Attempted sexual assault and assault consummated by a battery are two different offenses that arise from different articles of the UCMJ, require proof of different elements, and carry different consequences. They can overlap factually, because an unwanted touching that begins a sexual assault may also be a battery, but they are not the same charge. Understanding the distinction matters for how an accused is charged, what the government must prove, and what defenses apply.
Two Different Source Articles
Attempted sexual assault is built from two provisions read together. Sexual assault is defined in Article 120 of the UCMJ, 10 U.S.C. § 920, which addresses rape, sexual assault, and related sexual offenses. The attempt is supplied by Article 80, 10 U.S.C. § 880, the general attempt statute. An attempted sexual assault is therefore a specific intent offense: it requires proof that the accused, with the specific intent to commit the sexual assault, did an overt act amounting to more than mere preparation that tended to effect the commission of the sexual assault, even though the sexual assault was not completed.
Assault consummated by a battery is a separate offense under Article 128 of the UCMJ, 10 U.S.C. § 928, the general assault article. It punishes the actual, unlawful application of force to another person. It is a completed offense, not an attempt, and it does not require any sexual intent at all.
The Core Elements Compared
Attempted sexual assault requires the government to prove specific intent to accomplish a sexual act or sexual contact as defined in Article 120, plus an overt act that goes beyond preparation and tends toward completing that sexual offense, with the offense remaining unconsummated. The focus is on what the accused was trying to do and how far the accused got toward doing it.
Assault consummated by a battery requires proof that the accused did bodily harm to another person and that the bodily harm was done with unlawful force or violence. Bodily harm in this context means an offensive touching, however slight. The touching must actually occur; this is what makes it a battery rather than a mere assault. No specific intent to commit a sexual offense is required, and indeed no sexual element is required at all. A battery can be entirely nonsexual.
Completion Versus Incompletion
The clearest line between the two offenses is completion. Attempt, by definition, addresses conduct that fell short of the intended crime. The accused intended a sexual assault and took a substantial step but did not complete it, perhaps because of resistance, interruption, or some other reason. Assault consummated by a battery, by contrast, describes a crime that was completed in its own terms: an offensive touching actually happened. The battery is finished the moment the unlawful force lands, regardless of whether any further intended objective was achieved.
This is why the two charges can describe the same incident from different angles. If a person grabs another with the intent to commit a sexual act but is stopped before any sexual act occurs, the grabbing itself may be an assault consummated by a battery, while the larger objective may be charged as attempted sexual assault. They capture different aspects of the same conduct: the completed offensive touching on one hand, and the incomplete pursuit of a sexual offense on the other.
The Role of Intent
Intent is the second major distinction. Attempted sexual assault demands proof of the specific intent to commit the underlying Article 120 offense. The government must show that the accused meant to accomplish the sexual act or contact. Without that intent, there is no attempted sexual assault, no matter how the physical conduct looked.
Assault consummated by a battery does not require that sexual intent. It requires only that the offensive touching was done with unlawful force or violence. An accused can be guilty of battery while having no sexual purpose whatsoever. This difference means that proof problems on intent can defeat an attempted sexual assault charge while leaving a battery charge intact, because the battery rests on the touching and the unlawful force, not on the accused’s sexual objective.
How the Offenses Interact in a Single Prosecution
Because assault consummated by a battery requires an element that the sexual offense does not necessarily require, namely the application of unlawful force or violence in the touching, it is not automatically a lesser included offense of every sexual offense. Some sexual offenses under Article 120 are committed by means other than force, such as by placing the victim in fear or by other defined circumstances. In those situations, the battery’s requirement of unlawful force or violence is an additional element that the sexual offense does not contain, so the battery stands as a distinct offense rather than as a necessarily included lesser one.
In practice, charging decisions reflect this. A prosecutor may charge attempted sexual assault to capture the accused’s sexual objective and incomplete effort, and separately or alternatively charge assault consummated by a battery to capture the completed offensive touching that the evidence clearly establishes. The two charges protect against different proof failures.
Punishment and Practical Consequences
The two offenses also carry different consequences. Sexual offenses under Article 120, and attempts to commit them under Article 80, are among the most serious in the military justice system and can trigger sex offender registration and severe confinement exposure. Assault consummated by a battery under Article 128, while serious, generally carries a lower maximum punishment and does not by itself carry the sex offense consequences. The characterization of the conviction therefore has lasting effects on the service member’s liberty and post-service status.
Conclusion
The distinction between attempted sexual assault and assault consummated by a battery rests on three pillars. First, source: attempted sexual assault combines Article 80 with Article 120, while battery arises under Article 128. Second, intent: attempted sexual assault requires specific intent to commit a sexual offense, while battery requires no sexual intent at all, only an offensive touching with unlawful force. Third, completion: attempt addresses an incomplete sexual offense, while battery is a completed offensive touching. The same physical event can give rise to both charges because each captures a different legal feature of the conduct.
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.
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