Sexual assault prosecutions under Article 120 of the UCMJ carry intense institutional pressure. Senior leaders, members of Congress, and the public have all pushed the armed forces to take these cases seriously, and that pressure can spill into the way individual cases are handled. When it crosses a legal line, it becomes unlawful command influence, and the defense has real tools to confront it. This article explains what command influence is in the Article 120 context and the practical steps counsel can take to challenge it.
What Unlawful Command Influence Is
Article 37 of the UCMJ prohibits anyone subject to the code from attempting to coerce or otherwise improperly influence the action of a court-martial or any of its members by unauthorized means. The courts recognize two forms of the problem. The first is actual unlawful command influence, where improper pressure genuinely affects the proceedings. The second is the appearance of unlawful command influence, where an objective observer would reasonably doubt the fairness of the process even if no juror was in fact swayed. The appearance form matters because public confidence in military justice is itself something the law protects.
Unlawful command influence is sometimes called the mortal enemy of military justice, and Article 120 cases are especially vulnerable to it. Public statements demanding tough action on sexual assault, pressure on commanders to refer charges, and signals about how members should view such cases can all contribute to it.
The Framework the Courts Use
Two decisions from the Court of Appeals for the Armed Forces shape how the defense litigates these issues. In United States v. Boyce, an airman was convicted of offenses including a violation of Article 120, and the court set aside the convictions after finding that the conduct of senior Air Force officials created an appearance of unlawful command influence. The court described what the accused must show to raise the issue: facts that, if true, constitute unlawful command influence; that the proceedings were unfair; and that the unlawful command influence was the cause of the unfairness.
In United States v. Barry, the court held that the Deputy Judge Advocate General of the Navy committed actual unlawful command influence by giving unauthorized guidance to a convening authority. Barry is important because it confirms that unlawful command influence can be committed by anyone subject to the UCMJ, not only by a member’s immediate commander. That broadens the field of conduct the defense may scrutinize.
Steps the Defense Can Take
The first step is to raise the issue early and in writing through a pretrial motion. Because command influence questions go to the integrity of the entire proceeding, counsel should not wait. The defense bears an initial burden of producing some evidence, more than mere speculation, that improper influence occurred. Once that threshold is met, the burden shifts to the government to disprove the existence of unlawful command influence beyond a reasonable doubt or to prove that it did not prejudice the accused. Putting the issue on the record promptly preserves it and forces the government to carry that heavy burden.
The second step is to investigate and document the source of the pressure. Counsel should gather public statements by senior officials, command emails and policy guidance, training materials, and any communications touching the case or the unit’s view of Article 120 offenses. Under the reasoning of Barry, this inquiry extends beyond the convening authority to legal advisors and other officials who may have improperly influenced the decision to prosecute.
The third step is to attack influence on the convening authority’s referral decision. If a commander felt pressured to send a weak case to trial rather than risk the appearance of being soft on sexual assault, that pressure can taint the referral. Counsel can develop evidence about how and why the decision was made and argue that the disposition reflected improper influence rather than an independent judgment.
The fourth step is to protect the panel members. Counsel can use voir dire to probe whether members have been exposed to command messaging about sexual assault prosecutions, whether they feel any expectation about the outcome, and whether they can decide the case solely on the evidence. Where the record raises concern, counsel can challenge members for cause and request tailored instructions reminding the panel that they must not consider the views or expectations of any commander.
The fifth step is to seek a meaningful remedy. The available remedies scale with the harm. They can range from instructions and individualized voir dire, to disqualifying a tainted convening authority and obtaining a new and independent referral decision, to dismissal of charges in serious cases. As Boyce illustrates, an appellate court can set aside convictions and authorize a rehearing when the appearance of unlawful command influence infects the trial.
Why Persistence Matters
Command influence challenges are difficult because the government can rebut them and because appellate courts examine the full record before concluding that a trial was unfair. Even so, the doctrine remains one of the strongest protections available to an accused in an Article 120 case. By raising the issue early, building a documented factual record, scrutinizing the referral decision, guarding the impartiality of the panel, and demanding a remedy proportionate to the harm, the defense can hold the government to its burden and protect the fairness of the proceeding.
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.