Consent is a crucial element in the context of sexual assault cases, especially within the military justice system. Article 120 of the Uniform Code of Military Justice (UCMJ) specifically addresses the crime of rape, sexual assault, and other related offenses.

Understanding consent according to UCMJ Article 120 is crucial for service members, not only to avoid legal consequences but also to promote a culture of respect and accountability within the ranks. Explore what it means to give consent, how to ask for consent, and factors that negate consent within the context of military law.

Defining Consent

UCMJ Article 120 defines consent as “a freely given agreement to the conduct at issue by a competent person.” In other words, consent must be given voluntarily, without coercion, force, or threat of force, by someone who is legally capable of providing it. Consent can be expressed through verbal or nonverbal cues, as long as the communication is clear and unambiguous.

Asking for Consent

Seeking consent before engaging in sexual activity is essential to ensure all parties involved are comfortable with the situation. Here are some tips to remember when asking for consent:

• Communicate openly: Engage in an open and honest conversation about your intentions, boundaries, and desires. Make sure you and your partner feel safe and comfortable discussing these topics.
• Be specific: When asking for consent, be clear about the activity or action you’re suggesting. This keeps you on the same page as your partner and ensures you understand one another’s expectations.
• Check in regularly: Consent can change throughout an encounter, so make sure your partner is still comfortable and willing to continue by specifically asking if they want to keep going.
• Be prepared to hear “no”: The other person absolutely has the right to say “no” at any time. You must respect this decision without pressure or coercion. Otherwise, you risk being charged with an Article 120 offense.

What is NOT Consent?

Understanding the nuances of consent is crucial for service members to avoid unwittingly committing sexual misconduct. Here are some examples of actions and behaviors that do not constitute consent:

• Silence or passivity: The absence of a clear verbal agreement or lack of physical resistance doesn’t imply consent. Both parties should express consent unequivocally through their words or actions.
• Assumptions or past experiences: Consent should not be presumed based on previous sexual encounters or the nature of a relationship. For instance, spousal rape is a non-consensual sexual act that occurs within a marriage or other committed relationship. To avoid this situation, obtain consent for each specific encounter, regardless of past experiences or relationship status.
• Incapacity or intoxication: A person cannot provide consent if they are unable to understand the nature or consequences of the sexual act due to a mental or physical condition or the influence of drugs or alcohol. This includes situations in which the person is asleep or unconscious.
• Coercion or pressure: Consent is not valid if the person submits as a result of force, threats, or intimidation. This includes situations in which the accused threatens the victim or their loved ones and then takes advantage of the victim’s fear.
• Fraud: Consent is negated if obtained fraudulently, such as by misrepresenting oneself or the circumstances surrounding the sexual act.
• Manner of dress: A person’s clothing or appearance does not imply consent. Don’t assume someone is “asking for it” based on how they’re dressed or the way they present themselves.
• Being underage: Consent cannot legally be given by a person who is below the age of consent. This typically ranges from 16 to 18, depending on the jurisdiction.

The Importance of Consent in the Military

Sexual assault and rape cases are taken very seriously in the military. Service members are held to a higher standard when it comes to consent because they’re expected to uphold the values of honor, integrity, and respect while serving their country. As a result, the Department of Defense (DoD) has implemented strict policies and training programs to educate service members about consent and prevent sexual assault within the ranks.

Being found guilty of an Article 120 offense, which includes failure to obtain proper consent, may lead to severe consequences, including reduction in rank, forfeiture of pay, dishonorable discharge, and up to life in prison. These are among the most severe punishments a service member can face for committing a crime in the military.

Defending Against UCMJ Article 120 Charges

If you are facing charges under Article 120, seek the assistance of an experienced military defense attorney without delay. Competent legal counsel is essential to help you build a strong case, protect your rights, and preserve your reputation.

At Joseph L. Jordan, Attorney at Law, we specialize in defending service members accused of military crimes, including Article 120 charges. With over a decade of experience, Mr. Jordan has successfully represented clients from all branches of the military. Our firm is known for aggressively and compassionately representing service members in need, both within the United States and abroad. Call us toll-free today at 800-580-8034 or 254-221-6411 to speak with Mr. Jordan directly about building your Article 120 defense.