Prosecution decisions in Article 120 cases, the Uniform Code of Military Justice provision at 10 U.S.C. 920 governing rape, sexual assault, and related offenses, have long been shaped by the unique command structure of the armed forces. The influence of command on these decisions has been one of the most debated subjects in military justice, and it has driven major structural reform in recent years. This article explains how command pressure has historically affected Article 120 prosecutions, how the law restricts that pressure, and how recent changes have shifted the charging authority away from commanders.
The traditional role of the commander
Historically, the authority to decide whether a service member would face a court-martial belonged to the accused’s commander, known as the convening authority. This arrangement placed prosecution decisions inside the chain of command rather than with an independent prosecutor. In Article 120 cases, that created a difficult dynamic. Commanders faced pressure from competing directions: pressure to take sexual assault allegations seriously and refer them to trial, and, in some instances, informal pressure rooted in unit cohesion or personal relationships. Critics argued that this structure could lead either to allegations being underprosecuted to protect valued service members or, conversely, to weak cases being referred to trial to demonstrate that a command was taking the issue seriously.
What the law prohibits: unlawful command influence
Article 37 of the UCMJ prohibits unlawful command influence, which is any improper attempt by a person subject to the code to coerce or influence the action of a court-martial or its members by unauthorized means. Unlawful command influence has long been described in military jurisprudence as a serious threat to the fairness of the system. In the context of Article 120, the concern is that senior leaders, responding to the intense scrutiny surrounding military sexual assault, might pressure subordinates or convening authorities toward a particular outcome, or might create an atmosphere in which panel members feel that leadership expects convictions. Where unlawful command influence is found, it can taint proceedings and provide grounds for relief, because it undermines the independence that the system requires.
The institutional pressure surrounding sexual assault cases
Article 120 prosecutions occur within an environment of heightened political, congressional, and public attention to military sexual assault. For years, reports and oversight bodies documented concerns that the rate of prosecution and the handling of these cases did not match the seriousness of the problem. This created institutional pressure on commanders and the system as a whole. The concern from a fairness standpoint is that pressure to demonstrate responsiveness can push toward referring cases regardless of the underlying strength of the evidence, while the competing instinct to protect the command’s reputation or its members can push the other way. Either pull can distort a decision that should rest on the evidence and the law.
The structural reform: removing commanders from the decision
In response to these long-standing concerns, Congress restructured who makes the charging decision for serious offenses. The Office of Special Trial Counsel, established by the Fiscal Year 2022 National Defense Authorization Act and made operational across the services in late 2023, now holds the authority to decide whether covered offenses, including Article 120 violations, are referred to court-martial. These special trial counsel are specialized, career military prosecutors who operate independently of the accused’s chain of command and report through their own structure rather than to the convening commander. The central purpose of this reform was to insulate prosecution decisions in sexual assault and other serious cases from command pressure and the appearance of command influence.
Has the reform eliminated pressure?
The reform changed who decides, but it did not erase every form of institutional pressure. Independent prosecutors operate within their own institutional environment, subject to oversight and to public and congressional attention to how military sexual assault cases are handled. Observers have noted that moving the decision out of the chain of command addresses the specific problem of a commander’s bias and the specific risk of unlawful command influence under Article 37, but that the broader institutional expectations surrounding these cases remain part of the landscape. The reform’s strength is that it removes the convening commander, who often had personal knowledge of the parties and direct stakes in the unit, from the charging decision.
What this means for an accused
For a service member facing an Article 120 allegation, the practical significance is that the decision-maker has changed. Advocacy aimed at influencing whether a case proceeds is now directed at the special trial counsel rather than the commander. At the same time, the protections against unlawful command influence under Article 37 remain available, and where a senior leader has improperly influenced witnesses, panel members, or the proceedings, the defense can raise that issue and seek relief. Counsel experienced in military justice can identify both the new prosecutorial dynamics and any residual command influence that may affect a case.
Conclusion
Command pressure once sat at the center of Article 120 prosecution decisions, because commanders held the charging authority and operated amid intense scrutiny over military sexual assault. Article 37 has long prohibited unlawful command influence, and the creation of the Office of Special Trial Counsel has now removed the charging decision from the chain of command for these cases. The reform substantially reduces the role of command pressure in the formal decision, even as institutional attention to these cases continues, and it leaves the protections against unlawful command influence intact for situations where improper pressure still appears.
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.