously served as a prosecutor stated that Article 92 is sufficient when charging sexual relationships 

between trainers and trainees that do not fit under Article 120.159

C. Conclusion: The current practice of charging inappropriate relationships as a violation of a 

lawful general order or maltreatment under articles 92 or 93 of the UCMJ can be appropriate and 

effective when consensual sexual conduct is involved.

D. Recommendation: The Subcommittee does not recommend any changes to the current 

practice of charging inappropriate sexual relationships that cannot be charged under Article 120 as a 

violation of Articles 92 and/or 93. 

 155 Transcript of JPP Subcommittee Meeting 25 (Aug. 27, 2015) (testimony of Lieutenant Commander Ben Robertson, U.S. Navy).

156 Transcript of JPP Subcommittee Meeting 28–30 (Aug. 27, 2015) (testimony of Lieutenant Commander Ben Gullo, U.S. Coast 

Guard).

157 Transcript of JPP Subcommittee Meeting 123 (Aug. 27, 2015) (testimony of Captain Lauren Shure, U.S. Air Force).

158 Transcript of JPP Subcommittee Meeting 128 (Aug. 27, 2015) (testimony of Lieutenant Paul Hochmuth, U.S. Navy).

159 Transcript of JPP Subcommittee Meeting 121 (Aug. 27, 2015) (testimony of Captain Charles Olson, U.S. Marine Corps).
64

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

13. Does the 2012 version of the UCMJ afford prosecutors the ability to effectively charge 

coercive sexual relationships or those involving abuse of authority under Article 120?

A. JPP Rationale for Referring This Issue to the Subcommittee. Any case involving overt 

force or threat of force may be charged as an offense under Article 120. But for cases that involve 

coercive sexual relationships without overt force, the ability to charge conduct as a criminal offense 

under Article 120 has been diminished by amendments to the statute. Under the pre-2007 version of 

Article 120, cases without overt force relied on the doctrine of constructive force—an alternative legal 

theory that recognizes use of threats and intimidation to gain control or prevent resistance as a type of 

force. Military courts further developed this theory to address instances of clearly nonconsensual sexual 

acts—especially between military members with rank disparity—when there was no use of overt 

physical force. The necessary force was found to be constituted by fear, coercion, or abuse of authority.

However, the mere existence of a sexual relationship between individuals of a different rank was not 

alone enough to sustain a conviction under Article 120 of the UCMJ. Under the constructive force 

doctrine, military appellate courts determined that the victim’s lack of consent must be manifest and/or 

the accused must have explicitly used the difference in rank to create a situation of dominance and 

control.

The 2012 version of Article 120 does not contain language that specifically addresses the use of 

military rank to threaten or coerce, without force, an individual into a sexual act or sexual contact. Some 

witnesses told the JPP that the current statutory language in Article 120 does not clearly criminalize 

sexual relationships between senior personnel and their subordinates resulting from coercion and/or 

abuse of authority when force and lack of consent are not overtly present. Two witnesses before the JPP 

described the difficulty of charging coercive sexual relationships as sexual assault offenses under Article 

120(b)(1)(A), a sexual act accomplished through fear of wrongful action, noting that the statutory 

language was ineffective for such cases. The witnesses recommended amending Article 120 to 

specifically encompass situations in which senior Service members use their position of authority to 

coerce a subordinate into a sexual act or contact. Given the opposing views of the presenters before the 

JPP, the JPP referred this issue to the Subcommittee for further evaluation.160

B. Testimony and Information Received by the Subcommittee. A majority of presenters 

before the Subcommittee stated that the 2012 version of Article 120 provides military prosecutors the 

ability to effectively charge coercive sexual acts or contacts involving the abuse of rank or authority. A 

senior Coast Guard prosecutor testified that the current version of Article 120 is sufficient to effectively 

charge coercive sexual misconduct involving the abuse of authority.161 A senior Army defense counsel 

who previously served as a prosecutor at an Army training command testified that in his experience, 

even consensual sexual acts or contacts between trainers and trainees were prosecuted under an 

appropriate article and the offenders punished and held publicly accountable.162 A senior Marine Corps 

defense counsel and former prosecutor testified that the current version of Article 120 gives prosecutors 

sufficient ability to charge coercive sexual relationships involving the abuse of authority.163 A senior Air 

Force appellate defense counsel testified that the current version of Article 120 is fully capable of 

handling sexual misconduct cases that arise in the training environment, and no changes are 

necessary.164 A senior Navy defense counsel also testified that the current version of Article 120 is both 

 160 JPP INITIAL REPORT 38–43 (Feb. 2015).

161 Transcript of JPP Subcommittee Meeting 28–31 (Aug. 27, 2015) (testimony of Lieutenant Commander Ben Gullo, U.S. Coast 

Guard).

162 Transcript of JPP Subcommittee Meeting 112–15 (Aug. 27, 2015) (testimony of Major Ryan Wardle, U.S. Army).

163 Transcript of JPP Subcommittee Meeting 121 (Aug. 27, 2015) (testimony of Captain Charles Olson, U.S. Marine Corps).

164 Transcript of JPP Subcommittee Meeting 123 (Aug. 27, 2015) (testimony of Captain Lauren Shure, U.S. Air Force).
65

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

effective and appropriate and provides prosecutors the flexibility they need in charging this type of 

sexual misconduct.165

Numerous staff judge advocates who advise commanding officers at entry-level training 

facilities regarding investigations and prosecution of sexual assault allegations testified in accord with 

the majority of the presenters before the Subcommittee. For instance, an Air Force staff judge advocate 

testified that the current versions of Article 92 and Article 120 can be used to effectively prosecute 

trainer sexual misconduct.166 She believes that other articles of the UCMJ, such as Article 93 

(maltreatment and cruelty), Article 128 (assault, simple assault, and battery), or 134 (general disorders),

provide the flexibility to charge appropriately depending on the unique facts of each individual case.167

A senior Marine Corps staff judge advocate legal advisor for an entry-level training commanding officer 

testified that the current versions of Articles 92 and 120 are sufficient to hold Marines accountable for 

sexual misconduct in the entry-level training environment.168 And a senior Coast Guard staff judge 

advocate legal adviser to the commanding officer at an entry-level training installation testified that the 

current practice of charging other articles, primarily Article 92, is sufficient in capturing the criminality 

of any given fact pattern.169 He also told the Subcommittee that the current version of Article 120 gives 

prosecutors the ability to adequately prosecute these types of cases.170

C. Conclusion: The Subcommittee concluded that in some cases Article 120, as well as other 

provisions in the UCMJ, provides prosecutors with an effective means of charging coercive sexual 

misconduct.171 However, because such relationships—especially those that occur in the entry-level 

training environment—can involve subtle forms of coercion not easily captured under the current 

structure of Article 120, such misconduct could be better addressed via the proposed Article 

120(b)(1)(E).

D. Recommendation: The Subcommittee recommends no changes to Article 120(b)(1)(A), but 

will recommend that a new subsection be added to better address coercive sexual relationships or those 

involving abuse of authority. See Issue 15.

 165 Transcript of JPP Subcommittee Meeting 128 (Aug. 27, 2015) (testimony of Lieutenant Paul Hochmuth, U.S. Navy).

166 Transcript of JPP Subcommittee Meeting 189 (Aug. 27, 2015) (testimony of Colonel Brynn Morgan, U.S. Air Force).

167 Id.

168 Transcript of JPP Subcommittee Meeting 194 (Aug. 27, 2015) (testimony of Lieutenant Colonel Brett Wilson, U.S. Marine 

Corps).

169 Transcript of JPP Subcommittee Meeting 198 (Aug. 27, 2015) (testimony of Lieutenant Commander Paul Casey, U.S. Coast 

Guard).

170 Id. at 199.

171 See generally Transcript of JPP Subcommittee Meeting 385–88 (Oct. 22, 2015).
66

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

14. Should the definition of “threatening or placing that other person in fear” be amended to 

ensure that coercive sexual relationships or those involving abuse of authority are covered under 

an existing Article 120 provision?

A. JPP Rationale for Referring This Issue to the Subcommittee. The definition of 

“threatening or placing that other person in fear” used in the 2012 version of Article 120 is less 

encompassing than the 2007 definition. The JPP agrees that as a result, the 2012 version of Article 120 

does not sufficiently criminalize sexual relationships between senior and subordinates when force or the 

threat of force is not overt. Given this concern, the JPP referred this issue to the Subcommittee for 

further evaluation.172

B. Testimony and Information Received by the Subcommittee. A majority of presenters 

before the Subcommittee recommended amending the definition of “threatening or placing that other 

person in fear” to ensure that coercive sexual relationships or those involving abuse of authority are 

better covered under an existing Article 120 provision. A senior Air Force appellate government counsel 

testified that the current definition is not expansive enough, and she recommended going back to the 

definition of threatening or placing in fear from the 2007 version of Article 120.173 She offered a single 

caveat: that the definition should not include promises to positively affect a person’s career.174 A senior 

Marine Corps prosecutor testified that while it is not necessary to amend the statutory definition of 

“threatening or placing that other person in fear,” the bench instructions on this definition need to be 

modified to address the fact scenario in which an accused coerces a victim into a sexual act or contact 

by abusing his or her military rank or authority.175 A senior Coast Guard prosecutor testified that this 

definition “falls short,” simply because “when we define wrongful action—that gets a little gray.”176

From a prosecutor’s standpoint, he believes that the military judge should be equipped to provide 

instructions that are definitive on the law and that can be followed by the court-martial panel members.

Like several other presenters before the Subcommittee, he suggested looking back to the 2007 version 

of Article 120 and its definition for guidance.177 A senior Air Force appellate defense counsel testified

that the current definition should be modified along the lines of the definition set forth in the 2007 

version of Article 120.178 And a senior Navy defense counsel recommended that the concerns regarding 

the definition of “threatening or placing that other person in fear” be addressed by modifying the bench 

instructions to align more closely with the definition contained in the 2007 version of Article 120. 

 172 JPP INITIAL REPORT 41–43 (Feb. 2015).

173 Transcript of JPP Subcommittee Meeting 6 (Aug. 27, 2015) (testimony of Major Mary Ellen Payne, U.S. Air Force).

174 Id. at 7–8.

175 Transcript of JPP Subcommittee Meeting 14–15 (Aug. 27, 2015) (testimony of Major Adam King, U.S. Marine Corps)

176 Transcript of JPP Subcommittee Meeting 31 (Aug. 27, 2015) (testimony of Lieutenant Commander Ben Gullo, U.S. Coast Guard).

177 Id. at 31–32.

178 Transcript of JPP Subcommittee Meeting 123 (Aug. 27, 2015) (testimony of Captain Lauren Shure, U.S. Air Force).

Current definition of “threatening or placing that other person in fear” in Article 120(g)(7) 

of the UCMJ:

(7) Threatening or placing that other person in fear. The term “threatening or placing that 

other person in fear” means a communication or action that is of sufficient consequence to 

cause a reasonable fear that non-compliance will result in the victim or another person 

being subjected to the wrongful action contemplated by the communication or action.
67

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

Staff judge advocate legal advisers to training commanding officers also agreed that the 

definition needs modification. A senior Air Force staff judge advocate to a training commanding officer 

testified that the definition is too narrow and should be expanded to include a promise of positive action 

in return for sexual acts or contact.179 A Marine Corps staff judge advocate to the commanding officer of 

entry-level training testified that this definition needs to be improved by referring back to the previous 

definition in the 2007 version of Article 120, which provided the specific example of an accused who 

uses or abuses his or her military position, rank, or authority to obtain sexual acts or contact from a 

victim.180 

Conversely, one senior Navy prosecutor testified that the definition of “threatening or placing 

that other person in fear” in Article 120(g)(7) is sufficient and allows the prosecutor to make a factspecific prosecution and an argument as to why the language used by the accused was sufficient to put 

that person in fear and give them a reasonable belief that “what they said was going to happen, would 

happen.”181 He testified that in situations in which the accused has not made any express threats or taken 

any overt actions that would help to corroborate a threat of wrongful action, he can still prosecute that 

fact pattern under Article 120(b)(1)(B) or 120(d) by alleging that the act or contact was committed 

without the consent of the victim.182

C. Conclusion: The Subcommittee concluded that if the proposed Article 120(b)(1)(E) is 

adopted (see issue 15), the definition of threatening or placing another person in fear does not need to be 

amended with respect to coercive sexual acts or coercive sexual contact.183

D. Recommendation: No change.

 179 Transcript of JPP Subcommittee Meeting 190 (Aug. 27, 2015) (testimony of Colonel Brynn Morgan, U.S. Air Force).

180 Transcript of JPP Subcommittee Meeting 194–95 (Aug. 27, 2015) (testimony of Lieutenant Colonel Brett Wilson, U.S. Marine 

Corps).

181 Transcript of JPP Subcommittee Meeting 25 (Aug. 27, 2015) (testimony of Lieutenant Commander Ben Robertson, U.S. Navy).

182 Id. at 39–40.

183 See generally Transcript of JPP Subcommittee Meeting 385–88 (Oct. 22, 2015).
68

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

15. Should a new provision be added under Article 120 to specifically address coercive sexual 

relationships or those involving abuse of authority?

A. JPP Rationale for Referring This Issue to the Subcommittee. The “Report on Protections 

for Prospective Members” stated that a new UCMJ article or an additional provision under Article 120 

was not required because “statutes and regulations are in place to hold offenders appropriately 

accountable when prospective and new members of the military are victimized by service members who 

exercise control over them.”184 Given the JPP’s concerns regarding whether the current methods of 

charging coercive sexual misconduct committed by abuse of rank or authority under Article 92, 93, or 

120 are effective, the JPP referred this issue to the Subcommittee for further analysis.185

B. Testimony and Information Received by the Subcommittee. A majority of presenters 

before the Subcommittee recommended against a new provision under Article 120 to specifically 

address coercive sexual relationships or those involving abuse of authority. Those presenters noted that 

when cases arise in which an alleged victim states he or she was coerced into engaging in a sexual act or 

sexual contact with a superior, this fact pattern is currently charged as a violation of Article 

120(b)(1)(A) for threatening or placing the victim in fear of wrongful action.

C. Conclusion: Although most presenters before the Subcommittee recommended against 

adopting a new provision to specifically address coercive sexual relationships or offenses involving 

abuse of authority, the Subcommittee is concerned that the present statute removed language from the 

2007 version of Article 120 that specifically addressed the abuse of position, rank, or authority. This 

concern is especially acute when it analyzes offenses that have arisen in the entry-level training 

environment which have been the subject of so much recent public scrutiny and which often lack overt, 

direct threats of wrongful action, involving instead more subtle elements of coercion. Accordingly, to 

address this concern and make it abundantly clear that in cases in which an accused has used his or her 

position, rank, or authority to coerce a victim into engaging in a sexual act or sexual contact, the 

Subcommittee believes that a new subsection should be added under Article 120(b)(1).186

D. Recommendation: Article 120(b)(1) should be amended to include a new subparagraph (E): 

“by using their position, rank, or authority to secure compliance by the other person.”

The new Article 120(b)(1)(E) would read as follows:

(b) Sexual assault. Any person subject to this chapter who—

(1) commits a sexual act upon another person

(E) by using position, rank, or authority to secure compliance by the other person

is guilty of sexual assault and shall be punished as a court-martial shall direct.187

 184 U.S. DEPT. OF DEF., REPORT ON PROTECTIONS FOR PROSPECTIVE MEMBERS AND NEW MEMBERS OF THE ARMED FORCES DURING

ENTRY-LEVEL PROCESSING AND TRAINING 2 (MAY 2014) [HEREINAFTER U.S. DEPT. OF DEF., REPORT ON PROTECTIONS FOR 

PROSPECTIVE MEMBERS], available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/02-

Article_120/20140919/29_ReportOnProtectionsForProspectiveMembers_DoD_2014.pdf.

185 JPP INITIAL REPORT 38–43 (Feb. 2015).

186 See generally Transcript of JPP Subcommittee Meeting 385–88 (Oct. 22, 2015).

187 See Enclosure 1.
69

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

16. Should sexual relationships between basic training instructors and trainees be treated as 

strict liability or per se illegal offenses under Article 120?

A. JPP Rationale for Referring This Issue to the Subcommittee. One member of Congress 

told the JPP that the issue of consent was paramount during recent courts-martial of military training 

instructors who were accused of sexually assaulting trainees at Lackland Air Force Base, Texas. She 

noted that many of the instructors acknowledged sexual relationships with the trainees but argued at trial 

that the relationships were consensual and therefore not criminal. She stated that on the basis of this 

defense, many of the instructors were found not guilty of sexual offenses but guilty of lesser offenses 

that did not carry the collateral consequence of having to register as a sex offender. From these 

outcomes, she concluded that the UCMJ and Article 120 do not properly deal with military training 

environments, and she declared, “I believe there should be strict liability.” She also told the JPP that 

current military regulations discourage victims from reporting sexual assaults resulting from abuse of 

authority, because they leave victims subject to possible UCMJ action for engaging in consensual 

relationships with instructors.188

In law, strict liability is liability that does not depend on intent to harm. Instead, it is based on 

the breach of an absolute duty to make something safe. In this context, strict liability would make the 

trainer who engages in a sexual act with a trainee guilty of a sexual assault owing solely to his or her 

position of trust and authority as it relates to the victimized subordinate. The assumption of this legal 

theory is that trainers of military personnel have an absolute duty to make safe every aspect of the 

training environment—from equipment integrity to command structure and interpersonal relationships. 

This point of view holds that any deviation from this standard would be an affront to the authority 

placed in those leaders and would cause trainees to distrust the immediate chain of command and 

military leadership as a whole.

The JPP heard from numerous witnesses who recommended against a strict liability or per se 

illegal standard that would remove any consideration of the trainer’s intent or an alleged victim’s 

consent. Witnesses contended that such a standard would be overbroad, criminalize truly consensual 

relationships, and result in unjust outcomes. Other witnesses reasoned that the UCMJ already 

criminalizes such conduct, that the current charging mechanisms appropriately cover abuses of power in 

training environments, and that an additional punitive provision is not necessary. Given these opposing 

views, the JPP referred this issue to the Subcommittee for further evaluation.189

B. Testimony and Information Received by the Subcommittee. A majority of presenters 

before the Subcommittee recommended against treating sexual relationships between training 

instructors and trainees as per se illegal or strict liability offenses under Article 120. The consistent 

theme sounded by those voicing this position was twofold: (1) the present methods for prosecuting these 

types of offenses under Article 92 are sufficient to hold military training instructors accountable, and (2) 

it would be unjust to make consensual sexual relationships between trainers and trainees a registrable 

sex offense, when no such registration results from similar consensual sexual relationships in the 

civilian community.

One senior Air Force prosecutor and appellate government counsel stated that she is opposed to 

making these offenses per se illegal or strict liability because (1) it is overly paternalistic to tell adults 

they can never consent to sex while simultaneously telling them they must act and be treated like adults 

in the military; (2) labeling someone a sex offender for having a consensual sexual relationship with an 

 188 Transcript of JPP Public Meeting 128 (Sept. 19, 2014) (testimony of Rep. Jackie Speier, D-14th CA).

189 JPP INITIAL REPORT 41–43 (Feb. 2015).
70

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

adult is unjust; (3) these relationships are already criminalized under Article 92, and that is an effective 

deterrent and method of prosecution; and (4) per se/strict liability for what are factually consensual 

relationships is an overcorrection in sexual assault policy.190 All other senior prosecutors from the 

Marine Corps,191 Army,192 Navy,193 and Coast Guard194 who testified at the same Subcommittee meeting 

agreed with this assessment.

Similarly, the defense counsel who testified before the Subcommittee during its August meeting 

recommended against treating sexual relationships between training instructors and trainees as per se 

illegal or strict liability offenses under Article 120. One senior Army defense counsel who has 

previously served as a senior prosecutor testified that it would be a mistake to adopt a strict liability or 

per se illegal standard making any sexual relationship between instructors and trainees a violation of 

Article 120 when the facts reveal consensual conduct. He testified that there have been cases in which 

an investigation found consensual sexual conduct between a trainer and trainee who both intended to 

remain in a relationship after the trainee’s graduation.195 A senior Marine defense counsel who also 

served previously as a prosecutor echoed these sentiments and stated that Article 92 is sufficient to 

criminalize and hold accountable trainers who have consensual sexual relationships with recruits.196 An 

Air Force appellate defense counsel who represented several Air Force military training instructors in 

cases arising from the Lackland sexual abuse from 2011 to 2013 stated that the current version of 

Article 120 is sufficient to address nonconsensual sexual assault or contact cases arising in the training 

environment, and she recommended against adopting a strict liability or per se illegal standard.197 And a 

Navy defense counsel and former prosecutor testified that the current version of Article 120 is sufficient 

to prosecute nonconsensual sexual offenses in the training environment; adopting a strict liability or per 

se illegal standard is unnecessary and would be inappropriate because in his experience the majority of 

sexual misconduct committed by instructors is mutual, consensual conduct.198

Numerous staff judge advocate legal advisers to training commanding officers reiterated the 

comments of the prosecutors and defense counsel. A senior Air Force staff judge advocate stated that 

she did not believe the adoption of a strict liability or per se illegal standard under Article 120 would 

improve prosecutions under Article 120.199 She viewed the present framework of using Article 92, 

Article 93, or the general article under Article 134 as sufficient to address trainer sexual misconduct that 

does not rise to the level of nonconsent.200 A senior Army staff judge advocate legal adviser 

recommended against a strict liability or per se illegal standard under Article 120.201 A Marine Corps 

staff judge advocate legal adviser to a training commanding officer stated that the typical method of 

prosecuting trainer sexual misconduct under Article 92 is sufficient to hold trainers accountable.202 He 

 190 Written Statement of Major Mary Ellen Payne, U.S. Air Force (September 1, 2015).

191 Transcript of JPP Subcommittee Meeting 11 (Aug. 27, 2015) (testimony of Major Adam King, U.S. Marine Corps).

192 Transcript of JPP Subcommittee Meeting 20 (Aug. 27, 2015) (testimony of Major Tyler Heimann, U.S. Army).

193 Transcript of JPP Subcommittee Meeting 24–26 (Aug. 27, 2015) (testimony of Lieutenant Commander Ben Robertson, U.S. 

Navy).

194 Transcript of JPP Subcommittee Meeting 28–30 (Aug. 27, 2015) (testimony of Lieutenant Commander Ben Gullo, U.S. Coast 

Guard). 

195 Transcript of JPP Subcommittee Meeting 112–14 (Aug. 27, 2015) (testimony of Major Ryan Wardle, U.S. Army).

196 Transcript of JPP Subcommittee Meeting 121 (Aug. 27, 2015) (testimony of Captain Charles Olson, U.S. Marine Corps).

197 Transcript of JPP Subcommittee Meeting 122–27 (Aug. 27, 2015) (testimony of Captain Lauren Shure, U.S. Air Force).

198 Transcript of JPP Subcommittee Meeting 127–31 (Aug. 27, 2015) (testimony of Lieutenant Paul Hochmuth, U.S. Navy).

199 Transcript of JPP Subcommittee Meeting 188–89 (Aug. 27, 2015) (testimony of Colonel Brynn Morgan, U.S. Air Force).

200 Id.

201 Transcript of JPP Subcommittee Meeting 191 (Aug. 27, 2015) (testimony of Colonel David Mendelson, U.S. Army).

202 Transcript of JPP Subcommittee Meeting 194 (Aug. 27, 2015) (testimony of LtCol Brett Wilson, U.S. Marine Corps).
71

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

therefore is not in favor of adopting any strict liability or per se illegal standard under Article 120.203

And a Coast Guard staff judge advocate testified that the present practice of charging inappropriate 

sexual relationships between trainers and trainees under Article 92 is sufficient and there is no need to 

make such relationships a strict liability or per se illegal violation of Article 120.204

The legal advisers to the training commands also noted that recruits are given thorough training 

that even consensual relationships are inappropriate and illegal for both recruits and trainers and that 

recruits sign acknowledgment forms indicating their understanding of these regulations. They added that 

instructors already express fears in dealing with trainees and that continued over-criminalization would 

further erode the important mentoring relationship that must be created between instructors and recruits.

205

At the July meeting, some former and current training commanders gave views differing from 

those of the prosecutors and legal advisers. One commanding general for an Army training command 

opined that making consensual sexual relationships per se illegal under Article 120 or a different article 

not currently used would provide commanders with an additional tool to deter this misconduct.206 An 

Air Force general officer expressed views similar to those of the prosecutors and legal advisers. She was 

skeptical of making these offenses per se illegal under Article 120, but suggested modifying Article 120 

so as to cover situations involving “constructive force” by instructors.207 A Coast Guard flag officer 

commander testified that she supported “an expansion of Article 120 to be able to accommodate for this 

imbalance of power” between instructors and recruits.208 And a Marine Corps commanding general 

stated that he is not opposed to strict liability in boot camp (entry-level training) alone, but in other 

contexts he believes that the present prosecution framework is sufficient.209 

C. Conclusion: Consensual sexual relationships that occur between instructors and trainees in 

the environment of basic training should not be treated as either strict liability or per se illegal under 

Article 120. Service orders and regulations make these types of relationships per se illegal under Article 

92, and they can be prosecuted with a maximum punishment of two years’ confinement and a 

dishonorable discharge.

D. Recommendation: The Subcommittee does not recommend that consensual sexual 

relationships between basic training instructors and trainees be treated as either strict liability or illegal 

per se under Article 120.

 203 Id. at 194–95.

204 Transcript of JPP Subcommittee Meeting 198–200 (Aug. 27, 2015) (testimony of LCDR Paul Casey, U.S. Coast Guard).

205 Transcript of JPP Subcommittee Meeting 233-34 (Aug. 27, 2015) (testimony of Colonel David Mendelson, U.S. Army). 

206 Transcript of JPP Subcommittee Meeting 271–76, 281 (July 22, 2015) (testimony of Major General Peggy Combs, U.S. Army).

207 Transcript of JPP Subcommittee Meeting 291–92 (July 22, 2015) (testimony of Major General Gina Grosso, U.S. Air Force).

208 Transcript of JPP Subcommittee Meeting 295 (July 22, 2015) (testimony of Rear Admiral Cari Thomas, U.S. Coast Guard).

209 Transcript of JPP Subcommittee Meeting 301–03 (July 22, 2015) (testimony of Brigadier General Austin Renforth, U.S. Marine 

Corps).
72

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

17. As an alternative to further amending Article 120, should coercive sexual relationships 

currently charged under other articles of the UCMJ be added to DoD’s list of offenses that 

trigger sex offender registration?

A. JPP Rationale for Referring This Issue to the Subcommittee. In receiving testimony 

regarding the question of whether sexual relationships between basic training instructors and trainees 

should be treated as strict liability or per se illegal offenses under Article 120, presenters told the JPP 

that coercive sexual relationships charged under articles other than Article 120, such as Articles 92 and 

93, do not result in an accused being registered as a sex offender after conviction. Accordingly, the JPP 

referred this issue to the Subcommittee for further analysis.210

B. Testimony and Information Received by the Subcommittee. None of the presenters before 

the Subcommittee recommended adding any offenses charged under articles other than Article 120 to 

DoD’s list of offenses that trigger sex offender registration.

C. Conclusion: The Subcommittee concluded that cases in which sexual relationships are 

charged and prosecuted under Articles 92 and/or 93 should not be added to the Department of Defense’s 

list of offenses that trigger sex offender registration. Before being reported as a sex offender, a military 

accused should be convicted of a qualifying sex offense involving lack of consent. Articles 92 and 93 do 

not involve sex crimes in which a sexual act or sexual contact has been committed without a victim’s 

consent. 

D. Recommendation: Sexual relationships currently charged under other articles of the UCMJ, 

including Articles 92 and 93, should not be added to DoD’s list of offenses that trigger sex offender 

registration.

 210 JPP INITIAL REPORT 39–43 (Feb. 2015).
73

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

ENCLOSURE 1

Subcommittee's Proposed Revisions to Article 120
74

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

45. Article 120—Rape and sexual assault generally

a. Text of statute.

(a) Rape. Any person subject to this chapter who commits a sexual act upon another person by—

(1) using unlawful force against that other person;

(2) using force causing or likely to cause death or grievous bodily harm to any person;

(3) threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or 

kidnapping;

(4) first rendering that other person unconscious; or

(5) administering to that other person by force or threat of force, or without the knowledge or consent of that person, a 

drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to 

appraise or control conduct;

is guilty of rape and shall be punished as a court-martial may direct.

(b) Sexual Assault. Any person subject to this chapter who—

(1) commits a sexual act upon another person by

(A) by threatening or placing that other person in

fear; 

(B) without the consent of the other person; 

causing bodily harm to that other person;

(C) by making a fraudulent representation that the sexual act serves a professional purpose; or

(D) by inducing a belief by any artifice, pretense or concealment that the person is another person; or

(E) by using position, rank, or authority to secure compliance by the other person; 

(2) commits a sexual act upon another person when the person knows or reasonably should know that the other person 

is asleep, unconscious or otherwise unaware that the sexual act is occurring; or

(3) commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to—

(A) impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably 

should be known by the person; or

(B) a mental disease or defect, or physical disability, and that condition is known or reasonably should be 

known by the person

is guilty of sexual assault and shall be punished as a court-martial may direct.

(c) Aggravated sexual contact.

Any person subject to this chapter who commits or causes sexual contact upon or by another person, if to do so would 

violate subsection (a) (rape) had the sexual contact been a sexual act, is guilty of aggravated sexual contact and shall be

punished as a court-martial may direct.

(d) Abusive sexual contact. Any person subject to this chapter who commits or causes sexual contact upon or by another 

person, if to do so would violate subsection (b) (sexual assault) had the sexual contact been a sexual act, is guilty of

abusive sexual contact and shall be punished as a court-martial may direct.

(e) Proof of Threat. In a prosecution under this section, in proving that a person made a threat, it need not be proven 

that the person actually intended to carry out the threat or had the ability to carry out the threat.

(f) Defenses. An accused may raise any applicable defenses available under this chapter or the Rules for Court-Martial. 

Marriage is not a defense for any conduct in issue in any prosecution under this section.
75

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

(g) Definitions. In this section:

(1) Sexual act. The term “sexual act” means—

(A) contact between the penetration however slight of the penis and into the vulva or anus or mouth, and for 

purposes of this subparagraph, contact involving the penis occurs upon penetration, however slight; or

(B) contact between the mouth and the penis, vulva, or scrotum or anus; or

(BC) the penetration, however slight, of the vulva or penis or anus or mouth of another by any part of

the body 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.

(2) Sexual contact. The term “sexual contact” means—

(A) touching, or causing another person to touch, either directly or through the clothing, the genitalia

vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate or degrade 

any person or

(B) any touching, or causing another to touch, either directly or through the clothing, any body part of any 

person, if done with an intent to arouse or gratify the sexual desire of any person.

Touching may be accomplished by any part of the body or an object.

(3) Bodily harm. The term "bodily harm" means any offensive touching of another, however slight, including any 

nonconsensual sexual act or nonconsensutal sexual contact.

(34) Grievous bodily harm. The term “grievous bodily harm” means serious bodily injury. It includes fractured

or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily

injuries. It does not include minor injuries such as a black eye or a bloody nose.

(45) Force. The term “force” means—

(A) the use of a weapon;

(B) the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or

(C) inflicting physical harm sufficient to coerce or compel submission by the victim.

(56) Unlawful Force.—The term “unlawful force” means an act of force done without legal justification or excuse.

(67) Threatening or placing that other person in fear. The term “threatening or placing that other person in fear”

means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in

the victim or another person being subjected to the wrongful action contemplated by the communication or action.

(78) Consent.

(A) The term “consent” means a freely given agreement to the conduct at issue by a competent person.

An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or 

submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent. 

Submission resulting from the use of force, threat of force, or placing another person in fear also does not constitute consent. A 

current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved in the conduct

at issue does shall not constitute consent.
76

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

(B) A sleeping, unconscious or incompetent person cannot consent. A person cannot consent to force 

causing or likely to cause death or grievous bodily harm or to being rendered unconscious. A person cannot consent while und

er threat or in fear or under the circumstances described in subparagraph (C) or (D) of subsection (b)(1).

(C) Lack of consent may be inferred based on the circumstances of the offense. All the surrounding 

circumstances are to be considered in determining whether a person gave consent. or whether a person did not resist or ceased 

to resist only because of another person's actions.

(8) Incapable of consenting. A person is "incapable of consenting" if that person does not possess the mental ability 

to appreciate the nature of the conduct or does not possess the physical or mental ability to make or communicate a decision 

regarding such conduct.
77

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

ENCLOSURE 2

Supplemental and Dissenting Commentary Concerning 

Subcommittee Recommendations, with 

Proposed New Article 120 Statute

by Laurie Rose Kepros
78

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

SUPPLEMENTAL AND DISSENTING COMMENTARY CONCERNING 

SUBCOMMITTEE RECOMMENDATIONS

by Laurie Rose Kepros

The JPP Subcommittee has reached consensus on several important improvements to Article 120 of 

the Uniform Code of Military Justice (UCMJ), the Manual for Courts-Martial (MCM), and Military 

Judges’ Benchbook (Benchbook) which are set forth in its report. I write separately to identify 

ongoing problems with Article 120 that remain either unaddressed or inadequately addressed by the 

Subcommittee’s recommendations and to urge further modifications. My comments discuss the 

following issues:

A. REMAINING CONFUSION IN ARTICLE 120 

1. THE ARTICLE 120 AUDIENCE

2. ADDITIONAL CHANGES TO ARTICLE 120 REQUIRED DESPITE 

RECENT AMENDMENTS TO THE STATUTE

3. THE KEPROS PROPOSAL IN ATTACHMENT A

B. JPP ISSUE 1: IS THE CURRENT DEFINITION OF “CONSENT” UNCLEAR OR 

AMBIGUOUS?

C. MENS REA ISSUES

1. JPP ISSUE 4: IS THE DEFINITION CONCERNING THE ACCUSED’S 

“ADMINISTRATION OF A DRUG OR INTOXICANT” OVERBROAD?

2. JPP ISSUE 3: SHOULD THE STATUTE DEFINE “INCAPABLE OF 

CONSENTING”?

D. JPP ISSUE 11: SHOULD THE OFFENSE OF “INDECENT ACT” BE ADDED TO 

THE UCMJ AS AN ENUMERATED OFFENSE?

INTRODUCTION

It is undisputed that the just resolution of sexual offense allegations is a matter of utmost importance 

to those accused, to victims, and to the friends and family who care for them, as well as to the 

broader military community and society. Perhaps more than ever before, conviction of a sex crime is 

a wholly life-altering event. A Service member convicted of an offense under Article 120 may face 

not only the end of his or her military career but also potential terms of imprisonment up to and 

including a life sentence. Even if he or she is allowed to return to life in a civilian community, a sex 

offense adjudication will still have lifelong effects. In addition to requirements to comply with varied 

and complex state sex offender registration laws (or face additional criminal prosecutions and 

punishments), sex offense convictions trigger an ever-expanding list of punitive consequences in the 

community that affect both the offender and his or her family (whether or not the restriction is 

relevant to the facts of the underlying offense). Currently these collateral sanctions include housing 

and residency restrictions (which even keep people out of homeless shelters); GPS monitoring; 

employment, educational, and professional licensing prohibitions; bans on access to religious 

institutions; parental rights consequences (and sometimes a ban from entering a child’s school); 

restrictions on food stamp benefits; anti-loitering provisions to discourage offenders from certain 
79

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

locations; denial of housing and educational financial aid assistance; restrictions on library and 

computer/Internet usage (as well as on the use of private websites such as Facebook and dating 

websites such as Match.com); trick-or-treating prohibitions; special drivers’ licenses and license 

plates; limitations on international travel; and even civil commitment.211 With so much at stake, the 

military justice system must take great care to ensure that these internal and external consequences 

are not arbitrarily or unfairly imposed and that when Service members are accused of such offenses, 

they are afforded the full array of constitutional protections that they have spent their military careers 

defending.

A. REMAINING CONFUSION IN ARTICLE 120

At its June 25, 2015, meeting, the Subcommittee commenced a debate that was central to its overall 

deliberative process. At that time, the positions of the Subcommittee members as to whether to 

recommend statutory changes to Article 120, and whether to limit any recommendations to the 

seventeen issues identified by the JPP, ran the gamut. Some members invoked the position of 

witnesses who voiced objections to further amendments, noting that Article 120 had been revised 

three times already in recent years history and that the result has sometimes been complex 

prosecutions under multiple versions of the statute. Often, these witnesses advocated instead for 

changes in the Benchbook or MCM rather than Article 120, or suggested that if any statutory changes 

were absolutely necessary, they be as narrow as possible. For example, Subcommittee member 

Brigadier General James Schwenk stated: “I’ll be the no-change person, and put the burden on 

everybody who believes change . . . needs to be made in the near-term to justify what’s broken—if it 

ain’t broke, don’t fix it.”212 At the other end of the spectrum, I supported a rewrite of the statute. Yet 

General Schwenk also acknowledged: “I did hear there is a lot of confusion. I did hear that it would 

be a lot better if things were clarified.”

213 As General Schwenk noted, the need for clarity arose 

repeatedly during testimony before the Subcommittee, with almost all witnesses ultimately 

recommending at least some minor change and with some witnesses urging larger-scale revisions.214

Notably, among the witnesses open to a broader reorganization of the statute was Major Aimee 

Bateman, an associate professor of criminal law at the Army’s Judge Advocate General’s (JAG) 

School.215 Major Bateman estimated that in the past three years, she has taught a block of instruction 

on Article 120 about 50 times to almost 3,000 students, including reservists and those receiving her 

training through recorded classes.216 Her trainees at the Army’s JAG School include “brand-new 

newly commissioned, minted judge advocates,” and her course is “one of the very first classes of 

instruction they get. They have been in the Army for about six weeks. They have been judge 

advocates for about six weeks.”217 She also trains judicial candidates from across all the Services, as 

well as 

 211 Notably, empirical research into many of policies has shown they do nothing to reduce sexual recidivism. In the case of the 

sex offender registry, some studies have even demonstrated that it increases sexual recidivism by socially isolating individuals 

and thus stripping away some of the most robust factors shown to protect against sexual re-offense. See, e.g., J. J. Prescott & J. E. 

Rockoff. Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?, J. OF LAW & ECONOMICS 54.1 (2011): 

161–206, 161. 212 Transcript of JPP Subcommittee Meeting 224 (June 25, 2015). 213 Id. at 226. 214 For instance, on April 10, 2015, Colonel Timothy Grammel, U.S. Army (Ret.), provided the Subcommittee with his extensive 

written Suggested Amendments to Article 120. 215 Transcript of JPP Subcommittee Meeting 4 (May 7, 2015). 216 Id. at 99. 217 Id. at 6–7.
80

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

a lot of judge advocates who are not in any way, shape, or form going to practice . . . 

criminal law . . . but they are staff judge advocates, they are leaders, they are 

managers, and teaching them and familiarizing them with the law, so that they can 

answer those questions [for] our very junior, inexperienced judge advocates. . . . I’ll 

teach a lieutenant—again, they have been in the Army six weeks. I give them their 

hour of block instruction on Article 120. They go out to Fort Bragg, Fort Drum . . . 

and now they are the subject matter expert on Article 120 for anybody who crosses 

their path out in the field, which is a little . . . scary.218

According to Major Bateman, about half of the lawyers she teaches “are in very early stages of their 

[legal] career[s]” and, at the time of their introduction to Article 120, lack other professional 

experience navigating complex statutory schemes.219

Major Bateman provided numerous examples of sources of confusion to practitioners concerning 

Article 120. Hopefully, some of these concerns would be mitigated by adoption of the 

Subcommittee’s recommendations. Yet she also pointed to structural problems in Article 120. For 

instance, she described difficulties that have arisen in understanding the role of consent in Article 

120. Even judicial candidates have found the law to be unclear with respect to whether to instruct on 

consent-related defenses: “[I]f we are having trouble explaining this to 50 very smart prescreened—

we want these people to sit on the bench and be trial judges and appellate judges, and they are having 

trouble kind of conceptualizing and capturing this and feel[ing] comfortable.”220

It is unnecessary to wade deeply into Article 120 to find other examples, unaddressed by the 

Subcommittee’s recommendations, of how unhelpful this statute can be in describing the parameters 

of criminal sexual behavior. Among them is the first offense described in Article 120(a)(1): “Any 

person subject to this chapter who commits a sexual act upon another person by using unlawful force 

against that other person is guilty of rape and shall be punished as court-martial may direct.”

“Unlawful force” is further defined in Article 120(g)(6) as “an act of force done without legal 

justification or excuse.” Moreover, “Force” is specified as “(A) the use of a weapon; (B) the use of 

such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or (C) 

inflicting physical harm sufficient to coerce or compel submission by the victim.”

In light of these definitions, how is the reader to assess when or whether in the course of a sexual act 

an act of force may be done with legal justification? What is a legal justification or excuse for force 

in this context? What if the “force” is incidental to the “sexual act” itself? Is consent a legal 

justification for a forceful sexual act? If so, does it negate the element of “unlawful force” or is it an 

affirmative defense? In either event, what if there was consent to the sexual act but not the forceful 

act? Has the crime of rape been committed? It is unsurprising that experienced lawyers like the 

judicial candidates in Major Bateman’s class struggled with these types of questions.

Helpfully, with respect to JPP issue 2, the Subcommittee has recommended that the MCM be 

amended to clarify the availability of the defenses of “consent” and “mistake of fact as to consent” 

for offenses under Article 120. Hence, it is reasonable to ask whether adoption of this Subcommittee 

recommendation alone would be sufficient to fix the problem identified in Major Bateman’s 

testimony—that her class of judicial candidates was confused about the availability of consent 

 218 Id. at 7–8. 219 Id. at 80. 220 Id. at 37.
81

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

defenses. In fact, for that group of jurists or other military lawyers, an amendment to the MCM is a 

tangible improvement and will clarify the availability of those defenses. For non-attorney readers of 

Article 120, however, this clarification may remain invisible.

In contrast, in its recommendation concerning JPP issue 5, the Subcommittee wisely has rewritten the 

statutory language concerning the counterintuitive term of art “bodily harm” (which, as defined, 

requires no physical injury to the body). In pertinent part, the Subcommittee’s recommendation on 

JPP issue 5 eliminates the term “bodily harm” and instead describes a new offense that is 

significantly more understandable on its face. The new Article 120(b)(1)(B) would read as follows: 

(b) Sexual assault. Any person subject to this chapter who—

(1) commits a sexual act upon another person 

(B) without the consent of the other person; 

is guilty of sexual assault and shall be punished as a court-martial may direct.221

The Subcommittee’s JPP issue 5 proposal, therefore, makes it clear to any reader that it is criminal to 

commit a sexual act upon another person without the consent of that person. The reader need not 

engage in a searching review of the MCM, Benchbook, or case law to have a basic understanding of 

the statutory language and what it forbids.

Fair notice is among the constitutional protections to be guaranteed in all criminal prosecutions. It 

must be clear what conduct is prohibited, and the forbidden behavior must be described with 

sufficient clarity that its alleged violation cannot be capriciously enforced. Due process requires that 

criminal statutes be defined “in a manner that does not encourage arbitrary and discriminatory 

enforcement.”222 This “more important aspect of vagueness doctrine” requires that the statute 

“‘establish minimal guidelines to govern law enforcement’” rather than “‘a standardless sweep [that] 

allows policemen, prosecutors, and juries to pursue their personal predilections.’”223 Therefore, every 

effort should be made to make all of the sexual crimes described in Article 120 as clear and 

comprehensible as possible—and not just to lawyers, judges, or court-martial panel members but to 

everyone subject to prosecution under the UCMJ.

1. THE ARTICLE 120 AUDIENCE

Major Bateman’s testimony revealed how, ultimately, all Service members look to Article 120 for 

guidance on how to appropriately conform behavior to the UCMJ. Major Bateman explained how her 

charge in teaching Article 120 reaches far beyond training lawyers to apply the statute to cases they 

are litigating. Rather, she must 

try to equip [her students] with kind of a baseline understanding of the law, so that 

they may be able to practice in a courtroom properly, but also be conversant on the 

law, because this isn’t just talked about within our judge advocate community. As we 

all know, this is the topic of the day in command huddles . . . at the Chief of Staff of 

 221 JPP SUBCOMMITTEE REPORT at 21. 222 Kolender v. Lawson, 461 U.S. 352, 357 (1983). 223 Id. at 358 (quoting Smith v. Goguen, 415 U.S. 566, 574–75 (1974)).
82

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

the Army level, and all the way down, preventing sexual assault is the number one 

priority of the Army. So . . . it is talked about in all sorts of contexts and all sorts of 

forums outside the courtroom.224

Consequently, although the Subcommittee heard testimony from numerous military practitioners 

with prosecutorial, defense, and judicial experience, these lawyers are not the only Service members 

who are expected to take direction from Article 120. As noted by the Subcommittee, “because sexual 

assault prevention training for all Service members uses language from Article 120, vague terms may 

leave them confused about standards of behavior and expectations, raising an important policy 

interest.”225 Furthermore, it is unfair to expect Service members to suss out on their own

counterintuitive interpretations of terminology that may lurk in the case law, Benchbook, MCM, or 

other legal references. Troublingly, Major Bateman was one of many military witnesses226 who 

described a serious problem with how Article 120, unclear on its face, is being taught to Service 

members in the course of sexual assault prevention trainings:

[T]he priority for the Chief of Staff of the Army and the Secretary of the Army is [to] 

prevent sexual assault, not [just to] prosecute it properly. Right? I mean, we want to 

prevent it on the front end. So the conversations are toward that end of this. So when 

can I have sex with someone then, or when can I approach somebody else to have sex 

and not be charged with a crime for it? So how do we explain that? And this is where 

I have heard people say everything from, well, you know, could you buy a car, or 

were you with [it] enough to get a tattoo, or, you know, even to the extent of the way 

they like to teach it in the field, the way commanders like to teach it, if you have one 

drink, you can’t do anything, don’t touch anybody. Right? That’s clearly not a legal 

definition in any sense. Even lawyers, though, I have heard teach this as if you’re too 

drunk to drive, you are too drunk to consent. [But] . . . we are not [in Article 120] 

imparting any sort of definitions from [DUI law].227

The problem is when the law is articulated incorrectly in the prevention training, . . . 

we run into the problem of degrading the legitimacy of the law.228

2. ADDITIONAL CHANGES TO ARTICLE 120 REQUIRED DESPITE RECENT 

AMENDMENTS TO THE STATUTE

Major Bateman explained that currently three versions of Article 120 “are still in some respects 

active and still on the books . . . in that there is an unlimited statute of limitations.”229 Nevertheless, 

 224 Transcript of JPP Subcommittee Meeting 8 (May 7, 2015).

225 JPP SUBCOMMITTEE REPORT at 13. 226 See, e.g., id. at 212 (“Ma’am, we’ve seen that a couple of times where they’ve been told in SAPR training, you know, one 

drink means you can’t consent.”), 260 (“During voir dire, the members were asked this question, how many of you believe that if 

a person has one drink of alcohol, they cannot legally consent to any sexual activity? Out of the 12 panel members, nine raised 

their hand in the affirmative.”), 349 (“I’ve sat through training where I’ve heard the ‘one drink and you can’t consent’ line. When 

I was in processing at Joint Base Andrews, . . . one of the things I heard from a representative from the Sexual Assault Prevention 

Office was someone might not be able to consent after having one drink.”), and 415 (“[I] heard ‘after one drink you can’t 

consent.’”); see also Transcript of JPP Subcommittee Meeting 271–72 (April 9, 2015)(“[Y]ou get the takeaway being, stay so far 

away, one drink equals no consent. And then you get members sitting in the panel box that refuse to yield from that. And 

unfortunately you get trial judges that . . . try to drag them over . . . to get them rehabilitated. . . . The issue of consent [is big], 

how it’s addressed during the training, and when it’s at odds with . . . the definition of consent . . . in the Manual.”). 227 Transcript of JPP Subcommittee Meeting 40–41 (May 7, 2015). 228 Id. at 102. 229 Id. at 5–6.
83

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

when questioned by JPP Chair and Subcommittee member Elizabeth Holtzman about whether the 

numerous recent statutory changes meant further substantial change should be avoided, Major 

Bateman shared her insights into why this was not a reason to avoid more statutory changes at this 

time:

[A]n evolution of my perspective . . . is from what I have seen—whether it’s formally 

changed by Congress or not—it is still changing and evolving. So we can’t avoid the 

fact that—the way the instructions are changing. . . . [W]hen facts applie[d] to law 

make it into a courtroom, it is changing. So ...I think appropriate measured changes 

would be good at this point because it is already—there is a level of confusion. There 

is a level of inconsistency potentially because of the way that people have adjusted to 

their understanding of the law through . . . pleading decisions and evidentiary 

instructions. In that regard, I don’t think we should be scared of changing it because it 

is going to cause all sorts of . . . unrest in the force. It is already unrestful. So I think 

changes are okay and not to be strictly avoided at this point.230

Hence, in Major Bateman’s view, because the decisions of appellate courts in actual cases will 

continue to interpret and reinterpret the statutory language, fear of change should not be a reason to 

refrain from making intentional clarifications to the law.

Similarly, the Subcommittee heard testimony from Colonel Terri Zimmermann on behalf of the 

Marine Corps Defense Services Organization.231 Colonel Zimmermann is the reserve counterpart to 

the active duty Chief Defense Counsel in the Marine Corps and has been a Marine Corps judge 

advocate since 1993, litigating sexual assault cases as a prosecutor, an appellate military judge, and a 

defense counsel.232 She also has a civilian criminal defense practice that is about 75% military, and 

she does both trial and appellate work.233 In light of her experience with all versions of Article 120 as 

well as with civilian criminal statutes, Colonel Zimmermann urged the Subcommittee to consider the 

following in its deliberations:

What is the purpose of the military justice system? . . . [O]ne of those purposes is to 

achieve justice. . . . It’s to punish people who intentionally or with some culpable 

mental state take an action that we, as a society, deem as inappropriate and unlawful.

It’s not to punish people who do things, for the most part, by accident or mistake. . . . 

[O]ur criminal justice system is intended to identify people who break the law, punish 

them and deter other people from committing the same type of conduct. And so, I 

think it’s really important to keep that in mind when we’re talking about whether we 

tweak a statute, whether we rewrite a statute, what is the purpose of the statute? What 

kind of due process concerns do we have? What kind of notice concerns do we have?

All of those factors, in my opinion, militate towards completely rewriting [Article 

120].234

 230 Id. at 93–94. 231 Id. at 219. 232 Id. 233 Id. at 219–20. 234 Id. at 220–21.
84

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

Colonel Zimmermann further explained, consistent with Major Bateman’s testimony, that changes to 

Article 120 are inevitable and thus should take the form of a complete statutory rewrite and not just 

“tweaks”:

This statute is a mess. It is just unworkable. It’s too complicated. It’s unwieldy and 

it’s not fair. So, there is going to be some change. . . . And . . . people in the field are 

going to have to adjust. . . . In my view, it’s appropriate for us to rewrite [Article 120] 

and get it correct, as correct as we can get it. Nothing’s ever going to be perfect, I 

know that. But I think we ought to start from scratch and get it right and then people 

can adjust to that. I’m not too concerned about people saying, well, there are going to 

be four statutes in effect. Well, there’s going to be four statutes in effect no matter 

what change is enacted. So, as opposed to tweaking, my recommendation is that we 

start from scratch.235

3. THE KEPROS PROPOSAL IN ATTACHMENT A

In the context of this confusion and need for clarification, I advocate for broader changes to Article 

120 than the Subcommittee has endorsed, including a wholesale reorganization of the statute. To that 

end, in anticipation of the June 25, 2015, Subcommittee meeting, I drafted a new proposed Article 

120 statute. My proposal is attached as Attachment A. The Subcommittee, persuaded by the concerns 

about more dramatic changes to Article 120, elected to approach any revisions more conservatively 

and not to undertake work on my proposal in its deliberative process. Consequently, Attachment A

does not reflect the work of the Subcommittee in its June 25, 2015, or subsequent meetings and 

remains only a rough draft. I have nonetheless included it because it illustrates some of the current 

shortcomings within Article 120 that remain unaddressed and provides one suggestion as to how 

Article 120 may be made more coherent.

Although my proposal recommends numerous modifications to Article 120, the biggest change is 

conceptual. Notions of “consent” and “force” in Article 120 have become complicated through both 

military jurisprudence and statutory changes. As Ms. Holtzman commented during the 

Subcommittee’s May 7, 2015, meeting, 

This is one of the worst statutes I have read in terms of drafting. . . . And so we have 

complicated issues. . . . [T]he fact that this statute tried to take consent out of the 

picture, and now consent has come back in, has created a kind of a pretzel approach.

Everybody is twisting things around to kind of figure out how to get the language of 

the statute and the concept of consent in and how we do that.236

Ms. Holtzman further suggested to Major Bateman that for “some of the bigger issues, like dealing 

with consent, you can’t just make an itty-bitty statutory change,” and Major Bateman agreed.237

Hence, my proposal seeks to realign the terms “consent” and “force” with their commonly 

understood meanings; and rather than trying to pretend that consent is not relevant, I aim instead to 

create a statute in which, as many laypeople would intuitively assume, the baseline criminal behavior 

is a nonconsensual sexual touching. Then, that notion of “nonconsent” can also encompass a person 

 235 Id. at 222. 236 Id. at 84. 237 Id. at 85.
85

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

who is incapable of consenting for various reasons. Further, and consistent with most American 

criminal statutory schemes, this type of organization would permit the level of offense and potential 

penalties to increase to account for more aggravated conduct, such as the use of extreme violence or 

the deliberate introduction of intoxicants.

During her testimony, I asked Major Bateman if reorganizing Article 120 to make nonconsensual 

sexual touching the baseline crime would make sense. She confirmed that notwithstanding the 2007 

and 2012 changes to Article 120,

[W]hat we have ended up discovering over the last three years is consent is always

relevant, it’s always instructed on, and it always comes up. [N]ow that we have 

actually seen it play out, . . . I think it would make it cleaner to just affirmatively 

bring it back in the law explicitly. So I think that is, fundamentally, why I do agree 

with your proposal.238

Colonel Zimmermann concurred, noting that “the issue of consent is really the pivotal issue”239 and 

expressing her agreement with the notion of creating a scheme in which a nonconsensual sexual 

touching was the baseline offense with “aggravating circumstances that can be added onto that” with 

“a graduated series of penalties for the conduct.”240

Finally, reorganizing Article 120 so that principles of “consent” are central to criminality could 

eliminate the need for the continual creation of additional new subsections in the statute to try to 

describe every conceivable type of coercion, such as the Subcommittee’s recommendation in 

response to JPP issue 15 to create a new Article 120(b)(1)(E) that would read as follows: 

(b) Sexual assault. Any person subject to this chapter who—

(1) commits a sexual act upon another person 

(E) by using position, rank, or authority to secure compliance by the other 

person 

is guilty of sexual assault and shall be punished as a court-martial shall direct.241

If consent is defined so that it is valid only where it is “freely given” (as in the current definition) or 

“voluntary” (as suggested in Attachment A, following the recommendation of a witness242), consent 

cannot exist when rank or other authority is deployed to compel the other person into sexual activity.

Consequently, such sexual abuse would be prosecutable as a nonconsensual act.

 238 Id. at 83. 239 Id. at 222–23. 240 Id. at 229. 241 JPP SUBCOMMITTEE REPORT at 44-45. 242Transcript of JPP Subcommittee Meeting 418 (May 7, 2015) (testimony of Mr. John Wilkinson, Æquitas—The Prosecutors’ 

Resource on Violence Against Women).
86

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

B. JPP ISSUE 1: IS THE CURRENT DEFINITION OF “CONSENT” UNCLEAR OR 

AMBIGUOUS?

In responding to its mandate to consider this issue, the Subcommittee, in pertinent part, urges that the 

following language be used within the definition of “consent”: “(A) . . . Lack of verbal or physical 

resistance does not constitute consent.”243 Simultaneously, the Subcommittee endorses retaining the 

following language from subsection (C) of the definition of “consent”: “All the surrounding 

circumstances are to be considered in determining whether a person gave consent.”244

Moreover, in its summary recommendation concerning issue 1, the Subcommittee states, “A lack of 

resistance would still be relevant for the fact-finder to consider along with all the surrounding 

circumstances, but the proposed change clarifies that a lack of resistance alone does not constitute 

consent.”245 In its complete recommendation, the Subcommittee further explains that “Although the 

Subcommittee believes evidence of resistance or the lack thereof to be relevant and admissible 

evidence for a fact-finder to consider, it is just one of the circumstances surrounding the offense and 

should be given no greater or lesser emphasis than any other circumstance in the text of the statute or 

elsewhere.”246

Cooperative and voluntary sexual activity usually will involve a lack of resistance by the 

participating parties. Therefore, these sentences from the Subcommittee’s Report accurately convey 

the intentions of the Subcommittee that court-martial panel members incorporate considerations of a 

“lack of resistance” in their overall consideration of “[a]ll the surrounding circumstances.”

Problematically, the recommended statutory change itself does not adequately communicate the 

Subcommittee’s intentions and may result in misadvice by courts and misinterpretation by factfinders. For example, the Subcommittee declined to recommend that the statute read “Lack of verbal 

or physical resistance alone does not constitute consent but shall be considered among the 

surrounding circumstances” (emphasis added).247

Imagine a scenario in which a couple is in a long-term relationship and engages in routine patterns of 

sexual behavior. The partners generally experience cooperation with each other upon initiating the 

sexual activity and are alerted that one person is not consenting to the sexual behavior only if that 

person objects or otherwise indicates a disinclination to engage in some or all sexual activity at that 

time. Within “all the surrounding circumstances” of this relationship, the habits and expectations of 

the partners certainly inform their beliefs about whether there is consent to sexual activity, including 

whether one of the parties is objecting or otherwise resisting. Although, as the Subcommittee notes, a 

lack of resistance alone would not constitute consent in this situation, it would certainly be relevant 

to a fact-finder assessing whether an accused reasonably believed an alleged victim had consented to 

sexual activity.

Similarly, the Subcommittee recommends that the definition of “consent” retain the current language 

that “(A) . . . An expression of lack of consent through words or conduct means there is no consent.”

 243 JPP SUBCOMMITTEE REPORT at 9-10. 244 Id. 245 Id. at 2. 246 Id. at 9. 247 An alternate clarification of the Subcommittee’s recommendation for the definition of “consent” could state at subsection (A): 

“Lack of verbal or physical resistance alone does not constitute consent” and at subsection (C): “All the surrounding 

circumstances including lack of resistance (if applicable) are to be considered in determining whether a person gave consent.”
87

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

Yet a fact-finder attempting to apply the definition’s mandate that this “means there is no consent” 

may be confused in a situation in which there is credible evidence of an alleged victim initially and 

clearly verbally declining to engage in sexual activity but then later cooperating in, and possibly even 

initiating, sexual acts. In her testimony, Major Bateman described such a scenario presented to her 

JAG students:

[T]he day before [sexual activity occurred,] the accused approached me and said, 

“Would you like to have sex with me?” I said, “No, I hate you. I will never have sex 

with you.” Is that even relevant? . . . [T]hat caused . . . the most recent time teaching 

this to a senior audience [of judicial candidates], a huge problem. Of course it’s 

relevant. [Yet they said:] Well, show me to what . . . element of the crime that is 

relevant to.248

Concerningly, this debate ensued among judicial candidates despite the fact that the “all the 

surrounding circumstances” language is already present in the definition. So, once again, this aspect 

of the statutory definition of “consent” in subsection (A) suggests inflexibility and potential 

confusion in how evidence is to be evaluated by the fact-finder. Even as amended, the definition 

leaves it unclear that “[a]n expression of lack of consent through words or conduct” is also among 

the evidence that is to be evaluated in light of “[a]ll the surrounding circumstances.”

Finally, the Subcommittee’s recommendation largely retains the following language from current 

subsection (A): “A current or previous dating or social or sexual relationship by itself or the manner 

of dress of the person involved in the conduct at issue shall not constitute consent,” except that the 

Subcommittee has recommended substituting the word “does” in place of “shall.” While the 

language concerning dating / social / sexual relationships is appropriately contextualized by the 

phrase “by itself,” the statute does not reflect the same nuance concerning “manner of dress.” Of 

course, it is again true that “manner of dress” by itself does not constitute consent but it certainly 

would be relevant to an assessment of “[a]ll the surrounding circumstances.” It is easy to imagine a 

scenario in the context of an ongoing relationship, for example, in which dress is a mechanism used 

to convey to one’s partner an interest in and desire to participate in sexual activity. And, yet again, 

the definition fails to make it explicit that evidence concerning dress comes within “[a]ll the 

surrounding circumstances.”249

An alternate definition of “consent” is set forth in Attachment A’s draft iteration of Article 120(g)(6).

Among other things, the Attachment A proposal avoids the problem described above with respect to 

“manner of dress” evidence by simply reordering the sentence to read: “A current or previous dating 

or social or sexual relationship or the manner of dress of the person involved in the conduct at issue 

by themselves shall not constitute consent.”250 The Attachment A251 definition therefore avoids the 

confusion present in both the current statute and the Subcommittee’s recommendation.

 248 Transcript of JPP Subcommittee Meeting 39 (May 7, 2015). 249 Building on the alternate proposal set forth in n.27, subsection (C) could be more explicit in including the scenarios which are 

defined in subsection (A) as “nonconsensual,” e.g., “All the surrounding circumstances, including (if applicable) manner of 

dress, and any expressions of lack of consent or lack of resistance, are to be considered in determining whether a person gave 

consent.”

250 Attachment A at Article 120(g)(6)(D)(emphasis added). 251 Unlike the current statute, the framework of the Attachment A proposal organizes the Article 120 crimes of rape, sexual 

assault, aggravated sexual contact, and abusive sexual contact around the principle that these crimes have at their core a victim 

who does not or cannot given consent to sexual activity. Consequently, the Attachment A definition of “consent” addresses a 
88

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

C. MENS REA ISSUES

Several of the issues referred to the Subcommittee by the JPP involved the role of mens rea in Article 

120. Despite their severe consequences, Article 120 does not articulate specific intent requirements

for the crimes it describes. In fact, in some contexts, Article 120 creates criminal liability not only for 

an actor who commits the actus reus with actual knowledge of the relevant circumstances but also for 

an actor who, under a mere negligence standard, “reasonably should know” of such a circumstance.

Interestingly, the topic of mens rea has received renewed attention in multiple national forums during 

the Subcommittee’s work on these issues. On November 16, 2015, bipartisan leadership from the 

House Judiciary Committee and House Crime Subcommittee introduced legislation titled the 

“Criminal Code Improvement Act of 2015”252 to address the erosion in the mens rea requirement in 

federal criminal law. On November 18, 2015, the legislation passed out of the House Judiciary 

Committee by a unanimous voice vote. That same day, a group of senators introduced even stronger 

legislation called the “Mens Rea Reform Act of 2015,”253 aimed at ensuring that only those who are 

truly culpable of criminal conduct committed with criminal intent are ensnared by federal criminal 

laws. Sponsored by Senators Orrin Hatch, Ted Cruz, Mike Lee, Rand Paul, and David Perdue, the 

mens rea reform would generally establish a default criminal intent requirement that the government 

prove beyond a reasonable doubt that the defendant acted “willfully, with respect to any element for 

which the text of the covered offense does not specify a state of mind.”

Earlier in 2015, the United States Supreme Court decided a case in which it considered the 

sufficiency of a merely negligent mens rea, similar to the “should have known” language recurring 

throughout Article 120. In Elonis v. United States,

254 the Supreme Court considered the federal law 

making “it a crime to transmit in interstate commerce ‘any communication containing any threat . . . 

to injure the person of another.’” In Mr. Elonis’s case the jury was instructed that to render a verdict 

of “guilty,” they must find that Mr. Elonis communicated what a reasonable person would regard as 

a threat but not that Mr. Elonis himself be aware of the threatening nature of the communication.255 In 

finding these instructions insufficient to sustain Mr. Elonis’s conviction, the Supreme Court reviewed 

the important role of mens rea in defining criminal conduct and provided several examples of cases 

in which convictions were vacated as a consequence of inadequate proof of a culpable mental state: 

“[W]rongdoing must be conscious to be criminal.” Id., at 252, 72 S.Ct. 240. As 

Justice Jackson explained, this principle is “as universal and persistent in mature 

systems of law as belief in freedom of the human will and a consequent ability and 

duty of the normal individual to choose between good and evil.” Id., at 250, 72 S.Ct. 

240. The “central thought” is that a defendant must be “blameworthy in mind” before 

he can be found guilty, a concept courts have expressed over time through various 

terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like. 

Id., at 252, 72 S.Ct. 240; 1 W. LaFave, Substantive Criminal Law § 5.1, pp. 332–333 

(2d ed. 2003). . . . 

 

broader array of scenarios than either the current statutory definition of “consent” or the definition proposed by the 

Subcommittee.

252 See http://judiciary.house.gov/_cache/files/75116271-c347-4589-9c47-4fe06859c638/criminal-code-improvement-act-rp-003-

xml.pdf. 253 See http://www.hatch.senate.gov/public/_cache/files/56edc2e6-c658-4a2a-bdb5-e259819c48a4/HEN15E40.pdf. 254 Elonis v. United States, 135 S. Ct. 2001, 2004, 192 L. Ed. 2d 1 (2015). 255 Id.
89

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

Morissette, for example, involved an individual who had taken spent shell casings 

from a Government bombing range, believing them to have been abandoned. During 

his trial for “knowingly convert[ing]” property of the United States, the judge 

instructed the jury that the only question was whether the defendant had knowingly 

taken the property without authorization. 342 U.S., at 248–249, 72 S.Ct. 240. This 

Court reversed the defendant’s conviction, ruling that he had to know not only that he 

was taking the casings, but also that someone else still had property rights in them. 

He could not be found liable “if he truly believed [the casings] to be abandoned.” Id.,

at 271, 72 S.Ct. 240; see id., at 276, 72 S.Ct. 240.

By the same token, in Liparota v. United States, we considered a statute making it a 

crime to knowingly possess or use food stamps in an unauthorized manner. 471 U.S. 

419, 420, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985). The Government’s argument, 

similar to its position in this case, was that a defendant’s conviction could be upheld 

if he knowingly possessed or used the food stamps, and in fact his possession or use 

was unauthorized. Id., at 423, 105 S.Ct. 2084. But this Court rejected that 

interpretation of the statute, because it would have criminalized “a broad range of 

apparently innocent conduct” and swept in individuals who had no knowledge of the 

facts that made their conduct blameworthy. Id., at 426, 105 S.Ct. 2084. . . . [2010] . . . 

To take another example, in Posters ’N’ Things, Ltd. v. United States, this Court 

interpreted a federal statute prohibiting the sale of drug paraphernalia. 511 U.S. 513, 

114 S.Ct. 1747, 128 L.Ed.2d 539 (1994). Whether the items in question qualified as 

drug paraphernalia was an objective question that did not depend on the defendant’s 

state of mind. Id., at 517–522, 114 S.Ct. 1747. But, we held, an individual could not 

be convicted of selling such paraphernalia unless he “knew that the items at issue 

[were] likely to be used with illegal drugs.” Id., at 524, 114 S.Ct. 1747. Such a 

showing was necessary to establish the defendant’s culpable state of mind.

And again, in X–Citement Video, we considered a statute criminalizing the 

distribution of visual depictions of minors engaged in sexually explicit conduct. 513 

U.S., at 68, 115 S.Ct. 464. We rejected a reading of the statute which would have 

required only that a defendant knowingly send the prohibited materials, regardless of 

whether he knew the age of the performers. Id., at 68–69, 115 S.Ct. 464. We held 

instead that a defendant must also know that those depicted were minors, because that 

was “the crucial element separating legal innocence from wrongful conduct.” Id., at 

73, 115 S.Ct. 464. . . . 256

In light of these trends, and for the sake of fundamental fairness, the mens rea issues referred by the 

JPP should be resolved with recommendations that ensure a sufficient mental culpability element 

separating “legal innocence from wrongful conduct.” Beyond the issues referred by the JPP, and as 

illustrated in Attachment A, Article 120 should require that an accused act with actual knowledge 

and not attach the serious criminal liability that flows from a sexual offense conviction to merely 

negligent conduct.

 256 Id. at 2009–10.
90

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

1. JPP ISSUE 4: IS THE DEFINITION CONCERNING THE ACCUSED’S 

“ADMINISTRATION OF A DRUG OR INTOXICANT” OVERBROAD?

In its recommendation concerning Issue 4, the Subcommittee concludes that “the definition 

concerning the accused’s ‘administration of a drug or intoxicant’ under Article 120(a)(5) is not 

overbroad. The Subcommittee therefore recommends no changes on this issue.”257 Article 120(a)(5) 

states that 

Any person subject to this chapter who commits a sexual act upon another person by 

administering to that other person by force or threat of force, or without the 

knowledge or consent of that person, a drug, intoxicant, or other similar substance 

and thereby substantially impairing the ability of that other person to appraise or 

control conduct is guilty of rape and shall be punished as a court-martial may direct. 

As suggested by a retired Army military judge, the definition should be amended by adding a 

requirement that the administration of a drug or intoxicant be done for the purpose of impairing the 

victim’s capacity to express a lack of consent to the sexual act.258 In the Subcommittee’s 

deliberations, a fair argument was made that the word “by” in the statute means that it already 

requires such intent, since the use of the drug or intoxicant is to be the mechanism for effectuating 

the rape. But if that is the intent of the statute, there is no harm in making this specific intent 

requirement more explicit.

Hypothetically, a person may spike the punch or serve marijuana-laced brownies for the purpose of 

surreptitiously introducing alcohol or drugs into a social setting with no preexisting plan to create a 

sexual offense victim. The person may even administer such intoxicants because of socially informed 

expectations that other guests already voluntarily ingest such substances and would not object to 

them. If that individual commits a sexual offense after later discovering that someone has become 

substantially impaired as a result of the intoxicants, reasonable distinctions can and should be drawn 

concerning his or her level of culpability compared to that of a person whose prior intent was to use 

the substances as a vehicle for sexual offending.

A different subsection, Article 120(b)(1)(3)(A) defines as guilty of sexual assault 

Any person subject to this chapter who commits a sexual act upon another person 

when the other person is incapable of consenting to the sexual act due to impairment 

by any drug, intoxicant, or other similar substance, and that condition is known or 

reasonably should be known by the person.

Hence, the opportunist who sexually abuses an impaired victim (regardless of how that victim 

became intoxicated) is guilty of Article 120(b)(1)(3)(A) and already faces up to thirty years’

imprisonment. The sanction of a potential sentence of life imprisonment as provided for in Article 

120(a)(5), however, should be reserved for a premeditated actor who administered intoxicants as the 

means to facilitate sexual abuse. Such distinctions (and sanctions) based on specific intent are 

routinely and appropriately drawn in law. For example, a homicide committed with premeditation or 

after deliberation is routinely punished much more severely than a murder committed in the “heat of 

passion.” In addition, requiring a specific intent in Article 120(a)(5) would better distinguish it from 

 257 JPP SUBCOMMITTEE REPORT at 4. 258 Written Statement of Colonel Timothy Grammel, U.S. Army (Ret.) (Apr. 10, 2015).
91

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

cases more appropriately prosecuted under Article 120(b)(3)(A) and reduce the risk of arbitrariness 

or otherwise inadequately constrained prosecutorial discretion.

Further, this issue should be considered with reference to Rule for Courts-Martial 916(l)(2) 

concerning the relevance of voluntary intoxication evidence. Witnesses testified to the frequent 

scenario in military sexual assault prosecutions of undisputed evidence being present that both the 

alleged victim and the accused were intoxicated. The rule states:

Voluntary intoxication, whether caused by alcohol or drugs, is not a defense.

However, evidence of any degree of voluntary intoxication may be introduced for the 

purpose of raising a reasonable doubt as to the existence of actual knowledge, 

specific intent, willfulness, or a premeditated design to kill, if actual knowledge, 

specific intent, willfulness, or premeditated design to kill is an element of the offense.

Thus, although the rule makes it clear that voluntary intoxication never provides a defense to 

criminal behavior, it may be considered in evidence whenever “actual knowledge” or “specific 

intent” are elements. Given the vague drafting of Article 120(a)(5), it is unclear on its face whether it 

contains a mens rea sufficient to make evidence of the accused’s perhaps extreme voluntary 

intoxication relevant even in a case in which he or she is facing the possibility of lifetime 

imprisonment. In assessing culpability, the fact-finder should consider the voluntary intoxication of a 

drunken and unplanned effort to subject another to intoxicants in order to effect the person’s 

submission to sexual activity. Clarifying the mens rea in Article 120(a)(5) would therefore assist in 

delineating the relevance of such evidence. In addition, as further discussed below, in light of the 

Supreme Court’s antipathy in Elonis toward the use of a negligence standard in a criminal statute, the 

“reasonably should be known” language in Article 120(b)(3)(A) should be removed. Removing the 

“reasonably should be known” provision would also serve the purpose of clarifying in Article 

120(b)(3)(A) that the accused’s voluntary intoxication is relevant as well to his or her assessment of 

the level of impairment in his or her sexual partner.

2. JPP ISSUE 3: SHOULD THE STATUTE DEFINE “INCAPABLE OF CONSENTING”?

In crafting a proposed definition of “incapable of consenting,” the Subcommittee initially looked to 

18 U.S.C. § 2242 (Sexual abuse). Section 2242 criminalizes knowingly engaging in a sexual act with 

another person if that other person is—

(A) incapable of appraising the nature of the conduct; or 

(B) physically incapable of declining participation in, or communicating 

unwillingness to engage in, that sexual act.

Its final proposal differs from the federal statute, however, as the Subcommittee recommends that the 

following definition be part of its redraft of Article 120(g)(8): “A person is ‘incapable of consenting’ 

if that person does not possess the mental ability to appreciate the nature of the conduct or does not 

possess the physical or mental ability to make or communicate a decision regarding such conduct.”259

 259 JPP SUBCOMMITTEE REPORT at 16.
92

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

Notably, § 2242 requires a defendant to have actual knowledge260 of the alleged victim’s incapability 

before suffering criminal liability. Article 120(b)(3), however, also criminalizes the sexual behavior 

if an accused only “reasonably should have known” that the other person was incapable of 

consenting.

The lack of criminal culpability for an actor in the federal criminal justice system who merely 

“reasonably should have known,” unlike the liability flowing under the UCMJ, becomes particularly 

important in the context of the Subcommittee’s proposal. The Subcommittee has done its best to draft 

a new definition of “incapable of consenting.” But its proposed definition—unlike the federal 

definition—is completely new, novel, and untested by practice or application. Hence, a wiser course 

would be to adopt the rule that limits criminal culpability to an actor with actual knowledge, since 

doing so would protect both the unjustly accused and the constitutionality of the statutory language 

from any areas of inadvertently overbroad application in the untested proposed definition of 

“incapable of consenting.”

Severe prison sentencing and other punishing lifetime consequences flow from a conviction under 

Article 120(b)(3). Yet the Subcommittee heard testimony that these cases frequently involve 

situations in which both parties are intoxicated.261 This “reasonably should have known” standard of 

mere negligence is inadequate to fairly assess and assign culpability under such circumstances. If 

both parties were so intoxicated as to be “incapable of consenting,” how could identical behavior 

render one party criminally culpable and the other a “victim”? Or is charging to be impermissibly 

driven by arbitrariness, sexism,

262 or the vagaries of the reporting process?

And, once again, with an intoxicated accused, the relevance of voluntary intoxication evidence under 

Rule for Courts-Martial 916(l)(2) becomes important. For example, what if two intoxicated people 

commenced voluntary acts of sexual intimacy but, in the course of that activity, one of them fell 

asleep or passed while the other continued to engage in the sexual contact with the unconscious 

party? If these sexual acts were complained of later, fairness would dictate consideration of the 

actor’s level of intoxication in assessing whether he or she had recognized that the situation had 

changed before continuing with the sexual acts and, thus, whether he or she had the necessary 

culpable mental state. Removing the “reasonably should be known” provision would clarify that, for 

purposes of Article 120(b)(3)(A), the accused’s voluntary intoxication is also relevant to his or her 

assessment of the level of impairment in his or her sexual partner.

Moreover, the Elonis decision seriously calls into question the continued viability of a criminal 

statute that attaches culpability based on proof of mere negligence alone:

Elonis’s conviction . . . was premised solely on how his posts would be understood 

by a reasonable person. Such a “reasonable person” standard is a familiar feature of 

civil liability in tort law, but is inconsistent with “the conventional requirement for 

criminal conduct—awareness of some wrongdoing.” Staples, 511 U.S., at 606–607, 

114 S.Ct. 1793 (quoting United States v. Dotterweich, 320 U.S. 277, 281, 64 S.Ct. 

 260 Like the federal government, numerous states (e.g., Colorado, Texas) limit liability for sexual assault crimes to cases in which 

the government has proven beyond a reasonable doubt that the accused had actual knowledge of the circumstances giving rise to 

the sexual contact.

261 Transcript of JPP Subcommittee Meeting 269 (May 7, 2015) (testimony of Colonel Terri Zimmermann, U.S. Marine Corps 

Reserve).

262 See generally id. at 271–72 (observing that under such circumstances it is usually a male who is prosecuted).
93

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

134, 88 L.Ed. 48 (1943); emphasis added). Having liability turn on whether a 

“reasonable person” regards the communication as a threat—regardless of what the 

defendant thinks—“reduces culpability on the all-important element of the crime to 

negligence,” Jeffries, 692 F.3d, at 484 (Sutton, J., dubitante), and we “have long been 

reluctant to infer that a negligence standard was intended in criminal statutes,” 

Rogers v. United States, 422 U.S. 35, 47, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975) 

(Marshall, J., concurring) (citing Morissette, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 

288). See 1 C. Torcia, Wharton’s Criminal Law § 27, pp. 171–172 (15th ed. 1993); 

Cochran v. United States, 157 U.S. 286, 294, 15 S.Ct. 628, 39 L.Ed. 704 (1895) 

(defendant could face “liability in a civil action for negligence, but he could only be 

held criminally for an evil intent actually existing in his mind”). Under these 

principles, “what [Elonis] thinks” does matter[.]

263

Before criminal culpability as a sex offender should attach for sexual activity with a person incapable 

of consenting, the government, consistent with the federal statute, should be required to establish 

through direct or circumstantial evidence that an actor actually knew that a victim was incapable of 

giving consent yet engaged in sexual behavior with that victim anyway.

D. JPP ISSUE 11: SHOULD THE OFFENSE OF “INDECENT ACT” BE ADDED TO THE 

UCMJ AS AN ENUMERATED OFFENSE?

I join the Subcommittee’s recommendation that the former offense of indecent acts should not be 

restored as an enumerated offense. The Subcommittee has been notified that the Department of 

Defense proposed an Article 134 offense called “Indecent Conduct” in a recent draft executive order.

I write separately to identify a few unresolved concerns that prevent me, without further study, from 

taking a position on whether the current proposal to create this Article 134 offense should go 

forward.

Past applications of the indecent act law have punished sexual behaviors that are normative and 

noncriminal within a civilian context: for example, consensual sexual activity occurring in the 

presence of a consenting third party or known recording device. The breadth (and potential 

overbreadth) of criminalizing such behavior is concerning on both vagueness and free speech 

grounds. It also raises questions about whether such a law’s reach could be meaningfully narrowed 

with additional or different elements (including but not limited to requiring proof that the behavior 

was prejudicial to good order and discipline or Service discrediting).

Furthermore, it appears that satisfactory, alternate mechanisms within military discipline channels to 

address such behavior may already exist. Although the Subcommittee heard from witnesses who 

endorsed returning indecent acts provisions to the UCMJ, the justifications were sometimes vague 

and included that there had been such provisions in the past as well as some witnesses’ general 

disapproval of indecent behavior. A need for this particular tool was not clearly articulated. In 

addition, although some requested the reenactment of indecent act provisions, others testified that 

prosecutions addressing such behavior had been brought through alternate mechanisms and upheld 

on appeal, thereby again raising the question of why advocates feel there would be value in 

reenacting these provisions. Issue 11 further raises the question of what policy reasons led to the 

removal of these provisions in the 2012 version of Article 120.

 263 Elonis, 135 S. Ct. at 2011.
94

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

Another specific apprehension with respect to the indecent conduct proposal that arises for me as a 

civilian practitioner concerns the sex offender registry. As I understand it, the current proposal would 

enumerate indecent conduct provisions within Article 134 with the intention not to trigger sex 

offender registration requirements. Problematically, however, sex offender registry provisions vary 

greatly among the states. States routinely use their own criteria for who must register and may 

decline to defer to the policies of the jurisdiction of conviction.264 Therefore, it is a matter of genuine 

concern that state law enforcement agencies or courts may see the word “indecent” on a rap sheet 

revealing a military adjudication and wrongly and harmfully mandate that that party register as a sex 

offender.

 264 For example, in Colorado, any person who was ever required to register in another jurisdiction, must register anew upon 

entering Colorado even if s/he was previously released from the registry in the state of conviction or another state. Colorado also 

has required individuals without criminal sex offense convictions to register based on civil proceedings in other states and 

conducts its own analysis of whether another jurisdiction’s offense is sufficiently “equivalent” to Colorado sex crimes to require 

registration without regard for whether registration was ordered in that state. 
95

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

REDRAFT OF ARTICLE 120 (NONCONSENT PROPOSAL) BY LAURIE ROSE

KEPROS

45. Article 120—Rape and sexual assault generally

a. Text of statute. 

(a) Rape. Any person subject to this chapter who knowingly commits a sexual act

upon another person without that person’s consent by using—

(1) unlawful force in addition to the force incidental to the sexual act against that other 

person;

(2) threats or otherwise placing the other person in fear that any person will be subjected 

to death, grievous bodily harm, or kidnapping;

(3) means to render the other person unconscious; or

(4) the administration of a drug, intoxicant, or other similar substance by force or threat 

of force, or without the knowledge or consent of that person, to substantially impair the 

ability of that other person to appraise or control conduct;

is guilty of rape and shall be punished as a court-martial may direct. 

(b) Sexual Assault.

Any person subject to this chapter who knowingly commits a sexual act upon another 

person without that person’s consent is guilty of sexual assault and shall be punished as a 

court-martial may direct. 

(c) Aggravated sexual contact.

Any person subject to this chapter who commits or causes sexual contact upon or by another 

person, if to do so would violate subsection (a) (rape) had the sexual contact been a sexual act, 

is guilty of aggravated sexual contact and shall be punished as a court-martial may direct. 

(d) Abusive sexual contact. 

Any person subject to this chapter who commits or causes sexual contact upon or by another 

person, if to do so would violate subsection (b) (sexual assault) had the sexual contact been a 

sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may 

direct.

(e) Proof of Threat. In a prosecution under this section, in proving that a person made a 

threat, it need not be proven that the person actually intended to carry out the threat or had the 

ability to carry out the threat.
96

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

(f) Defenses. An accused may raise any applicable defenses available under this chapter or 

the Rules for Court-Martial including but not limited to consent and mistake of fact. Marriage is 

not a defense for any conduct in issue in any prosecution under this section.

(g) Definitions. In this section:

(1) Sexual act. The term “sexual act” means—

(A) contact between the penis and the vulva or anus or mouth, and for purposes 

of this subparagraph contact involving the penis occurs upon penetration, 

however slight; or

(B) the penetration, however slight, of the vulva or anus of another by any part of 

the body 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.

(2) Sexual contact. The term “sexual contact” means touching, or causing another 

person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, 

inner thigh, or buttocks of any person, if done with an intent to abuse, humiliate or 

degrade any person or to arouse or gratify the sexual desire of any person. The 

touching may be accomplished by any part of the body or any object. 

(3) Force. The term “force” means—

(A) the use of a weapon;

(B) the use of such physical strength or violence as is sufficient to overcome, 

restrain, or injure a person; or

(C) inflicting physical harm sufficient to coerce or compel submission by the 

victim.

(4) Unlawful Force.—The term “unlawful force” means an act of force done without 

consent or any other legal justification or excuse.

(5) Threatening or placing that other person in fear. The term “threatening or placing that 

other person in fear” means a communication or action that is of sufficient consequence 

to cause a reasonable fear that non-compliance will result in the victim or another person 

being subjected to the wrongful action contemplated by the communication or action.

(6) Consent.

(A) The term “consent” means a voluntary agreement to the conduct at issue. 

(B) Consent may be conveyed through words or actions. An expression of lack 

of consent through words or conduct means there is no consent. All the 

surrounding circumstances are to be considered in determining whether a person 

gave consent or not, including whether a person did not resist or ceased to resist 
97

APPENDIX A: SUBCOMMITEE REPORT TO THE JUDICIAL PROCEEDINGS PANEL 

ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

only because of another person’s actions. Lack of verbal or physical resistance 

alone does not constitute consent.

(C) Submission resulting from the use of force, threat of force, or placing another 

person in fear is involuntary and does not constitute consent. 

(D) A current or previous dating or social or sexual relationship or the manner of 

dress of the person involved in the conduct at issue by themselves shall not 

constitute consent.

(E) A sleeping or unconscious person cannot consent. A person cannot consent 

if s/he is unaware that the sexual act is occurring. 

(F) A person does not consent if s/he agrees to the sexual act(s) only because 

the perpetrator has made a fraudulent representation that the sexual act serves a 

professional purpose.

(G) A person does not consent if s/he agrees to the sexual act(s) only because 

the perpetrator has induced a belief by artifice, pretense or concealment of the 

fact that the person is another person;

(H) Any alleged consent is not valid if the person was incapable of consenting at 

the time of the sexual act or sexual contact. 

(7) Incapable of consenting.— The term “incapable of consenting” means that as a result 

of impairment by any drug, intoxicant, or other similar substance, physical disability, or 

mental disease or defect, a person is unable to appraise the nature of the sexual 

conduct at issue, physically decline participation in the sexual conduct at issue, or 

physically communicate unwillingness to engage in the sexual conduct at issue. 
98

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE
99

APPENDIX B: Judicial Proceedings Panel 

Authorizing Statutes

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2013

SECTION 576. INDEPENDENT REVIEWS AND ASSESSMENTS OF UNIFORM 

CODE OF MILITARY JUSTICE AND JUDICIAL PROCEEDINGS OF SEXUAL 

ASSAULT CASES.

(a) INDEPENDENT REVIEWS AND ASSESSMENTS REQUIRED.—

(2) JUDICIAL PROCEEDINGS SINCE FISCAL YEAR 2012 AMENDMENTS.—The Secretary 

of Defense shall establish a panel to conduct an independent review and assessment of judicial 

proceedings conducted under the Uniform Code of Military Justice involving adult sexual 

assault and related offenses since the amendments made to the Uniform Code of Military Justice 

by section 541 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 

112–81; 125 Stat. 1404) for the purpose of developing recommendations for improvements to 

such proceedings.

(b) ESTABLISHMENT OF INDEPENDENT REVIEW PANELS. 

(1) COMPOSITION.

(B)JUDICIAL PROCEEDINGS PANEL.—The panel required by subsection (a)(2) shall be 

appointed by the Secretary of Defense and consist of five members, two of whom must have 

also served on the panel established under subsection (a)(1).

(2) QUALIFICATIONS.—The members of each panel shall be selected from among private United 

States citizens who collectively possess expertise in military law, civilian law, the investigation, 

prosecution, and adjudication of sexual assaults in State and Federal criminal courts, victim 

advocacy, treatment for victims, military justice, the organization and missions of the Armed 

Forces, and offenses relating to rape, sexual assault, and other adult sexual assault crimes.

(3) CHAIR.—The chair of each panel shall be appointed by the Secretary of Defense from among 

the members of the panel.

(4) PERIOD OF APPOINTMENT; VACANCIES.—Members shall be appointed for the life of the 

panel. Any vacancy in a panel shall be filled in the same manner as the original appointment.

(5) DEADLINE FOR APPOINTMENTS.—

(B)JUDICIAL PROCEEDINGS PANEL.—All original appointments to the panel required by 

subsection (a)(2) shall be made before the termination date of the panel established 

under subsection (a)(1), but no later than 30 days before the termination date.

(6) MEETINGS.—A panel shall meet at the call of the chair.

B: Judicial Proceedings Panel Authorizing Statutes
100

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

(7) FIRST MEETING.—The chair shall call the first meeting of a panel not later than 60 days after 

the date of the appointment of all the members of the panel.

(c) REPORTS AND DURATION.—

(2) JUDICIAL PROCEEDINGS PANEL.—

(A)FIRST REPORT.—The panel established under subsection (a)(2) shall submit a first report, 

including any proposals for legislative or administrative changes the panel considers 

appropriate, to the Secretary of Defense and the Committees on Armed Services of the 

Senate and the House of Representatives not later than 180 days after the first meeting of 

the panel.

(B) SUBSEQUENT REPORTS.—The panel established under subsection (a)(2) shall submit 

subsequent reports during fiscal years 2014 through 2017.

(C)TERMINATION.—The panel established under subsection (a)(2) shall terminate on 

September 30, 2017.

(d) DUTIES OF PANELS.—

(2) JUDICIAL PROCEEDINGS PANEL.—The panel required by subsection (a)(2) shall perform 

the following duties:

(A)Assess and make recommendations for improvements in the implementation of the reforms 

to the offenses relating to rape, sexual assault, and other sexual misconduct under the 

Uniform Code of Military Justice that were enacted by section 541 of the National Defense 

Authorization Act for Fiscal Year 2012 (Public Law 112– 81; 125 Stat. 1404).

(B) Review and evaluate current trends in response to sexual assault crimes whether by courtsmartial proceedings, non-judicial punishment and administrative actions, including the 

number of punishments by type, and the consistency and appropriateness of the decisions, 

punishments, and administrative actions based on the facts of individual cases.

(C)Identify any trends in punishments rendered by military courts, including general, special, 

and summary courts-martial, in response to sexual assault, including the number of 

punishments by type, and the consistency of the punishments, based on the facts of each 

case compared with the punishments rendered by Federal and State criminal courts.

(D) Review and evaluate court-martial convictions for sexual assault in the year covered 

by the most-recent report required by subsection (c)(2) and the number and description of 

instances when punishments were reduced or set aside upon appeal and the instances in 

which the defendant appealed following a plea agreement, if such information is available.

(E) Review and assess those instances in which prior sexual conduct of the alleged victim was 

considered in a proceeding under section 832 of title 10, United States Code (article 32 of 

the Uniform Code of Military Justice),and any instances in which prior sexual conduct was 

determined to be inadmissible.
101

APPENDIX B: JUDICIAL PROCEEDINGS PANEL AUTHORIZING STATUTES

(F) Review and assess those instances in which evidence of prior sexual conduct of the alleged 

victim was introduced by the defense in a court-martial and what impact that evidence had 

on the case.

(G)Building on the data compiled as a result of paragraph (1)(D), assess the trends in the 

training and experience levels of military defense and trial counsel in adult sexual assault 

cases and the impact of those trends in the prosecution and adjudication of such cases.

(H)Monitor trends in the development, utilization and effectiveness of the special victims 

capabilities required by section 573 of this Act.

(I) Monitor the implementation of the April 20, 2012, Secretary of Defense policy 

memorandum regarding withholding initial disposition authority under the Uniform Code 

of Military Justice in certain sexual assault cases.

(J) Consider such other matters and materials as the panel considers appropriate for purposes 

of the reports.

(3) UTILIZATION OF OTHER STUDIES.—In conducting reviews and assessments and preparing 

reports, a panel may review, and incorporate as appropriate, the data and findings of applicable 

ongoing and completed studies.

(e) AUTHORITY OF PANELS.—

(1) HEARINGS.—A panel may hold such hearings, sit and act at such times and places, take such 

testimony, and receive such evidence as the panel considers appropriate to carry out its duties 

under this section.

(2) INFORMATION FROM FEDERAL AGENCIES.—Upon request by the chair of a panel, a 

department or agency of the Federal Government shall provide information that the panel 

considers necessary to carry out its duties under this section.

(f) PERSONNEL MATTERS.—

(1) PAY OF MEMBERS.—Members of a panel shall serve without pay by reason of their work on 

the panel.

(2) TRAVEL EXPENSES.—The members of a panel shall be allowed travel expenses, including per 

diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I 

of chapter 57 of title 5, United States Code, while away from their homes or regular places of 

business in the performance or services for the panel.

(3) STAFFING AND RESOURCES.—The Secretary of Defense shall provide staffing and resources 

to support the panels, except that the Secretary may not assign primary responsibility for such 

staffing and resources to the Sexual Assault Prevention and Response Office.
102

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2014

SEC. 1731. INDEPENDENT REVIEWS AND ASSESSMENTS OF UNIFORM CODE 

OF MILITARY JUSTICE AND JUDICIAL PROCEEDINGS OF SEXUAL ASSAULT 

CASES.

(b) ADDITIONAL DUTIES FOR JUDICIAL PROCEEDINGS PANEL.—

(1) ADDITIONAL ASSESSMENTS SPECIFIED.—The independent panel established by 

the Secretary of Defense under subsection (a)(2) of section 576 of the National Defense 

Authorization Act for Fiscal Year 2013 (Public Law 112–239; 126 Stat. 1758), known as the 

“judicial proceedings panel”, shall conduct the following:

(A)An assessment of the likely consequences of amending the definition of rape and sexual 

assault under section 920 of title 10, United States Code (article 120 of the Uniform Code 

of Military Justice), to expressly cover a situation in which a person subject to chapter 47 

of title 10, United States Code (the Uniform Code of Military Justice), commits a sexual act 

upon another person by abusing one’s position in the chain of command of the other person 

to gain access to or coerce the other person.

(B) An assessment of the implementation and effect of section 1044e of title 10, United States 

Code, as added by section 1716, and make such recommendations for modification of such 

section 1044e as the judicial proceedings panel considers appropriate.

(C)An assessment of the implementation and effect of the mandatory minimum sentences 

established by section 856(b) of title 10, United States Code (article 56(b) of the Uniform 

Code of Military Justice), as added by section 1705, and the appropriateness of statutorily 

mandated minimum sentencing provisions for additional offenses under chapter 47 of title 

10, United States Code (the Uniform Code of Military Justice).

(D)An assessment of the adequacy of the provision of compensation and restitution for victims 

of offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military 

Justice), and develop recommendations on expanding such compensation and restitution, 

including consideration of the options as follows:

(i) Providing the forfeited wages of incarcerated members of the Armed Forces to victims of 

offenses as compensation.

(ii) Including bodily harm among the injuries meriting compensation for redress under 

section 939 of title 10, United States Code (article 139 of the Uniform Code of Military 

Justice).

(iii)Requiring restitution by members of the Armed Forces to victims of their offenses upon 

the direction of a court-martial.

(2) SUBMISSION OF RESULTS.—The judicial proceedings panel shall include the results of the 

assessments required by paragraph (1) in one of the reports required by subsection (c)(2)(B) of 

section 576 of the National Defense Authorization Act for Fiscal Year 2013.
103

APPENDIX B: JUDICIAL PROCEEDINGS PANEL AUTHORIZING STATUTES

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2015

SEC. 545. ADDITIONAL DUTIES FOR JUDICIAL PROCEEDINGS PANEL.

(a) ADDITIONAL DUTIES IMPOSED.—The independent panel established by the Secretary of 

Defense under section 576(a)(2) of the National Defense Authorization Act for Fiscal Year 2013 

(Public Law 112–239; 126 Stat. 1758), known as the ‘‘judicial proceedings panel’’, shall perform 

the following additional duties:

(1) Conduct a review and assessment regarding the impact of the use of any mental health records 

of the victim of an offense under chapter 47 of title 10, United States Code (the Uniform Code 

of Military Justice), by the accused during the preliminary hearing conducted under section 

832 of such title (article 32 of the Uniform Code of Military Justice), and during court-martial 

proceedings, as compared to the use of similar records in civilian criminal legal proceedings.

(2) Conduct a review and assessment regarding the establishment of a privilege under the Military 

Rules of Evidence against the disclosure of communications between—

(A)users of and personnel staffing the Department of Defense Safe Helpline; and

(B) users of and personnel staffing of the 26 Department of Defense Safe Help Room.

(b) SUBMISSION OF RESULTS.—The judicial proceedings panel shall include the results of the 

reviews and assessments conducted under subsection (a) in one of the reports required by section 

576(c)(2)(B) of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112–239; 

126 Stat. 1760).

SEC. 546. DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, 

PROSECUTION, AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

(f) DUE DATE FOR ANNUAL REPORT OF JUDICIAL PROCEEDINGS PANEL – Section 576(c)(2)

(B) of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239; 126 Stat. 

1760) is amended by inserting “annually” thereafter” after “reports”.
104

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE
105

APPENDIX C: Judicial Proceedings 

Panel Members and 

Subcommittee Members

HONORABLE ELIZABETH HOLTZMAN – JPP CHAIR

Ms. Holtzman is counsel with the law firm Herrick, Feinstein LLP. Ms. Holtzman served for eight 

years as a U.S. representative (D-NY, 1973–81). While in office, she authored the Rape Privacy Act. 

She then served for eight years as District Attorney of Kings County, New York (Brooklyn), the fourthlargest DA’s office in the country, where she helped change rape laws, improve standards and methods 

for prosecution, and develop programs to train police and medical personnel. In 1989 Ms. Holtzman 

became the only woman ever elected Comptroller of New York City. Ms. Holtzman graduated from 

Radcliffe College, magna cum laude, and received her law degree from Harvard Law School.

HONORABLE BARBARA S. JONES, U.S. DISTRICT COURT FOR THE SOUTHERN 

DISTRICT OF NEW YORK (RETIRED) 

Judge Jones is a partner at the law firm Zuckerman Spaeder LLP. She served as a judge in the U.S. 

District Court for the Southern District of New York for sixteen years, and heard a wide range of cases 

relating to accounting and securities fraud, antitrust, fraud and corruption involving city contracts 

and federal loan programs, labor racketeering, and terrorism. Before being nominated to the bench in 

1995, Judge Jones was the Chief Assistant to Robert M. Morgenthau, then the District Attorney of 

New York County (Manhattan). In that role she supervised community affairs, public information, 

and oversaw the work of the Homicide Investigation Unit. In addition to her judicial service, she 

spent more than two decades as a prosecutor. Judge Jones was a special attorney of the United States 

Department of Justice (DOJ) Organized Crime & Racketeering, Criminal Division, and the Manhattan 

Strike Force Against Organized Crime and Racketeering. Previously, Judge Jones served as an Assistant 

U.S. Attorney, as chief of the General Crimes Unit, and as chief of the Organized Crime Unit in the 

Southern District of New York.

MR. VICTOR STONE

Victor Stone represents crime victims at the Maryland Crime Victims Resource Center, Inc. Previously, 

Mr. Stone served as Special Counsel at the United States Department of Justice. He spent forty years 

with the Department of Justice in numerous positions, including as Chief Counsel, FBI Foreign 

Terrorist Task Force, and as Assistant U.S. Attorney in Oregon and the District of Columbia. He 

has experience working on victim and prisoners’ rights, serving on committees that resulted in the 

enactment of the Crime Victims’ Rights Act and updates to the ABA Standards for Prisoner Rights. 

After graduating from Harvard Law School, he clerked on the United States Court of Appeals for the 

Ninth Circuit.

C: Judicial Proceedings Panel Members and Subcommittee Members
106

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

PROFESSOR THOMAS W. TAYLOR

Tom Taylor teaches graduate courses at Duke University’s Sanford School of Public Policy. Previously, 

he served as a decorated and distinguished Army officer, civil servant, and member of the Senior 

Executive Service. During a twenty-seven-year career in the Pentagon, he advised seven secretaries and 

seven Chiefs of Staff of the Army, and as the senior leader of the Army legal community he worked on 

a wide variety of operational, personnel, and intelligence issues. He graduated with high honors from 

Guilford College, Greensboro, N.C., and with honors from the University of North Carolina at Chapel 

Hill law school, where he was a Morehead Fellow, a member of the law review, and a member of the 

Order of the Coif. 

VICE ADMIRAL PATRICIA A. TRACEY, U.S. NAVY (RETIRED)

Pat Tracey is the Vice President of Homeland Security and Defense for HP Enterprise Services, U.S. 

Public Sector, developing dynamic strategies and providing support to various government agencies, 

including the U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of 

State, and U.S. Department of Defense. In 2006, after thirty-four years in the U.S. Navy, she retired as 

the first female vice admiral. As Chief of the Navy’s $5 billion global education and training enterprise, 

she led a successful revolution in training technology to improve the quality, access, and effectiveness 

of Navy training while lowering its cost. Admiral Tracey graduated from the College of New Rochelle 

and the Naval Postgraduate School, with distinction, and completed a fellowship with the Chief of 

Naval Operations’ Strategic Studies Group.
107

APPENDIX C: JUDICIAL PROCEEDINGS PANEL MEMBERS AND SUBCOMMITTEE MEMBERS

SUBCOMMITTEE MEMBERS 

HONORABLE BARBARA S. JONES, U.S. DISTRICT COURT FOR THE SOUTHERN 

DISTRICT OF NEW YORK (RETIRED) – SUBCOMMITTEE CHAIR

Judge Jones is a partner at the law firm Zuckerman Spaeder LLP. She served as a judge in the U.S. 

District Court for the Southern District of New York for sixteen years, and heard a wide range of cases 

relating to accounting and securities fraud, antitrust, fraud and corruption involving city contracts 

and federal loan programs, labor racketeering, and terrorism. Before being nominated to the bench in 

1995, Judge Jones was the Chief Assistant to Robert M. Morgenthau, then the District Attorney of 

New York County (Manhattan). In that role she supervised community affairs, public information, 

and oversaw the work of the Homicide Investigation Unit. In addition to her judicial service, she 

spent more than two decades as a prosecutor. Judge Jones was a special attorney of the United States 

Department of Justice (DOJ) Organized Crime & Racketeering, Criminal Division, and the Manhattan 

Strike Force Against Organized Crime and Racketeering. Previously, Judge Jones served as an Assistant 

U.S. Attorney, as chief of the General Crimes Unit, and as chief of the Organized Crime Unit in the 

Southern District of New York.

DEAN MICHELLE ANDERSON

Dean Michelle Anderson has been the Dean of CUNY School of Law since 2006 and has seen the 

Law School through a period of great renewal and transformation in development, programs, and 

recognition. Dean Anderson is a leading scholar on rape law and has written numerous law review 

articles on the subject. Her article redefining what rape should be legally, “Negotiating Sex,” was 

selected as the core text on rape law in Criminal Law Conversations, published by Oxford University 

Press in 2009. Previously, Dean Anderson clerked on the United States Court of Appeals for the Ninth 

Circuit, and has taught at Georgetown University Law Center and the University of Pittsburgh School 

of Law as a visiting professor of law.

MS. LISA FRIEL

Lisa Friel is an internationally recognized expert on sexual assault. Ms. Friel has investigated and 

supervised complex cases involving sexual assault and harassment, human trafficking, workplace 

violence, child pornography, internet predators, unlawful surveillance, theft and fraud. Ms. Friel 

began her professional career at the New York County District Attorney’s Office, specializing in 

sexual assault cases. She was the Chief of the Sex Crimes Prosecution Unit for nearly a decade and 

the Deputy Chief for 11 years. Supervising more than 40 assistant district attorneys, support staff 

and investigators, she typically managed 300 cases and investigations at any one time. Ms. Friel has 

directed thousands of investigations into allegations of sexual assault and other misconduct and has 

trained hundreds of law enforcement personnel throughout the world. In October 2011, following a 

distinguished 28-year career as a Manhattan prosecutor, Ms. Friel joined T&M Protection Resources 

as Vice President of the Sexual Misconduct Consulting & Investigations division. Ms. Friel and 

her staff developed policies and procedures, provided training workshops and conducted sensitive 

investigations into a myriad of issues to include sexual misconduct (both sexual assault and sexual 

harassment) and domestic violence. In September 2014, Ms. Friel was appointed as T&Ms Special 

Advisor to the NFL Commissioner, consulting on domestic violence, child abuse and sexual assault 

within the NFL. In April 2015, Ms. Friel accepted a permanent position with the NFL, when she was 
108

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

appointed by Commissioner Goodell as the NFL’s Special Counsel for Investigations, where she is 

responsible for all investigations related to possible violations of the NFL’s Personal Conduct Policy 

HONORABLE ELIZABETH HOLTZMAN 

Ms. Holtzman is counsel with the law firm Herrick, Feinstein LLP. Ms. Holtzman served for eight 

years as a U.S. representative (D-NY, 1973–81). While in office, she authored the Rape Privacy Act. 

She then served for eight years as District Attorney of Kings County, New York (Brooklyn), the fourthlargest DA’s office in the country, where she helped change rape laws, improve standards and methods 

for prosecution, and develop programs to train police and medical personnel. In 1989 Ms. Holtzman 

became the only woman ever elected Comptroller of New York City. Ms. Holtzman graduated from 

Radcliffe College, magna cum laude, and received her law degree from Harvard Law School.

MS. LAURIE ROSE KEPROS

Laurie Rose Kepros is the Director of Sexual Litigation for the Colorado Office of the State 

Public Defender where she trains and advises over 700 lawyers and other staff statewide in their 

representation of adults and juveniles accused or convicted of sexual crimes. Ms. Kepros has personally 

represented thousands of criminal defendants charged with all levels of offense including many who 

have been victims of sexual assault themselves. She has tried and consulted on thousands of sexual 

offense cases across the state of Colorado. She has served on dozens of subcommittees of the Colorado 

Sex Offender Management Board and as a member of both the Sex Offense Task Force and Sex 

Offense Working Group of the Sentencing Task Force of the Colorado Commission on Criminal and 

Juvenile Justice. Ms. Kepros was on the Board of Directors of the Colorado Criminal Defense Bar 

(CCDB) for 10 years and currently serves on the board of the CCDB’s sister policy organization, the 

Colorado Criminal Defense Institute. She is a member of the Association for the Treatment of Sexual 

Abusers and an adjunct professor at the University of Denver School of Law. She has repeatedly 

testified before the Colorado legislature as a subject matter expert in sexual crime law and as an expert 

witness in Colorado sex offense law in Federal District Court. In 2012, the CCDB awarded her the 

Gideon Award for upholding and preserving the principles captured by Gideon v. Wainwright.

DEAN LISA SCHENCK (COLONEL, UNITED STATES ARMY, RETIRED)

Dean Lisa Schenck became Associate Dean for Academic Affairs at The George Washington University 

Law School in 2009 after serving in the Army’s Judge Advocate General’s Corps for more than 25 

years. She also has served as a judge, lawyer, and educator. While in the military, she was an appellate 

military judge on the U.S. Army Court of Criminal Appeals in 2002 and received the 2003 Judge 

Advocates Association Outstanding Career Armed Services Attorney Award (Army). In 2005, Dean 

Schenck was the first female appointed as a Senior Judge on that court, where she served until she 

retired. In 2007, the Secretary of Defense also appointed her to serve concurrently as Associate Judge 

on the U.S. Court of Military Commission Review. After retiring from the military as a Colonel in 

2008, Dean Schenck served as Senior Advisor to the Defense Task Force on Sexual Assault in Military 

Services.
109

APPENDIX C: JUDICIAL PROCEEDINGS PANEL MEMBERS AND SUBCOMMITTEE MEMBERS

PROFESSOR LEE SCHINASI (COLONEL, UNITED STATES ARMY, RETIRED)

Professor Schinasi began his legal career as a trial attorney for the Office of Economic Opportunity 

before starting a 23 year career in the Army’s Judge Advocate General’s Corps. His final assignment 

was as Dean of Academics and Vice Dean of the Army’s JAGC School. Professor Schinasi attended 

the resident Command and General Staff College and the resident Army War College. He has served 

as military legal advisor to the Army’s Chief of Staff for Intelligence, as Staff Judge Advocate of the 

3rd Infantry Division (in Germany) and United States Army South (in Panama). Professor Schinasi 

is co-author of several books on evidence and litigation including: The Military Rules of Evidence 

Manual, Military Evidentiary Foundations, The Florida Evidence Code Trial Book, Florida Evidentiary 

Foundations, Evidence in Florida, Emerging Problems Under the Federal Rules of Evidence, and 

Lawyers Cooperative Practice Guide: Florida Evidence. He received a Bachelor’s Degree in economics 

and a J.D. degree from the University of Toledo. Before joining the Barry Law faculty Professor 

Schinasi taught at the University of Miami School of Law. He currently teaches Evidence, Torts, Civil 

Procedure and National Security Law.

PROFESSOR STEPHEN J. SCHULHOFER

Stephen J. Schulhofer is the Robert B. McKay Professor of Law at the New York University. He has 

written more than 50 scholarly articles and seven books, including the leading law school casebook 

in criminal law, and worked on a range of criminal justice and national security topics. His book, 

Unwanted Sex: The Culture of Intimidation and the Failure of Law (Harvard University Press) is 

a comprehensive examination of our laws against sexual assault and other forms of intimidation 

and sexual overreaching. The book argues that the law still fails to afford adequate safeguards 

against sexual abuse, and shows how sexual autonomy, like other basic human entitlements, can be 

systematically protected. He currently serves as the Reporter for the American Law Institute’s project 

to revise the sexual offense provisions of the Model Penal Code. He completed his B.A. at Princeton 

University and his LL.B. at Harvard Law School, both summa cum laude. He then clerked for two 

years for US Supreme Court Justice Hugo Black and practiced law for three years before beginning his 

academic career.

BRIGADIER GENERAL JAMES SCHWENK, UNITED STATES MARINE CORPS, 

(RETIRED)

Brigadier General James Schwenk, retired from the Marine Corps in 2000 and from civil service in 

2014, after 49 years of Federal Service. As a Marine Corps judge advocate, he has served as a trial 

counsel, defense counsel, Deputy Staff Judge Advocate, Staff Judge Advocate, Special Assistant to 

the General Counsel of the Navy, Head of Operational Law Branch at Headquarters Marine Corps, 

Deputy Director of Legal and Legislative Policy for the Office of the Assistant Secretary of Defense 

for Force Management and Policy, Assistant Judge Advocate General of the Navy for Military Law, 

and Military Assistant to the DoD General Counsel. Upon retiring from active duty, BGen Schwenk 

served for fourteen years in the Office of the General Counsel of the Department of Defense as Senior 

Associate Deputy General Counsel, specializing in Personnel Policy, Military Justice and Civil Support. 

He was the principal legal advisor for the repeal of Don’t Ask, Don’t Tell and the provision of benefits 

to same-sex spouses of military personnel. In addition, he was the principal legal advisor to numerous 

DoD working groups in the area of military personnel policy, working extensively with the White 

House and Congress. BGen Schwenk attended the Washington College of Law, American University, 

earning his J.D. in 1977.
110

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

MS. JILL WINE-BANKS

Jill Wine-Banks has a background as a corporate executive in manufacturing and telecom and as 

an attorney and not-for-profit and government leader. Ms. Wine-Banks started her career at the 

Department of Justice prosecuting organized crime and labor racketeering cases and then played a 

crucial role as an assistant special prosecutor investigating and trying the Watergate obstruction of 

justice case. Ms. Wine-Banks also served as the General Counsel of the United States Army. In this 

position, Ms. Wine-Banks dealt with environmental, procurement, Panama Canal, intelligence, military 

justice and political issues, including the integration of women into basic training and WestPoint. 

After leaving the Pentagon, she was a litigation partner at Jenner and Block, the Solicitor General and 

Deputy Attorney General of Illinois, and later the Executive Vice President and Chief Operating Officer 

of the American Bar Association, the world’s largest legal publisher and professional association 

with almost 400,000 members. That experience led to her becoming a senior corporate executive at 

Motorola and then Maytag, handling international business development, global operations, alliance 

creation and management, and government relations in Pakistan, China, Ukraine, Russia, France, 

Germany, Japan, and Singapore. Recently, Ms. Wine-Banks was head of career and technical education 

for the Chicago Public Schools and a business consultant. Ms. Wine-Banks is currently writing a book 

about her life and career, with a special focus on her experiences during Watergate.

MAJOR GENERAL MARGARET WOODWARD, UNITED STATES AIR FORCE, 

(RETIRED)

Major General Margaret Woodward retired as the Director, Air Force Sexual Assault Prevention and 

Response (SAPR), Office of the Vice Chief of Staff, Headquarters U. S. Air Force in April 2014, after 

over 31 years of military service. As Director, General Woodward and her staff were the service’s 

single point of accountability and oversight for sexual assault policy matters. In addition, the SAPR 

office develops policies and programs that address the service’s sexual assault prevention, education, 

accountability, victim assistance and assessment efforts. General Woodward also has served as the 

Air Force Chief of Safety, Commander Air Force Safety Center, and Acting Director of Operational 

Planning, Policy and Safety, Headquarters, Air Force. In addition to commanding the Air Force Safety 

Center, General Woodward commanded at the squadron, group, wing and numbered Air Force levels, 

having served as both a special and general court-martial convening authority. General Woodward 

earned her Bachelor of Science degree in aerospace engineering from Arizona State University. She 

earned a Master’s degree in aviation science from Embry-Riddle Aeronautical University and a 

Master’s degree in national security strategy from the National War College.
111

APPENDIX D: Staff Members and 

Designated Federal Officials

JUDICIAL PROCEEDINGS 

PANEL STAFF

Colonel Kyle Green, U.S. Air Force, 

Staff Director

Lieutenant Colonel Kelly McGovern, 

U.S. Army, Deputy Staff Director

Mr. Dale Trexler, Chief of Staff

Mr. Roger Capretta, Supervising Paralegal

(June 2014 - July 2015)

Ms. Julie Carson, Attorney and 

Legislative Analyst

Ms. Janice Chayt, Investigator

Ms. Alice Falk, Editor

Ms. Nalini Gupta, Attorney

Lieutenant Colonel Glen Hines, 

U.S. Marine Corps, Attorney

Mr. Kirtland Marsh, Attorney

Ms. Laurel Prucha Moran, Graphic Designer

Mr. Douglas Nelson, Attorney

(June 2014 - October 2015)

Mr. Matt Osborn, Attorney

(August 2014 - October 2015)

Ms. Meghan Peters, Attorney 

Ms. Terri Saunders, Attorney

Ms. Meghan Tokash, Attorney

(December 2014 - October 2015)

Ms. Stayce Rozell, Senior Paralegal

Ms. Tiffany Williams, Supervising Paralegal

Ms. Sharon Zahn, Senior Paralegal

DESIGNATED FEDERAL OFFICIALS

Ms. Maria Fried, Designated Federal Official

Mr. William Sprance, 

Alternate Designated Federal Official

Major Jacqueline M. Stingl, 

Alternate Designated Federal Official

Mr. Dwight Sullivan, 

Alternate Designated Federal Official

D: Staff Members and Designated Federal Officials
112

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE
113

APPENDIX E: Judicial Proceedings Panel 

Public Meetings, Subcommittee 

Sessions, and Presenters

SUBCOMMITTEE 

MEETING

PRESENTERS

April 9, 2015

Meeting of the 

Subcommittee at

One Liberty Center, 

Arlington, VA 

• Mr. Dwight Sullivan, DoD, Office of the General Counsel

• Professor Stephen Schulhofer, New York University School of Law

• Colonel Tim Grammel, United States Army, Retired

• Colonel William Orr, United States Air Force, Retired

• Lieutenant Colonel Quincy Ward, United States Marine Corps, Retired

• Commander John Maksym, United States Navy, Retired

May 7, 2015

Meeting of the 

Subcommittee

at the

U.S. District Court for 

the Southern District 

of New York

• Major Aimee Bateman, U.S. Army, The Judge Advocate General’s Legal 

Center & School

• Lieutenant Colonel Christopher Thielemann, U.S. Marine Corps, 

Regional Trial Counsel

• Lieutenant Colonel Alex Pickands, U.S. Army, Trial Counsel Assistance 

Program

• Major Mark Rosenow, U.S. Air Force, Special Victims Unit, 

Chief of Policy and Coordination

• Lieutenant Commander Stuart Kirkby, U.S. Navy, Staff Attorney, 

Navy-Marine Corps Appellate Review Activity

• Colonel Terri Zimmermann, U.S. Marine Corps, Chief Reserve Defense 

Counsel of the Marine Corps

• Lieutenant Colonel Julie Pitvorec, U.S. Air Force, Chief Senior Defense 

Counsel

• Major Frank Kostik, U.S. Army, Senior Defense Counsel

• Lieutenant Commander Richard Federico, U.S. Navy, 

Senior Defense Counsel

• Colonel Mark Jamison, U.S. Marine Corps, Director, 

Navy-Marine Corps Appellate Government Division

• Major John Stephens, U.S. Marine Corps, Navy-Marine Corps 

Appellate Defense Division

• Major Mary Ellen Payne, USAF, Government Appellate Division

• Major Thomas Smith, USAF, Defense Appellate Division

• Captain Jihan Walker, U.S. Army, Government Appellate Division

• Mr. John Wilkinson, Attorney Advisor, AEquitas

• Mr. Zachary Spilman, Attorney at Law

• Colonel Don Christensen, U.S. Air Force (Retired), Protect Our Defenders

E: Judicial Proceedings Panel Public Meetings, Subcommittee Sessions, and Presenters
114

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

SUBCOMMITTEE 

MEETING

PRESENTERS

June 25, 2015

Meeting of the 

Subcommittee 

at the

U.S. District Court for 

the Southern District 

of New York

• Mr. Dwight Sullivan, Department of Defense, 

Office of the General Counsel

• Brigadier General Charles N. Pede, U.S. Army, Commander/

Commandant, The Judge Advocate General’s Legal Center and School

• Lieutenant Colonel Christopher Kennebeck, 

U.S. Army, Deputy Staff Judge Advocate, I Corps

July 22, 2015

Meeting of the 

Subcommittee at

One Liberty Center, 

Arlington, VA

• Major General Robert Shadley, U.S. Army, Retired

• Major General Peggy Combs, U.S. Army, Commanding General 

U.S. Army Cadet Command, Fort Knox, Kentucky

• Major General Gina Grosso, U.S. Air Force, Director Sexual Assault 

Prevention and Response, Office of the Vice Chief of Staff, 

Headquarters Air Force, Washington, D.C.

• Rear Admiral Cari Thomas, U.S. Coast Guard, Assistant Commandant 

for Human Resources, Washington, D.C.

• Brigadier General Austin Renforth, U.S. Marine Corps, U.S. Marine 

Corps, Commanding General, Training Command, Quantico, Virginia

• Lieutenant Colonel Michael E. Sayegh, U.S. Marine Corps, 

Staff Judge Advocate, Training Command, Quantico, Virginia
115

APPENDIX E: JUDICIAL PROCEEDINGS PANEL PUBLIC MEETINGS, 

SUBCOMMITTEE SESSIONS, AND PRESENTERS

SUBCOMMITTEE 

MEETING

PRESENTERS

August 27, 2015

Meeting of the 

Subcommittee at

One Liberty Center, 

Arlington, VA

• Major Mary Ellen Payne, United States Air Force, Appellate Counsel, 

Government Trial and Appellate Division

• Major Adam King, United States Marine Corps, Senior Trial Counsel, 

Legal Services Support Team, Marine Corps Recruit Depot Parris Island

• Major Tyler Heimann, United States Army, former Special Victim 

Prosecutor, Maneuver Support Center of Excellence

• Lieutenant Commander Ben Robertson, United States Navy, 

Chief Prosecutor, National Capitol Region

• Lieutenant Commander Benedict Gullo, United States Coast Guard, 

Deputy Staff Judge Advocate

• Major Ryan Wardle, United States Army, Senior Defense Counsel, 

Trial Defense Services 

• Captain Charles Olson, United States Marine Corps, Defense Counsel, 

Western Region 

• Captain Lauren Shure, United States Air Force, Appellate Defense 

Counsel, Appellate Defense Division 

• Lieutenant Paul Hochmuth, United States Navy, Officer in Charge, 

Defense Service Office Southeast 

• Colonel Brynn Morgan, United States Air Force, Staff Judge Advocate, 

Headquarters Second Air Force 

• Colonel David Mendelson, United States Army, Staff Judge Advocate, 

Fort Sill, Oklahoma 

• Lieutenant Colonel Brett Wilson, United States Marine Corps, 

Staff Judge Advocate, Marine Corps Recruit Depot, San Diego 

• Lieutenant Commander Paul Casey, United States Coast Guard, 

Staff Judge Advocate, Coast Guard Training Center 

• Mr. John Awtrey, Director, Law Enforcement Policy and Support, 

Department of Defense

September 17, 2015

Meeting of the 

Subcommittee at

One Liberty Center, 

Arlington, VA

• The Honorable Lois Frankel, U.S. House of Representatives (FL-22)

• Ms. Elisha Morrow 
116

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

SUBCOMMITTEE 

MEETING

PRESENTERS

October 22, 2015

Meeting of the 

Subcommittee at

One Liberty Center, 

Arlington, VA

• The Honorable Andrew Effron, Former Chief Judge, 

U.S. Court of Appeals for the Armed Forces, Current Director, 

Military Justice Review Group

November 19, 2015

Meeting of the 

Subcommittee at

One Liberty Center, 

Arlington, VA

• Subcommittee deliberations (no speakers)

December 2, 2015

Meeting of the 

Subcommittee at

One Liberty Center, 

Arlington, VA

• Subcommittee deliberations (no speakers)
117

APPENDIX E: JUDICIAL PROCEEDINGS PANEL PUBLIC MEETINGS, 

SUBCOMMITTEE SESSIONS, AND PRESENTERS

JPP PUBLIC 

MEETING

PRESENTERS

Dec. 11, 2015

Public Meeting 

of the JPP

at the

Holiday Inn Ballston 

at Arlington, VA

• Presentation by Subcommittee

• Panel deliberations 

Jan. 15, 2016

Public Meeting 

of the JPP

at the

Holiday Inn Ballston 

at Arlington, VA

• Panel deliberations (no speakers)

January 22, 2016

Public Meeting 

of the JPP

at the

Holiday Inn Ballston 

at Arlington, VA

• Panel deliberations & report approval (no speakers)
118

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE
119

APPENDIX F: Acronyms and 

Abbreviations

DoD Department of Defense

JPP Judicial Proceedings Panel

MCM Manual for Courts-Martial

MJRG Military Justice Review Group

UCMJ Uniform Code of Military Justice

USC United States Code

F: Acronyms and Abbreviations
120

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE
121

APPENDIX G: Sources Consulted

1. U.S. CONSTITUTION

2. LEGISLATIVE SOURCES

a. Enacted Statutes

10 U.S.C. §§ 801-946 (Uniform Code of Military Justice)

18 U.S.C. § 2242 (Sexual Abuse) 

18 U.S.C. § 2244 (Abusive sexual contact) 

18 U.S.C. § 2246 (Definitions for chapter)

b. Proposed Statutes

H.R. 4002, 114th Cong., Criminal Code Improvement Act of 2015 (2015)

S. 2298, 114th Cong., Mens Rea Reform Act of 2015 (2015)

3. JUDICIAL DECISIONS

a. U.S. Supreme Court

Elonis v. United States, 135 S. Ct. 2001, 2004, 192 L. Ed. 2d 1 (2015)

Kolender v. Lawson, 461 U.S. 352, 357 (1983)

b. U.S. Court of Appeals

United States v. Aksal, 2013 U.S. Dist. LEXIS 176947 (D. N.J. Dec. 17, 2013) 

United States v. Bruguier, 735 F.3d 754, 774 (8th Cir. 2013)

United States v. Peters, 277 F.3d 963, 967–68 (7th Cir. 2002)

c. U.S. Court of Appeals for the Armed Forces

United States v. Schloff, 74 M.J. 312 (2015).

d. U.S. Navy-Marine Corps Court of Criminal Appeals

United States v. Pease, 74 M.J. 763 (N-M. Ct. Crim. App. 2015)

G: Sources Consulted
122

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

4. RULES AND REGULATIONS

a. Executive Orders

Manual for Courts-Martial, United States (2008), available at http://www.loc.gov/rr/frd/Military_

Law/pdf/MCM-2008.pdf

Manual for Courts-Martial, United States (2012), available at http://www.loc.gov/rr/frd/Military_

Law/pdf/MCM-2012.pdf

b. Proposed Amendments

Manual for Courts-Martial; Proposed Amendments, 77 Fed. Reg. 64865 (Oct.23, 

2012), available at https://www.federalregister.gov/articles/2012/10/23/2012-25852/

manual-for-courts-martial-proposed-amendments

5. MEETINGS AND HEARINGS

a. Public Meetings of the Judicial Proceedings Panel and Subcommittee

Transcript of JPP Public Meeting (Aug 7, 2014)

Transcript of JPP Public Meeting (Sep 19, 2014)

Transcript of JPP Subcommittee Meeting (Apr. 9, 2015)

Transcript of JPP Subcommittee Meeting (May 7, 2015)

Transcript of JPP Subcommittee Meeting (Jun 25, 2015)

Transcript of JPP Subcommittee Meeting (Jul 22, 2015)

Transcript of JPP Subcommittee Meeting (Aug. 27, 2015)

Transcript of JPP Subcommittee Meeting (Sep. 17, 2015)

Transcript of JPP Subcommittee Meeting (Oct. 22, 2015)

Transcript of JPP Subcommittee Meeting (Nov. 19, 2015)

Transcript of JPP Subcommittee Meeting (Dec. 2, 2015)

Transcript of JPP Public Meeting (Dec. 11, 2015)

b. Written Statements of Presenters

Written Statement of Colonel Timothy Grammel, U.S. Army (Ret.) (Apr. 10, 2015). 

Written Statement of Major Frank Kostik (May 26, 2015)

Written Statement of Major Mary Ellen Payne, U.S. Air Force (Sep. 1, 2015)

Written Statement of Lieutenant Colonel Alexander Pickands, U.S. Army (May 8, 2015).

Written Statement of Major Mark Rosenow, U.S. Air Force (May 20, 2015) 
123

APPENDIX G: SOURCES CONSULTED

6. OFFICIAL POLICY STATEMENTS

U.S. Dep’t of Army Pamphlet 27-9, The Military Judges’ Benchbook

(2014), available at https://www.jagcnet.army.mil/Portals/USArmyTJ.

nsf/6065c91f137aff3685256cbf0079f732/2eba83d745c6dfe7852579c300487713 

7. OFFICIAL REPORTS

a. DoD and DoD Agencies

DoD, Report on Protections for Prospective members and New Members of the Armed Forces

During Entry-Level Processing and Training (May 2014), available at http://jpp.whs.mil/Public/

docs/Meetings/20140919/06_ReportOnProtectionsForProspectiveMembers_DoD_2014.pdf

Military Justice Review Group, Report of the Military Justice Review Group, Part I: UCMJ 

Recommendations (Dec. 22, 2015), available at http://www.dod.gov/dodgc/mjrg.html

b. Reports of the Response Systems Panel and Judicial Proceedings Panel

Judicial Proceedings Panel, Initial Report (Feb. 2015), available at http://jpp.whs.mil/Public/docs/08-

Panel_Reports/JPP_InitialReport_Final_20150204.pdf

8. JOURNAL ARTICLES

Jim Clark, Analysis of Crimes and Defenses 2012 UCMJ Article 120, effective 28 June 2012, 

Emerging Issues (2012), currently available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/02-

Article_120/20140807/07_Art120_UCMJ_Crimes Defenses_Analysis_Clark_2012.pdf

J. J. Prescott & J. E. Rockoff. Do Sex Offender Registration and Notification Laws Affect Criminal 

Behavior?, 54 J. of Law & Economics 161 (2011)

Lisa M. Schenck, Sex Offenses Under Military Law: Will the Recent Changes in the Uniform Code of 

Military Justice (UCMJ) Re-traumatize Sexual Assault Survivors in the Courtroom?, 11 Ohio State

Journal of Criminal Law 439 (Spring, 2014).

9. LETTERS AND E-MAILS

Letter from Professor Stephen J. Schulhofer, NYU School of Law, American Law Institute, to Panel 

Members (Aug. 8, 2014).
124

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE

JUDICIAL PROCEEDINGS PANEL:

REPORT ON ARTICLE 120 OF THE UNIFORM CODE OF MILITARY JUSTICE February 2015