UCMJ Article 120 Sexual Assault vs Article 120b Sexual Abuse of a Child: Age of Victim Changes Everything
On this page: 8 sections
Article 120b applies when the other person is a child, which the statute defines as anyone who has not reached 16. Lack of consent is not an element of any Article 120b offense, and the statute states that “A child cannot consent to any sexual act, lewd act, or use of force.” Article 120 is the general article: its offenses are written for sexual acts and sexual contact involving “another person,” with no age element, and turn on force, threats, fraud, lack of consent, or a person’s inability to consent.
Age also changes which defenses exist, and one was removed recently: Pub. L. 118-159 struck the marriage defense from Article 120b on December 23, 2024.
Article 120b: three offenses
(a) … Any person subject to this chapter who … (1) commits a sexual act upon a child who has not attained the age of 12 years; or (2) commits a sexual act upon a child who has attained the age of 12 years by … (A) using force against any person; (B) threatening or placing that child in fear; (C) rendering that child unconscious; or (D) administering to that child a drug, intoxicant, or other similar substance; is guilty of rape of a child
(b) … Any person subject to this chapter who commits a sexual act upon a child who has attained the age of 12 years is guilty of sexual assault of a child
(c) … Any person subject to this chapter who commits a lewd act upon a child is guilty of sexual abuse of a child
Source: 10 U.S.C. § 920b (Article 120b).
Two definitions widen the article beyond Article 120 (§ 920b(g)):
- Sexual act has the Article 120 meaning, and also includes “the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years” with the specified intent.
- Lewd act includes any sexual contact with a child; intentionally exposing one’s genitalia, anus, buttocks, or female areola or nipple to a child; intentionally communicating indecent language to a child; and indecent conduct done with or in the presence of a child. Exposure, language, and conduct can occur “by any means, including via any communication technology.”
For force, “In the case of a parent-child or similar relationship, the use or abuse of parental or similar authority is sufficient to constitute the use of force” (§ 920b(g)(2)). The definitions sat in subsection (h) until Pub. L. 118-159 removed the marriage subsection and relettered the ones after it.
Consent
Under Article 120, consent is a defined term, and lack of consent is one of the ways sexual assault can be committed (10 U.S.C. § 920(b)(2)(A), (g)(7)).
Under Article 120b, the current text reads: “Lack of consent is not an element and need not be proven in any prosecution under this section. A child cannot consent to any sexual act, lewd act, or use of force” (10 U.S.C. § 920b(f)). Before December 23, 2024, the second sentence was limited to a child “not legally married to the person committing” the act; Pub. L. 118-159, § 565, struck those words and the separate marriage defense.
Knowledge of age and the mistake-of-age defense
The statute sets two rules (§ 920b(d)):
- Under 12. The government need not prove the accused knew the child’s age, and “It is not a defense that the accused reasonably believed that the child had attained the age of 12 years.”
- Under 16. The government need not prove the accused knew the child was under 16. There is a defense, which “the accused must prove by a preponderance of the evidence,” that the accused “reasonably believed that the child had attained the age of 16 years, if the child had in fact attained at least the age of 12 years.”
The defense has limits written into the statute. It applies only to sexual assault of a child under subsection (b) and sexual abuse of a child under subsection (c). It does not apply to rape of a child under subsection (a), including rape of a child 12 or older by force, threat, rendering unconscious, or drugging. The statute requires a reasonable belief proved by a preponderance of the evidence; it does not list any particular verification step.
Marriage
Pub. L. 118-159, § 565, enacted December 23, 2024, struck former subsection (f) of Article 120b, which had made marriage a defense to sexual assault of a child and sexual abuse of a child in some circumstances. Article 120 already provides that “Marriage is not a defense for any conduct in issue in any prosecution under this section” (§ 920(f)). Which version of Article 120b governs conduct that occurred before December 23, 2024 is a question for counsel.
Where the line falls
| Article 120 | Article 120b | |
|---|---|---|
| Other person | Any person | A child under 16 |
| Consent | Lack of consent is one way to commit sexual assault | Not an element; a child cannot consent |
| Force or threat | Defines rape | Defines rape of a child 12 or older; any sexual act with a child under 12 is rape of a child |
| Age belief | Not an issue | Under 12: no defense. 12 to 15: a reasonable-belief defense for subsections (b) and (c) only, proved by the accused |
| Non-contact conduct | Addressed by Article 120c | Lewd acts include exposure, indecent language, and indecent conduct, including through communication technology |
For example, a service member who commits a sexual act with a 15-year-old who claimed to be 17 faces the elements of sexual assault of a child under Article 120b(b); consent is not a defense, and the only age-based defense is the accused’s proof by a preponderance that the belief the child was at least 16 was reasonable. Add force to the same facts and the offense becomes rape of a child under Article 120b(a)(2), and the mistake-of-age defense does not apply. Where the defense is available, the accused carries the burden of proving the reasonable belief by a preponderance of the evidence (§ 920b(d)(2)).
Maximum punishments
| Offense | Maximum (MCM, Part IV, ¶ 62.d and ¶ 60.d) |
|---|---|
| Rape of a child | Forfeiture of all pay and allowances, confinement for life without eligibility for parole; mandatory minimum of dismissal or dishonorable discharge |
| Sexual assault of a child | Forfeiture of all pay and allowances, confinement for 30 years; mandatory minimum of dismissal or dishonorable discharge |
| Sexual abuse of a child, involving sexual contact | Dishonorable discharge, forfeiture of all pay and allowances, 20 years |
| Sexual abuse of a child, other cases | Dishonorable discharge, forfeiture of all pay and allowances, 15 years |
| Rape (Article 120) | Forfeiture of all pay and allowances, confinement for life without eligibility for parole; mandatory minimum of dismissal or dishonorable discharge |
| Sexual assault (Article 120) | Forfeiture of all pay and allowances, confinement for 30 years; mandatory minimum of dismissal or dishonorable discharge |
The Manual does not list death as a punishment for rape of a child; its ceiling is life without eligibility for parole. Where every finding of guilty is for an offense committed after December 27, 2023, the military judge determines the sentence in a general or special court-martial, other than in a capital case (10 U.S.C. § 853(b)(1)).
Who decides whether the case goes forward
Articles 120 and 120b are covered offenses (10 U.S.C. § 801(17)). For offenses committed after December 27, 2023, a special trial counsel has exclusive authority to determine whether a reported offense is a covered offense and, once exercising authority, to refer charges to a special or general court-martial, dismiss them, or enter a plea agreement; a commander may not refer a covered offense to those courts (10 U.S.C. § 824a(c)).
Sources
- 10 U.S.C. § 920b, rape and sexual assault of a child (Article 120b)
- 10 U.S.C. § 920, rape and sexual assault generally (Article 120)
- 10 U.S.C. § 801, definitions (Article 1)
- 10 U.S.C. § 824a, special trial counsel (Article 24a)
- 10 U.S.C. § 853, findings and sentencing (Article 53)
- Pub. L. 118-159, § 565 (December 23, 2024).
- Manual for Courts-Martial, United States (2024 edition), Part IV, ¶ 60 and ¶ 62.
This is legal information about how Articles 120 and 120b are written; it does not assess any allegation, report, or case. This page reflects the UCMJ as amended through Public Law 119-60 (December 18, 2025) and the Manual for Courts-Martial (2024 edition) as amended by Executive Order 14130.