- a 2006 amendment to Article 43, UCMJ, made by the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. No. 109-163, §§ 552−53, 119 Stat. 3136, 3264 (2006)), provided that the offense of rape may be tried and punished at any time without limitation
- in this case, the version of Article 43, UCMJ, that existed at the time of Appellant’s charged rape offense in 2005 established a five-year period of limitations; in 2006, Congress amended Article 43, UCMJ, to clarify that rape was an offense with no statute of limitations; had Congress not amended Article 43, UCMJ, in 2006, the period of limitations with respect to Appellant’s 2005 charged rape offense would have run in 2010, long before the charges in this case were received by the summary court-martial convening authority in 2014; because the 2006 amendment to Article 43, UCMJ, did not apply retroactively to offenses committed before the enactment of the amendment but for which the then extant statute of limitations had not expired, the finding of guilt in this case had to be set aside and the charge dismissed
- the 2006 amendment to Article 43, UCMJ, that provided that the offense of rape may be tried and punished at any time without limitation did not apply to a rape that occurred in 2005 based on the general presumption against retroactive legislation, the general presumption in favor of liberal construction of criminal statutes of limitation in favor of repose, and the absence of any indication of congressional intent to apply the 2006 amendment retrospectively
CAAF Opinion Digest · III.A.45 · Crimes Pre-2019 offenses
Article 120 - Rape and Carnal Knowledge
Offenses committed before 1 January 2019 (pre-2016 amendment) — opinions from the 1999 through 2020 Terms of Court.
For offenses on or after 1 January 2019 see
III.AA — Article 120 - Rape and Sexual Assault Generally.
* Pre-2007 Amendment -- Offenses charged under the law in effect before 1 Oct 2007
13 digested opinions, 1999–2018 Terms
2018 (October Term)
2017 (October Term)
- the offense of rape of an adult woman committed in 1997, a violation of Article 120, UCMJ, was not a crime punishable by death within the meaning of Article 43, UCMJ, and thus was not exempt from the five year statute of limitations; the prior decisions of US v. Stebbins, 61 MJ 366 (CAAF 2005), and Willenbring v. Neurauter, 48 MJ 152 (CAAF 1998), are overruled to the extent that they hold that rape was punishable by death at the time of the charged offense
- while under federal law the statute of limitations for rape is five years, 18 USC § 3282, in 2006, Congress amended the statute of limitations in the military, so that a person charged with rape, or rape of a child may be tried and punished at any time without limitation; in 2013, Congress again amended the statute to substitute rape or sexual assault, or rape or sexual assault of a child for rape, or rape of a child
2009 (September Term)
- the offense of indecent acts is not an LIO of the offense of rape because the elements of rape do not include all (or indeed any) of the elements of indecent acts, notwithstanding that the accused may have been on notice of the possibility that he might be convicted of such an LIO where (1) the offense of indecent acts was held to be an LIO of rape by the CAAF in US v. Schoolfield, 40 MJ 132, and (2) the MCM listed the offense of indecent acts as an LIO of rape; to the extent that Schoolfield and US v. Hudson, 59 MJ 357, hold otherwise, they are no longer good law
2008 (September Term)
- open and notorious indecent acts under Article 134, UCMJ, was neither expressly nor inherently a lesser included offense of the charged offense of rape under Article 120, UCMJ, where the members were not instructed on the theory that appellant’s conduct was open and notorious
2008 (Transition Term)
- under Article 120(a), UCMJ, any person who commits an act of sexual intercourse, by force and without consent, is guilty of rape; the essential elements of rape are (1) that the accused committed an act of sexual intercourse, and (2) that the act of sexual intercourse was done by force and without consent
- force and lack of consent are separate elements of rape but there may be circumstances in which the two elements are so closely intertwined that both elements may be proved by the same evidence; force can be actual or constructive; in determining whether force and lack of consent occurred, the court-martial must consider the totality of the circumstances presented in the case
- proof that an alleged victim of rape physically resisted the accused is not needed to support a finding of lack of consent as an element of rape; a lack of consent can be manifested by the victim in a number of ways other than physical resistance; for example, the victim’s repeated verbal rejections may be enough to establish that the members could reasonably have found or inferred beyond a reasonable doubt the element of lack of consent
- consent to sexual intercourse may not be inferred if resistance would have been futile, where resistance is overcome by threats of death or great bodily harm, or where the victim is unable to resist because of the lack of mental or physical faculties
- in this case, the evidence was legally insufficient to support the conviction of appellant, a drill sergeant, for raping a female trainee on three occasions, where the record was devoid of any evidence showing that the trainee manifested a lack of consent or took any measures to resist sexual intercourse with appellant or that her resistance would have been futile or was overcome by threats of death or great bodily harm
2007
- it has long been the law with respect to the offense of rape that where intimidation or threats of death or physical injury make resistance futile, it is said that constructive force has been applied; further, constructive force may consist of expressed or implied threats of bodily harm
2006
- an Article 120(b), UCMJ, violation for carnal knowledge requires: (1) that the accused commit an act of sexual intercourse; (2) with a person who is not the accused’s spouse; and (3) who is under sixteen years old; penetration, however slight, is sufficient to complete the offense
- there was sufficient evidence of penetration to support appellant’s conviction of carnal knowledge of his daughter where the mother testified that she found appellant naked in bed spooning her daughter with a partial erection, where daughter testified about acts of vaginal penetration prior to the date in question, and where reasonable trier of fact could infer that the word “also” in trial counsel’s question to the daughter asking whether appellant had “also” put his private part inside her before that date was inclusive and meant that acts of penetration occurred not only before that date, but also on that date
2005
- in military law, rape is an act of sexual intercourse, by force and without consent; although listed within the same element, force and lack of consent are distinct, although related, elements of the offense
- the lack of consent required for rape is more than mere lack of acquiescence; if a victim in possession of his or her mental faculties fails to make lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that the victim did consent; such measures of resistance can be verbal, physical, or a combination of the two; in other words, in context, a verbal “no” can manifest the necessary lack of consent for the offense of rape; in such a context, physical resistance is not required; a finding of lack of consent does not require proof that the witness physically resisted her attacker; moreover, proof of resistance in any form is not a necessary element of the offense of rape; it may, however, be probative on the issue of consent; further, verbal or physical measures of resistance are not required if resistance would have been futile, where resistance is overcome by threats of death or great bodily harm, or where the victim is unable to resist because of lack of mental or physical faculties; in such a circumstance, there is no consent
- the force required for rape can be accomplished in one of two manners: actual force or constructive force; actual force is physical force used to overcome a victim’s lack of consent; actual force requires more than the incidental force involved in penetration; constructive force may consist of expressed or implied threats of bodily harm; constructive force may be shown by proof of a coercive atmosphere that includes threats to injure others or statements that resistance would be futile
- as a matter of law, depending on the circumstances, a victim need not physically resist to manifest lack of consent and once lack of consent has been reasonably manifested, one need not continually manifest that lack of consent through resistance
2004
- this Court has never recognized the ability of a child under the age of 16 to legally consent to sexual intercourse or sodomy
2003
- rape is a general intent offense requiring proof that an accused deliberately or purposefully committed an act of sexual intercourse by force and without the victim’s consent; an honest and reasonable mistake of fact as to the victim’s lack of consent is an affirmative defense to a charge of rape
- the offenses of rape and forcible sodomy both require proof that the act was committed by force and without consent; although force and lack of consent are separate elements, our case law recognizes that there may be circumstances in which the two elements are so closely intertwined that both elements may be proved by the same evidence
- consent induced by fear, fright, or coercion is equivalent to physical force; such constructive force may consist of expressed or implied threats of bodily harm; constructive force may be shown by proof of a coercive atmosphere that includes, for example, threats to injure others or statements that resistance would be futile
- in the context of the special relationship between noncommissioned officers and trainees, we have observed that the NCO cannot create by his own actions an environment of isolation and fear and then seek excusal from the crime of rape by claiming the absence of force especially where, as here, passive acquiescence is prompted by the unique situation of dominance and control presented by appellant’s superior rank and position
- rank disparity alone is not sufficient to constitute constructive force; the evidence in this case, however, presents far more than mere rank disparity between appellant and his victims: (1) appellant’s physically imposing size; (2) his reputation for being tough and mean; (3) his position as a noncommissioned officer; (4) his actual and apparent authority over each of the victims in matters other than sexual contact; (5) the location and timing of the assaults, including his use of his official office and other areas within the barracks in which the trainees were required to live; (6) his refusal to accept verbal and physical indications that his victims were not willing participants; and (7) the relatively diminutive size and youth of his victims, and their lack of military experience; additionally, appellant used his authority over the victims to issue orders that placed them in the isolated locations where the charged rapes occurred
2000
- evidence of rape, specifically the lack of consent, was legally insufficient where: (1) although intoxicated, the victim was able to recall events with “ringing clarity”; (2) the victim was able to manifest lack of consent and did so when appellant attempted to have her commit sodomy upon him; (3) the victim undressed herself in front of appellant; (4) the victim allowed appellant to touch her sexually; (5) the victim allowed appellant to perform sodomy upon her; (6) the victim said nothing when she saw appellant move into position to penetrate her; (7) the victim did nothing to suggest that she did not consent; and (8) even if victim did not actually consent, there was no way for appellant to know that she did not consent
1999
- National Defense Authorization Act for Fiscal Year 1996, § 1113, Pub.L.No. 104-106, 110 Stat. 186, 462 (1996), amended Article 120, UCMJ, effective February 10, 1996, to permit an accused to raise the defense of reasonable mistake of fact to a charge of carnal knowledge; the accused has the burden of proof by a preponderance of the evidence
- amendments to Article 120, which permit accused to raise defense of reasonable mistake of fact to charge of carnal knowledge, retained elements of offense and did not substitute a right for the crime; thus, under general federal savings statute, 1 USC § 109, common law doctrine of abatement is not applicable and appellant is not entitled to judicial relief from his provident guilty plea
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Last updated by the court: Oct 13, 2026 · mirrored Oct 29, 2026 · digest page IIIA45 · Always confirm a holding against the opinion itself (linked from each case name).