Sexual Assault Allegations in the Military

Sexual assault allegations involving service members can be handled in a separate federal system. The Uniform Code of Military Justice (UCMJ) has its own sexual offenses in Article 120, which defines rape, sexual assault, aggravated sexual contact and abusive sexual contact for "any person subject to this chapter" and provides that each "shall be punished as a court-martial may direct."^[1][2]

If you are in immediate danger, call 911. The national sexual assault hotline run by the Rape, Abuse & Incest National Network is 800-656-HOPE (800-656-4673).^[7] Michigan's VOICES4 hotline takes calls and texts at 1-855-864-2374, is confidential, and has advocates available 24/7.^[8]

This page is deliberately short. It covers only what the federal statutes themselves say: who is covered, the offenses, who decides whether a case goes to court-martial, the confidential reporting option, victims' rights, and the points where military law touches Michigan law. Department of Defense policy on reporting could not be verified for this guide and is left out, as explained below.

Who is subject to the UCMJ?

Article 2 of the Code lists the persons subject to it, beginning with "members of a regular component of the armed forces."^[9] Reserve and National Guard members are treated more narrowly. During inactive-duty training and related periods, the list covers members of a reserve component and "members of the Army National Guard of the United States or the Air National Guard of the United States, but only when in Federal service."^[9]

Article 2 contains further categories that are not summarized here.

What does Article 120 prohibit?

Offense	Statutory description
Rape, Article 120(a)	Committing a sexual act upon another person by one of five listed means: using unlawful force; using force causing or likely to cause death or grievous bodily harm; threatening or placing the person in fear of death, grievous bodily harm, or kidnapping; first rendering the person unconscious; or administering a drug, intoxicant, or similar substance that substantially impairs the person's ability to appraise or control conduct[2]
Sexual assault, Article 120(b)	Includes committing a sexual act upon another person without the consent of the other person, or when the actor knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring[10]
Abusive sexual contact, Article 120(d)	Committing or causing sexual contact upon or by another person, if to do so would violate the sexual assault subsection had the sexual contact been a sexual act[1]
Rape and sexual assault of a child, Article 120b	A sexual act upon a child who has not attained the age of 12 years is rape of a child; a sexual act upon a child who has attained the age of 12 years is sexual assault of a child[11]

Consent and defenses

Article 120 defines consent as "a freely given agreement to the conduct at issue by a competent person." It adds that "lack of verbal or physical resistance does not constitute consent" and that "a sleeping, unconscious, or incompetent person cannot consent."^[12]

An accused may raise any applicable defenses available under the Code or the Rules for Court-Martial, but "marriage is not a defense for any conduct in issue in any prosecution under this section."^[13]

Michigan's own definitions are different in wording and structure. They are explained in the overview of criminal sexual conduct law and consent under Michigan law.

Who decides whether a case goes to court-martial?

For the most serious sexual offenses the forum is fixed by statute: only general courts-martial have jurisdiction over a violation of Article 120(a) or (b), a violation of Article 120b(a) or (b), and attempts to commit those offenses.^[3]

The decision to send these offenses to trial belongs to an officer called a special trial counsel. The Code's definition of "covered offense" includes offenses under Articles 120, 120b and 120c, among others.^[14] For covered offenses:

• A special trial counsel has exclusive authority to determine whether a reported offense is a covered offense.^[5]
• For offenses over which the special trial counsel exercises authority, that officer has exclusive authority to withdraw or dismiss charges, to refer charges for trial by a special or general court-martial, and to enter into a plea agreement, subject to a deferral provision.^[5]
• If the special trial counsel elects not to prefer or refer charges, a commander or convening authority may exercise its other authorities over the offense but may not refer charges for a covered offense for trial by special or general court-martial.^[5]
• A special trial counsel's determination to refer charges to a court-martial "shall be binding on any applicable convening authority."^[5]

The "covered offense" definition also includes the standalone offense of sexual harassment punishable under Article 134 in each instance in which a formal complaint is made and substantiated in accordance with service regulations.^[14]

No time limit for rape or sexual assault

Under Article 43, a person charged with rape or sexual assault, or rape or sexual assault of a child, "may be tried and punished at any time without limitation."^[15] Michigan's deadlines for its own offenses are covered in the statute of limitations for sex crimes.

What is restricted reporting?

Restricted reporting is a confidential option created by federal statute. Under regulations prescribed by the Secretary of Defense, a member of the armed forces, or an adult dependent of a member, who is the victim of a sexual assault "may elect to confidentially disclose the details of the assault" to a listed individual "and receive medical treatment, legal assistance under section 1044 of this title, or counseling, without initiating an official investigation of the allegations."^[4]

The listed individuals are a Sexual Assault Response Coordinator, a Sexual Assault Victim Advocate, and healthcare personnel specifically identified in the regulations.^[4]

Restricted reports and state reporting laws

For information disclosed in a restricted report, any state law or regulation that would require one of those individuals to disclose the personally identifiable information of the adult victim or alleged perpetrator to a state or local law enforcement agency "shall not apply, except when reporting is necessary to prevent or mitigate a serious and imminent threat to the health or safety of an individual."^[16] By its words, that provision concerns an adult victim.^[16]

What this guide leaves out about unrestricted reporting

The statutes name a second option. Legal assistance and the services of Sexual Assault Response Coordinators and Sexual Assault Victim Advocates are available "regardless of whether the member or dependent elects unrestricted or restricted (confidential) reporting."^[17] The statutes read for this guide do not describe what an unrestricted report sets in motion. That description is in Department of Defense policy, which could not be read from its official source when this guide was researched, so this page does not state it.

What rights and help does a victim have in the military system?

Article 6b of the Code lists rights of a victim of an offense under the UCMJ, including:^[18]

• The right to be reasonably protected from the accused.^[18]
• The right to reasonable, accurate, and timely notice of listed proceedings, including a court-martial relating to the offense.^[18]
• The right to be reasonably heard at listed proceedings, including a sentencing hearing relating to the offense.^[18]
• The reasonable right to confer with the counsel representing the Government.^[18]
• The right to receive restitution as provided in law.^[18]
• The right to proceedings free from unreasonable delay.^[18]
• The right to be treated with fairness and with respect for the dignity and privacy of the victim.^[18]

Victims may also have their own lawyer. The service Secretaries are directed to designate legal counsel, known as Special Victims' Counsel, to provide legal assistance to eligible victims of an alleged sex-related offense, "regardless of whether the report of that offense is restricted or unrestricted."^[19] Subject to exceptions for exigent circumstances, notice of the availability of a Special Victims' Counsel must be provided before any military criminal investigator or trial counsel interviews, or requests any statement from, the victim.^[17] The services of coordinators and advocates are optional and may be declined, in whole or in part, at any time.^[17]

For comparison, the rights of victims in Michigan's civilian courts are set out in rights of sexual assault survivors.

Where military law meets Michigan law

Michigan's personal protection order statute expressly recognizes military offenses. Its definition of "sexual assault" includes an offense under military law that is substantially similar to Michigan's criminal sexual conduct offenses.^[6] A Michigan court shall grant a sexual assault PPO if it determines that the respondent has been convicted of a sexual assault of the petitioner, a term that by definition includes substantially similar military offenses.^[20][6] Without a conviction, a person who has been subjected to, threatened with, or placed in reasonable apprehension of sexual assault may still petition.^[21] See personal protection orders for sexual assault.

Michigan's core sex offenses are the four degrees of criminal sexual conduct.^[22] Whether a state prosecution and a military prosecution can both proceed over the same events is not answered by the sources behind this guide, and this page does not address it. Federal civilian prosecutions are described in federal sex crimes: an overview.

In Michigan, a victim of sexual assault may not be required to participate in the criminal justice system or cooperate with law enforcement as a condition of being administered a sexual assault medical forensic examination.^[23] The reporting routes available to anyone in the state are covered in options for reporting sexual assault and the sexual assault forensic exam.

What people get wrong

"The commander decides whether to prosecute." For covered offenses, which include Article 120 offenses, a special trial counsel's determination to refer charges is binding on the convening authority, and a commander may not refer a covered offense for trial by special or general court-martial.^[5][14]

"Any report to military medical staff starts an investigation." The restricted reporting statute allows a confidential disclosure to designated healthcare personnel without initiating an official investigation.^[4]

"Every National Guard member is always under the UCMJ." Article 2 lists National Guard members for inactive-duty training periods "only when in Federal service."^[9]

"Military and civilian definitions of consent are the same." Article 120 has its own definition.^[12] How a military court-martial differs from a civilian civil suit and a civilian prosecution is beyond this page; the two civilian systems are compared in criminal case vs. civil case.