Article 120 of the Uniform Code of Military Justice (10 U.S.C. § 920) covers rape, sexual assault, aggravated sexual contact, and abusive sexual contact. These are among the most serious charges a service member can face, and they often carry intense command and public scrutiny. When the government mishandles such a case, an accused may ask whether the charges can be thrown out entirely because of prosecutorial misconduct. The short answer is yes, dismissal is possible, but it is reserved for serious misconduct that cannot be cured by lesser remedies. This article explains when and how that can happen.
What counts as prosecutorial misconduct
Prosecutorial misconduct in the military justice system generally means action by trial counsel, the prosecutor, that violates a legal or ethical obligation and threatens the fairness of the proceeding. It can take many forms, including failing to disclose evidence favorable to the defense, making improper arguments to the panel, presenting evidence the prosecutor knows is false, mishandling a victim or witness, or improperly commenting on the accused’s silence. Misconduct can occur before trial, during the Article 32 preliminary hearing, or in the courtroom itself.
Not every error by trial counsel rises to this level. Courts distinguish between honest mistakes, harmless missteps, and conduct serious enough to undermine confidence in the result. The remedy depends heavily on how severe the misconduct was and how much it affected the accused’s rights.
The range of remedies short of dismissal
Military judges have a ladder of remedies available before reaching the most drastic step. A judge may issue a curative instruction telling the panel to disregard improper argument, strike testimony, grant a continuance, exclude tainted evidence, compel disclosure of withheld material, or declare a mistrial. Appellate courts likewise may set aside findings and order a rehearing rather than ending the case outright. Because dismissal forecloses prosecution of serious alleged conduct, judges generally prefer a tailored remedy that fixes the specific harm. Dismissal becomes appropriate only when no lesser measure can restore fairness.
When dismissal becomes the remedy
Dismissal, particularly dismissal with prejudice that bars re-prosecution, is reserved for misconduct so egregious that it irreparably prejudices the accused or so corrupts the integrity of the proceeding that allowing the case to continue would be unjust. A few categories illustrate where this can arise in an Article 120 prosecution.
The clearest example is unlawful command influence. Article 37 of the UCMJ forbids any person subject to the code from improperly influencing the actions of a court-martial or the decisions of convening, approving, or reviewing authorities. Unlawful command influence has been called the mortal enemy of military justice. When it is raised, the government must prove beyond a reasonable doubt either that the facts do not constitute unlawful command influence or that it did not prejudice the accused, a demanding standard. The Court of Appeals for the Armed Forces has, in appropriate cases such as United States v. Barry, set aside findings and dismissed charges where unlawful influence tainted the process and no lesser remedy sufficed.
A second category is the deliberate suppression of favorable evidence. Prosecutors have a constitutional and regulatory duty to disclose material that is favorable to the accused, whether it bears on guilt or on the credibility of government witnesses. In a sexual assault case, that may include prior inconsistent statements by an accuser, impeachment material, or forensic findings that undercut the charge. Willful and prejudicial suppression can justify dismissal where it deprives the accused of a fair trial and cannot be cured.
A third category is repeated or flagrant misconduct that poisons the proceeding, such as knowingly presenting false testimony or engaging in a pattern of improper argument designed to inflame the panel. The governing question for appellate review of improper argument is whether the trial counsel’s conduct, taken as a whole, was so damaging that the court cannot be confident the members convicted the accused on the evidence alone.
How the issue is raised
Dismissal does not happen automatically. Defense counsel must raise the misconduct through a motion, usually a motion to dismiss or for appropriate relief under the Rules for Courts-Martial, and must build a factual record. That often means requesting discovery, calling witnesses at a motions hearing, and showing both the misconduct and the prejudice it caused. Preserving objections at every stage, including the Article 32 hearing, protects the issue for the military judge and for later appellate review before the service Court of Criminal Appeals and the Court of Appeals for the Armed Forces. If the trial judge denies relief, the appellate courts can review whether dismissal should have been granted.
Practical realities for the accused
Because Article 120 charges are taken so seriously, military prosecutors and their supervising staff judge advocates are usually careful, and outright dismissal for misconduct is uncommon. More often, a meritorious misconduct claim produces a lesser remedy that still meaningfully helps the defense, such as excluded evidence, a corrective instruction, or leverage in negotiations. Even so, identifying misconduct early and litigating it aggressively can change the trajectory of a case. The standard is high, but it exists precisely because the system depends on prosecutors playing fair.
The bottom line
Article 120 charges can be dismissed for prosecutorial misconduct, but only when the misconduct is serious and no lesser remedy can cure the resulting unfairness. Unlawful command influence, willful suppression of favorable evidence, and flagrant trial misconduct are the kinds of problems most likely to support dismissal. Anyone facing these charges should work with experienced military defense counsel to investigate how the government has handled the case and to raise any misconduct through the proper motions and appeals.
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.