What Happens If You’re Accused of Sexual Assault in the Military

An accusation of sexual assault against a service member is handled under Article 120 of the Uniform Code of Military Justice, and for any offense committed after December 27, 2023, the decision to bring the case to trial belongs to an independent special trial counsel rather than to the accused’s commander. The case can move from investigation to a preliminary hearing under Article 32 and then to a general court-martial. A conviction for rape or sexual assault carries a mandatory dismissal or dishonorable discharge unless a plea agreement falls within narrow statutory exceptions, and certain convictions are reported for sex offender registration. Which of those steps actually happens depends on the evidence, the specific Article 120 offense alleged, and the date of the alleged conduct.

The Date of the Alleged Offense Decides Who Controls the Case

Congress rebuilt the prosecution of sexual offenses in the National Defense Authorization Act for Fiscal Year 2022. Article 120 is listed as a “covered offense” in 10 U.S.C. 801(17), together with murder, manslaughter, kidnapping, domestic violence, stalking, retaliation, child pornography, and a substantiated formal complaint of sexual harassment. The statutory note to that section says the change applies “with respect to offenses that occur after” December 27, 2023.

For a covered offense in that window, Article 24a gives the special trial counsel “exclusive authority to determine if a reported offense is a covered offense”. The special trial counsel is a judge advocate outside the accused’s chain of command. If that office declines to prefer or refer charges, a commander or convening authority may use its other authorities under the Code over the same offense, “except that such commander or convening authority may not refer charges and specifications for a covered offense for trial by special or general court-martial”.

For an Article 120 offense that occurred on or before December 27, 2023, the same article says a special trial counsel “may, at the sole and exclusive discretion of the special trial counsel, exercise authority” over it. An older allegation can therefore follow either path, and the first question for the accused and the defense is which office is making the decisions.

Which Article 120 Offense Is Alleged, and What It Carries

Article 120 is a group of offenses with separate elements. The Manual for Courts-Martial, United States (2024 ed.), Part IV, paragraph 60, sets the maximums. Appendix 12C of the Manual places each offense in a sentencing category, and Appendix 12B gives the confinement range for each category. Those ranges govern sentences for offenses committed after December 27, 2023.

Offense (Art. 120)	Core element beyond the sexual act or contact	Maximum punishment (MCM para. 60.d)	Category (App. 12C) and range (App. 12B)
Rape	unlawful force, force likely to cause death or grievous bodily harm, threats of death or grievous harm, rendering the person unconscious, or a drug given without consent	confinement for life without eligibility for parole, total forfeitures; mandatory minimum of dismissal or dishonorable discharge	Category 4, 120 to 240 months
Sexual assault	threat or fear, a fraudulent professional purpose, impersonation, lack of consent, a person the accused knew or reasonably should have known was asleep, unconscious, or unaware, or a person incapable of consenting because of impairment or a mental or physical condition	30 years, total forfeitures; mandatory minimum of dismissal or dishonorable discharge	Category 3, 30 to 120 months
Aggravated sexual contact	sexual contact under the circumstances that would make a sexual act rape	dishonorable discharge, total forfeitures, 20 years	Category 3, 30 to 120 months
Abusive sexual contact	sexual contact under the circumstances that would make a sexual act sexual assault	dishonorable discharge, total forfeitures, 7 years	Category 2, 1 to 36 months

The mandatory discharge comes from statute. Article 56(b) says punishment for rape under Article 120(a) and sexual assault under Article 120(b) “shall include dismissal or dishonorable discharge”, and the same rule covers attempts and conspiracies to commit those offenses. The rule opens with an exception that refers to Article 53a, which lets a military judge accept a plea agreement for a bad-conduct discharge, or, on the trial counsel’s recommendation for substantial assistance in another prosecution, a sentence below the mandatory minimum. Aggravated and abusive sexual contact have no such mandatory minimum.

Two sentencing rules are also tied to the date of the offense. For non-capital cases in which every guilty finding is for an offense that occurred after December 27, 2023, Article 53(b) has the military judge, not the panel, determine the sentence. The note to Article 53 confines that change to cases where “all findings of guilty are for offenses that occurred after” that date, so a case that mixes older and newer allegations is sentenced under the earlier rules. Appendix 12B adds that where an offense’s own maximum is lower than its category’s upper limit, the lower maximum controls.

From Report to Trial: Investigation, Rights, and the Preliminary Hearing

A report is investigated by the service’s criminal investigators. Before any questioning, Article 31(b) requires that a person suspected of an offense be told “the nature of the accusation” and advised that “he does not have to make any statement”. The rule opens with “No person subject to this chapter may interrogate,” so the duty is not limited to criminal investigators. Article 38(b) gives the accused a right to counsel “before a general or special court-martial or at a preliminary hearing under section 832”, including detailed military defense counsel at no cost, and adds that the accused “may be represented by civilian counsel if provided by him.”

The person who made the report may have a lawyer too. 10 U.S.C. 1044e requires each service to designate Special Victims’ Counsel “for the purpose of providing legal assistance” to the alleged victim of a sex-related offense, “regardless of whether the report of that offense is restricted or unrestricted.” That lawyer represents the alleged victim. The prosecution does not control them, and neither does the defense.

Before charges are referred to a general court-martial, Article 32 requires a preliminary hearing before an impartial hearing officer. It can be skipped only if the accused submits a written waiver and the convening authority, or the special trial counsel in a case that office controls, decides a hearing is not required. The hearing is limited to questions such as whether the specification alleges an offense and whether there is probable cause, and the officer’s recommendations do not bind the decision-maker. The statute also says: “A victim may not be required to testify at the preliminary hearing.” A victim who declines is deemed not available, so the hearing may go forward without the complainant on the stand.

Limits on Time and on Second Prosecutions

There is no statute of limitations for the most serious charges. Article 43(a) provides that a person charged with “rape or sexual assault, or rape or sexual assault of a child” may be tried “at any time without limitation.” For aggravated or abusive sexual contact against an adult, the five-year rule in Article 43(b)(1) generally applies, with the tolling provisions of Article 43(c) and (d). The child-abuse extension in Article 43(b)(2) applies where the alleged victim was under 16.

Consequences That Reach Past the Sentence

A punitive discharge is a federal court-martial sentence, and a conviction is a federal criminal record. Registration is a separate system. According to the Department of Justice’s SMART Office page on military convictions under SORNA, the Sex Offender Registration and Notification Act “specifically includes certain Uniform Code of Military Justice (UCMJ) convictions in its definition of ‘sex offense'”, and “Department of Defense Instruction 1325.07 contains the specific list of UCMJ convictions that require registration under SORNA.” The same page says a 2015 amendment requires the Department of Defense to submit information on covered court-martial convictions to the National Sex Offender Registry. How long registration lasts and what it requires depend on the state where the person lives, so the answer comes from that state’s law, not from the court-martial.

Administrative measures a command takes while an investigation is open come from service regulations, not from Article 120, and they are separate from any court-martial punishment.

The Questions to Put to Defense Counsel Early

• Was the alleged conduct before or after December 27, 2023? The answer decides who controls charging, how the sentence is set, and whether sentencing categories apply.
• Which subsection of Article 120 is alleged? The elements and the maximum differ by subsection.
• Has the special trial counsel taken the case, or has it gone back to the command? That determines who can offer an alternative disposition.
• What have investigators already collected from phones and accounts, and was every statement preceded by an Article 31(b) warning?

Sources

• 10 U.S.C. 801, definitions, including “covered offense” (Cornell LII)
• 10 U.S.C. 824a, Article 24a, Special trial counsel (Cornell LII)
• 10 U.S.C. 831, Article 31, Compulsory self-incrimination prohibited (Cornell LII)
• 10 U.S.C. 832, Article 32, Preliminary hearing (Cornell LII)
• 10 U.S.C. 838, Article 38, Duties of trial counsel and defense counsel (Cornell LII)
• 10 U.S.C. 843, Article 43, Statute of limitations (Cornell LII)
• 10 U.S.C. 853, Article 53, Findings and sentencing, with the 2021 effective-date note (Cornell LII)
• 10 U.S.C. 853a, Article 53a, Plea agreements (Cornell LII)
• 10 U.S.C. 856, Article 56, Sentencing, including mandatory minimums (Cornell LII)
• 10 U.S.C. 920, Article 120, Rape and sexual assault generally (Cornell LII)
• 10 U.S.C. 1044e, Special Victims’ Counsel (Cornell LII)
• Manual for Courts-Martial, United States (2024 ed.), Part IV, para. 60 (Article 120 elements and maximum punishments); Appendix 12B (Sentencing Parameter Table); Appendix 12C (Offense Category Chart).
• U.S. Department of Justice, SMART Office, Military Convictions under SORNA

This guide describes the court-martial process for an accused service member under current federal law. It is not legal advice; a defense counsel applies these rules to the dates and facts of a specific case.