Military Lawyers

Article 120 of the Uniform Code of Military Justice, codified at 10 U.S.C. 920, is the central statute governing rape, sexual assault, and related sexual offenses in the armed forces. One of the terms that does the most work inside the statute, yet confuses many service members and even some commanders, is “bodily harm.” Because the meaning of that phrase is far broader than ordinary usage suggests, understanding it is often the difference between recognizing a sexual assault charge for what it is and misjudging the government’s burden.

The statutory definition

Article 120 contains its own list of defined terms, and “bodily harm” is one of them. Within the statute, the phrase means any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact. That definition is deliberately expansive. It does not require a bruise, a cut, a broken bone, or any visible injury at all. It does not require pain. The “harm” the statute is concerned with is the violation of bodily integrity that occurs when one person touches another without consent.

This is the single most important point for a service member to grasp. In everyday speech, “bodily harm” implies physical injury. Under Article 120, the very act that constitutes the alleged sexual assault can itself supply the bodily harm. An unwanted sexual act, by definition, is an offensive touching, and that offensive touching is the bodily harm.

How “bodily harm” functions inside the sexual assault offense

Article 120 is divided into separate offenses, each with its own elements. Sexual assault is set out in its own subsection and can be committed in several distinct ways. One of those ways is committing a sexual act upon another person by causing bodily harm to that person.

Read against the statutory definition, this theory of sexual assault becomes circular in a way Congress intended. If the accused commits a nonconsensual sexual act, that act is itself the bodily harm. So the government can prove this form of sexual assault by showing the sexual act occurred and that it was nonconsensual, without proving any separate physical injury. The offensive touching and the sexual act are the same conduct.

A second, more familiar pattern also fits within “bodily harm.” Suppose the accused grabs, restrains, strikes, or pushes the other person and then commits a sexual act. The grabbing or striking is a separate offensive touching that also …

Article 99 of the Uniform Code of Military Justice, codified at 10 U.S.C. section 899, addresses misbehavior before the enemy. It is among the most serious offenses in military law because it targets conduct in combat, where courage, cohesion, and discipline matter most. A common question is what sentence a service member faces when the misbehavior did not actually cause anyone’s death or a failed mission. The answer is that the maximum punishment remains extraordinarily high regardless of the outcome, but the absence of catastrophic consequences becomes central to the sentencing argument.

What Article 99 Covers

Article 99 reaches nine distinct forms of misbehavior before the enemy. These include running away; shamefully abandoning, surrendering, or delivering up any command, unit, place, or military property that it was the service member’s duty to defend; endangering the safety of such a command, unit, place, or property through disobedience, neglect, or intentional misconduct; casting away arms or ammunition; cowardly conduct; quitting one’s place of duty to plunder or pillage; causing false alarms; willfully failing to do one’s utmost to encounter, engage, capture, or destroy enemy troops or equipment; and failing to afford practicable relief and assistance to allied or United States forces engaged in battle.

What unifies these forms is the combat setting. The offense is defined by misconduct in the presence of, or in operations against, the enemy, where the integrity of the unit and the mission is most vulnerable.

The Maximum Punishment Does Not Depend on the Result

The defining feature of Article 99 sentencing is its severity. The statute provides that a person found guilty of misbehavior before the enemy shall be punished by death or such other punishment as a court-martial may direct. Article 99 is one of the few provisions in the UCMJ that authorizes the death penalty.

Critically, this maximum does not require that the misbehavior caused a death or a mission failure. The authorized punishment attaches to the offense itself, committed in the combat context, not to a particular harmful outcome. As a result, even where no service member died and no mission was lost, the offense remains punishable up to the statutory maximum, including the most severe penalties the law allows. The conduct is treated as grave because of the danger it creates and the breach of duty it represents in combat, not solely because of the consequences that happened to follow.

How the Absence

…

Two very different UCMJ articles can come to mind when an officer’s words or conduct in combat seem to express disloyalty: Article 99, misbehavior before the enemy, codified at 10 U.S.C. section 899, and Article 88, contempt toward officials, codified at 10 U.S.C. section 888. They address distinct wrongs and are not interchangeable. Understanding how, and whether, they interact in a combat setting requires separating what each article actually punishes, because the overlap is far narrower than the phrase expressing disloyalty under fire might suggest.

What Article 99 punishes

Article 99 targets misconduct in the presence of the enemy. It applies to a member of the armed forces serving before, in the presence of, or in proximity to the enemy, and it criminalizes a list of combat-related failures. These include running away, shamefully abandoning or surrendering a place or command, casting away arms or ammunition, cowardly conduct, willfully failing to do the utmost to encounter or destroy the enemy, quitting one’s place of duty to plunder, and similar offenses that endanger the mission and fellow service members in the face of hostile forces. Article 99 is fundamentally about conduct in battle, the failure to fight, defend, or do one’s duty when the enemy is at hand. It is one of the most serious offenses in the Code precisely because the stakes in combat are lives and missions.

What Article 88 punishes

Article 88 is an entirely different kind of offense. It makes it a crime for a commissioned officer to use contemptuous words against certain named officials: the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, and the Governor or legislature of any state or territory in which the officer is serving. The offense is unique to commissioned officers and does not apply to enlisted members or warrant officers. The words must be genuinely contemptuous, meaning scornful, disrespectful, or expressing disdain. Mere criticism, even pointed criticism of policy, is not enough; the words must cross from disagreement into disrespect for the official. Article 88 is about the content of an officer’s expression toward specific officials, not about battlefield performance.

Where the idea of disloyalty fits

The phrase expressing disloyalty under fire blends two ideas that the Code keeps separate. If an officer in combat speaks contemptuous words about, for example, the President or the Secretary of Defense, that …

Article 134 of the Uniform Code of Military Justice, the General Article, criminalizes conduct that is prejudicial to good order and discipline, conduct of a nature to bring discredit upon the armed forces, and certain noncapital crimes. The first of these, the prejudice to good order and discipline clause, is one of the most frequently litigated phrases in military law. In practice, the military does not treat it as a catch-all for any conduct a commander dislikes. The courts have built specific limits around what the phrase requires.

The Three Clauses and Where Prejudice Fits

Article 134 contains three clauses. Clause 1 covers conduct prejudicial to good order and discipline. Clause 2 covers conduct of a nature to bring discredit upon the armed forces, often called service discrediting conduct. Clause 3 covers noncapital federal crimes. The prejudice question concerns Clause 1, and it is analytically distinct from the service discrediting clause, even though a single act can sometimes implicate both.

The element that ties any Article 134 charge to the General Article is known as the terminal element. For a Clause 1 offense, the terminal element is that the conduct was prejudicial to good order and discipline. The terminal element is an essential element of the offense, which means the government must plead it and prove it beyond a reasonable doubt like any other element.

The Direct and Palpable Standard

The defining feature of the prejudice clause is that the harm must be direct and palpable, not remote or indirect. Military courts have repeatedly held that conduct is prejudicial to good order and discipline under Article 134 only when it causes a reasonably direct and palpable injury to good order and discipline. Conduct that is prejudicial only in a remote or indirect sense does not satisfy the clause.

This limitation is the practical heart of the definition. It prevents the government from converting any misconduct into an Article 134 offense merely by asserting that, in some attenuated way, it could undermine discipline. The injury must be real, direct, and discernible. The misconduct must operate against the condition of good order, affecting the tranquility, security, and good government of the military service in a manner that is reasonably direct rather than speculative.

What the Government Must Prove in Practice

In a contested case, the panel must be convinced beyond a reasonable doubt that the conduct actually had the required impact on, …

Service members sometimes mishandle protected information without any intent to harm national security and without any classified material ever reaching an unauthorized person. A laptop is taken home in violation of policy. A document is left in an unsecured drawer. Information is moved onto a personal device by mistake. These situations raise a recurring question: can the government prosecute a security breach when the conduct was unintentional and no classified data was actually disclosed? The answer is that prosecution is possible, but the theory shifts away from disclosure offenses and toward duty and handling offenses, and the mental state required varies sharply depending on the charge.

Disclosure is not the only thing the law punishes

A common misunderstanding is that a security offense requires that secrets reach the wrong hands. Much of the legal framework protecting classified and controlled information targets how the material is handled, stored, and safeguarded, not only whether it was leaked. Mishandling can be charged even when no unauthorized person ever saw the information. The breach is the failure to protect the material as the rules require. Whether anyone benefited from that failure goes to severity, not to whether an offense occurred at all.

This distinction is what allows the military to address negligent or accidental conduct. Where there was no leak and no intent to leak, the case is built on the violated safeguarding obligation rather than on espionage-style theories.

The primary tool: Article 92 of the UCMJ

For unintentional breaches, the most frequently used charge is Article 92, failure to obey an order or regulation. The armed services maintain detailed regulations governing the marking, transport, storage, transmission, and destruction of classified and controlled information. When a member fails to follow one of these regulations, Article 92 can apply even though the member never intended a breach and even though nothing was disclosed.

Article 92 reaches three kinds of conduct: violating or failing to obey a lawful general order or regulation, failing to obey other lawful orders the member had a duty to follow, and dereliction in the performance of duties. The dereliction theory is especially relevant to accidental conduct because it can be committed through negligence. To prove dereliction, the government must show that the member had a duty, knew or reasonably should have known of the duty, and was derelict in performing it. Simple negligence can satisfy that standard, which means an honest …

Before most serious charges can be referred to a general court-martial, the Uniform Code of Military Justice requires a preliminary hearing under Article 32. The hearing is conducted by a preliminary hearing officer who examines whether there is probable cause to believe an offense occurred and that the accused committed it, whether the convening authority has jurisdiction, and what disposition the officer recommends. While the hearing officer cannot dismiss charges outright, the recommendations and findings that come out of an Article 32 hearing frequently lead the convening authority to drop or reduce charges before referral. Understanding the most common reasons charges fall away at this stage helps explain why the Article 32 hearing remains a meaningful checkpoint even after Congress narrowed its scope in 2014.

What the Article 32 Hearing Decides

Since the 2014 reforms, the Article 32 proceeding is a preliminary hearing rather than the broad investigation it once was. Its purpose is limited and specific: to determine whether probable cause exists to believe each charged offense was committed by the accused, to confirm jurisdiction over the offense and the accused, to consider the form of the charges, and to make a recommendation on disposition. The hearing officer issues a report. Although that report is advisory and the convening authority retains the decision to refer, a hearing officer’s conclusion that probable cause is lacking carries real weight and is among the leading reasons charges do not move forward.

Lack of Probable Cause

The most direct reason charges drop at this phase is a finding that probable cause is insufficient. Probable cause is a low threshold, but it is not nothing. The government must present enough to support a reasonable belief that each element of the charged offense is met and that the accused is responsible. When the evidence offered does not establish a key element, when it rests on speculation, or when it fails to connect the accused to the conduct, the hearing officer may find probable cause wanting. A recommendation of no probable cause on a particular specification commonly prompts the convening authority to drop that specification.

Weak or Inconsistent Evidence

Closely related is the practical weakness of the government’s proof as it appears at the hearing. Even where some evidence exists, internal inconsistencies, contradictions between witnesses, gaps in a timeline, or an absence of corroboration can undercut the case. Because the defense has an opportunity to cross-examine …

Yes. The Manual for Courts-Martial places real boundaries on what can be asked and examined during an Article 32 preliminary hearing. Those limits are set out in Rule for Courts-Martial 405, which implements Article 32 of the Uniform Code of Military Justice. Understanding these limits matters because the Article 32 hearing of today is a far narrower proceeding than the broad pretrial investigation it replaced.

From investigation to preliminary hearing

For decades Article 32 functioned as a wide-ranging pretrial investigation, sometimes resembling a discovery deposition where the defense could question witnesses at length. Amendments enacted through the National Defense Authorization Acts for Fiscal Years 2014 and 2015 changed that. Congress converted the proceeding from an investigation into a preliminary hearing with a defined and limited purpose. The Manual for Courts-Martial was updated to reflect this change, and the result is that questioning is now tied to a fixed set of issues rather than open exploration of the case.

The four authorized purposes

Under the current rule, the preliminary hearing exists to determine a narrow group of questions. The hearing officer considers whether the charged specification states an offense, whether there is probable cause to believe the accused committed the charged offense, whether the convening authority has court-martial jurisdiction over both the offense and the accused, and what disposition of the charges the hearing officer recommends. Every line of questioning is supposed to serve one of these purposes. Questions that do not bear on whether an offense is stated, on probable cause, on jurisdiction, or on an appropriate recommendation fall outside the scope the Manual authorizes.

How this limits witness examination

Because the proceeding is confined to those purposes, the hearing officer controls the examination of witnesses to keep it relevant. A witness appears only when the testimony is relevant to the limited issues and is not cumulative, and only when the witness is reasonably available. The defense no longer enjoys an open-ended right to call and cross-examine every witness on every topic. Questions aimed at developing trial strategy, locking witnesses into prior statements for later impeachment, or exploring matters that have nothing to do with probable cause can be curtailed. The hearing officer may limit or exclude questioning that strays from the authorized inquiry.

Relevance and reasonable form of evidence

The Manual also directs the hearing officer to consider relevant information in any reasonable form. This means the proceeding is …

Deployment is a constant feature of military life, and it regularly collides with the right to confront witnesses at a court-martial. A witness may be deployed, about to deploy, or stationed somewhere that makes live courtroom testimony difficult. The Confrontation Clause does not vanish because a witness is hard to produce. This article explains how the right to cross-examine is protected when deployment threatens a witness’s availability, what alternatives the rules allow, and what the defense can demand. The point is that the system has structured ways to preserve cross-examination rather than simply admitting an absent witness’s statements.

The confrontation right in the military

The Sixth Amendment’s Confrontation Clause applies to courts-martial, and the Supreme Court’s decision in Crawford v. Washington governs testimonial statements. Under Crawford, a testimonial out-of-court statement by a witness who does not appear at trial is admissible against the accused only if the witness is unavailable and the accused had a prior opportunity to cross-examine that witness. This is the baseline. It means the government cannot ordinarily substitute a deployed witness’s written statement or recorded interview for live testimony unless both conditions are satisfied.

Crawford reframed the analysis around the opportunity for cross-examination rather than the perceived reliability of a statement. So when deployment makes a witness unavailable in the courtroom, the question becomes how to preserve the accused’s chance to cross-examine, not whether the statement seems trustworthy.

What unavailability really requires

Unavailability is not established by the mere fact that a witness has deployed. The government must show it made a good-faith, reasonable effort to produce the witness. Courts have found Confrontation Clause violations where the prosecution made only minimal efforts to secure a witness it labeled unavailable. In the military context, the government often has tools that a civilian prosecutor lacks, because the witness may be a service member subject to orders. The defense can therefore probe whether the government truly could not produce the witness or simply found it inconvenient.

Because witnesses can frequently be brought back, ordered to testify, or connected through technology, deployment alone is a weak basis for declaring unavailability. Establishing genuine unavailability is the government’s burden, and it is a contested issue the defense can litigate.

Preserving cross-examination through a deposition

When a witness is expected to be unavailable for trial, the Rules for Courts-Martial provide a mechanism to preserve testimony in a way that protects confrontation: the deposition. …

A court-martial trying a charge under Article 120 of the Uniform Code of Military Justice depends on continuity. The military judge rules on motions, decides what evidence the panel hears, instructs the members on the law, and in a judge-alone trial also decides guilt and sentence. When that judge has to be replaced after proceedings have begun, the Rules for Courts-Martial set out specific procedures to protect the fairness and integrity of the trial. The replacement can happen for several reasons, and the steps that follow depend on why the judge is leaving and how far the trial has progressed.

Why a Judge Might Be Replaced

A military judge may be replaced for ordinary administrative reasons, such as reassignment, illness, or unavailability, or because the judge is disqualified from continuing. Disqualification is governed by Rule for Courts-Martial 902. Under that rule, a military judge must disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, and the rule also sets out specific grounds, some of which cannot be waived. The discussion accompanying the rule directs a judge to construe grounds for challenge broadly but cautions against stepping down unnecessarily. Whatever the reason, once a sitting judge departs, a new judge must be detailed to the case so the trial can proceed.

Change Before Assembly

Timing matters a great deal. Before a court-martial is assembled, a military judge can be changed without the change being noted in detail, and a new judge may simply be detailed. At that early point the trial has not truly begun in the sense that matters for continuity, so substituting one detailed judge for another raises few procedural concerns. The protections become more demanding once the proceedings are underway, and they are most demanding once evidence on the merits has been presented.

Replacement After the Trial Is Underway

Rule for Courts-Martial 805 governs the presence of the military judge and addresses the effect of a replacement. The military judge is an indispensable participant, and the trial cannot proceed in the judge’s absence. When a new judge is substituted, the central concern is that the new judge must be in a position to perform the functions of the office with full knowledge of what has already happened. The rule and the practice surrounding it are designed to ensure the substitute judge is not deciding matters blind to the record that preceded …

Abusive sexual contact is one of the four principal offenses defined in Article 120 of the Uniform Code of Military Justice, codified at 10 U.S.C. 920. It is the contact-level counterpart to sexual assault. Understanding what qualifies as abusive sexual contact requires separating two distinct ideas: what counts as sexual contact, and what circumstances make that contact criminal under this specific offense.

The structure: contact versus act

Article 120 draws a sharp line between a sexual act and sexual contact. A sexual act generally involves penetration or contact with the genitalia as defined by the statute. Sexual contact is broader and does not require penetration. It refers to touching, either directly or through clothing, of certain intimate areas, or causing another person to do such touching, when done for a prohibited purpose.

Because abusive sexual contact is built on sexual contact rather than a sexual act, it captures conduct that does not rise to the level of rape or sexual assault but is still criminal. This is why the offense often appears as a lesser included offense of the more serious act offenses, and why it is frequently the offense the evidence actually supports when penetration cannot be proven.

The two components of sexual contact

The statutory definition of sexual contact has a physical component and a purpose component. The physical component is the touching itself, of areas the statute identifies as intimate. The purpose component is what transforms an otherwise neutral touch into sexual contact. The touching must be done either with an intent to abuse, humiliate, or degrade any person, or with an intent to arouse or gratify the sexual desire of any person.

This purpose element is essential. An accidental brush, a medical examination, or contact during ordinary physical activity does not qualify unless it was accompanied by the prohibited intent. Conversely, touching over clothing can qualify, because the statute expressly reaches contact through the clothing when the intent and the intimate-area requirements are met.

What makes the contact abusive

Sexual contact alone is not the crime. The contact becomes abusive sexual contact when it occurs under the same circumstances that would make a sexual act constitute sexual assault. In other words, the offense borrows the aggravating circumstances of the sexual assault provision and applies them to contact rather than to an act.

Those circumstances generally include situations where the contact is committed without consent, where the …