In a court-martial, the panel of members serves the role a jury plays in civilian court, and the military judge is responsible for instructing those members on the law before they deliberate. In a complex Article 120 case with several specifications, that task becomes demanding. The judge must define the elements of each charged sexual offense separately, explain the legal meaning of consent and related concepts, guard against the danger that evidence on one count will improperly influence the verdict on another, and tell the members how to record and vote on their findings. The instructions in these cases are detailed and offense-specific because Article 120 contains multiple distinct theories of liability, and each specification must be decided on its own merits.
The judge’s duty to instruct under the Rules for Courts-Martial
The military judge’s instructional duty comes from the Rules for Courts-Martial. Rule for Courts-Martial 920 requires the judge to instruct the members on findings, and those instructions must include a description of the elements of each offense, along with any other explanations, descriptions, or directions necessary for the members to apply the law. Counsel may request specific instructions, and the judge must give an instruction that is correct, supported by the evidence, and not adequately covered elsewhere. The judge also has a duty to give certain instructions on the judge’s own initiative when the evidence raises them, even without a request. Military judges draw heavily on standardized pattern instructions, but they must tailor those patterns to the actual charges and evidence in the case.
Defining the elements of each Article 120 specification
Article 120 is not a single offense. It defines several, including rape and sexual assault, and it reaches conduct accomplished by force, by threat, by rendering another unconscious, or upon a person who is incapable of consenting because of impairment, among other theories. Each charged specification rests on a particular theory, and the military judge must instruct the members separately on the elements of each one. In a multi-count case, that means the members may hear several distinct sets of elements, and they must understand that proving one specification does not prove another. The judge breaks the case down count by count so the members evaluate each specification against its own elements and the evidence relevant to it.
Instructing on consent and lack of consent
Consent is central to most Article 120 litigation, and the instructions must capture how the statute treats it. Article 120 defines consent as a freely given agreement to the conduct at issue by a competent person, and it specifies what does not amount to consent. The judge will typically instruct that a lack of verbal or physical resistance does not by itself establish consent, that submission resulting from the use of force, threat of force, or placing a person in fear is not consent, and that a current or previous dating, social, or sexual relationship does not by itself constitute consent. Where the evidence raises mistake of fact as to consent, the judge must instruct on that defense as well. These instructions must be carefully worded because consent operates differently depending on the theory charged, and a misstatement can become an appellate issue.
Preventing spillover between counts
A central risk in any multi-count case is spillover, the danger that members will treat evidence admitted on one specification as proof of the accused’s general bad character or as proof of a different specification. To address this, the military judge can give a spillover instruction directing the members to consider the evidence on each specification separately and not to use a finding or evidence on one count as a basis for finding guilt on another. Whether such an instruction is required depends on the evidence and the theories in the case, and the failure to give one is evaluated against the record rather than as an automatic error. In cases where the government relies on distinct evidence to prove each separate offense, the need for the instruction may be reduced, but where there is a genuine risk that proof of one count bleeds into another, the careful practice is to give a clear limiting instruction.
Charged offenses and propensity
Multi-count Article 120 cases also raise the question whether the members may consider the evidence underlying one charged sexual offense as propensity evidence on another charged offense. The highest military court has addressed this issue and has limited the use of charged conduct in the same case as propensity evidence against other charged offenses. The practical consequence for instructions is that the judge must be precise about how the members may and may not use the evidence across counts, and must avoid an instruction that invites the members to reason from one charged offense to another on a propensity theory. This is a frequently litigated area, and counsel should confirm the current state of the law before settling on instructional language.
Findings procedures and the concurrence required to convict
Beyond the substantive law, the judge must instruct the members on the mechanics of reaching findings. The members receive a findings worksheet that lists each specification so that they can record a separate verdict on each one, and the judge explains how to complete it. The judge also instructs on the level of concurrence required. Under reforms that took effect with the Military Justice Act of 2016, a conviction by members in a noncapital general court-martial requires the concurrence of at least three-fourths of the members present when the vote is taken, an increase from the earlier two-thirds standard. Capital cases carry their own distinct requirements. The judge instructs the members to vote separately on each specification, so a single trial can produce a mix of guilty and not guilty findings across the counts.
Bottom line
In a complex Article 120 multi-count case, the military judge handles instructions by treating each specification as its own offense. The judge defines the distinct elements of each charged theory, explains the statutory meaning of consent and the limits the statute places on it, instructs on any defense the evidence raises, and uses limiting and spillover instructions to keep the members from importing proof or character inferences from one count to another. The judge then instructs on the findings worksheet and the concurrence needed to convict, so that every specification is decided separately on its own evidence and elements. Because the governing rules and case law in this area continue to develop, the precise instructional language must always be confirmed against current authority.
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.