Article 120 UCMJ Conduct Unbecoming an Officer and a Gentlemen – Article 133, UCMJ

Understanding Article 120 UCMJ Conduct Unbecoming an Officer and Article 133, UCMJ

Article 120 of the Uniform Code of Military Justice (UCMJ) covers the offense of rape and sexual assault in the military. Article 133 of the UCMJ deals with conduct unbecoming an officer and a gentleman. While seemingly very different offenses, there can be overlap between Article 120 and Article 133 in cases involving alleged sexual misconduct by military officers.

In this article, we’ll break down what you need to know about Articles 120 and 133 of the UCMJ, including how they apply to officers accused of sexual assault or harassment. We’ll also discuss potential defenses and the importance of working with an experienced military defense attorney if you are facing charges under Article 120, Article 133, or both.

Article 120 UCMJ – Rape and Sexual Assault

Article 120 of the UCMJ criminalizes rape, sexual assault, and other sexual misconduct in the armed forces. It covers acts committed by any military service member against any person, whether that person is also in the military or a civilian. Article 120 offenses include:

• Rape
• Sexual assault
• Aggravated sexual contact
• Abusive sexual contact
• Forcible pandering

The elements the prosecution must prove vary depending on the specific Article 120 offense charged. For example, to convict an accused of rape under Article 120, the prosecution would need to establish beyond a reasonable doubt that:

1. The accused committed a sexual act upon another person;
2. The other person had not consented to the sexual act; and
3. The accused knew the other person had not consented.

Consent is a key issue in many Article 120 cases. The UCMJ defines consent as “words or overt acts indicating a freely given agreement to the sexual act at issue by a competent person.” Lack of consent can be shown by evidence the victim was forced, threatened, unable to resist, asleep or unconscious, or otherwise unable to communicate unwillingness.

Article 133 UCMJ – Conduct Unbecoming an Officer

While Article 120 applies to all military personnel, Article 133 of the UCMJ deals specifically with misconduct by officers and cadets. Under Article 133, any commissioned officer, cadet, or midshipman who engages in behavior that constitutes “conduct unbecoming an officer and a gentleman” can face criminal charges.

To convict under Article 133, the prosecution must prove:

1. The accused did or omitted to do certain acts; and
2. Under the circumstances, the acts or omissions constituted conduct unbecoming an officer and gentleman.

“Conduct unbecoming an officer and a gentleman” is defined as behavior that dishonors or disgraces the officer personally, compromising their character as an officer, or behavior that brings dishonor to the military profession.

Overlap Between Articles 120 and 133

There can be overlap between Article 120 and Article 133 charges when an officer is accused of sexual assault or harassment. For example, an officer charged with sexually assaulting another service member could potentially face charges under both Article 120 (for the assault itself) and Article 133 (for conduct unbecoming an officer).

Some situations where an officer might face charges under Articles 120 and 133 include:

• Committing rape, sexual assault, or abusive sexual contact
• Using rank or position to coerce sexual favors from subordinates
• Making unwanted sexual advances toward other service members
• Engaging in inappropriate relationships with subordinates
• Adultery with another service member
• Patronizing prostitutes while deployed

Article 133 gives military prosecutors extra leverage in cases involving officer misconduct. Even if they cannot prove all elements of an Article 120 offense, charging Article 133 as well increases the chances of conviction.

Defending Against Articles 120 and 133 Charges

Facing charges under Articles 120 and 133 of the UCMJ is extremely serious, especially for military officers. Conviction can end careers, result in sex offender registration, forfeiture of pay and benefits, and substantial confinement. An aggressive defense is critical.

Some potential defenses to Articles 120 and 133 charges include:

• Consent – Consent is a complete defense to Article 120 charges. The defense may argue there is evidence the alleged victim consented to the sexual act.
• Mistake of fact – The accused had an honest and reasonable belief the other person consented.
• False accusations – The alleged victim has motive to fabricate or exaggerate allegations.
• Lack of notice – Vagueness of Article 133 means the accused was not on notice the conduct was criminal.
• No conduct unbecoming – The alleged acts do not meet the elements of conduct unbecoming under Article 133.

Given the complexities of the UCMJ and military law, working with an experienced military defense lawyer is critical for officers charged under Articles 120 and 133. An attorney can investigate the allegations, identify defenses, and develop the most effective trial strategy. This provides the best chance at securing a favorable resolution and preserving the officer’s career.

The Bottom Line

Articles 120 and 133 of the UCMJ are serious offenses carrying severe potential penalties. Military officers accused of sexual misconduct often face allegations under both provisions. Fighting these charges requires an aggressive defense focused on reasonable doubt, consent, mistake of fact, false allegations, and other defenses tailored to the facts of the case.

Never go it alone against the military justice system. Work with a military law attorney from the start to protect your rights and give yourself the best chance of success. Thorough case preparation, experience with courts-martial, and knowledge of the UCMJ can make all the difference.