Military Lawyers

Article 120 of the Uniform Code of Military Justice, codified at 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, with a conviction for rape carrying a maximum of life confinement and sexual assault carrying up to 30 years. Because the stakes are so high and the procedural terrain is unique to the military, the kind of courtroom experience a defense attorney brings to an Article 120 case matters a great deal. Not all litigation experience translates. The question is not simply whether a lawyer has tried cases, but whether the lawyer has tried these cases, in this forum, against these prosecutors.

Experience inside the court-martial forum

A court-martial is not a civilian criminal trial. The rules of procedure come from the Rules for Courts-Martial (RCM), the rules of evidence come from the Military Rules of Evidence (MRE), and the panel that decides guilt is composed of service members rather than a jury drawn from the general public. Counsel who has actually litigated under these rules understands details that have no civilian analog: how members are selected and challenged, how voting on findings and sentence works, and how a military judge manages the courtroom. An attorney whose experience is limited to state or federal civilian courts may be a skilled advocate, yet still be learning the forum during the most important trial of a client’s life.

Familiarity with the Military Rules of Evidence in sex-offense cases

Article 120 trials turn heavily on evidentiary rulings, and several Military Rules of Evidence apply almost exclusively in sexual-offense litigation. MRE 412, often called the rape shield rule, restricts evidence of an alleged victim’s other sexual behavior and requires a specific motion and closed hearing to admit anything within its scope. MRE 413 allows the government to introduce evidence of other sexual offenses to show propensity, a powerful tool that experienced defense counsel know how to confront. MRE 513 governs the psychotherapist-patient privilege, which frequently becomes a battleground over access to counseling records. Lawyers who have litigated these motions repeatedly recognize how a single ruling can reshape an entire case, and they prepare the record accordingly.

Hands-on experience with the new prosecution structure

The military justice system has changed significantly. The Office of Special Trial Counsel, created by the Fiscal Year 2022 National Defense Authorization Act and …

Few issues in military justice generate as much litigation as the meaning of consent under Article 120 of the Uniform Code of Military Justice. Sexual assault prosecutions often rise or fall on whether the alleged victim consented, and on whether the accused reasonably believed consent existed. This article examines how the statute defines consent, how the mistake of fact defense works, and what the standard of reasonableness actually demands. It focuses on the law itself rather than on any particular case.

Where Consent Lives in the Statute

Article 120 is codified at 10 U.S.C. 920 and addresses rape and sexual assault generally. Congress significantly rewrote the statute over the past two decades, including a major revision that took effect in 2012, so practitioners must be careful to apply the version of the law in force at the time of the alleged conduct. The discussion here describes the current framework.

The statute supplies its own definition of consent rather than leaving it to common usage. Under Article 120, consent means a freely given agreement to the conduct at issue by a competent person. That single sentence carries a great deal of weight, and the statute adds several clarifications that shape how it is applied.

What Does Not Count as Consent

The statute is explicit that certain things do not establish consent.

An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance does not by itself constitute consent. Submission resulting from the use of force, threat of force, or placing a person in fear does not constitute consent. And a current or previous dating, social, or sexual relationship, standing alone, does not constitute consent, nor does the manner of a person’s dress.

These provisions reflect a deliberate policy choice. The law rejects the older notion that a victim must physically fight back to show non-consent, and it rejects the idea that a prior relationship operates as ongoing permission. The focus is on whether agreement was freely given for the specific conduct at issue, not on the victim’s history or appearance.

The Competent Person Requirement

Consent must come from a competent person. A person who is asleep, unconscious, or otherwise unaware that the conduct is occurring cannot consent. Likewise, a person who is incapable of consenting due to impairment by a drug, intoxicant, or other similar substance, or due to a mental …

A personality disorder discharge is an administrative separation that ends a service member’s career on the stated ground that the member has a longstanding pattern of behavior that interferes with military service. When such a discharge follows closely after the member has reported a sexual assault, it raises serious legal and factual questions. Advocates and oversight bodies have documented cases in which members who reported being assaulted were then separated for a supposed personality disorder, losing benefits and carrying a characterization that did not reflect the real reason for their departure. This article explains the legal standards that govern these discharges, the special protections that apply when a separation follows a sexual assault report, and the avenues available to challenge or upgrade a discharge after the fact.

What a Personality Disorder Discharge Is

A personality disorder discharge is not a medical retirement and is not a disability separation. It is an administrative separation premised on a diagnosed condition that, in the military’s view, is a deeply ingrained and maladaptive pattern of behavior rather than a treatable illness caused by service. Because the condition is characterized as preexisting and not service-connected, a member separated on this basis is generally treated as ineligible for the disability benefits that accompany a medical separation, and may face obstacles obtaining certain veterans benefits depending on the characterization of service.

The distinction between a personality disorder and a service-connected mental health condition is therefore enormous in its consequences. A diagnosis of post-traumatic stress disorder arising from an assault points toward treatment, possible disability evaluation, and continued benefits. A diagnosis of a personality disorder points toward administrative separation with reduced or denied benefits. When a member who has reported a sexual assault is separated under the personality disorder label rather than evaluated for trauma-related conditions, the difference can determine whether that member receives care and support or is cut off from it.

The Legal Standards Governing the Discharge

Department of Defense policy and the implementing service regulations impose procedural requirements that must be satisfied before a member may be involuntarily separated for a personality disorder. The diagnosis must be made by an appropriate mental health professional and must meet the clinical criteria the regulations require. The member must be formally counseled about the deficiency and given a reasonable opportunity to overcome it before separation proceeds. The member must receive written notification of the proposed separation and the …

The Article 32 preliminary hearing is the gateway between an investigation and a general court-martial. Before a service member can be tried by general court-martial, Article 32 of the Uniform Code of Military Justice, codified at 10 U.S.C. 832, generally requires that a preliminary hearing be held. The way evidence is treated at that hearing differs sharply from the rules that govern a trial, and those differences shape what defense counsel can accomplish, what the government must disclose, and how the hearing officer reaches a recommendation. Evidentiary issues are at the center of nearly every disputed Article 32 hearing.

From Investigation to Preliminary Hearing

For decades the Article 32 proceeding functioned as a broad pretrial investigation that doubled as a powerful discovery tool for the defense. That changed with the National Defense Authorization Acts for fiscal years 2014 and 2015, which rewrote the statute and narrowed the proceeding into a focused preliminary hearing. The reforms were driven in large part by concern that sexual assault complainants were being subjected to wide-ranging and intrusive questioning at hearings that had drifted far beyond their proper purpose.

After the reforms, the hearing has a defined and limited set of objectives. The preliminary hearing officer determines whether there is probable cause to believe that an offense was committed and that the accused committed it, determines whether a court-martial would have jurisdiction over the offense and the accused, considers the form of the charges, and recommends a disposition of the case. The hearing is no longer designed to serve as a vehicle for open-ended discovery. This change in purpose is the source of most of the evidentiary tension that arises today.

The Limited Role of the Military Rules of Evidence

At a court-martial, the Military Rules of Evidence apply in full. At an Article 32 preliminary hearing, they do not. Rule for Courts-Martial 405 makes only a narrow set of evidentiary rules applicable to the hearing. The rules on privileges apply. The protections of Military Rule of Evidence 412, the rape shield rule, apply. And the rules concerning the privilege against self-incrimination apply. The remaining rules of evidence, including the hearsay rules and most foundational requirements, do not bind the preliminary hearing officer.

The practical result is that the preliminary hearing officer may consider relevant information in any reasonable form. Sworn statements, investigative reports, laboratory results, business records, and similar materials may be received and …

The United States and France both maintain professional armed forces governed by distinct bodies of military law, but the two countries have made strikingly different institutional choices about who judges service members and where. The United States keeps a self-contained system of military courts staffed by uniformed personnel and governed by a single federal code. France, by contrast, abolished its standing peacetime military tribunals decades ago and routes most cases through specialized chambers of its ordinary civilian courts. Comparing the two reveals two democracies that share a commitment to discipline and the rule of law while reaching opposite conclusions about the proper home for military justice.

The American framework: the UCMJ and courts-martial

In the United States, military law is largely codified in the Uniform Code of Military Justice, a federal statute found in Title 10 of the United States Code. The UCMJ defines offenses, establishes the court-martial system, and applies to members of all the armed services. It is supplemented by the Manual for Courts-Martial, which contains the rules of procedure and evidence and the details of punishment.

The American system is notable for being largely internal to the military. Charges are brought within the command, and cases are tried before courts-martial. There are three types: summary courts-martial for minor offenses, special courts-martial as an intermediate forum, and general courts-martial for the most serious charges. Military judges preside, and panels of service members can serve a role analogous to a jury, though an accused may often elect trial by judge alone. The convening authority, a commander, plays a central role in referring cases for trial.

Appellate review is also handled largely within a military structure. Each service has a Court of Criminal Appeals, and above them sits the United States Court of Appeals for the Armed Forces, an appellate court staffed by civilian judges appointed to fixed terms. From there, limited review by the Supreme Court of the United States is possible. The result is a system that begins and largely ends inside structures dedicated to the military, with civilian oversight layered at the top.

The French framework: civilian courts with military specialization

France took a different path. A law associated with the reforms of the early 1980s suppressed the standing military tribunals that had previously tried service members in peacetime. Since then, offenses committed by French military personnel in connection with their service are tried, in peacetime and …

The question of whether the Army uses misconduct-based discharges to remove soldiers who report sexual assault has been raised by advocates, journalists, and oversight bodies for more than a decade. It is a serious charge, and answering it honestly requires separating documented findings from speculation. The available record, including an official Department of Defense Inspector General review and independent investigations, shows a real and recurring pattern of concern, while also showing that the picture is complicated. This article examines what the misconduct discharge is, what the evidence actually establishes, and what protections and remedies exist.

What a Misconduct-Based Discharge Is

A misconduct-based discharge is an administrative separation grounded in a pattern of misconduct, a serious offense, or commission of acts that the service deems incompatible with continued service. It is distinct from a punitive discharge adjudged by a court-martial. Depending on the underlying conduct and the separation authority, a misconduct separation can result in a general discharge under honorable conditions or an other-than-honorable discharge. An other-than-honorable characterization can sharply limit a former soldier’s access to Department of Veterans Affairs health care, education benefits, and other support.

Because the characterization controls so many downstream benefits, the stakes of a misconduct discharge are high. A soldier separated for misconduct with an other-than-honorable characterization may be shut out of the very veterans services that a trauma survivor most needs.

The Concern: Misconduct as a Pretext

The central concern is that misconduct discharges can be used, deliberately or through institutional indifference, to remove soldiers who have reported being sexually assaulted. The mechanism that worries advocates is the link between trauma and behavior. A soldier who has been assaulted may experience symptoms such as substance misuse, absence, insubordination, or other behavioral changes. If a command treats those behaviors as ordinary misconduct rather than as consequences of trauma, the soldier can be separated for misconduct connected to the very assault the soldier reported. The result is that the survivor loses both a career and benefits, while the assault itself fades from the institutional record.

This is not a purely theoretical worry. The leadership of an advocacy organization founded by a former Air Force chief prosecutor publicly stated that the organization regularly heard from people who, after reporting sexual assault, were threatened with discharge for mental health reasons or for misconduct charges connected to the assault. That account describes exactly the pretext concern at the heart of …

Desertion is one of the most serious unauthorized-absence offenses in military law. Article 85 of the Uniform Code of Military Justice, codified at 10 U.S.C. 885, punishes a service member who leaves with the intent to remain away permanently, who leaves to avoid hazardous duty or to shirk important service, or who deserts to or surrenders to the enemy. The questions and answers below explain the elements, the role of intent, the punishment, and how desertion differs from simple absence without leave.

Understanding the Statute

What does Article 85 prohibit?

It prohibits desertion in several forms: absenting oneself from the unit, organization, or place of duty with the intent to remain away permanently; quitting one’s unit or place of duty with the intent to avoid hazardous duty or to shirk important service; and, in the gravest form, desertion to or surrender to the enemy.

Where is the offense located?

It is codified at 10 U.S.C. 885. The elements, definitions, and sample specifications are set out in Part IV of the Manual for Courts-Martial.

Did the 2019 Military Justice Act change the article number?

No. Desertion remained Article 85 through that reform, so the citation has been stable.

What makes desertion different from other absence offenses?

The defining feature is intent. Desertion requires a specific intent, such as the intent to remain away permanently, that ordinary absence without leave does not require.

The Elements

What are the elements of desertion with intent to remain away permanently?

The government must prove that the accused absented themselves from their unit, organization, or place of duty; that the absence was without authority; and that, at some point during the absence, the accused intended to remain away permanently.

What are the elements of desertion to avoid hazardous duty or shirk important service?

The government must prove that the accused quit their unit, organization, or place of duty; that they did so with the intent to avoid a particular hazardous duty or to shirk a particular important service; that the duty or service was in fact hazardous or important; that the accused knew this; and that the accused remained absent until the absence was terminated.

What is the core of desertion to or surrender to the enemy?

This form punishes a member who, without authority, goes over to the enemy or who surrenders to the enemy through cowardice or otherwise without justification. It is treated as …

The United States and the United Kingdom are close military allies whose forces train and deploy together, yet the two countries run their military justice systems on different foundations. Both grew out of a shared Anglo-American legal heritage, and both aim to balance discipline with fairness, but they differ in their source of law, the structure of their courts, the way panels reach verdicts, the role of commanders, and the place of civilian courts. This article compares the two systems as they operate today, drawing on the current governing law in each country.

The Source of Military Law

In the United States, military justice is governed primarily by the Uniform Code of Military Justice, a federal statute enacted by Congress and codified in Title 10 of the United States Code. The UCMJ is implemented through the Manual for Courts-Martial, an executive document issued by the President, which contains the Rules for Courts-Martial, the Military Rules of Evidence, and the punitive articles. The most significant recent overhaul came through the Military Justice Act of 2016, whose major provisions took effect on January 1, 2019, and which renumbered and revised many articles.

In the United Kingdom, the governing statute is the Armed Forces Act 2006, which came into force on October 31, 2009. Before that act, the three services operated under separate statutes: the Army Act 1955, the Air Force Act 1955, and the Naval Discipline Act 1957. The 2006 Act unified these into a single system of service law applying to the Royal Navy and Royal Marines, the British Army, and the Royal Air Force. Parliament periodically renews and amends the framework through later Armed Forces Acts, reflecting the constitutional tradition that the standing armed forces require regular parliamentary authorization.

A key structural similarity is that both systems are creatures of the national legislature. A key difference is that the United States layers a detailed presidential Manual on top of its statute, whereas the United Kingdom relies on the Act together with secondary legislation, such as Court Martial rules made under the Act.

The Structure of the Courts

The United States uses three levels of court-martial: summary, special, and general. A summary court-martial handles minor offenses with limited punishment authority. A special court-martial is roughly comparable to a misdemeanor-level court. A general court-martial is the most serious forum and can try the gravest offenses. A general court-martial is presided over by …

The United States and the People’s Republic of China field two of the largest armed forces in the world, and each governs its troops through a distinct body of military law. The American system rests on a single congressional statute, an adversarial trial process, and appellate review by civilian judges. The Chinese system is built into a party-state structure in which the armed forces, the courts, and the prosecuting organs all operate under the leadership of the Communist Party and the Central Military Commission. This article compares the two systems by examining their legal foundations, court hierarchies, prosecution and defense, the handling of serious offenses, the rights of an accused, and the way each country obtains its service members.

Legal foundations

In the United States, military criminal law is unified in the Uniform Code of Military Justice (UCMJ), enacted by Congress in 1950 and codified in Title 10 of the United States Code. The UCMJ defines offenses, guarantees procedural rights, and authorizes the President to issue the Manual for Courts-Martial, which contains the Rules for Courts-Martial and the Military Rules of Evidence. The Military Justice Act of 2016, effective in 2019, modernized sentencing and the role of the military judge. The same code applies to every branch, from the Army to the newly established Space Force.

China governs its military through a layered framework rather than one consolidated criminal code. The National Defense Law sets the broad structure of the armed forces. The Criminal Law of the People’s Republic of China contains a dedicated set of crimes committed by military personnel in violation of their duties, which functions as the substantive law for prosecuting soldiers, and the Criminal Procedure Law supplies the trial rules. Overlaying all of this is the authority of the Central Military Commission, the body that commands the People’s Liberation Army and the People’s Armed Police and that issues military regulations governing discipline. A notable recent development gave the Central Military Commission authority to adjust how criminal cases are handled in wartime, underscoring how closely military justice in China is tied to command authority rather than to an independent code.

Court structure and oversight

The American court-martial system uses three trial forums. A summary court-martial disposes of minor misconduct, a special court-martial resembles a misdemeanor court, and a general court-martial tries the gravest offenses and can impose the most severe sentences. Following the 2016 reforms, a general …

Article 82 of the Uniform Code of Military Justice punishes the act of soliciting or advising another person to commit a military offense. It is an inchoate offense, meaning the crime can be complete the moment the request is made, regardless of whether the person solicited ever agrees or acts. The following thirty-five questions and answers explain how Article 82 works, what the government must prove, how it relates to conspiracy and attempt, and how it is punished. This is general legal education and not legal advice.

1. What does Article 82 cover?

Article 82, codified at 10 U.S.C. section 882, punishes a person subject to the Code who solicits or advises another to commit an offense under the Code. The statute is sometimes titled solicitation and is also described as soliciting commission of offenses.

2. What does it mean to solicit an offense?

To solicit means to seriously request, advise, command, counsel, or otherwise encourage another person to commit an offense. The essence is urging or asking someone else to break the law.

3. Does the person solicited have to agree?

No. Solicitation is complete when the request or advice is communicated with the required intent. Whether the other person agrees, refuses, or does nothing does not undo the offense, although it affects how the offense is punished.

4. What are the elements of solicitation?

In general, the government must prove that the accused solicited or advised another to commit an offense, and that the accused did so with the intent that the offense be committed. Where the statute treats specific serious offenses differently, additional considerations about whether the offense was committed or attempted affect punishment.

5. Is intent required?

Yes. The accused must have intended that the solicited offense actually be committed. A statement made in jest, hypothetically, or without any genuine desire that the crime occur does not meet the intent requirement.

6. Can words alone be enough?

Yes. Solicitation is fundamentally a crime of communication. Spoken words, written messages, or any clear communication urging another to commit an offense can satisfy the conduct element, provided the required intent is present.

7. Which offenses does the statute single out?

The statute gives special treatment to solicitation or advice to commit certain grave offenses, including desertion in violation of Article 85, mutiny, sedition, and misbehavior before the enemy in violation of Article 99. These are treated as especially …