Gagne, Scherer & Associates defends service members charged with sex offenses under the Uniform Code of Military Justice (UCMJ). Crimes under the UCMJ are expressed as Articles. The offenses noted on this page are found in Articles 117a, 120, 120b, 120c, 127, and 134.
Sex offenses are included in a group of the most serious offenses in military law known as “covered offenses.” The Office of Special Trial Counsel (OSTC) has exclusive charging authority over covered offenses. Article 134 child pornography (child sexual abuse material, or CSAM) and Article 120b have been mainstays on court-martial dockets. The trend with OSTC is to defer most cases, but they typically “go forward” on Article 134 CSAM and Article 120b. They often go forward on Article 120c and Article 117a cases as well. Adult Article 120 cases without significant corroboration get deferred to the command for an alternate disposition, but those with corroboration go forward.
Why Multiple UCMJ Articles Cover These Sex Offenses
The articles address sexual misconduct in a variety of circumstances.
- Article 120 covers sexual acts and intimate contact with adult victims, where the key issue is consent.
- Article 120b covers sex offenses against a child under 16, where the key issues will relate to facts and credibility, not consent.
- Article 120c covers sexual misconduct that doesn’t fit Article 120: indecent viewing, indecent recording, broadcasting an indecent recording, forcible pandering, and indecent exposure.
- Article 117a covers distribution of intimate images obtained with consent but shared without consent.
- Article 134 covers CSAM, obscene communication, indecent conduct, sexual harassment, and online enticement. CSAM is a covered offense and a registrable sex offense, which we cover in a separate practice area.
- Article 127 covers extortion and, in this context, threats used to obtain sexual images or cooperation.
Contact and Non-Contact Sex Offenses
In court-martial jargon, sex offenses are divided into two categories: contact offenses and non-contact offenses.
Contact offenses require physical contact. Rape, sexual assault, aggravated sexual contact, and abusive sexual contact under Article 120, and all three subsections of Article 120b, are contact offenses.
As the label indicates, non-contact offenses don’t involve contact. Indecent viewing, indecent recording, broadcasting an indecent recording, indecent exposure, and forcible pandering are found under Article 120c; distribution of intimate images without consent is under Article 117a. CSAM offenses under Article 134, online enticement, and sexual harassment under Article 134 are non-contact offenses. Extortion under Article 127, which isn’t a sex offense on its own, is charged along with non-contact sex offenses in sextortion cases.
A conviction for most of these offenses will require sex offender registration. The obligation comes from the federal Sex Offender Registration and Notification Act and from the law of the state where the member lives after release from the military. The military has no authority over how long registration lasts, what information gets published, or where the person is allowed to live. Those questions are answered by state law.
Article 120: Rape and Sexual Assault
Article 120 covers sex offenses alleged by adults. It has four subsections: rape, sexual assault, aggravated sexual contact, and abusive sexual contact.
Rape and sexual assault relate to “sexual acts,” which are defined broadly to include penetration of the vulva, anus, or mouth; oral contact; and penetration by an object or body part. Penetration “however slight” completes the act. This includes a millimeter’s penetration of the labia. The government doesn’t have to prove anything beyond that, and there’s no requirement of injury, duration, or completion of the sex act in any other sense.
Under the UCMJ, what distinguishes rape from sexual assault is how the act was accomplished. Rape requires (1) unlawful force, (2) force causing or likely to cause death or grievous bodily harm, (3) threatening or placing the person in fear of death, grievous bodily harm, or kidnapping, (4) first rendering the person unconscious, or (5) administering a drug, intoxicant, or other similar substance by force, by threat of force, or without the person’s knowledge or consent, and thereby substantially impairing that person’s ability to appraise or control conduct.
Sexual assault covers the same act without those aggravating factors, and it’s most often charged as a sexual act without consent (“he said, she said” cases), or a sexual act with a person who was asleep, unconscious, or too impaired to consent (common alcohol-related hookup cases).
For the two non-penetrative contact offenses, sexual contact means touching, directly or through clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of another person with intent to abuse, humiliate, or degrade, or touching any body part with intent to arouse or gratify sexual desire.
Aggravated sexual contact requires the same aggravating factors that separate rape from sexual assault: (1) unlawful force, (2) force causing or likely to cause death or grievous bodily harm, (3) threatening or placing the person in fear of death, grievous bodily harm, or kidnapping, (4) first rendering the person unconscious, or (5) administering a drug, intoxicant, or other similar substance by force, by threat of force, or without the person’s knowledge or consent, and thereby substantially impairing that person’s ability to appraise or control conduct.
Abusive sexual contact is similar but without the aggravating factors, and it’s most often charged as contact without consent or contact with a person who was asleep, unconscious, or too impaired by drugs or alcohol to give meaningful consent.
Rape has a maximum sentence of confinement for life without eligibility for parole. Sexual assault has a maximum of 30 years. They require a mandatory minimum of dishonorable discharge (for enlisted) or dismissal (for officers) under Article 56(b). Aggravated sexual contact has a maximum of 20 years, and abusive sexual contact has a maximum of seven years. Neither requires a mandatory discharge, but a conviction effectively guarantees a punitive discharge of some kind.
Mistake of Fact Defense to Article 120
“Mistake of fact as to consent” is the most common defense in Article 120 cases. The essence of this defense is that the accused honestly and reasonably believed the other person consented to the sexual conduct at the time it happened. Honest and reasonable means the accused held a mistaken belief at the time of the incident, and that it was a mistake a reasonable, sober person could have made.
The accused’s own intoxication doesn’t factor into whether his belief was reasonable. “I was drunk too” isn’t a defense to Article 120. However, the complaining witness’s intoxication is the central issue in most alcohol-related Article 120 prosecutions, because it goes to whether the alleged victim was capable of consenting. But it’s also potentially favorable to the defense because it’s relevant to what the alleged victim was able to reliably perceive during the incident and later recall.
Once the defense raises the issue at a court-martial, the government has to disprove it beyond a reasonable doubt.
Defending Article 120 Cases
We’ve defended Article 120 cases in every branch of service, at bases across the country and overseas, for over two decades. These allegations often involve contested recollections and observations, as well as the credibility and reliability of the people providing information and testimony. Alcohol and memory are central issues in most military sexual assault cases. Alcohol interferes with perception at the moment of the incident, with how the memory gets stored, and with how it gets retrieved months later. Between the incident and the testimony, memory can be contaminated by conversations and input from friends, family, investigators, advocates, and the complaining witness’s own retelling.
Article 120b: Rape and Sexual Assault of a Child
Article 120b covers sex offenses against a child under the age of 16. “Rape of a child” means a sexual act with a child under 12, or a sexual act with a child 12 to 16 accomplished by force, by threatening the child or placing the child in fear, by rendering the child unconscious, or by administering a drug or intoxicant. When the child is under 12, the prosecution needs to prove the sexual act occurred, but that’s all; when the child is 12 to 16, one of those four aggravating factors has to be proven as well.
“Force” means the use of a weapon, the use of physical strength or violence sufficient to overcome, restrain, or injure a child, or inflicting physical harm. In a parent-child or similar relationship, the use or abuse of that authority is considered to be an act of force. This definition is broader than the force required in an adult case. Abuse of a parental or similar relationship proves the force element, and so does any infliction of physical harm.
Threatening or placing a child in fear means a communication or action serious enough to make the child fear that refusing compliance will result in harm. The threat can be directed at any person, not just the child. The government doesn’t have to prove the accused intended to carry out the threat or even could have.
“Sexual assault of a child” is a sexual act with a child aged 12 to 16, and the prosecution doesn’t have to prove any aggravating factors were involved, as they would in a rape case. The government just has to prove the act and the age. And because it’s easier to prove a case with fewer requirements, prosecutors usually charge assault rather than rape of a child when the victim is in that age range.
Sexual act means the same thing it means in adult cases: contact between the penis and the vulva, anus, or mouth; contact between the mouth and the penis, vulva, scrotum, or anus; or penetration of the vulva, anus, or mouth by any body part or object with intent to abuse, humiliate, harass, degrade, arouse, or gratify. Lists like this might seem overly technical to a layperson, but the precision required in a sex offense case is mandatory. The military judge reads these definitions to the panel before deliberations, and the panel is required to apply them strictly, word for word. A conviction, an acquittal, and what an accused can plead guilty to all depend on which words in the definitions the evidence and charges call for.
“Sexual abuse of a child” is a lewd act with a child under 16, and it’s a lesser included offense of the other two. A lewd act is any sexual contact with a child; intentionally exposing the genitalia, anus, buttocks, or female areola or nipple to a child; intentionally communicating indecent language to a child; or any indecent conduct done with or in the presence of a child. The exposure, language, and conduct theories all require intent to abuse, humiliate, or degrade someone, or to arouse or gratify sexual desire. Sexual contact for this allegation has the same intent requirement. All four theories of sexual abuse of a child encompass conduct committed through any communication technology, so text messages, video calls, and social media are charged the same as in-person conduct.
Consent is never a defense. A child can’t consent as a matter of law, so mistake of fact as to consent doesn’t apply to any Article 120b charge.
The victim’s age plays different roles across the subsections of this Article. Age works differently depending on the charge:
(1) Rape of a child is strict liability as to age. It’s no defense that the accused reasonably believed the child was 12 or older, and no defense that he believed the child was 16 or older.
(2) Sexual assault of a child and sexual abuse of a child both allow the accused to raise mistake of fact as to age as a defense: if the accused honestly and reasonably believed the child was 16 or older, that can be a defense, if the accused can prove it by a preponderance of the evidence.
Rape of a child has a maximum of confinement for life without eligibility for parole. Sexual assault of a child has a maximum of 30 years. Both have a mandatory minimum of dishonorable discharge or dismissal. Sexual abuse of a child has a maximum of 20 years when the conduct involves sexual contact and 15 years otherwise, with no mandatory minimum.
These cases tend to get charged in one of three forms: molestation reported by a family member or to law enforcement, a sexual relationship with a minor, or a law enforcement sting targeting adults who try to arrange a sexual liaison with a minor.
Article 120c: Other Sexual Misconduct
Article 120c deals with indecent viewing, indecent recording, broadcasting or distributing an indecent recording, forcible pandering, and indecent exposure. It’s the Article used to prosecute secret recordings, Peeping Tom cases, and unsolicited images of the sender’s genitals. A conviction for Article 120c will likely require sex offender registration.
For viewing, recording, and broadcasting offenses, the prosecution is required to prove that the image or the viewing involved a private area and that the person had a reasonable expectation of privacy at the time. “Private area” means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple. “Reasonable expectation of privacy” means circumstances where a reasonable person would believe he could undress without an image of a private area being captured, or would believe a private area wouldn’t be visible to the public.
Indecent exposure doesn’t require any of that. The exposure no longer has to occur in a public place or in a setting where it wouldn’t be expected to be seen by anyone outside the accused’s family. Sending a picture of one’s genitalia to someone who didn’t ask for it is the classic example.
Article 120c isn’t a specific intent crime. The government doesn’t have to prove any purpose behind the conduct, only that the accused acted knowingly and wrongfully.
Forcible pandering is the outlier under Article 120c, and it’s very rarely seen in the military. It means compelling another person to engage in a sexual act for the benefit of someone else.
Indecent viewing and indecent exposure have a confinement maximum of one year. Indecent recording has a 5-year maximum. Broadcasting or distributing an indecent recording is seven years. Forcible pandering is 20 years. There’s no mandatory minimum for any Article 120c offense.
The corroboration problem that keeps OSTC from proceeding with “he said, she said” cases under Article 120 doesn’t arise in most Article 120c cases. In a case where the accused sent an unsolicited image to another person, the act, the corroborating evidence, and the victim’s identification come together in one tidy package. The same is true of a recording made without consent.
Article 117a: Wrongful Broadcast or Distribution of Intimate Visual Images
Article 117a is commonly referred to as the “revenge porn” Article. The maximum period of confinement for this offense is two years, a dishonorable discharge or dismissal, and total forfeiture. There’s no mandatory minimum. A conviction for Article 117a will likely require sex offender registration.
Article 117a addresses the unauthorized sharing of any intimate visual image: an image depicting a private area or an image of sexually explicit conduct. The person depicted has to be at least 18 when the image was created and has to be identifiable from the image itself or from information sent with it (as in a text message with contact information). “Visual image” includes photographs, video, digital images, streaming media, and any electronic data that can be converted into an image.
There are three theories the prosecution can use in an Article 117a case. (1) The accused shared the file, but the victim never gave permission to share it. The prosecution has to prove the victim didn’t authorize the sharing. (2) The accused shared the file, and the circumstances in which the image was made put him on notice that it was private, whether or not the victim ever said anything about sharing it. The prosecution has to prove the circumstances put the accused on notice. (3) The accused knew or should have known that sending the image was likely to cause harm, harassment, intimidation, emotional distress, or financial loss, or to damage the victim’s health, safety, business, career, financial condition, reputation, or relationships. Actual harm isn’t required for the third scenario; likely harm is enough.
Every theory requires the government to prove the accused’s conduct had a reasonably “direct and palpable” connection to a military mission or military environment, a different standard from the service-discrediting and good-order-and-discipline language used elsewhere in the UCMJ.
Article 120c and Article 117a seem similar in that they cover the distribution of intimate images, but they address different misconduct. Article 117a covers an allegation that an image was made and received with consent but shared without consent. Article 120c addresses obtaining an image without consent in the first place and also covers viewing, forcible pandering, and exposure.
When Horseplay is a Sex Crime Under the UCMJ
The registrable sex offenses under the UCMJ include conduct not commonly considered sexual. Sexual contact under Article 120 means touching another person’s genitalia, anus, groin, breast, inner thigh, or buttocks with intent to abuse, humiliate, harass, or degrade, or touching any body part with intent to arouse or gratify sexual desire. That “with intent to abuse, humiliate, harass, or degrade” clause is what lets the prosecution charge a prank as a sex offense.
A nut tap, a wedgie, or a groin kick in the barracks is an assault under Article 128. But if they can prove the accused did it to humiliate the other person, the assault transforms into abusive sexual contact under Article 120, which comes with a maximum of seven years’ confinement and will require sex offender registration.
OSTC typically defers these cases. Most of these incidents occur in training environments. After deferral, the accused will often be administratively separated from the service, with a characterization that doesn’t entitle the member to challenge the allegation or separation before a board.
At an Air Force training squadron, a Military Training Instructor (MTI) ordered his trainees to rub heat gel on their genitals as punishment. The panel gave him no confinement, but the conviction ended his career and required him to register as a sex offender.
Keeping or sharing images is another sex offense scenario that catches people off-guard. Showing a friend a nude photo someone sent you in confidence, forwarding it to a group chat, or storing it on a shared drive can be charged under Article 117a or Article 120c. Images from a teenage relationship pose an even bigger threat. Once you turn 18, if you have files depicting a minor, you become an adult in possession of CSAM. The law doesn’t care that the other person consented at the time or that you were a minor when the images were made and obtained.
Article 127: Extortion (Sextortion)
Article 127 covers a threat made to obtain something of value. In sextortion cases, the thing of value is usually more images, sexual access, silence, withdrawal of a complaint, or a favorable evaluation. Extortion isn’t a covered offense and doesn’t trigger sex offender registration on its own. It also won’t be the only charge in a sextortion case. The companion charges under Articles 117a, 120b, 120c, and 134 are covered offenses and do require registration.
The offense happens when the threat reaches the person it’s aimed at. Text messages are a common example. The government doesn’t have to prove the victim gave in to the threat, paid, sent anything, or did what the accused told her to do. The focus is on the threat, not the response. Jokes don’t count. Article 127 requires specific intent to obtain something of value, so a threat made in jest isn’t extortion.
Air Force OSI reported in 2025 that military sextortion happens most often in tech school environments, where the members are typically 18 and 19, straight out of high school environments where sextortion is increasingly common. The younger enlisted members have been desensitized to the criminality and harm of sextortion. CID, NCIS, and CGIS see the same pattern in their training environments. But it’s not a problem for just junior enlisted members. In February 2026, a West Point cadet pleaded guilty to extortion and indecent conduct after creating a fake nude image of a female cadet with an AI tool and threatening to release it unless she sent him real images.
Article 134: Sexual Harassment
Sexual harassment is an offense under Article 134 and a covered offense, but it isn’t a registrable sex offense. The maximum period of confinement is two years.
The government has to prove four elements: the accused engaged in conduct or communication of a sexual nature, the conduct was unwelcome, it created a hostile, intimidating, or offensive work environment, and the accused knew or should have known it was unwelcome. Whether the accused had notice that the conduct was unwanted is the element at issue in most of these cases.
A sexual harassment complaint initially gets routed to an investigator outside the accused’s chain of command, then to the Staff Judge Advocate for legal review, and finally to the first O-6 in the chain of command for a “substantiation” decision. The standard of proof is preponderance of the evidence (i.e., more likely than not). If any allegation is substantiated, the O-6 must refer it to OSTC within 24 hours. OSTC then decides whether to prefer charges or defer the case.
Gagne, Scherer & Associates: Experienced Sex Crimes Lawyers
The former JAGs of Gagne, Scherer & Associates have spent every year in the court-martial system focused on military sex offenses. Our attorneys prosecuted these cases for two years, defended them as detailed defense counsel, and have spent the past two decades defending them as civilian attorneys. Articles 120, 120b, 120c, and 117a are a core area of practice. Call Gagne, Scherer & Associates for a free consultation with one of our attorneys at (224) 935-6172.