Military Lawyers

Article 120 of the Uniform Code of Military Justice, codified at 10 U.S.C. 920, defines the principal adult sexual offenses in the military, including rape and sexual assault. Service members and their families often ask whether a conviction under this article carries a mandatory minimum sentence, meaning a punishment that the court-martial and the convening authority cannot go below. The accurate answer is yes for certain offenses, but the nature of the mandatory minimum depends on which offense is involved, and the rule is narrower and more specific than many assume.

Where the mandatory minimum comes from

The mandatory minimum for these offenses is not located in Article 120 itself. It is found in Article 56 of the UCMJ, codified at 10 U.S.C. 856, which governs sentencing generally. Article 56(b) directs that for a defined set of serious sexual offenses, the punishment must include, at a minimum, a punitive separation from the service. For an enlisted member that means a dishonorable discharge, and for an officer it means a dismissal. In other words, a person convicted of one of the covered offenses cannot receive a sentence that omits a punitive discharge or dismissal.

Which offenses trigger the requirement

Article 56(b) lists the offenses to which the mandatory minimum applies. They are rape under subsection (a) of Article 120, sexual assault under subsection (b) of Article 120, rape of a child under subsection (a) of Article 120b, and sexual assault of a child under subsection (b) of Article 120b. The requirement also extends to an attempt to commit any of those offenses that is punishable under Article 80, and to a conspiracy to commit any of those offenses that is punishable under Article 81.

For the purposes of a question focused on Article 120, this means that both rape under Article 120(a) and sexual assault under Article 120(b) carry the mandatory minimum of a dishonorable discharge or dismissal. A conviction for either of those offenses therefore guarantees, at a floor, the loss of an honorable separation from the service through a punitive discharge.

What the mandatory minimum does and does not require

It is important to be precise about what the mandatory minimum actually compels. For the listed Article 120 offenses, the mandatory minimum is the punitive discharge or dismissal. The statute does not, for those offenses, impose a mandatory minimum term of confinement. Confinement, reduction in grade, and forfeitures remain …

In a court-martial charging a sexual offense under Article 120 of the Uniform Code of Military Justice, a military criminal investigator is often one of the most consequential witnesses. The investigator usually belongs to a service investigative organization such as the Army Criminal Investigation Division, the Naval Criminal Investigative Service, the Air Force Office of Special Investigations, or the Coast Guard Investigative Service. Understanding what that investigator can and cannot do on the stand requires separating the different functions the testimony serves and the evidentiary rules that govern each.

The investigator as a fact witness

The most basic role is that of a fact witness, sometimes called a lay witness. In this capacity the investigator describes what was done during the investigation and what was observed firsthand. That can include how the report of the offense was received, when and where evidence was collected, how the scene appeared, what the investigator personally saw and did, and how items were handled.

This function is tightly connected to the chain of custody. When the government offers physical evidence in an Article 120 case, such as clothing, a sexual assault examination kit, electronic devices, or photographs, it must show that the item is what it claims to be and that it was not altered. The investigator who seized, logged, or transported the item provides that foundation through testimony about handling and storage. The defense, in turn, often probes the chain of custody and collection practices on cross-examination, looking for gaps, contamination, or deviations from protocol.

The investigator and the accused’s statements

A second major role concerns statements the accused made during the investigation. If the investigator interviewed the accused, the investigator may testify about what the accused said. Before that testimony is admitted, the statement must clear significant legal hurdles.

Article 31 of the UCMJ requires that a service member suspected of an offense be advised of the nature of the accusation, the right to remain silent, and that any statement may be used as evidence, before being questioned by someone subject to the code acting in an official capacity. A statement taken in violation of Article 31, or obtained involuntarily, can be suppressed under the Military Rules of Evidence. So before the investigator recounts an admission or confession, the military judge typically resolves any challenge to how the statement was obtained. If the statement is admitted, the investigator may describe the warnings …

Article 31 of the Uniform Code of Military Justice gives service members a robust protection against compelled self-incrimination, including the right to remain silent and, in many situations, the right to consult counsel before questioning. A member who invokes these rights expects that the questioning will stop and that what they say afterward cannot simply be used against them. Whether a later statement is admissible, however, depends on how the statement came about. The answer is not a flat yes or no; it turns on who restarted the conversation, whether the invocation was honored, and whether any later waiver was knowing and voluntary. This article explains the framework that governs statements made after an Article 31 invocation.

What invoking Article 31 actually does

Article 31(b) requires that before interrogating a suspect, anyone subject to the code who is acting in an official capacity must inform the suspect of the nature of the accusation and of the right to remain silent, and that any statement may be used against them. The Military Rules of Evidence, principally Mil. R. Evid. 305, implement these protections and add a right to counsel in many interrogation settings. Importantly, these protections in the military are not limited to custodial interrogation the way civilian Miranda warnings are; warnings are required whenever an official questions a member who is a suspect, regardless of custody.

When a member invokes the right to remain silent, or requests counsel, the law requires that questioning cease. A statement taken in violation of these requirements is treated as involuntary and is generally inadmissible against the accused.

The key question: who reopened the conversation

The admissibility of a later statement depends heavily on the source of renewed contact. If, after an invocation, the government continues to question the member or initiates new interrogation without honoring the invocation, statements obtained are presumptively inadmissible. The protection would mean little if investigators could simply wait a few minutes and try again. Where a member has requested counsel, the safeguards are especially strong: questioning generally may not resume on the matter until counsel has been provided, unless the member personally reinitiates the discussion.

By contrast, if the member, of their own accord, reopens the subject and reaches out to talk, a later statement can be admissible. A member is free to change their mind. But even then, the statement is admissible only if the government can show that …

People often use the term AWOL loosely to describe any moment a service member is not where they are supposed to be. In practice, the military justice system does not treat every short gap in a member’s presence as a chargeable offense. The same statute, Article 86 of the Uniform Code of Military Justice, covers both the trivial lateness that draws a verbal correction and the multi-day absence that ends in a court-martial. What separates them is not a single bright line but a combination of the offense’s elements, the command’s discretion, and the way the absence began and ended. This article explains how that distinction is actually drawn.

Article 86 covers a spectrum, not a single offense

Article 86 is broader than the popular image of AWOL. It reaches several distinct forms of failure to be present, including failing to go to an appointed place of duty at the time prescribed, leaving that place, and absenting oneself from one’s unit, organization, or place of duty without authority. A service member who shows up fifteen minutes late to a formation and a member who disappears for three weeks can both, in theory, be charged under the same article. The statute does not require any intent to stay away; the wrongful absence itself is the offense.

Because the statute sweeps broadly, the real distinction between a brief lapse and a chargeable absence emerges from three things: whether each element can actually be proven, how long and under what circumstances the absence lasted, and whether the command chooses to treat it as a punishable offense at all.

Proving the elements: inception and termination

To sustain any Article 86 charge, the government must establish a definite inception, the point at which the unauthorized absence began, and a termination, the point at which it ended. A definite inception date is indispensable to a successful prosecution. Termination occurs by return to military control, which can happen through surrender to any military authority, apprehension by military authority, or delivery to military authority by another person. Civilian custody at the request of military authorities can also terminate the absence.

For a very brief lapse, these elements are often hazy or unprovable. A member who steps away momentarily, or who was arguably released or excused, presents proof problems that make a charge unlikely to succeed. A longer absence with a clear departure and a documented return is far …

When a court-martial prosecution falters, whether the panel acquits, the military judge declares a mistrial, or the convening authority withdraws charges, service members and their families often want to know one thing: is it truly over, or can the government regroup and charge something new based on what it learned along the way? The answer depends heavily on how the first case ended and on the constitutional and statutory protections built into the military justice system. There is no single rule. Instead, the outcome turns on whether jeopardy attached, what the first proceeding actually decided, and whether the new charges rest on genuinely different conduct.

The Double Jeopardy Framework in Military Practice

The Fifth Amendment protects against being tried twice for the same offense, and the military codifies that protection in Article 44 of the Uniform Code of Military Justice (UCMJ), titled “Former jeopardy.” A defining feature of military procedure is the moment jeopardy attaches. In a civilian jury trial, jeopardy generally attaches when the jury is empaneled and sworn. In a court-martial, by contrast, the protection attaches when evidence is first introduced on the merits. That timing matters enormously when analyzing whether a second prosecution is permissible, because the question of whether a defendant was ever placed in jeopardy is the threshold inquiry before any retrial or new charge can be considered.

If a court-martial reaches a verdict of not guilty after evidence is introduced, that acquittal is final. The government cannot retry the same offense, and it cannot retry a lesser included offense arising from the same conduct, even if new facts later emerge that the prosecution wishes it had used. An acquittal extinguishes the charge permanently.

When the First Case Ends Without an Acquittal

The picture changes when the first prosecution ends in something other than an acquittal. If charges are dismissed or a proceeding is terminated before evidence is introduced, jeopardy may never have attached at all, leaving the government free, at least as a double jeopardy matter, to charge again. Mistrials present a more nuanced situation. Whether a mistrial bars reprosecution generally depends on why the mistrial occurred and whether the accused consented to it, with mistrials granted at the defense’s request or out of manifest necessity ordinarily permitting a new trial.

A particularly sensitive scenario arises when the government terminates a faltering case after evidence has come in, for example because a key witness …

A denial of character witnesses at a court-martial is not the end of the road. Military law gives the accused a statutory right to obtain witnesses on equal terms with the government, a structured process for requesting their production, and several avenues to challenge a refusal both during trial and afterward. The options available depend on the stage of the case, the type of testimony sought, and whether the witness was relevant to guilt or to sentencing. Understanding the framework is the first step to preserving the issue.

The statutory right to witnesses

Article 46, UCMJ, guarantees that the defense and the prosecution have an equal opportunity to obtain witnesses and evidence. This equality principle is the foundation for every challenge to a witness denial. The rule implementing it, Rule for Courts-Martial 703, entitles a party to the production of any witness whose testimony on a matter in issue would be relevant and necessary. Necessary, in this context, means the testimony is not merely cumulative and would contribute in some positive way to the party’s presentation of the case. So the threshold a military judge applies is relevance plus necessity, not mere helpfulness.

Character evidence sits in two different places at a court-martial, and the rules differ for each. On the merits, an accused may offer evidence of a pertinent character trait, and in some offenses good military character can be relevant to whether the accused committed the charged act. At sentencing, the rules are broader: Rule for Courts-Martial 1001 expressly allows the defense to present matters in extenuation and mitigation, including testimony about the accused’s rehabilitative potential, duty performance, and character. Because the sentencing window is wider, a denial of character witnesses on the merits and a denial at sentencing are analyzed differently.

First option: build the record at trial

The most important option is also the most immediate. When the defense requests a character witness and the military judge or the convening authority denies production, defense counsel should make a detailed offer of proof on the record. That offer should state who the witness is, what the witness would say, why the testimony is relevant to a specific issue, and why it is not cumulative of other evidence. A clear record is what later allows an appellate court to evaluate whether the denial was error and whether it caused harm.

If the government refuses to produce a requested …

Service members spend their working lives urging one another on. A team leader pushes a tired squad to finish a ruck march, a senior enlisted member tells a junior to “make it happen,” and friends in a barracks dare each other to do things they later regret. Most of that pressure is lawful, even when it is intense. Criminal solicitation is something narrower and more serious. The line between the two matters because a conviction for solicitation can carry the same punishment as the underlying offense itself. Understanding where military courts draw that line begins with the elements of the crime.

What solicitation actually requires

Solicitation in the military is charged under Article 82 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. section 882. As amended by the Military Justice Act of 2016, effective at the start of 2019, Article 82 reaches any person subject to the Code who solicits or advises another to commit an offense under the Code. The article treats certain solicitations more harshly, providing enhanced punishment when the offense solicited is desertion under Article 85, mutiny or sedition under Article 94, or misbehavior before the enemy under Article 99. For all other offenses, the punishment is as a court-martial may direct.

To prove solicitation, the government must establish that the accused solicited or advised a particular person or persons to commit an offense, and that the accused did so with the specific intent that the offense actually be committed. If the solicited offense was in fact committed or attempted as a result, that becomes an additional matter, but the crime of solicitation is complete the moment the serious request is made with the required intent, whether or not anyone acts on it.

The two elements that separate crime from pressure

The distinction between solicitation and ordinary peer pressure lives almost entirely in two requirements: the seriousness of the request and the intent behind it.

First, the words or conduct must reasonably be understood as a serious request or piece of advice to commit a crime. The act of soliciting can be spoken, written, or expressed through conduct, but it must rise above idle talk. The controlling question a court asks is whether the act or conduct may reasonably be construed as a genuine request that the listener commit the offense. Banter, sarcasm, venting, hypothetical debate, and bravado generally fail this test because …

An Article 32 preliminary hearing is the gateway to a general court-martial, but it is a narrower proceeding than many people expect. After Congress amended Article 32 in the National Defense Authorization Act for Fiscal Year 2014 and the President revised Rule for Courts-Martial (RCM) 405, the hearing changed from a broad investigation into a limited probable-cause and disposition review. That shift directly shapes whether, and how, expert testimony fits into the proceeding. The short answer is that expert testimony is not categorically barred, but the structure of the modern Article 32 hearing makes live expert testimony unusual and tightly constrained.

What the modern Article 32 hearing decides

The preliminary hearing officer, often called the PHO, has a defined and limited mission. The officer determines whether there is probable cause to believe an offense was committed and that the accused committed it, whether the convening authority has court-martial jurisdiction over the offense and the accused, the proper form of the charges, and a recommendation as to disposition. The hearing is not a discovery device and not a trial. Because the questions are limited, the evidence and witness examination are limited to matters relevant to those determinations. If a party offers material outside that scope, the preliminary hearing officer is supposed to halt it.

This narrowing is the single most important factor when evaluating expert testimony. A topic that would be central at trial, such as the reliability of a forensic method or the interpretation of a complex medical finding, may simply be unnecessary to decide whether probable cause exists.

How evidence reaches the hearing officer

At a preliminary hearing the government can meet its burden largely on paper. The hearing officer may consider sworn or unsworn statements, reports, and other documents, including matters that would be inadmissible hearsay at a court-martial. Witnesses do not have to appear live for their information to be considered. This is a deliberate design choice: the hearing tests probable cause, not the ultimate admissibility or weight of evidence.

For expert input, this means an expert’s written report or affidavit can be presented to the hearing officer without the expert ever testifying in person. In many cases that is how expert material enters an Article 32 hearing, through documents rather than live testimony.

When can an expert actually testify live?

Live testimony at a preliminary hearing turns on relevance and availability. A witness, including an expert, …

After an Article 32 preliminary hearing concludes, the preliminary hearing officer prepares a report containing findings and recommendations about whether probable cause exists and how the charges should be disposed of. Many service members and even some counsel assume the report is the final word that goes straight to the convening authority. In fact, the defense has a defined opportunity to respond in writing, and using that opportunity well can shape how the convening authority views the case. Yes, a defense team can file a written rebuttal to the preliminary hearing officer’s findings, and the rules establish how and when to do it.

The Preliminary Hearing Officer’s Report

The Article 32 preliminary hearing is governed by 10 U.S.C. 832 and by Rule for Courts-Martial 405. The preliminary hearing officer, often abbreviated PHO, presides over the hearing and then produces a report that addresses whether the charges are warranted, whether probable cause exists to believe an offense was committed and the accused committed it, whether the court-martial would have jurisdiction, and a recommendation as to the disposition of the charges. Because that report is forwarded to the convening authority who decides whether and how to refer charges, it carries real influence over the path of the case.

The Right to Submit Objections to the Report

Rule for Courts-Martial 405 builds in a structured window for the defense to respond. After the preliminary hearing report is provided, the accused has five days to submit objections to the report. This is the formal mechanism through which a defense team challenges the PHO’s findings, recommendations, and the conduct of the hearing itself. Objections might contend that the PHO misapplied the probable cause standard, overlooked exculpatory evidence, mischaracterized testimony, improperly limited the defense, or reached a disposition recommendation unsupported by the record.

This five-day period is not merely a courtesy. Under Rule for Courts-Martial 405, failure to make a timely objection to the conduct of the preliminary hearing or to the report constitutes forfeiture of the objection. That makes the written submission strategically important: an issue not raised in the response may be treated as forfeited later. The rule does provide a safety valve, because the convening authority who directed the hearing, a superior convening authority, or the military judge may grant relief from that forfeiture for good cause shown. Even so, the prudent course is to raise every legitimate objection within the window rather …

It is common for a single course of alleged sexual misconduct to be charged under more than one article of the Uniform Code of Military Justice. A service member may face a specification under Article 120, which covers rape and sexual assault, alongside a specification under Article 134, the general article, addressing related conduct. Service members understandably find this confusing and sometimes alarming, because it can look as though the government is charging one act twice. The military justice system has settled doctrines for handling these dual accusations, and understanding them clarifies both why prosecutors charge this way and how the defense responds.

What each article covers

Article 120, found at 10 U.S.C. 920, is the specific statute governing rape, sexual assault, aggravated sexual contact, and abusive sexual contact, with companion provisions addressing offenses against children and certain other sexual conduct. It defines distinct theories of liability, such as conduct accomplished by force, by threat, or upon a person incapable of consenting.

Article 134, the general article, reaches conduct that is prejudicial to good order and discipline or that is service discrediting, as well as certain offenses specifically enumerated under it. In the sexual misconduct context, Article 134 is used to capture conduct that does not fit squarely within Article 120’s defined offenses, including matters that affect good order and discipline but fall outside the precise elements of the specific statute. Because the two articles protect overlapping but not identical interests, conduct can sometimes fairly be described under both.

Why prosecutors charge under both

There are legitimate reasons the government pleads in the alternative or pleads multiple articles arising from one episode. Prosecutors frequently charge alternative theories of liability so that the factfinder can choose the theory the evidence supports. For example, the government may charge both a force-based and an incapacity-based theory of the same encounter when the evidence could support either. Prosecutors also use Article 134 to reach peripheral conduct that the specific statute does not cover cleanly, or to address the good-order-and-discipline dimension of misconduct. The general goal is to align the charges with the full range of available evidence and the various interpretations that may emerge as the case develops.

This kind of alternative pleading is not by itself improper. What the law polices is the risk that a single course of conduct will be punished multiple times or charged in a way that exaggerates the …