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

using unlawful force against that other person;

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

threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;

first rendering that other person unconscious; or

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.

SEXUAL ASSAULT.—Any person subject to this chapter who—

commits a sexual act upon another person by—

threatening or placing that other person in fear;

making a fraudulent representation that the sexual act serves a professional purpose; or

inducing a belief by any artifice, pretense, or concealment that the person is another person;

commits a sexual act upon another person—

without the consent of the other person; or

when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring;

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; or

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.

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.

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.

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.

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.

DEFINITIONS.—In this section:

SEXUAL ACT.—The term “sexual act” means—

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

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

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.

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, 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.

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.

FORCE.—The term “force” means—

the use of a weapon;

the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or

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

UNLAWFUL FORCE.—The term “unlawful force” means an act of force done without legal justification or excuse.

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.

CONSENT.—

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 with the accused in the conduct at issue does not constitute consent.

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 (B) or (C) of subsection (b)(1).

All the surrounding circumstances are to be considered in determining whether a person gave consent.

INCAPABLE OF CONSENTING.—The term “incapable of consenting” means the person is—

incapable of appraising the nature of the conduct at issue; or

physically incapable of declining participation in, or communicating unwillingness to engage in, the sexual act at issue.

That the accused committed a sexual act upon another person; and

That the accused did so with unlawful force.

That the accused committed a sexual act upon another person; and

That the accused did so by using force causing or likely to cause death or grievous bodily harm to any person.

That the accused committed a sexual act upon another person; and

That the accused did so by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping.

That the accused committed a sexual act upon another person; and

That the accused did so by first rendering that other person unconscious.

That the accused committed a sexual act upon another person; and

That the accused did so 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.

That the accused committed a sexual act upon another person; and

That the accused did so by threatening or placing that other person in fear.

That the accused committed a sexual act upon another person; and

That the accused did so by making a fraudulent representation that the sexual act served a professional purpose.

That the accused committed a sexual act upon another person; and

That the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused was another person.

That the accused committed a sexual act upon another person; and

That the accused did so without the consent of the other person.

That the accused committed a sexual act upon another person;

That the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring; and

That the accused knew or reasonably should have known that the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring.

That the accused committed a sexual act upon another person;

That the other person was incapable of consenting to the sexual act due to:

Impairment by any drug, intoxicant or other similar substance; or

A mental disease or defect, or physical disability; and

That the accused knew or reasonably should have known of that condition.

That the accused committed sexual contact upon or by another person; and

That the accused did so with unlawful force.

That the accused committed sexual contact upon another person; and

That the accused did so by using force causing or likely to cause death or grievous bodily harm to any person.

That the accused committed sexual contact upon another person; and

That the accused did so by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping.

That the accused committed sexual contact upon another person; and

That the accused did so by first rendering that other person unconscious.

That the accused committed sexual contact upon another person; and

That the accused did so 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.

That the accused committed sexual contact upon or by another person; and

That the accused did so by threatening or placing that other person in fear.

That the accused committed sexual contact upon another person; and

That the accused did so by making a fraudulent representation that the sexual act served a professional purpose.

That the accused committed sexual contact upon another person; and

That the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused was another person.

That the accused committed sexual contact upon another person; and

That the accused did so without the consent of the other person.

That the accused committed sexual contact upon another person;

That the other person was asleep, unconscious, or otherwise unaware that the sexual contact was occurring; and

That the accused knew or reasonably should have known that the other person was asleep, unconscious, or otherwise unaware that the sexual contact was occurring.

That the accused committed sexual contact upon another person;

That the other person was incapable of consenting to the sexual contact due to:

Impairment by any drug, intoxicant or other similar substance; or

A mental disease or defect, or physical disability; and

That the accused knew or reasonably should have known of that condition.

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

The terms are defined in subparagraph 60.a.(g).

See Mil. R. Evid. 412 concerning rules of evidence relating to the sexual behavior or predisposition of the victim of an alleged sexual offense. See Mil. R. Evid. 514 concerning rules of evidence relating to privileged communications between the victim and victim advocate.

Scope of “threatening or placing that other person in fear.” For purposes of this offense, the phrase “wrongful action” within Article 120(g)(6) (defining “threatening or placing that other person in fear”) includes an abuse of military rank, position, or authority in order to engage in a sexual act or sexual contact with a victim. This includes, but is not limited to, threats to initiate an adverse personnel action unless the victim submits to the accused’s requested sexual act or contact; and threats to withhold a favorable personnel action unless the victim submits to the accused’s requested sexual act or sexual contact. Superiority in rank is a factor in, but not dispositive of, whether a reasonable person in the position of the victim would fear that his or her noncompliance with the accused’s desired sexual act or sexual contact would result in the threatened wrongful action contemplated by the communication or action.

Forfeiture of all pay and allowances and confinement for life without eligibility for parole. Mandatory minimum—Dismissal or dishonorable discharge.

Forfeiture of all pay and allowances, and confinement for 30 years. Mandatory minimum—Dismissal or dishonorable discharge.

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 7 years.

In that _________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about________ 20__, commit a sexual act upon ________________ 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 _________]], by using unlawful force.

In that ___________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about __________ 20__, commit a sexual act upon __________ 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 _________]], by using force likely to cause death or grievous bodily harm to _______, to wit:______________.

In that __________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ___________ 20______, commit a sexual act upon __________ 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 _________]], by (threatening ______) (placing ______ in fear) that ___________ would be subjected to (death) (grievous bodily harm) (kidnapping).

In that __________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about _________ 20____, commit a sexual act upon __________ 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 _________]], by first rendering __________ unconscious by____________.

In that ___________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about _________ 20__, commit a sexual act upon ___________ 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 _________]], by administering to __________ (by force) (by threat of force) (without the knowledge or permission of __________) a (drug) (intoxicant) (list other similar substance), to wit: ___________, thereby substantially impairing the ability of __________to appraise or control (his) (her) conduct.

In that _________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ________20__, commit a sexual act upon _________, 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 _________]], by (threatening _______) (placing_______ in fear).

In that _________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about _________20__, commit a sexual act upon ___________, 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 _________]], by making a fraudulent representation that the sexual act served a professional purpose, to wit:_______________.

In that __________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ________20__, commit a sexual act upon __________, 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 _________]], by inducing a belief by (artifice) (pretense) (concealment) that the said accused was another person.

In that __________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ________20__, commit a sexual act upon __________, 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 _________]], without the consent of ___________.

In that _________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ______20__, commit a sexual act upon_________, 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 _________]], when (he) (she) knew or reasonably should have known that _______ was (asleep) (unconscious) (unaware the sexual act was occurring due to __________).

In that _________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ________ 20__, commit a sexual act upon _______, 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 _________]], when ________was incapable of consenting to the sexual act because (he) (she) [was impaired by (a drug, to wit: __________) (an intoxicant, to wit:_________) (________)] [had a (mental disease, to wit:___________) (mental defect, to wit:___________) (physical disability, to wit:__________)], and the accused (knew) (reasonably should have known) of that condition.

In that _________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about _______ 20____, [(touch) (cause ____ to touch)] [(directly) (through the clothing)] 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 _________] by using unlawful force.

In that ________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about _______ 20__, [(touch) (cause ____ to touch)] [(directly) (through the clothing)] 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 _________], by using force likely to cause death or grievous bodily harm to ________, to wit: ___________.

In that ________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about __________ 20__, [(touch) (cause ____ to touch)] [(directly) (through the clothing)] 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 _________], by (threatening _________) (placing __________ in fear) that ___________ would be subjected to (death) (grievous bodily harm) (kidnapping).

In that _________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ________ 20____, [(touch) (cause ____ to touch)] [(directly) (through the clothing)] 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 _________], by rendering _________ unconscious by__________________.

In that _________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ___________ 20___, [(touch) (cause ____ to touch)] [(directly) (through the clothing)] 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 _________], by administering to _______ (by force) (by threat of force) (without the knowledge or permission of _________) a (drug) (intoxicant) (______) thereby substantially impairing the ability of _______ to appraise or control (his) (her) conduct..

In that ________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about __________ 20__, [(touch) (cause ____ to touch)] [(directly) (through the clothing)] 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 _________], by (threatening _______) (placing __________ in fear).

In that ____________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ________ 20__, [(touch) (cause ____ to touch)] [(directly) (through the clothing)] 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 _________], by making a fraudulent representation that the sexual contact served a professional purpose, to wit: __________.

In that _________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about _________ 20__, [(touch) (cause ____ to touch)] [(directly) (through the clothing)] 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 _________], by inducing a belief by (artifice) (pretense) (concealment) that the said accused was another person.

In that ______(personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about _______ 20___, [(touch) (cause ____ to touch)] [(directly) (through the clothing)] 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 ________] without the consent of _____.

In that ______ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about __________ 20____, [(touch) (cause ____ to touch)] [(directly) (through the clothing)] 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 _________], when (he) (she) (knew) (reasonably should have known) that __________ was (asleep) (unconscious) (unaware the sexual contact was occurring due to ___________).

In that _______ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about _______ 20_____, [(touch) (cause ____ to touch)] [(directly) (through the clothing)] 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 _________], when _________ was incapable of consenting to the sexual contact because (he) (she) [was impaired by (a drug, to wit: ____________) (an intoxicant, to wit: __________) (_________)] [had a (mental disease, to wit: _________) (mental defect, to wit: _____________) (physical disability, to wit: ____________)] and the accused (knew) (reasonably should have known) of that condition..