Article 120b — Rape and sexual assault of a child

Part IV · Punitive Articles

Article 120b. Rape and sexual assault of a child · MCM ¶ 62

2024 Manual for Courts-Martial, United States · Last updated 2026-07-14

Recent revisions Summary of changes

(a) Text of statute.

(a) RAPE OF A CHILD.—Any person subject to this chapter who—

(1) commits a sexual act upon a child who has not attained the age of 12 years; or

(2) commits a sexual act upon a child who has attained the age of 12 years by—

(A) using force against any person;

(B) threatening or placing that child in fear;

(D) administering to that child a drug, intoxicant, or other similar substance; is guilty of rape of a child and shall be punished as a court-martial may direct.

(b) SEXUAL ASSAULT OF A CHILD.—Any person subject to this chapter who commits a sexual act upon a child who has attained the age of 12 years is guilty of sexual assault of a child and shall be punished as a court-martial may direct.

(c) SEXUAL ABUSE OF A CHILD.—Any person subject to this chapter who commits a lewd act upon a child is guilty of sexual abuse of a child and shall be punished as a court-martial may direct.

(d) AGE OF CHILD.—

(1) UNDER 12 YEARS.—In a prosecution under this section, it need not be proven that the accused knew the age of the other person engaging in the sexual act or lewd act. It is not a defense that the accused reasonably believed that the child had attained the age of 12 years.

(2) UNDER 16 YEARS.—In a prosecution under this section, it need not be proven that the accused knew that the other person engaging in the sexual act or lewd act had not attained the age of 16 years, but it is a defense in a prosecution under subsection (b) (sexual assault of a child) or subsection (c) (sexual abuse of a child), which the accused must prove by a preponderance of the evidence, that the accused reasonably believed that the child had attained the age of 16 years, if the child had in fact attained at least the age of 12 years.

(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) CONSENT.—Lack of consent is not an element and need not be proven in any prosecution under this section. A child not legally married to the person committing the sexual act, lewd act, or use of force cannot consent to any sexual act, lewd act, or use of force. revised · Public Law No. 118–159 (NDAA 2025)

(g) DEFINITIONS.—In this section: revised · Public Law No. 118–159 (NDAA 2025)

(1) SEXUAL ACT AND SEXUAL CONTACT.—The terms “sexual act” and “sexual contact” have the meanings given those terms in section 920(g) of this title (article 120(g)), except that the term “sexual act” also includes the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

(2) 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 child; or

(C) inflicting physical harm. In the case of a parent-child or similar relationship, the use or abuse of parental or similar authority is sufficient to constitute the use of force.

(3) THREATENING OR PLACING THAT CHILD IN FEAR.—The term “threatening or placing that child in fear” means a communication or action that is of sufficient consequence to cause the child to fear that non-compliance will result in the child or another person being subjected to the action contemplated by the communication or action.

(4) CHILD.—The term “child” means any person who has not attained the age of 16 years.

(5) LEWD ACT.—The term “lewd act” means—

(A) any sexual contact with a child;

(B) intentionally exposing one’s genitalia, anus, buttocks, or female areola or nipple to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person;

(C) intentionally communicating indecent language to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or

(D) any indecent conduct, intentionally done with or in the presence of a child, including via any communication technology, that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

(b) Elements.

(1) Rape of a child.

(a) Rape of a child who has not attained the age of 12.

(i) That the accused committed a sexual act upon a child; and

(ii) That at the time of the sexual act the child had not attained the age of 12 years.

(b) Rape by force of a child who has attained the age of 12.

(i) That the accused committed a sexual act upon a child;

(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and

(iii) That the accused did so by using force against that child or any other person.

(i) That the accused committed a sexual act upon a child;

(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and

(iii) That the accused did so by threatening the child or another person or placing that child in fear.

(d) Rape by rendering unconscious a child who has attained the age of 12.

(i) That the accused committed a sexual act upon a child;

(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and

(iii) That the accused did so by rendering that child unconscious.

(e) Rape by administering a drug, intoxicant, or other similar substance to a child who has attained the age of 12.

(i) That the accused committed a sexual act upon a child;

(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and

(iii) That the accused did so by administering to that child a drug, intoxicant, or other similar substance.

(2) Sexual assault of a child.

(a) Sexual assault of a child who has attained the age of 12.

(i) That the accused committed a sexual act upon a child; and

(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years.

(3) Sexual abuse of a child. That the accused committed a lewd act upon a child.

(1) In general. Sexual offenses have been separated into three statutes: offenses against adults (120), offenses against children (120b), and other offenses (120c).

(2) Definitions. Terms not defined in this paragraph are defined in subparagraph 60.a.(g), supra, except that the term “sexual act” also includes the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

(d) Maximum punishment.

(1) Rape of a child. Forfeiture of all pay and allowances, and confinement for life without eligibility for parole. Mandatory minimum—Dismissal or dishonorable discharge.

(2) Sexual assault of a child. Forfeiture of all pay and allowances, and confinement for 30 years. Mandatory minimum—Dismissal or dishonorable discharge.

(3) Sexual abuse of a child.

(a) Cases involving sexual contact. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.

(b) Other cases. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.

(e) Sample specifications.

(1) Rape of a child.

(a) Rape of a child who has not attained the age of 12. In that _________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction, if required), on or about________ 20__, commit a sexual act upon ________________, a child who had not attained the age of 12 years, by [penetrating ___________’s (vulva) (anus) (mouth) with __________’s penis] [causing contact between _______’s mouth and ________’s (penis) (vulva) (scrotum) (anus)] [penetrating _______’s (vulva) (penis) (anus) with (______’s body part) (an object) to wit:______, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________ ]] [intentionally touching, not through the clothing, the genitalia of _________, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________]].

(b) Rape by force of a child who has attained the age of 12 years. In that ___________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction, if required), on or about _______ 20__, commit a sexual act upon __________, a child who had attained the age of 12 years but had not attained the age of 16 years, by [penetrating ___________’s (vulva) (anus) (mouth) with __________’s penis] [causing contact between _______’s mouth and ________’s (penis) (vulva) (scrotum) (anus)] [penetrating _______’s (vulva) (penis) (anus) with (______’s body part) (an object) to wit:______, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________]] [intentionally touching, not through the clothing, the genitalia of _________, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________]], by using force against ________, to wit: ______________.

(c) Rape by threatening or placing in fear a child who has attained the age of 12 years. In that ________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction, if required), on or about ______ 20__, commit a sexual act upon __________, a child who had attained the age of 12 years but had not attained the age of 16 years, by [penetrating ___________’s (vulva) (anus) (mouth) with __________’s penis] [causing contact between _______’s mouth and ________’s (penis) (vulva) (scrotum) (anus)] [penetrating _______’s (vulva) (penis) (anus) with (______’s body part) (an object) to wit:______, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________]] [intentionally touching, not through the clothing, the genitalia of _________, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________]], by (threatening ______) (placing _______ in fear).

(d) Rape by rendering unconscious of a child who has attained the age of 12 years. In that __________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20__, commit a sexual act upon ________, a child who had attained the age of 12 years but had not attained the age of 16 years, by [penetrating ___________’s (vulva) (anus) (mouth) with __________’s penis] [causing contact between _______’s mouth and ________’s (penis) (vulva) (scrotum) (anus)] [penetrating _______’s (vulva) (penis) (anus) with (______’s body part) (an object) to wit:______, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________]] [intentionally touching, not through the clothing, the genitalia of _________, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________]], by rendering __________ unconscious by ___________________.

(e) Rape by administering a drug, intoxicant, or other similar substance to a child who has attained the age of 12 years. In that ___________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction, if required), on or about ______ 20__, commit a sexual act upon __________, a child who had attained the age of 12 years but had not attained the age of 16 years, by [penetrating ___________’s (vulva) (anus) (mouth) with __________’s penis] [causing contact between _______’s mouth and ________’s (penis) (vulva) (scrotum) (anus)] [penetrating _______’s (vulva) (penis) (anus) with (______’s body part) (an object) to wit:______, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________ ]] [intentionally touching, not through the clothing, the genitalia of _________, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________]], by administering to ____________ a (drug) (intoxicant) (____), to wit: _____________.

(2) Sexual assault of a child.

(a) Sexual assault of a child who has attained the age of 12 years. In that __________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20__, commit a sexual act upon _______, a child who had attained the age of 12 years but had not attained the age of 16 years, by [penetrating ___________’s (vulva) (anus) (mouth) with __________’s penis] [causing contact between _______’s mouth and ________’s (penis) (vulva) (scrotum) (anus)] [penetrating _______’s (vulva) (penis) (anus) with (______’s body part) (an object) to wit:______, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________]] [intentionally touching, not through the clothing, the genitalia of _________, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________]].

(3) Sexual abuse of a child.

(a) Sexual abuse of a child involving sexual contact. In that _________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction, if required), on or about ______ 20__, commit a lewd act upon __________, a child who had not attained the age of 16 years, by (touching) (causing _____ to touch) the (vulva) (penis) (scrotum) (anus) (groin) (breast) (inner thigh) (buttocks) of________, with [(______’s body part) (an object) to wit: _______], with an intent to [(abuse) (humiliate) (harass) (degrade) __________ ] [(arouse) (gratify) the sexual desire of __________].

(b) Sexual abuse of a child involving indecent exposure. In that _________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction, if required), on or about ____ 20__, commit a lewd act upon _______, a child who had not attained the age of 16 years, by intentionally exposing [his (genitalia) (anus) (buttocks)] [her (genitalia) (anus) (buttocks) (areola) (nipple)] to __________, with an intent to [(abuse) (humiliate) (degrade) ______] [(arouse) (gratify) the sexual desire of __________].

(c) Sexual abuse of a child involving indecent communication. In that ________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction, if required), on or about _______ 20__, commit a lewd act upon __________, a child who had not attained the age of 16 years, by intentionally communicating to ________ indecent language to wit: ___________, with an intent to [(abuse) (humiliate) (degrade)_____] [(arouse) (gratify) the sexual desire of _________].

(d) Sexual abuse of a child involving indecent conduct. In that ________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction, if required), on or about _______ 20__, commit a lewd act upon __________, a child who had not attained the age of 16 years, by engaging in indecent conduct, to wit: _________, intentionally done (with) (in the presence of) _______, which conduct amounted to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.

Maximum punishment

DD, TF, life without eligibility for parole, E-1. A dishonorable discharge or a dismissal is a mandatory minimum this offense. (Category 5)

Sample specification

Rape of a Child Who Has Not Attained the Age of 12 Years:

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about_________ , commit a sexual act upon ________, a child who had not attained the age of 12 years, by [penetrating _______’s (vulva) (anus) (mouth) with ________'s penis] [causing contact between _______'s mouth and _______'s (penis) (vulva) (scrotum) (anus)] [penetrating ________'s (vulva) (penis) (anus) with (________'s body part) (an object) to wit: _____, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire ________]] [intentionally touching, not through the clothing, the genitalia of _________, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire ________]].

Rape by Force of a Child Who Has Attained the Age of 12 Years:

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about_________ , commit a sexual act upon ________, a child who had attained the age of 12 years but had not attained the age of 16 years, by [penetrating _______’s (vulva) (anus) (mouth) with ________'s penis] [causing contact between _______'s mouth and _______'s (penis) (vulva) (scrotum) (anus)] [penetrating ________'s (vulva) (penis) (anus) with (________'s body part) (an object) to wit: _____, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of ________]] [intentionally touching, not through the clothing, the genitalia of _________, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of ________]] by [using force against _________, to wit: _____________]

Rape by Threatening or Placing in Fear a Child Who Has Attained the Age of 12 Years:

In that ________ (personal jurisdiction data), did (at/on board—location), on or about ________, commit a sexual act upon __________, a child who had attained the age of 12 years but had not attained the age of 16 years, by [penetrating ___________’s (vulva) (anus) (mouth) with __________’s penis] [causing contact between _______’s mouth and ________’s (penis) (vulva) (scrotum) (anus)] [penetrating _______’s (vulva) (penis) (anus) with (______’s body part) (an object) to wit:______, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________]] [intentionally touching, not through the clothing, the genitalia of _________, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________]], by (threatening ______) (placing _______ in fear).

Rape by Rendering Unconscious a Child Who Has Attained the Ager of 12 Years:

In that __________ (personal jurisdiction data), did (at/on board—location), on or about _______, commit a sexual act upon ________, a child who had attained the age of 12 years but had not attained the age of 16 years, by [penetrating ___________’s (vulva) (anus) (mouth) with __________’s penis] [causing contact between _______’s mouth and ________’s (penis) (vulva) (scrotum) (anus)] [penetrating _______’s (vulva) (penis) (anus) with (______’s body part) (an object) to wit:______, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________]] [intentionally touching, not through the clothing, the genitalia of _________, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________]], by rendering __________ unconscious by ___________________.

Rape by Administering a Drug, Intoxicant, or Other Similar Substance to a Child Who Has Attained the Age of 12 Years:

In that ___________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction, if required), on or about ________, commit a sexual act upon __________, a child who had attained the age of 12 years but had not attained the age of 16 years, by [penetrating ___________’s (vulva) (anus) (mouth) with __________’s penis] [causing contact between _______’s mouth and ________’s (penis) (vulva) (scrotum) (anus)] [penetrating _______’s (vulva) (penis) (anus) with (______’s body part) (an object) to wit:______, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________ ]] [intentionally touching, not through the clothing, the genitalia of _________, with an intent to [(abuse) (humiliate) (harass) (degrade) _______] [(arouse) (gratify) the sexual desire of _________]], by administering to ____________ a (drug) (intoxicant) (____), to wit: _____________.

Elements

(1) That (state the time and place alleged), the accused committed (a) sexual act(s) upon (state name of the alleged victim) by (state the alleged sexual act); and

NOTE 2. Child under the age of 12 alleged. If it is alleged that the victim was under the age of 12, give the following element:

[(2)] That at the time of the sexual act (state the name of the alleged victim) had not attained the age of 12 years.

NOTE 3. Child who had attained the age of 12, but had not attained the age of 16 alleged. If it is alleged that the victim had attained the age of 12, but had not attained the age of 16, give the following elements:

[(2)] That the accused did so by

(a) using force against (state the name of the alleged victim or other person against whom force was allegedly used), to wit: (state the force alleged);

(b) threatening (state the name of the alleged victim or other person threatened) or placing (state the name of the alleged victim) in fear;

(d) administering to (state the name of the alleged victim) a drug, intoxicant, or other similar substance; [and]

[(3)] That at the time of the sexual act (state the name of the alleged victim) had attained the age of 12 years but had not attained the age of 16 years.

Definitions & other instructions

“Sexual act” means:

(A) the 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;

(C) the penetration, however slight, of the vulva or penis or anus of another by any part of the body or any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person; or

(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

“Child” means any person who has not attained the age of 16 years.

The prosecution is not required to prove the accused knew the age of (state the name of the alleged victim) at the time the alleged sexual act(s) occurred.

(The “vulva” is the external genital organs of the female, including the entrance of the vagina and the labia majora and labia minora. “Labia” is the Latin and medically correct term for “lips.”)

NOTE 4. By force. When the sexual act is alleged by force, include the following instruction:

“Force” means the use of a weapon; the use of such physical strength or violence as is sufficient to overcome, restrain or injure a child; or inflicting physical harm.

(In the case of a parent-child or similar relationship, the use or abuse of parental or similar authority is sufficient to constitute the use of force.)

(The force which caused the victim to engage in the sexual act need not have been applied by the accused to the victim. It is sufficient if the accused applied such force to any person, which thereby caused the victim to engage in the sexual act.)

NOTE 5. By threat or placing child in fear. When the sexual act is alleged by threat or by placing a child in fear, include the following instruction:

“Threatening or placing a child in fear” means a communication or action that is of sufficient consequence to cause the child to fear that non-compliance will result in the child or another person being subjected to the action contemplated by the communication or action.

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.

(The person subject to the action contemplated by the threat need not be the victim. It is sufficient if the accused threatened or placed the victim in fear that any person would be subject to the action contemplated by the threat, which thereby caused the victim to engage in the sexual act.)

NOTE 6. By threat or placing in fear. In the context of a Stalking offense, the Supreme Court held that there is a greater mens rea requirement when an alleged threat involves ONLY speech. Counterman v. Colorado, 600 US 66 (2023). If the course of conduct alleged involves ONLY speech, then the judge should consider providing the below instruction in addition to the instruction following NOTE 5:

However, the government must prove beyond a reasonable doubt that the accused consciously disregarded a substantial risk that (state the name of alleged victim) would be placed in reasonable fear that (state the name of alleged victim’s) non-compliance would result in (state the name of alleged victim) or another person being subjected to the wrongful action contemplated by the communication.

NOTE 7. Marriage. Marriage is not a defense for rape of a child under Article 120b.

Marriage is not a defense to this offense.

NOTE 8. Evidence of consent. Generally, the elements of an Article 120b(a)(2) offense require the accused to have committed sexual conduct “by” a certain method. Stated another way, “by” means the sexual conduct occurred because of that method. Consent logically precludes that causal link; when the alleged victim consented, the sexual conduct occurred because of the consent, not because of the charged method. Accordingly, if the alleged offense is rape of a child who has attained the age of 12 years by using force or threatening or placing the child in fear, evidence that the alleged victim consented to the sexual conduct at issue may be relevant to negate an element, even though lack of consent may not be a separate element. In such situations the following instruction, properly tailored, would be appropriate. This instruction is not applicable where the alleged offense is rape of a child who has attained the age of 12 years by rendering the child unconscious or administering a drug to the child. The judge must carefully evaluate the evidence presented by both sides in such cases to determine the applicability of the following instruction.

The evidence has raised the issue of whether (state the alleged victim’s name) consented to the sexual conduct listed in (The) Specification(s) (__________) of (The) (Additional) Charge (___). All of the evidence concerning consent to the sexual conduct is relevant and must be considered in determining whether the government has proven (the elements of the offense) (that the sexual conduct was done by _____________) (state the element(s) to which the evidence concerning consent relates) beyond a reasonable doubt. Stated another way, evidence the alleged victim consented to the sexual conduct, either alone or in conjunction with the other evidence in this case, may cause you to have a reasonable doubt as to whether the government has proven (every element of the offense) (that the sexual conduct was done by _____________) (state the element(s) to which the evidence concerning consent relates).

Source: Instruction 3a-62-1 · view original on jagcnet.army.mil

Maximum punishment

DD, TF, 30 years, E-1. A dishonorable discharge or a dismissal is a mandatory minimum sentence for this offense. (Category 4)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, commit a sexual act upon __________, a child who had attained the age of 12 years but had not attained the age of 16 years, by [penetrating _________’s (vulva) (anus) (mouth) with __________'s penis] [causing contact between _________'s mouth and __________'s (penis) (vulva) (scrotum) (anus)] [penetrating ______'s (vulva) (penis) (anus) with ______'s body part) (an object) to wit: ________ with an intent to [(abuse) (humiliate) (harass) (degrade) _________] [(arouse) (gratify) the sexual desire of __________]] [intentionally touching, not through the clothing, the genitalia of ___________, with an intent to [(abuse) (humiliate) (harass) (degrade) _________] [(arouse) (gratify) the sexual desire of __________]].

Elements

(1) That (state the time and place alleged), the accused committed (a) sexual act(s) upon (state the name of the alleged victim), by (state the alleged sexual act); and

(2) That at the time of the sexual act (state the name of the alleged victim) had attained the age of 12 years, but had not attained the age of 16 years.

Definitions & other instructions

“Sexual act” means:

(A) the 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;

“Child” means any person who has not attained the age of 16 years.

The prosecution is not required to prove the accused knew that (state the name of the alleged victim) had not attained the age of 16 years at the time the alleged sexual act(s) occurred.

NOTE 2. Mistake of fact as to age. Mistake of fact as to age is an affirmative defense to sexual assault of a child. If raised by some evidence, the military judge must advise the members that the defense has the burden of proving by a preponderance of the evidence that mistake existed. When mistake of fact as to age has been raised, include the following instruction. The burden of proof in the instruction below is as provided in the statute.

The evidence has raised the issue of mistake on the part of the accused concerning the offense(s) of sexual assault of a child, as alleged in (the) Specification(s) (___) of (the) (Additional) Charge (___). Specifically, the mistake concerns the accused’s belief that (state the name of the alleged victim) was at least 16 years of age when the alleged sexual act(s) occurred.

The prosecution is not required to prove the accused knew that (state the name of the alleged victim) had not attained the age of 16 years at the time the alleged sexual act(s) occurred. However, an honest and reasonable mistake of fact as to (state the name of the alleged victim)’s age is a defense to (that) (those) charged offense(s).

“Mistake of fact as to age” means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct was at least 16 years old. The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable the ignorance or mistake must have been based on information, or lack of it, which would indicate to a reasonable person that (state the name of the alleged victim) was at least 16 years old. (Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances.)

The burden is on the defense to establish the accused was under this mistaken belief, by a preponderance of the evidence. A “preponderance” means more likely than not. If you are not convinced by a preponderance of the evidence that, at the time of the charged sexual assault of a child, the accused was under a mistaken belief that (state the name of the alleged victim) was at least 16 years old, the defense does not exist. Even if you conclude the accused was under the honest and mistaken belief that (state the name of the alleged victim) was at least 16 years old, if you are not convinced by preponderance of the evidence that, at the time of the charged sexual assault of a child, the accused’s mistake was reasonable, the defense does not exist.

NOTE 3. Voluntary intoxication and mistake of fact as to age. If there is evidence of the accused’s voluntary intoxication, the following instruction is appropriate:

There is evidence in this case that indicates that, at the time of the alleged sexual assault of a child, the accused may have been under the influence of (alcohol) (drugs). The accused's state of voluntary intoxication, if any, at the time of the offense(s) is not relevant to mistake of fact. A mistaken belief that (state the name of the alleged victim) was at least 16 years of age must be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense. Voluntary intoxication does not permit what would be an unreasonable belief in the mind of a sober person to be considered reasonable because the person is intoxicated.

NOTE 4. Marriage. It is a defense that the persons engaging in the sexual act were at that time married to each other, except where the accused commits a sexual act upon the person when the accused knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring or 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 was known or reasonably should have been known by the accused. If raised by some evidence, the military judge must advise the members that the defense has the burden of proving by a preponderance of the evidence that a marriage existed. When marriage between the accused and the alleged victim of the sexual assault of a child has been raised, include the following instruction:

The evidence has raised the issue of marriage between the accused and (state the name of the alleged victim) concerning the offense(s) of sexual assault of a child, as alleged in (the) Specification(s) (___) of (the) (Additional) Charge (___).

It is a defense to (that) (those) charged offense(s) that the accused and (state the name of the alleged victim) were married to each other when they engaged in the sexual act(s). A “marriage” is a relationship, recognized by the laws of a competent State or foreign jurisdiction, between the accused and (state the name of the alleged victim) as spouses. A marriage exists until it is dissolved in accordance with the laws of a competent State or foreign jurisdiction.

(The defense of marriage does not exist where the accused commits the alleged sexual act(s) upon (state the name of the alleged victim) when the accused knows or reasonably should know that she/he is asleep, unconscious or otherwise unaware that the sexual act(s) (is) (are) occurring or when she/he is incapable of consenting to the sexual act(s) due to impairment by any drug, intoxicant or other similar substance, and that condition was known or reasonably should have been known by the accused.)

The defense has the burden of proving by a preponderance of the evidence that the defense of marriage exists. The term “preponderance” means more likely than not. Therefore, unless you are convinced by a preponderance of the evidence that at the time of the sexual act(s) alleged, the accused and (state the name of the alleged victim) were married to each other, the defense of marriage does not exist.

(Even if you are convinced by a preponderance of the evidence that at the time of the sexual act(s) alleged, the accused and (state the name of the alleged victim) were married to each other, if you are not also convinced by a preponderance of the evidence that (state the name of the alleged victim) was not (asleep, unconscious or otherwise unaware of the sexual act(s) occurring) (incapable of consenting to the sexual act(s) due to impairment by any drug, intoxicant or other similar substance) or that the accused was not aware of and should not have been aware of such condition, the defense of marriage does not exist.)

Source: Instruction 3a-62-2 · view original on jagcnet.army.mil

Maximum punishment

(1) Cases involving sexual contact: DD, TF, 20 years, E-1. (Category 3)

(2) Other cases: DD, TF, 15 years, E-1. (Category 3)

Sample specification

Sexual Abuse of a Child Involving Sexual Contact:

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, commit a lewd act upon __________, a child who had not attained the age of 16 years, by (touching) (causing ___________ to touch) the (vulva) (penis) (scrotum) (anus) (groin) (breast) (inner thigh) (buttocks) of ________, with [(_______'s body part) (an object) to wit: _______], with an intent to [(abuse) (humiliate) (harass) (degrade) ________] [(arouse) (gratify) the sexual desire of __________].

Sexual Abuse of a Child Involving Indecent Exposure:

In that _________ (personal jurisdiction data), did (at/on board—location), on or about ______, commit a lewd act upon _______, a child who had not attained the age of 16 years, by intentionally exposing [his (genitalia) (anus) (buttocks)] [her (genitalia) (anus) (buttocks) (areola) (nipple)] to __________, with an intent to [(abuse) (humiliate) (degrade) ______] [(arouse) (gratify) the sexual desire of __________].

Sexual Abuse of a Child Involving Indecent Communication:

In that ________ (personal jurisdiction data), did (at/on board—location), on or about _________, commit a lewd act upon __________, a child who had not attained the age of 16 years, by intentionally communicating to ________ indecent language to wit: ___________, with an intent to [(abuse) (humiliate) (degrade)_____] [(arouse) (gratify) the sexual desire of _________].

Sexual Abuse of a Child Involving Indecent Conduct:

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about _________, commit a lewd act upon ________, a child who had not attained the age of 16 years, by engaging in indecent conduct, to wit: _______, intentionally done (with) (in the presence of) _______, which conduct amounted to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

Elements

By Sexual Contact:

(1) That (state the time and place alleged), the accused committed a lewd act upon (state the name of the alleged victim), by (state the alleged sexual contact); and

(2) That at the time of the lewd act (state the name of the alleged victim) had not attained the age of 16 years.

By Indecent Exposure or Communication:

(1) That (state the time and place alleged), the accused committed a lewd act upon (state the name of the alleged victim), by intentionally (state the alleged exposure or communication); and

(2) That at the time of the lewd act (state the name of the alleged victim) had not attained the age of 16 years.

By Indecent Conduct:

(1) That (state the time and place alleged), the accused committed a lewd act upon (state the name of the alleged victim), by engaging in indecent conduct, to wit: (state the alleged indecent conduct); and

(2) That at the time of the lewd act (state the name of the alleged victim) had not attained the age of 16 years.

Definitions & other instructions

“Lewd act” means:

(A) any sexual contact with a child;

(“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, harass, or degrade any person or to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body or an object.)

“Child” means any person who has not attained the age of 16 years.

The prosecution is not required to prove the accused knew the age of (state the name of the alleged victim) at the time the alleged sexual act(s) occurred.

NOTE 2. Mistake of fact as to age. Mistake of fact as to age is an affirmative defense to sexual abuse of a child, if the child had in fact attained the age of 12 years. If raised by some evidence, the military judge must advise the members that the defense has the burden of proving by a preponderance of the evidence that mistake existed. When mistake of fact as to age has been raised, include the following instruction. The burden of proof in the instruction below is as provided in the statute.

The evidence has raised the issue of mistake on the part of the accused concerning the offense(s) of sexual abuse of a child, as alleged in (the) Specification(s) (___) of (the) (Additional) Charge (___). Specifically, the mistake concerns the accused’s belief that (state the name of the alleged victim) was at least 16 years of age, when the alleged lewd act(s) occurred.

(First, if you find beyond a reasonable doubt that (state the name of the alleged victim) had not attained the age of 12 years, the defense of mistake of fact does not exist. The defense of mistake of fact can only be considered, as described below, if you find beyond a reasonable doubt that (state the name of the alleged victim) had attained the age of 12 but had not attained the age of 16.)

The prosecution is not required to prove the accused knew that (state the name of the alleged victim) had not attained the age of 16 years at the time the alleged lewd act(s) occurred. However, an honest and reasonable mistake of fact as to (state the name of the alleged victim)’s age is a defense to (that) (those) charged offense(s).

The burden is on the defense to establish the accused was under this mistaken belief, by a preponderance of the evidence. A “preponderance” means more likely than not. If you are not convinced by a preponderance of the evidence that, at the time of the charged sexual abuse of a child, the accused was under a mistaken belief that (state the name of the alleged victim) was at least 16 years old, the defense does not exist. Even if you conclude the accused was under the honest and mistaken belief that (state the name of the alleged victim) was at least 16 years old, if you are not convinced by preponderance of the evidence that, at the time of the charged sexual abuse of a child, the accused’s mistake was reasonable, the defense does not exist.

NOTE 3. Voluntary intoxication and mistake of fact as to age. If there is evidence of the accused’s voluntary intoxication, the following instruction is appropriate:

There is evidence in this case that indicates that, at the time of the alleged sexual abuse of a child, the accused may have been under the influence of (alcohol) (drugs). The accused's state of voluntary intoxication, if any, at the time of the offense is not relevant to mistake of fact. A mistaken belief that (state the name of the alleged victim) was at least 16 years of age must be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense. Voluntary intoxication does not permit what would be an unreasonable belief in the mind of a sober person to be considered reasonable because the person is intoxicated.

NOTE 4. Marriage. Marriage is an affirmative defense to sexual abuse of a child. If raised by some evidence, the military judge must advise the members that the defense has the burden of proving by a preponderance of the evidence that a marriage existed. When marriage between the accused and the alleged victim of the sexual abuse of a child has been raised, include the following instruction:

The evidence has raised the issue of marriage between the accused and (state the name of the alleged victim) concerning the offense(s) of sexual abuse of a child, as alleged in (the) Specification(s) (___) of (the) (Additional) Charge (___).

It is a defense to (that) (those) charged offense(s) that the accused and (state the name of the alleged victim) were married to each other when the lewd act(s) occurred. A “marriage” is a relationship, recognized by the laws of a competent State or foreign jurisdiction, between the accused and (state the name of the alleged victim) as spouses. A marriage exists until it is dissolved in accordance with the laws of a competent State or foreign jurisdiction.

(The defense of marriage does not exist where the accused commits the alleged lewd act(s) upon (state the name of the alleged victim) when the accused knows or reasonably should know that she / he is asleep, unconscious or otherwise unaware that the lewd act(s) (is) (are) occurring or when she / he is incapable of consenting to the lewd act(s) due to impairment by any drug, intoxicant or other similar substance, and that condition was known or reasonably should have been known by the accused.)

The defense has the burden of proving by a preponderance of the evidence that the defense of marriage exists. The term “preponderance” means more likely than not. Therefore, unless you are convinced by a preponderance of the evidence that at the time of the lewd act(s) alleged, the accused and (state the name of the alleged victim) were married to each other, the defense of marriage does not exist.

(Even if you are convinced by a preponderance of the evidence that at the time of the lewd act(s) alleged, the accused and (state the name of the alleged victim) were married to each other, if you are not also convinced by a preponderance of the evidence that (state the name of the alleged victim) was not (asleep, unconscious or otherwise unaware of the lewd act(s) occurring) (incapable of consenting to the lewd act(s) due to impairment by any drug, intoxicant or other similar substance) or that the accused was not aware of and should not have been aware of such condition, the defense of marriage does not exist.)

NOTE 5. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), Instruction 6-5, Partial Mental Responsibility, Instruction 5-15, Evidence Negating Mens Rea, and Instruction 5-21, Voluntary Intoxication, may be appropriate, as bearing on the issue of intent, if the intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person is in issue.

Source: Instruction 3a-62-3 · view original on jagcnet.army.mil