Notes on 10 U.S.C. § 920 : US Code - Notes

Search Notes on 10 U.S.C. § 920 : US Code - Notes

(Aug. 10, 1956, ch. 1041, 70A Stat. 73; Pub. L. 102-484, div. A,
title X, Sec. 1066(c), Oct. 23, 1992, 106 Stat. 2506; Pub. L. 104-
106, div. A, title XI, Sec. 1113, Feb. 10, 1996, 110 Stat. 462;
Pub. L. 109-163, div. A, title V, Sec. 552(a)(1), Jan. 6, 2006, 119
Stat. 3256.)
HISTORICAL AND REVISION NOTES
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Revised Source (U.S. Code) Source (Statutes at
section Large)
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920(a) 50:714(a). May 5, 1950, ch. 169,
Sec. 1 (Art. 120), 64
Stat. 140.
920(b)
920(c)
50:714(b).
50:714(c).
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In subsection (c), the words "either of" are inserted for
clarity.
AMENDMENT OF SECTION
Pub. L. 109-163, div. A, title V, Sec. 552(a)(1), (f), Jan. 6,
2006, 119 Stat. 3256, 3263, provided that, effective Oct. 1, 2007,
this section is amended to read as follows:
Sec. 920. Art. 120. Rape, sexual assault, and other sexual
misconduct
(a) Rape. - Any person subject to this chapter who causes another
person of any age to engage in a sexual act by -
(1) using force against that other person;
(2) causing grievous bodily harm to any person;
(3) threatening or placing that other person in fear that any
person will be subjected to death, grievous bodily harm, or
kidnaping;
(4) rendering another person unconscious; or
(5) administering to another person by force or threat of
force, or without the knowledge or permission of that person, a
drug, intoxicant, or other similar substance and thereby
substantially impairs 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.
(b) Rape of a Child. - Any person subject to this chapter who -
(1) engages in a sexual act with a child who has not attained
the age of 12 years; or
(2) engages in a sexual act under the circumstances described
in subsection (a) with a child who has attained the age of 12
years;
is guilty of rape of a child and shall be punished as a court-
martial may direct.
(c) Aggravated Sexual Assault. - Any person subject to this
chapter who -
(1) causes another person of any age to engage in a sexual act
by -
(A) threatening or placing that other person in fear (other
than by threatening or placing that other person in fear that
any person will be subjected to death, grievous bodily harm, or
kidnapping); or
(B) causing bodily harm; or
(2) engages in a sexual act with another person of any age if
that other person is substantially incapacitated or substantially
incapable of -
(A) appraising the nature of the sexual act;
(B) declining participation in the sexual act; or
(C) communicating unwillingness to engage in the sexual act;
is guilty of aggravated sexual assault and shall be punished as a
court-martial may direct.
(d) Aggravated Sexual Assault of a Child. - Any person subject to
this chapter who engages in a sexual act with a child who has
attained the age of 12 years is guilty of aggravated sexual assault
of a child and shall be punished as a court-martial may direct.
(e) Aggravated Sexual Contact. - Any person subject to this
chapter who engages in or causes sexual contact with 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.
(f) Aggravated Sexual Abuse of a Child. - Any person subject to
this chapter who engages in a lewd act with a child is guilty of
aggravated sexual abuse of a child and shall be punished as a court-
martial may direct.
(g) Aggravated Sexual Contact With a Child. - Any person subject
to this chapter who engages in or causes sexual contact with or by
another person, if to do so would violate subsection (b) (rape of a
child) had the sexual contact been a sexual act, is guilty of
aggravated sexual contact with a child and shall be punished as a
court-martial may direct.
(h) Abusive Sexual Contact. - Any person subject to this chapter
who engages in or causes sexual contact with or by another person,
if to do so would violate subsection (c) (aggravated 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.
(i) Abusive Sexual Contact With a Child. - Any person subject to
this chapter who engages in or causes sexual contact with or by
another person, if to do so would violate subsection (d)
(aggravated sexual assault of a child) had the sexual contact been
a sexual act, is guilty of abusive sexual contact with a child and
shall be punished as a court-martial may direct.
(j) Indecent Liberty With a Child. - Any person subject to this
chapter who engages in indecent liberty in the physical presence of
a child -
(1) with the intent to arouse, appeal to, or gratify the sexual
desire of any person; or
(2) with the intent to abuse, humiliate, or degrade any person;
is guilty of indecent liberty with a child and shall be punished as
a court-martial may direct.
(k) Indecent Act. - Any person subject to this chapter who
engages in indecent conduct is guilty of an indecent act and shall
be punished as a court-martial may direct.
(l) Forcible Pandering. - Any person subject to this chapter who
compels another person to engage in an act of prostitution with
another person to be directed to said person is guilty of forcible
pandering and shall be punished as a court-martial may direct.
(m) Wrongful Sexual Contact. - Any person subject to this chapter
who, without legal justification or lawful authorization, engages
in sexual contact with another person without that other person's
permission is guilty of wrongful sexual contact and shall be
punished as a court-martial may direct.
(n) Indecent Exposure. - Any person subject to this chapter who
intentionally exposes, in an indecent manner, in any place where
the conduct involved may reasonably be expected to be viewed by
people other than members of the actor's family or household, the
genitalia, anus, buttocks, or female areola or nipple is guilty of
indecent exposure and shall by punished as a court-martial may
direct.
(o) Age of Child. -
(1) Twelve years. - In a prosecution under subsection (b) (rape
of a child), subsection (g) (aggravated sexual contact with a
child), or subsection (j) (indecent liberty with a child), it
need not be proven that the accused knew that the other person
engaging in the sexual act, contact, or liberty had not attained
the age of 12 years. It is not an affirmative defense that the
accused reasonably believed that the child had attained the age
of 12 years.
(2) Sixteen years. - In a prosecution under subsection (d)
(aggravated sexual assault of a child), subsection (f)
(aggravated sexual abuse of a child), subsection (i) (abusive
sexual contact with a child), or subsection (j) (indecent liberty
with a child), it need not be proven that the accused knew that
the other person engaging in the sexual act, contact, or liberty
had not attained the age of 16 years. Unlike in paragraph (1),
however, it is an affirmative defense that the accused reasonably
believed that the child had attained the age of 16 years.
(p) Proof of Threat. - In a prosecution under this section, in
proving that the accused made a threat, it need not be proven that
the accused actually intended to carry out the threat.
(q) Marriage. -
(1) In general. - In a prosecution under paragraph (2) of
subsection (c) (aggravated sexual assault), or under subsection
(d) (aggravated sexual assault of a child), subsection (f)
(aggravated sexual abuse of a child), subsection (i) (abusive
sexual contact with a child), subsection (j) (indecent liberty
with a child), subsection (m) (wrongful sexual contact), or
subsection (n) (indecent exposure), it is an affirmative defense
that the accused and the other person when they engaged in the
sexual act, sexual contact, or sexual conduct are married to each
other.
(2) Definition. - For purposes of this subsection, a marriage
is a relationship, recognized by the laws of a competent State or
foreign jurisdiction, between the accused and the other person as
spouses. A marriage exists until it is dissolved in accordance
with the laws of a competent State or foreign jurisdiction.
(3) Exception. - Paragraph (1) shall not apply if the accused's
intent at the time of the sexual conduct is to abuse, humiliate,
or degrade any person.
(r) Consent and Mistake of Fact as to Consent. - Lack of
permission is an element of the offense in subsection (m) (wrongful
sexual contact). Consent and mistake of fact as to consent are not
an issue, or an affirmative defense, in a prosecution under any
other subsection, except they are an affirmative defense for the
sexual conduct in issue in a prosecution under subsection (a)
(rape), subsection (c) (aggravated sexual assault), subsection (e)
(aggravated sexual contact), and subsection (h) (abusive sexual
contact).
(s) Other Affirmative Defenses not Precluded. - The enumeration
in this section of some affirmative defenses shall not be construed
as excluding the existence of others.
(t) Definitions. - In this section:
(1) Sexual act. - The term "sexual act" means -
(A) contact between the penis and the vulva, and for purposes
of this subparagraph contact involving the penis occurs upon
penetration, however slight; or
(B) the penetration, however slight, of the genital opening
of another by a hand or finger or by any object, with an intent
to abuse, humiliate, harass, or degrade any person or to arouse
or gratify the sexual desire of any person.
(2) Sexual contact. - The term "sexual contact" means the
intentional touching, either directly or through the clothing, of
the genitalia, anus, groin, breast, inner thigh, or buttocks of
another person, or intentionally causing another person to touch,
either directly or through the clothing, the genitalia, anus,
groin, breast, inner thigh, or buttocks of any person, with an
intent to abuse, humiliate, or degrade any person or to arouse or
gratify the sexual desire of any person.
(3) 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. It
is the same level of injury as in section 928 (article 128) of
this chapter, and a lesser degree of injury than in section
2246(4) of title 18.
(4) Dangerous weapon or object. - The term "dangerous weapon or
object" means -
(A) any firearm, loaded or not, and whether operable or not;
(B) any other weapon, device, instrument, material, or
substance, whether animate or inanimate, that in the manner it
is used, or is intended to be used, is known to be capable of
producing death or grievous bodily harm; or
(C) any object fashioned or utilized in such a manner as to
lead the victim under the circumstances to reasonably believe
it to be capable of producing death or grievous bodily harm.
(5) Force. - The term "force" means action to compel submission
of another or to overcome or prevent another's resistance by -
(A) the use or display of a dangerous weapon or object;
(B) the suggestion of possession of a dangerous weapon or
object that is used in a manner to cause another to believe it
is a dangerous weapon or object; or
(C) physical violence, strength, power, or restraint applied
to another person, sufficient that the other person could not
avoid or escape the sexual conduct.
(6) Threatening or placing that other person in fear. - The
term "threatening or placing that other person in fear" under
paragraph (3) of subsection (a) (rape), or under subsection (e)
(aggravated sexual contact), 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 death, grievous bodily harm, or kidnapping.
(7) Threatening or placing that other person in fear. -
(A) In general. - The term "threatening or placing that other
person in fear" under paragraph (1)(A) of subsection (c)
(aggravated sexual assault), or under subsection (h) (abusive
sexual contact), 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 being
subjected to a lesser degree of harm than death, grievous
bodily harm, or kidnapping.
(B) Inclusions. - Such lesser degree of harm includes -
(i) physical injury to another person or to another
person's property; or
(ii) a threat -
(I) to accuse any person of a crime;
(II) to expose a secret or publicize an asserted fact,
whether true or false, tending to subject some person to
hatred, contempt or ridicule; or
(III) through the use or abuse of military position,
rank, or authority, to affect or threaten to affect, either
positively or negatively, the military career of some
person.
(8) Bodily harm. - The term "bodily harm" means any offensive
touching of another, however slight.
(9) Child. - The term "child" means any person who has not
attained the age of 16 years.
(10) Lewd act. - The term "lewd act" means -
(A) the intentional touching, not through the clothing, of
the genitalia of another person, with an intent to abuse,
humiliate, or degrade any person, or to arouse or gratify the
sexual desire of any person; or
(B) intentionally causing another person to touch, not
through the clothing, the genitalia of any person with an
intent to abuse, humiliate or degrade any person, or to arouse
or gratify the sexual desire of any person.
(11) Indecent liberty. - The term "indecent liberty" means
indecent conduct, but physical contact is not required. It
includes one who with the requisite intent exposes one's
genitalia, anus, buttocks, or female areola or nipple to a child.
An indecent liberty may consist of communication of indecent
language as long as the communication is made in the physical
presence of the child. If words designed to excite sexual desire
are spoken to a child, or a child is exposed to or involved in
sexual conduct, it is an indecent liberty; the child's consent is
not relevant.
(12) Indecent conduct. - The term "indecent conduct" means that
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. Indecent conduct includes observing, or making a
videotape, photograph, motion picture, print, negative, slide, or
other mechanically, electronically, or chemically reproduced
visual material, without another person's consent, and contrary
to that other person's reasonable expectation of privacy, of -
(A) that other person's genitalia, anus, or buttocks, or (if
that other person is female) that person's areola or nipple; or
(B) that other person while that other person is engaged in a
sexual act, sodomy (under section 925 (article 125)), or sexual
contact.
(13) Act of prostitution. - The term "act of prostitution"
means a sexual act, sexual contact, or lewd act for the purpose
of receiving money or other compensation.
(14) Consent. - The term "consent" means words or overt acts
indicating a freely given agreement to the sexual 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 or submission resulting from the
accused's use of force, threat of force, or placing another
person in fear does not constitute consent. A current or previous
dating relationship by itself or the manner of dress of the
person involved with the accused in the sexual conduct at issue
shall not constitute consent. A person cannot consent to sexual
activity if -
(A) under 16 years of age; or
(B) substantially incapable of -
(i) appraising the nature of the sexual conduct at issue
due to -
(I) mental impairment or unconsciousness resulting from
consumption of alcohol, drugs, a similar substance, or
otherwise; or
(II) mental disease or defect which renders the person
unable to understand the nature of the sexual conduct at
issue;
(ii) physically declining participation in the sexual
conduct at issue; or
(iii) physically communicating unwillingness to engage in
the sexual conduct at issue.
(15) Mistake of fact as to consent. - The term "mistake of fact
as to consent" means the accused held, as a result of ignorance
or mistake, an incorrect belief that the other person engaging in
the sexual conduct consented. 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 the other person
consented. 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
accused's state of intoxication, if any, at the time of the
offense is not relevant to mistake of fact. A mistaken belief
that the other person consented must be that which a reasonably
careful, ordinary, prudent, sober adult would have had under the
circumstances at the time of the offense.
(16) Affirmative defense. - The term "affirmative defense"
means any special defense which, although not denying that the
accused committed the objective acts constituting the offense
charged, denies, wholly, or partially, criminal responsibility
for those acts. The accused has the burden of proving the
affirmative defense by a preponderance of evidence. After the
defense meets this burden, the prosecution shall have the burden
of proving beyond a reasonable doubt that the affirmative defense
did not exist.
AMENDMENTS
1996 - Subsec. (b). Pub. L. 104-106, Sec. 1113(a), amended
subsec. (b) generally. Prior to amendment, subsec. (b) read as
follows: "Any person subject to this chapter who, under
circumstances not amounting to rape, commits an act of sexual
intercourse with a female not his wife who has not attained the age
of sixteen years, is guilty of carnal knowledge and shall be
punished as a court-martial may direct."
Subsec. (d). Pub. L. 104-106, Sec. 1113(b), added subsec. (d).
1992 - Subsec. (a). Pub. L. 102-484 struck out "with a female not
his wife" after "intercourse" and "her" after "without".
EFFECTIVE DATE OF 2006 AMENDMENT
Pub. L. 109-163, div. A, title V, Sec. 552(c), Jan. 6, 2006, 119
Stat. 3263, provided that: "Section 920 of title 10, United States
Code (article 120 of the Uniform Code of Military Justice), as
amended by subsection (a), shall apply with respect to offenses
committed on or after the effective date specified in subsection
(f) [see note below]."
Amendment by Pub. L. 109-163 effective on Oct. 1, 2007, see
section 552(f) of Pub. L. 109-163, set out as a note under section
843 of this title.
EFFECTIVE DATE OF 1992 AMENDMENT
Amendment by Pub. L. 102-484 effective Oct. 23, 1992, and
applicable with respect to offenses committed on or after that
date, see section 1067 of Pub. L. 102-484, set out as a note under
section 803 of this title.
INTERIM MAXIMUM PUNISHMENTS
Pub. L. 109-163, div. A, title V, Sec. 552(b), Jan. 6, 2006, 119
Stat. 3263, provided that: "Until the President otherwise provides
pursuant to section 856 of title 10, United States Code (article 56
of the Uniform Code of Military Justice), the punishment which a
court-martial may direct for an offense under section 920 of such
title (article 120 of the Uniform Code of Military Justice), as
amended by subsection (a), may not exceed the following limits:
"(1) Subsections (a) and (b). - For an offense under subsection
(a) (rape) or subsection (b) (rape of a child), death or such
other punishment as a court-martial may direct.
"(2) Subsection (c). - For an offense under subsection (c)
(aggravated sexual assault), dishonorable discharge, forfeiture
of all pay and allowances, and confinement for 30 years.
"(3) Subsections (d) and (e). - For an offense under subsection
(d) (aggravated sexual assault of a child) or subsection (e)
(aggravated sexual contact), dishonorable discharge, forfeiture
of all pay and allowances, and confinement for 20 years.
"(4) Subsections (f) and (g). - For an offense under subsection
(f) (aggravated sexual abuse of a child) or subsection (g)
(aggravated sexual contact with a child), dishonorable discharge,
forfeiture of all pay and allowances, and confinement for 15
years.
"(5) Subsections (h) through (j). - For an offense under
subsection (h) (abusive sexual contact), subsection (i) (abusive
sexual contact with a child), or subsection (j) (indecent liberty
with a child), dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 7 years.
"(6) Subsections (k) and (l). - For an offense under subsection
(k) (indecent act) or subsection (l) (forcible pandering),
dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
"(7) Subsections (m) and (n). - For an offense under subsection
(m) (wrongful sexual contact) or subsection (n) (indecent
exposure), dishonorable discharge, forfeiture of all pay and
allowances, and confinement for one year."