No. An accused at a court-martial cannot be compelled to testify, and that protection applies fully to a prosecution under Article 120, the Uniform Code of Military Justice provision covering sexual assault and related offenses. The decision whether to take the stand belongs to the accused alone. This protection is among the strongest in the entire justice system, because a military accused is shielded by two separate sources of law rather than one.
A Right Protected Twice
In the civilian world, the right not to testify against oneself rests on the Fifth Amendment, which provides that no person shall be compelled in any criminal case to be a witness against himself. A service member keeps that constitutional protection and gains a second, independent one from the UCMJ itself. Article 31(a) prohibits anyone subject to the Code from compelling any person to incriminate himself or to answer any question whose answer may tend to incriminate him.
Because of this overlap, a service member’s protection against compelled self-incrimination is often described as unparalleled in the civilian sector. The same shield is guaranteed by both the Constitution and the Code. In an Article 120 trial, where the charges are serious and the stakes are high, that dual protection means the prosecution has no lawful avenue to force the accused onto the witness stand. The privilege gives the accused the right not to testify at the court-martial, full stop.
No Comment on the Decision to Remain Silent
The right would mean little if the prosecution could simply point out that the accused chose not to testify and invite the panel to draw a negative inference. Military law forecloses that. Trial counsel may not comment, directly, indirectly, or by innuendo, on the fact that an accused did not testify in his own defense. The privilege both protects the accused from being forced to testify and precludes comment by trial counsel on that silence.
For an Article 120 case this is especially important. These cases frequently come down to the credibility of competing accounts, and a panel might be tempted to wonder why an accused did not personally deny the allegation. The prohibition on comment exists precisely to keep that temptation from being exploited. The decision to stay silent cannot be turned into evidence of guilt, and the members are not to treat it that way.
What the Accused Can Choose to Do
The privilege is a shield the accused controls, not a gag. An accused who wishes to testify may do so, and that is a strategic decision made with counsel. By choosing to take the stand, the accused waives the privilege as to the matters opened up and becomes subject to cross-examination like any other witness. In an Article 120 prosecution, that tradeoff is significant, because cross-examination on the details of an alleged sexual offense can be searching and difficult.
This is why the choice is genuinely the accused’s to make and why it is so consequential. The law guarantees that no one can force the decision. The accused, advised by defense counsel, weighs whether personal testimony will help or whether the defense is better served by holding the prosecution to its burden without putting the accused’s own words in front of the panel. The government bears the burden of proving every element beyond a reasonable doubt regardless of whether the accused says a word.
Pretrial Protections Tie In
The same Article 31 protection that prevents compelled testimony at trial operates well before trial. Article 31 restricts compelling self-incriminating statements during the investigative phase, which is why suspects in military investigations must be advised of their rights before questioning. The continuity matters. A service member accused under Article 120 is protected from being forced to incriminate himself during the investigation and remains protected from being forced to testify at the court-martial itself. The privilege follows the accused through the entire process.
The Bottom Line
An accused cannot be compelled to testify in an Article 120 trial. The Fifth Amendment and Article 31(a) of the UCMJ each independently guarantee that the prosecution cannot force the accused to be a witness against himself, and trial counsel may not comment on the accused’s silence to suggest guilt. The accused retains the option to testify voluntarily, with the understanding that doing so opens the door to cross-examination, but no one can require it. In a category of case where credibility looms large, this protection ensures the burden stays where the law places it, on the government, and never shifts to the accused to explain or defend through forced testimony.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.