Article 120 of the Uniform Code of Military Justice (UCMJ) covers rape and sexual assault offenses, and these are among the most serious charges a service member can face. A common assumption is that the person who reported the alleged conduct, the complaining witness, must personally swear out the charges or sign a sworn statement before the case can move forward. That assumption is incorrect. Article 120 charges can proceed even when the complaining witness has not signed a sworn statement, because the military charging system places the oath requirement on the accuser who prefers the charges, and that accuser is typically a commander or other officer, not the alleged victim.
How charges are formally brought in the military
To understand the answer, it helps to know how a court-martial case begins. Charges are formally initiated through preferral. Under the Rules for Courts-Martial, charges are reduced to writing on a charge sheet and signed under oath by an accuser. The accuser is a person subject to the UCMJ who swears that the charges are true to the best of that person’s knowledge and belief, based either on personal knowledge or on information the accuser has investigated or reviewed. In practice, the accuser is usually a commanding officer or another commissioned officer, not the individual who reported being harmed.
This structure means the sworn element of charging is satisfied by the accuser’s oath on the charge sheet. The complaining witness’s account ordinarily reaches the case through a law enforcement or command investigation that the accuser relies upon. The accuser does not need the complaining witness to sign anything under oath in order to prefer the charges.
The complaining witness need not swear out the charges
Because the law assigns the oath to the accuser, the alleged victim is not required to personally sign a sworn statement to allow an Article 120 prosecution to proceed. A report of sexual assault can be investigated, and charges can be preferred, even if the complaining witness declines to provide a sworn written statement or chooses a restricted reporting option that later changes. The driving question is not whether the witness swore an affidavit, but whether the accuser, on the basis of the investigation, is willing to swear that the charges are true to the best of that accuser’s knowledge and belief.
This also extends to later stages. At the Article 32 preliminary hearing that screens serious charges for general court-martial, a complaining witness in a sexual assault case is not required to testify, and the case can proceed on other evidence. So the absence of a sworn statement, and even the absence of live testimony at the preliminary hearing, does not by itself stop an Article 120 case.
What the government still must establish
Saying that charges can proceed without the accuser’s sworn statement is not the same as saying the case is easy to prove. The government still must build the case on admissible evidence and ultimately prove every element of the Article 120 offense beyond a reasonable doubt at trial. The complaining witness’s account, if the case is contested, will usually need to be presented in some admissible form, and at the court-martial itself the accused has the constitutional right to confront and cross-examine witnesses against them. So while a sworn statement from the complaining witness is not a precondition to charging, the strength of the evidence, including whether the witness testifies at trial, bears heavily on whether the case succeeds.
Why this matters to the accused
For a service member facing Article 120 allegations, the practical lesson is that a case can be brought even when the person who made the report has not signed a formal sworn statement. It is a mistake to assume that the lack of such a statement means the matter will go away. The defense should focus not on the formality of who swore what, but on the substance: the reliability and consistency of the underlying account, the quality of the investigation the accuser relied upon, and whether the government can meet its burden at trial with admissible evidence. Counsel can test the investigation through the Article 32 hearing, through discovery, and through cross-examination if the case reaches trial.
Practical steps
A member who learns of an Article 120 investigation should secure qualified defense counsel immediately and avoid making statements to investigators without that counsel. Because the charging oath rests with the accuser rather than the complaining witness, the case can move quickly once an investigation supports preferral. Early counsel can identify weaknesses in the investigation, preserve favorable evidence, and prepare to challenge the government’s proof at each stage rather than relying on the mistaken hope that a missing sworn statement will end the matter.
Conclusion
Article 120 charges can proceed without a sworn statement from the accuser in the sense most people mean that question: the alleged victim is not required to personally swear out or sign the charges. The oath that the charging system requires is the accuser’s oath on the charge sheet, and that accuser is typically a commander relying on an investigation. The complaining witness need not swear a statement to allow the case to begin, and need not even testify at the Article 32 hearing. What ultimately governs the outcome is whether the government can prove the offense beyond a reasonable doubt with admissible evidence at trial, which is where a service member’s defense should be focused.
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.